Copyright risk management: survey findings

Via a news release from the Copyright Clearance Center (CCC) comes the result of a just-released, two-phase FreePint survey of information managers and end-users from companies and countries around the world on copyright needs, behaviour and attitudes. According to this survey, 40% of information managers reported in Phase 1 of the survey that copyright risk management is more important in their organizations than it was a year ago, while none felt that copyright was less important. Why should this be so? Reasons given by the respondents included the following:

• The need to train new staff concerning the company’s risk management policies [nb 'risk management' can mean taking more as well as fewer risks, if the odds don't favour detection and liability, eg regarding some species of orphan works];
• Proliferation of new types of content, particularly digital content;
• Increase of contracting work out to third parties, necessitating the creation of copyright policies both for the company’s own works and for use of others [outsourcing has indeed generated a fresh market for copyright consultancy services, judging by the increased amount of space given to copyright and other IP issues in current outsourcing literature];
• Growing cost of content itself, requiring more attention to managing the risks associated with acquiring and using that content;
• Some countries’ introduction of new laws and regulations applicable to copyright.

The Phase 2 response group of content end users reported similar levels of concern regarding copyright, with 36% deeming copyright more important than a year ago, a further 63% as important as a year ago and less than 1% less important than a year ago.

The FreePint Report, Copyright Policies and Practices can be purchased here, or you can ask for a free summary of high-level results by completing this form.

Sen and the Art of Licence Termination

Here's something interesting from New York lawyer Shourin Sen: US copyright legislation gives authors and enumerated family members the power to terminate certain grants upon the completion of paperwork. These termination provisions, 17 U.S.C. §§ 203, 304(c) and 304(d), apply to, among other things, both exclusive and non-exclusive licences, assignments, mortgages and conveyances -- but not to terminate a "work made for hire" or grants made by will.

Congress enacted the termination provisions in order to give an “author a second chance to control and benefit from his work" and to "secure to the author's family the opportunity to exploit the work if the author died", according to Stewart v Abend, 495 U.S. 207, 218 (1990).

Shourin has launched an online calculator and website to enable readers to evaluate the rights and risks associated with the termination of copyright grants. While the termination provisions are regrettably intricate, this online calculator seeks to people through the basic issues and maths necessary to figure out when an author may terminate a grant. It does not cover all of the contingencies needed to make an evaluation, but seeks at least to provide a useful starting-point.

I thank Shourin for drawing this to my attention and would be interested to hear from any readers who put the calculator through its paces -- or, better still, who would like to review it.

Privilege, Property ... and perhaps a Xmas present

There's a new copyright book just coming out -- Privilege and Property. Essays on the History of Copyright, edited by Ronan Deazley, Martin Kretschmer and Lionel Bently. It's published by Open Book Publishers and comes in hardback, paperback and digital download formats. If you don't want to buy it, you will have the option of reading it online free of charge. It's not yet published, but will be very, very soon (click here) for contents, author list and other details.

I haven't seen it yet, but I'm intrigued both by the prospect of a good, scholarly read and by the business model on which this title is based. With luck, it should maximise exposure of the contributors to their readers while also capturing a chance to secure some income from reasonable pricing plus a flexible set of options such as only the internet can provide. This could be the ideal Christmas stocking filler for the copyright enthusiast who has everything ...

YouTube wins Viacom copyright suit

As widely reported this morning, yesterday US District Judge Louis L Stanton granted summary judgement to YouTube in the long-running copyright dispute brought by Viacom.

The outcome (if not overturned on appeal) is that YouTube will only be obliged to take down clearly defined individual infringing items, rather than undertake any consistent action to remove "clones" of the deleted material as they re-appear.

The judgment is available here courtesy of Scribd and our friend the IPKat has a detailed analysis of the decision here. The IPKat says that an appeal is expected.

This of course comes in the wake of the recent ECJ decision in favour of Google in the "AdWords" case, which also impacts on copyright infringement, given that in that case, as discussed by Hugo on this blog at the time, the Court considered the application of the hosting defence in the E-Commerce Directive, which is the closest equivalent to the DMCA language at issue in Viacom v YouTube.

Infringement stats in Azerbaijan: bad news, or good?

"Majority of Azerbaijan Press Violate Copyrights" is the title of a news item in the latest issue of PETOSEVIC News. For those who relish real evidence, here is some solid fact: some 30 percent of Azerbaijani news portals write their own news stories, while the remaining 70 percent just copy them. This information comes from Azerbaijani Copyright Agency Chairman Kamran Imanov, at the “Copyright in the Mass Media: Problems and Ways of Solution” roundtable held on 14 May.

One might think, from UNESCO's World Anti Piracy Observatory report on Azerbaijan, that the country has a nearly complete set of teeth with which to bite copyright infringement. After all, has there not been lots of capacity-building and plenty of training sessions for enforcement officials? But capacity-training and public sector perks are no use so far as most ordinary copyright owners, left to enforce their own rights privately, are concerned. Given that the lack of copyright enforcement in Azerbaijan has been strongly criticised by the International Intellectual Property Alliance (IIPA), the remarkable thing is not that 70 percent of Azerbaijani pressmen do infringe copyright but that 30 percent -- that's nearly one in three -- don't.

Parody: a new title

The web page says this book isn't published yet (it isn't officially out till August), but I spotted a copy on the table in the reception area of Oxford University Press's palatial headquarters in Jericho. The Oxford Book of Parodies, edited by John Gross, is sadly short of detailed analysis of the legislative and case law provisions governing parody as a defence to copyright infringement, private rights versus freedom of speech, transformative use and so forth, but it is rich in enjoyable examples of parody and great fun. Says the web-blurb:

"Parodies come in all shapes and sizes. There are broad parodies and subtle parodies, ingenious imitations and knockabout spoofs, scornful lampoons and affectionate pastiches. All these varieties, and many others, appear in this delightful new anthology compiled by master anthologist John Gross.

The classics of the genre are all here, but so are scores of lesser known but scarcely less brilliant works. At every stage there are surprises. Proust visits Chelsea, Yeats re-writes "Old King Cole," Harry Potter encounters Mick Jagger, a modernized Sermon on the Mount rubs shoulders with an obituary of Sherlock Holmes. The collection provides a hilarious running commentary on literary history, but it also looks beyond literature to include such things as ad parodies, political parodies, and even a scientific hoax.

The collection includes work by such accomplished parodists as Max Beerbohm, Robert Benchley, Bret Harte, H. L. Mencken, George Orwell, James Thurber, Peter Ustinov, and Evelyn Waugh. And the "victims" include Chaucer, Shakespeare, Milton, Wordsworth, Poe, Longfellow, Emily Dickinson, Conan Doyle, A. A. Milne, Raymond Chandler, Agatha Christie, Cole Porter, Ernest Hemingway, Allen Ginsberg, Martin Amis, and many others. The first and longer of the book's two parts is devoted to English-language authors, arranged in chronological order, along with parodies that they have inspired. The second part includes sections on more general literary topics, on aspects of individual authors which transcend the format of the first part, and on a handful of foreign writers".

Sadly I wasn't kept waiting more than a few minutes, so had little opportunity to sample this book's contents -- but it did seem fun.

The Emperor’s New Copyright

For a court decision to cause a hullabaloo and set off doomsday reports of the end of life as we know it isn’t all that unusual.  But for a court decision that leaves the existing law in place to set off that much ruckus, that is unusual.  Yesterday, the 10th Circuit Court of Appeals in the US handed down just one of these cases.

The case is called Golan and it deals with the effect of the TRIPs agreement on foreign works under US Copyright law.  (full pdf decision.) 

The decision, which leaves in tact the restoration of copyright to certain foreign works has been hailed as “Terrible News” and accused of destroying the public domain.  In reality, neither of these lamentations are correct.

What Happened

After the United States signed the TRIPs agreement, it amended its copyright law to be compliant with both the new TRIPs agreement and the old Berne Convention. (“Compliant” as defined by the US.)  The amended copyright act provided new copyright protection to two types of old foreign works: those that had lost their copyright due to non-compliance with a formality (such as failure to renew after the initial term under the US’s 1909 Copyright Act) and those who had not previously received copyright protection in the US because their country had not then been a member of any of the international copyright treaties to which the US was a party. 

This new protection for old works was called “restored copyright,” and authors who wanted their copyrights restored had to provide notice to known users of the works or the US Copyright Office.

That was the law before Golan, and it is still the law after Golan.

Golan’s Challenge

The plaintiffs in Golan were users of those restored-copyright works who had used the works relying on their status as public domain works.  And they had quite a strong group of copyright experts on their team, including the Stanford Center for Internet and Society and Harvard (of Stanford at the time this case began) Professor Lawrence Lessig.  But the arguments in this case were not about copyright law; they were about constitutional law.  And the defendants, the United States government and the United States Copyright Office, they had the Department of Justice on their team.

The Constitutional Claim

This is the second time Golan has been to the 10th Circuit.  The first time it heard the case, the 10th Circuit affirmed the lower court’s holding with respect to two of the plaintiff’s claims, dismissing claims attempting to argue the violation of the “for a limited time” part of the copyright clause in the Constitution. [full pdf decision.]  But the 10th Circuit also remanded the case to the district court to address whether the law violated the plaintiff’s First Amendment rights.

The district court held that the plaintiffs’ First Amendment freedom of expression rights were violated.  The 10th Circuit disagreed.  And here’s where we need to get a bit into United States Constitutional Law.

First Amendment Law in the US
Details for non-Americans and non-attorneys

The freedom of speech granted by the First Amendment to the US Constitution includes the freedom of expression.  The government is allowed to impinge on this freedom within certain parameters and what they are allowed to do depends on the type of speech they are regulating, how they are regulating it and their interest in regulating it.

There are three options for the court in terms of how the court compares these different pieces to decide if the government’s actions are ok or in violation of the Constitution.  These three options are commonly called levels of scrutiny.  Both parties, the district court and the circuit court agreed that the proper level of scrutiny in this case was intermediate scrutiny.  Agreement all around, always nice.

In order for a law to be upheld as constitutional under this medium level of inspection, intermediate scrutiny, the government must show that it has an important governmental interest in regulating the speech and that the burden placed on speech is not substantially more than necessary.

The Government’s Important Reason

The US Government said it had three important reasons.  The court looked at one, said it was important enough and ignored the other two. 

We might expect that the important interest would be that of the government to uphold US obligations under international treaties.  But then again, we might not be surprised to learn that was one of the reasons the court ignored.

The reason the court found important enough to justify the limit on speech caused by restoring copyright to foreign works was the protection of US works abroad.  Congress passed the amendment to the Copyright Act in part because it believed the world would operate on a you-scratch-my-back-I’ll-scratch-yours basis.  Other countries were refusing to restore copyright to US works in their public domains, - the decision mentions specifically Russia – and the US was told its citizens would get copyright in their works when those countries’ citizens got US copyright in theirs.

The court acknowledged the plaintiffs’ rights and the restrictions restored copyright placed on their speech rights, but it summed up the governments’ interest quite eloquently:

“Although plaintiffs have First Amendment interests, so too do American authors.” (p. 14, internal citation omitted.)

The Not-So-Burdensome Burden

The court found that the restored copyright did not burden the plaintiffs’ speech too much because of a special provision put in the law specifically for people in the plaintiffs’ position. 

In addition to restoring copyright protection to the foreign works mentioned above, the law also created some protections for those people who had used the work relying on its public domain status.  The law gave users a twelve month grace period in which to finish selling or using works with restored copyrights and then provided a mechanism for determining licensing fees if the user wanted to continue using the restored work after the grace period ended.

[British readers may be interested in pages 30 – 33 of the decision where the court spends some time comparing the US system of dealing with the burden on these users to the systems enacted in the UK.]

Separation of Powers

Although this part isn’t really necessary for this blog post and is covered well in-depth by the court decision for those who are really interested, I feel it is necessary to address it at least a bit here because of the mis-information out there in some other posts about this case.

The American government has three branches, the judicial, legislative and executive.  It is structured this way to effectuate a separation of powers, where each branch has its own duties.  Legislative decision making, making laws, belongs to the legislative branch – the US Congress.  Interpreting laws belongs to the judicial branch – the courts.

How to structure laws to effectively enact international treaties is the duty of the legislative branch.  It is Congress that holds hearings with all sorts of interested parties, that listens to the RIAA and the MPAA and those who disagree with the RIAA and the MPAA.  It is Congress that decides which interests are most important for the country to protect and decides how those interests should be protected.  And yes, Congress must stay within the confines of the Constitution when making these laws.  Hence the development of the levels of scrutiny as mentioned above.

When the Golan court discusses how and why Congress made its decision to restore copyright, the court is not looking at whether or not Congress made a good decision.  The court is looking at whether Congress’s decision was reasonable in light of the information it had.  When the Golan decision cites some of the testimony from Congress’s hearings, the court is not “actually rel[ying] on testimony about "losses" from an RIAA official.”  The court is simply giving examples of information upon which Congress relied.

The American people might not agree with Congress’s decision, the judges might not agree with Congress’s decision, but that does not mean the decision is unconstitutional.  It is the people who are supposed to have the power to change the law, not the courts.  The people elect their Congressional representatives to represent their positions.  Whether or not that happens is a whole ‘nother issue not related to this case and addressed very well by Lessig at his site Fix Congress First.

Image credit: “The Emperor’s New Clothes” by Vihelm Pendersen, public domain

BPI warns Google over search links

BPI, the UK recording industry’s trade association has sent a cease-and-desist letter to Google, asking the search engine to take down links to nine "one-click hosting" sites, each of which hosts thousands of illegal songs. The BPI cite 38 links "that are available via Google's search engine, and [requests these] links be removed as soon a possible as they directly link to sound recordings owned by [BPI] members". Simple Google search queries such as keying in artist and song names and then a word like 'MP3', 'download', 'upload' or the name of a file-transfer service lead users to illegal downloads on pages of sites that includes MegaUpload, SendSpace and UserShare. Last October, Google removed links to the Pirate Bay – the infamous illegal BitTorrent tracker – from their search index. The BPI takedown request promoted much chatter online yesterday after it was leaked by the Chilling Effects website with some journalists and bloggers claiming this is a new more aggressive initiative on behalf of the BPI.

CMU Daily says that some commentators also note that the document includes not only a list of specific links to infringing content, but also a list of home page links to the services that have aided the infringement, such as MegaUpload, leading to additional speculation that the BPI is stepping beyond the strict remit of America's Digital Millennium Copyright Act and calling on Google to block access to whole website rather than just infringing content. The BPI has denied there is anything out of the ordinary about this takedown notice to Google and BPI Spokesman Adam Liversage told C-Net that such documents were filed with Google on a regular basis by bodies like the BPI and that "in most cases, Google takes down the links in question, following its own internal procedures".

In more encouraging news for the recorded music sector, The Black Eyed Peas' track 'I Gotta Feeling' has become the first ever single to be downloaded more than one million times in the UK.

http://www.guardian.co.uk/music/2010/jun/22/google-bpi
http://chillingeffects.org/dmca512c/notice.cgi?NoticeID=40373

Linkomanija user lives to fight again

"First case against torrent search engine user fails", by Edita Ivanauskienė and Julius ZaleskisLideika (Petrauskas Valiunas ir partneriai LAWIN), was published last month in International Law Office. You can read it here. This article describes Lithuania's first-ever copyright infringement case against a user of a torrent search engine. This action, in which ANVA, the Lithuanian Anti-piracy Activities Association, sought a ruling of administrative liability against a user of Linkomanija, Lithuania's biggest torrent search engine, was apparently dismissed on what were mainly procedural grounds relating to the collection of evidence.

Actions against internet users for copyright infringement have been possible since Lithuania's Code of Administrative Infringements was amended last year, extending the scope of the earlier provisions which could only be invoked against infringements perpetrated for commercial purposes. In cooperation with the police, the association tracked the internet protocol addresses of 106 Linkomanija users who were downloading and seeding the Microsoft Windows 7 operating system. Based on this information, the police issued a statement of administrative infringement against one of the users.

The Kaunas Regional Court, referring to principles of legality and Supreme Administrative Court case law on the collection of evidence, ruled that there was no evidence that the association, as a public institution, was authorized to collect evidence independently, and no information had been provided as to whether the equipment used to track copyright and related rights infringements by internet users was officially certified. Accordingly the defendant's activity had not been shown to amount to an administrative infringement and the case was dismissed. This decision is under appeal.

Influence and the Copyright Tribunal

In a 14-page ruling in Meltwater Holding BV v The Newspaper Licensing Agency Ltd, CT114/09, 10 June 2010, which you can read in full here, the UK's Copyright Tribunal has confirmed that leading barrister Henry Carr QC -- one of the Tribunal's two deputy chairmen -- can represent a client in proceedings before the three-person Tribunal (the chairman is a lawyer; the other members are laymen). The proceedings in question are part of the big battle between contentious news monitoring service Meltwater Holding BV, which is among other things seeking improved terms for a new web database licence offered by the National Licensing Agency Ltd (NLA).

Obviously, if he was representing Meltwater, Carr wouldn't be able to chair the Tribunal at the same time. Accordingly the hearing of Meltwater's application was scheduled to take place before the other deputy chairman, Colin Birss QC. But might the Tribunal's lay members be likely to be affected by the authority of, and pay undue deference to, Henry Carr's submissions of law?

Presumably influenced by Tribunal chairman Judge Michael Fysh QC -- though, we imagine, not unduly so -- the Tribunal concluded that the NLA had not shown sufficiently that there was any real possibility of unconscious bias arising in the lay member's minds. Certainly there was not enough to lead to a real perception of possible bias to the fair-minded and informed observer. Crucial in this decision was the fact that Henry Carr had not actually sat together with the two lay members (Lucy Connors and Philip Eve) whose turn it was to sit with Colin Birss.

You can check out the full complement of Copyright Tribunal members here.

Flickr Teaming with Getty – Good for Copyright Holders?

Yesterday, Flickr announced a new program available to its users – licensing through Getty Images.  Through the program, users can add a “Request to License” link next to their photos.  Viewers who click this link are put in contact with Getty Images.  Getty licenses the photo to the viewer on behalf of the Flickr user and transfers payment from the viewer to the Flickr user.

At first glance, this program may seem like a really good opportunity for photographers.  But Flickr users interested in the Getty program need to think carefully before jumping on board. 

Getty Images is a large, professional, photo clearing house that has been in business for a long, long time.  Although working with Flickr is a foray into the future, Getty is still an institution based on old business models.  This means a lot a lot of legal gymnastics for anyone wishing to participate, as a photographer or a licensee.

You can check out the FAQ section for more information on model license requirements, the 2-year exclusive contract required for the program and other program details.

Beneficial?

As one Getty program user and supporter comments,

“The effort is not minimal. Gathering model releases, unloading full size images, doing any post processing required, filling in photo details, having to book the shot date in about three different places, uploading model releases seperately [sic] for every photo even if you have the same release for 5 photos from one shoot.”

With all this work required to submit photos, plus the restrictions of a two-year long exclusive contract that prohibits anyone other than Getty Images from licensing your submitted photos and photos similar to your submitted photos – yes that includes even you – is there really any benefit to participating?

After all, there really isn’t a need for a third-party intermediary for licensing photos on Flickr.  Every photographer can easily be contacted via Flickr Mail.  Why should it be necessary to ask a third-party for permission when you can already ask the copyright holder directly?  Additionally, many photographers have already granted licenses to use their photos, without the need to contact anyone.

The most apparent benefit, currently, appears to be the vetting.  Photos admitted to the Getty program are thoroughly reviewed by Getty Images and approved for admission to the program.  Knowing that the vetting is already done might make some photo users feel better about the search process for the right image.  However, Flickr has a strong community that can also serve as a vetting process based on how many views, uses and comments a photo receives.

In the end, the program seems to be more of a way for Getty to increase the number of photographers in its pool than to really help copyright owners with licensing.  But perhaps this judgment is coming too early.

Stretching copyright with contract

Copyright has its limits. To what extent can they be pushed by contract law?

GlobalCOAL facilitates the trading of coal and coal derivatives by means of a standard industry contract (‘SCoTA’) and an online trading platform. Traders and brokers who make use of this platform sign a Product Licensing Agreement. Under this agreement, globalCOAL grants licensees a licence ‘under its Intellectual Property Rights in the globalCOAL Products to use the globalCOAL Products and the Trade Marks’ and in return the licensees undertake not to the ‘use the globalCOAL Products’ in certain ways, including transactions with parties that are not other globalCOAL licensees. ‘Products’ include data, prices, indices and contracts developed and published by globalCOAL.

This agreement was scrutinized last week in Global Coal Ltd v. London Commodity Brokers. The court asked itself: is it only globalCOAL’s IP that licensees are undertaking not to use in prohibited ways or does the undertaking extend further, to not using any of globalCOAL’s information and documents? Mr Justice Briggs came to the conclusion that the undertaking related to the Products, not the IP. If London Commodity Brokers had used the Products in brokering trades with parties that were not globalCOAL licensees, it would be in breach of contract even if it had not made use of globalCOAL’s IP.

So when a licensee signs the agreement he finds himself in some ways more restricted than he was before signing it both because much of the ‘Product’ information is in the public domain and because the restricted ‘uses’ go beyond the types of uses that IP law regulates. Briggs J tried to make sense of this by saying that it would be difficult to trade in this market without making use of globalCOAL’s IP, so globalCOAL’s IP ownership gave it de facto control of the Products. This is questionable and hotly contested by the parties: it seems entirely possible for a broker to implicitly refer to SCoTA and globalCOAL’s index without using the trade marks or copying the contract.

Either way, the licensees’ obligations technically extend beyond IP rights. Copyright could never forbid you to refer to a dictionary when you write something. A contract can, perhaps. Moreover, restricting use of the Products was working more efficiently for globalCOAL than enforcing IP: the court found it easier, quicker and cheaper to determine whether a licensee had used the Products than the IP (e.g. copying SCoTA) – and jurisdiction was cleaner too.

But the advantages may not be without their risks. As the judgment draws to a close, it makes a passing reference to ‘potentially serious issues of abuse of dominant position’, but leaves them for another day.

More freshly-squeezed Lime

In a fresh blow, peer-to-peer file-sharing service LimeWire has been sued for copyright infringement by eight member companies from the National Music Publishers Association (NMPA) headed up by EMI and Universal. The lawsuit is similar to the thus far successful suit filed by the Recording Industry Association of America (RIAA) against LimeWire and its executives, seeking damages and injunctive relief and is also filed in the Manhatten federal court. A trial is scheduled for January and the NMPA said in a statement “The songs that make their illegal venture lucrative don’t appear out of thin air .... Behind every song is a vast network of people - a songwriter, a publisher, a performer, a record label. They have robbed every individual in that chain.”

Limewire publicly remains convinced it can offer legitimate business models to the content owners in the music industry saying in a statement "We have had many promising meetings with labels, publishers, and artists alike about our new music service and a business model that will compensate the entire industry”.

EMI April Music Inc. v. Lime Wire LLC, 10-cv-04695, U.S. District Court, Southern District of New York (Manhattan).

http://www.dailytech.com/New+Suit+Against+Limewire+Could+Total+15+Times+Music+Industrys+Yearly+Income/article18769.htm

Why you won't find Specsavers in the Thesaurus ...

In "Synonyms – a shortsighted attempt to avoid copyright infringement", Tim Golder and Nadia Guadagno discuss Budget Eyewear Australia Pty Ltd v Specsavers Pty Ltd [2010] FCA 507, a recent Australian Federal Court decision in which interim injunctive relief was granted to restrain the use and publication of an advertising campaign where the alleged infringement consisted of the substitution of synonyms for the plaintiff's original work.

In short, Budget alleged that Specsavers' print ad and itscorresponding terms and conditions infringed copyright in two versions of a print advertisement, a radio script and a set of terms and conditions under which an offer in the advertisements were made, seeking interlocutory relief for infringement. Budget pointed to the following phrases as reflecting originality:

'If your Specsavers glasses break – and we're not saying they will – simply bring them into Budget Eyewear. We'll replace them with [sic] pair from our own range – free of charge';

'We're not saying they will, but if your Specsavers glasses break, we'll replace them for free'; and

'If your glasses aren't all they're cracked up to be, don't worry, we'll come to the rescue. For the next two weeks... you can take any Specsavers glasses to your nearest participating Budget Eyewear store and we'll replace them with a pair from our range – free of charge'.

Specsaver's print ad contained the following phrases:

'If your OPSM glasses happen to break, and we're not saying they're going to, we'll exchange them with a pair from Specsavers with a 2 year guarantee, for free'

'If your prescription glasses aren't what you hoped for, don't stress – we're here to help. From Thursday 13th May to Thursday 27th May, take any broken OPSM glasses to your nearest Specsavers store and we'll give you a pair from our range – for free'.

Did copyright subsist in the works? Before asking whether there had been infringement, Bennett J first had to establish whether copyright subsisted in the works at all. She felt there was sufficient evidence of authorship for the purposes of seeking interim relief, and said Budget had an arguable case that

"the way in which a concept is expressed in an advertisement intended to attract customers may involve originality that attracts copyright protection ... the fact that the words are commonplace does not mean that the way in which they are put together cannot have a degree of originality".

On the issue of infringement, Specsavers acknowledged the a causal connection since it had read and absorbed Budget's advertisement and did not deny it had copied the text of Budget's ad for its own ads; it also accepted that it had copied the idea of the campaign, although this copying did not extend to exact word reproduction. Said Budget, Specsavers had sought to avoid infringement by the simple use of synonyms; Specsavers in return argued that the use and arrangement of the words and phrases in the ads was 'obvious and prosaic' and since there was a lack of any requisite originality.

Justice Bennett agreed with Budget that Specsavers chose to adopt the same expression of ideas where various means could have been used to express the concept. Specsavers could have copied the idea but exercised its own imagination to express that novel concept in new and different language. rather than "using a thesaurus" to substitute a synonym. Accordingly a prima facie case of infringement had been made out.

Says the 1709 Blog, if the original Budget ads had been more imaginative and less prosaic, Specsavers' synonyms might -- at least in an application for interim relief -- been clad with the figleaves of parody and/or commercial free speech. Even so, the message is clear: that well-known Thesaurus Rex no longer rules the world of advertising copy, if indeed it ever did.

Squeezing the Lime Dry?

On 14 May we reported that US District Judge Kimba Wood had decided that the Lime Group, the company behind Limewire, was liable for the copyright infringements committed by Limewire users. Two weeks later the Lime Group asked the court to reconsider this judgment. This request was followed by one from the RIAA, asking the court to shut down Limewire by granting a permanent injunction with the RIAA arguing that Limewire’s operation has to be stopped immediately, to avoid it doing any more harm to the music industry saying “It is patently obvious that the rampant illegal conduct that Lime Wire intentionally induced, and for which it has been adjudged liable, will continue uninterrupted day after day unless and until the Court issues an injunction to rein in this massive infringing operation” with the RIAA’s lawyers saying “Every day that Lime Wire’s conduct continues unabated guarantees harm to Plaintiffs that money damages cannot and will not compensate” adding for good measure “The scope of the infringements that Lime Wire induced...boggles the mind."

Bloggers in the USA have pondered the quantum of damages facing Lime Group and Limewire founder Mark Gorton, with one estimating damages at $1.5 trillion (see link below) The RIAA itself said “In every case in which a perpetrator of massive online infringement has been held liable on summary judgment, the courts have promptly issued an injunction to try to stop the continued harm to the plaintiffs. It does not require sophisticated mathematics to calculate that the likely damage award in this case will run into the hundreds of millions, if not the billions of dollars”. The RIAA has also argued that following the Supreme Court’s decision in MGM v Grokster, Gorton moved his own assets into ‘family partnerships’ to shield them from any judgment. Despite the fact that many bloggers and some academic papers argue that careful scrutiny of relationship between illegal downloads and lost sales to the music industry shows no direct correlation, The RIAA are relying on US statutory damages which can indeed lead to massive awards when thousands and thousands of illegal acts of infringement are involved.

In another twist to this story, Limewire has told Computerworld that it hopes it can “amicably settle” its dispute with the record industry. Pointing out that Lime Group have been developing legitimate digital services, a spokesperson told Computerworld that the company was "actively engaged" in working with the music industry to settle the labels' legal claims, and to then "move forward with a new way of working together that benefits all parties involved" adding "LimeWire absolutely does not encourage or condone the illegal copying or sharing of copyrighted material", pointing out that LimeWire had added an option to its P2P platform that could filter out unlicensed files. It has to be said that Judge Kimba Wood was earlier unimpressed by the filter – not least because it had to be activated by the user, and was disabled by default
.
The words ‘pigs’, ‘might’ and ‘fly’ spring to mind about any potential settlement but the fact remains that closing Limewire itself might have very little impact on global digital piracy and perhaps the RIAA might (just might) consider a deal, however unpalatable, to show that it is trying to promote legitimate business models for users to easily buy music.

The RIAA and representatives of Lime Wire will appear before the court on Monday. A Lime Wire spokeswoman to US reporters "We are looking forward to an opportunity to address the Court for the first time in two years and show that as a matter of fact and law there is no support for this motion."

http://news.cnet.com/8301-31001_3-20006879-261.html

http://the1709blog.blogspot.com/2010/05/limewire-bites-dust.html

Does Limewire owe the RIAA 1.5 Trillion? http://www.p2pnet.net/story/40481

British Black Music Month host copyright panel

Talking Copyright: Reflecting On A 300 Year History & The Music Industry

The University of Westminster is playing host to a British Black Music Month panel on copyright law aimed at music industry, media and law students and lecturers, and music industry and practitioners, who determine a wrap-up vote on (a) are today's copyright laws robust enough for an internet age? and (b) copyright awareness: have we lost the fight to win the hearts & minds of the youths – tomorrow’s consumers? Panellists including Kienda Hoji (lawyer/head of the University of Westminster commercial music), David Stopps (MMF UK & International copyright & related rights director), Pauline Henry (ex-Chimes singer/IP consultant), Dave Laing (researcher/lecturer), Ben Challis (lawyer/lecturer), and Kwaku (BMC) who will lead an irreverent yet factually-rich discussion covering various angles - history, landmark cases, causes célèbre, 'good' and 'bad' copyright stories/policies in association with the University's Black Music Centre.

When: Tuesday June 15, 6.30-8.30pm

Where: University Of Westminster (The Old Cinema), 309 Regents Street, London W1B 2UW

Cost: Free, but pre-booking necessary - for booking and more info contact editor@britishblackmusic.com and see http://www.britishblackmusic.com/

Economics has a go at copyright

Is copyright a good or a bad thing? Even if it’s worth keeping, is there any point in turning up the heat on illegal file-sharers? Such questions have attracted a fair amount of ideological dogma and rhetoric recently but wouldn’t it be nice if we could answer them scientifically? Can economics help guide copyright policy?

The Strategic Advisory Board for IP Policy (SABIP) has recently published a report on the economics of copyright and digitization. Christian Handke’s report reviews the literature and empirical studies on the economics of copyright and makes recommendations for further research with the objective of informing UK government policy. The report considers a plethora of interesting issues, finds a shortage of empirical research and ultimately suggests two questions to get the ball rolling:

1. How does digital copying affect the supply of copyright works?
2. Does the copyright system entail obstacles to desirable aspects of technological transition?

There appear to be at least three major hurdles in turning economics into copyright law: determining what should be counted as the benefits and costs of copyright and infringement, and deciding their relative weight; getting good data about such a complex and rapidly changing range of human activity and agreeing on how to interpret the data; deciding what policy should follow.

Some of this is down to science; but some of it must surely always be a matter of opinion or taste. For example, some say copyright’s limits on using old material is a cost – you could say it is a benefit (it drives people on to seek original expression). Are mash-ups a wonderful upsurge of grass-roots creativity or a tedious waste of time?

Economic research appears to be sorely needed but may not make uncertainty, risk, judgment and strategy things of the past.

Uncertainty and judgment

Almost all of the empirical studies to date on the economics of copyright have been about the impact of illegal file-sharing on the music industry. They generally show a negative effect, but to varying degrees, some showing no loss of sales – the sort of conclusion that spurs on the sceptics and stokes the debate.

Many of these studies have focussed on falling CD sales, but they would probably have declined over the last decade anyway. However, isn’t it more likely that illegal file-sharing, rather than eating away at CD sales, deprived the music business of potential profits in the burgeoning online music market? Without illegal file-sharing, the music business could plausibly have expected to see unprecedented profits over the last decade. Some of those profits could have been used to seek out new talent, not just tread water. Might consumers have sparked a renaissance, rather than recycling old material?

How to quantify something that might have been? We will now be able to monitor online sales in countries that have introduced tougher anti-piracy laws (e.g. UK, France, Sweden, Taiwan and South Korea): if unauthorized copying is reduced, do legal transactions increase or are they unaffected? According to IFPI statistics, digital music sales in Sweden in 2009 were double those of 2008 and in South Korea digital music sales grew by 53% in the first nine months of 2009.

But (and there is always a ‘but’) online music sales probably would have risen to some degree even if there had not been new laws. Arriving at figures that everyone will agree with seems impossible. But science, after all, never was more than our best guess.

Risk and strategy

Perhaps the trickiest question is what the policy implications of any reliable research results would be. The UK can’t unilaterally abolish copyright or even change its basic rules, which are fixed at European level. Handke says economic studies are unlikely to be much use for fine-tuning policy.

So what’s left? Making it more or less easy to enforce IP rights? Generally the cost of enforcement is borne by copyright right owners – even under the Digital Economy Act they will continue to bear the lion’s share of this cost. So how much money is spent enforcing copyright is ultimately a cost-benefit analysis that is decided by individual businesses. They will make that decision in relation to their own business, not total social welfare. Some companies may remain unenthusiastic about spending their profits in this way.

Gambling money on chasing pirates on the high seas and hoping it will shift public attitudes is not so much the science of money as the art of war.

Armenia proposes to get tough with infringers

If you're thinking of a safe haven from which to practise the non-so-subtle arts of copyright infringement and have been checking the prices of luxury apartments in Armenia, think again. A news item from Eastern Europe and Caucasus-focused IP practice Petosevic, "Bill Tightening Penalties for Copyright Violation Introduced in Armenian Parliament", warns that things are only likely to get tougher for infringers there.

Right: Armenian prisons to welcome copyright infringers?

A bill aimed at increasing the penalties for copyright violation was introduced in the Armenian Parliament in late April. Its objective is to protect the rights of authors, to which end it calls for mandatory marking of audio and video information carriers with hologram labels.

The bill provides for a penalty to the value of US$ 2,500 (EUR 2,030) for a first offence [this is more than twice Armenia's gross per capita annual consumption], with a prison sentence of up to 12 months for second and subsequent offenders. The most recent BSA survey showed Armenia among the top nations for software piracy, where 93% of computer programs are reported to be illegal.

For prison conditions in Armenia click here

Ofcom issues first consultation on three strikes implementation

Ofcom, the UK body which exercises supervision of the nation's communications sector, has now published Online Infringement of Copyright and the Digital Economy Act 2010: Draft Initial Obligations Code. The full print version of this document is a formidable 74 pages in length (you can read it here) and is only the first step in a consultation dialogue which will end with all interested parties having a say in what sort of rope internet service providers (ISPs) are expected to hang online copyright infringers with.

The Act itself requires ISPs to notify their subscribers if their internet protocol addresses are reported by copyright owners, in a copyright infringement report (CIR), as being used for the purpose of infringing copyright. ISPs will also have to furnish copyright owners with anonymised copyright infringement lists concerning subscribers whose CIRs exceed the threshold of illicit permissibility. Initially Ofcom's code is proposed to cover only the seven fixed-line ISPs with over 400,000 subscribers (BT, Talk Talk, Virgin Media, Sky, Orange, O2 and -- perhaps a surprise for some readers -- the Post Office).

Ofcom proposes that notifications be sent to subscribers on receipt of the first CIR, on receipt of a second CIR a month or more later, then on receipt of a third CIR received a month or more after the second (the 'three strikes'). Any subscriber would be included in a CIL if he or she receives three notifications within a year and the copyright owner requesting the CIL has sent at least one CIR relating to that subscriber within that year. Any subscriber facing cut-off will be able to appeal to an independent body, which Ofcom is required to establish, and which must adopt "specific measures to protect subscribers during the hearing of appeals, including a right to anonymity".

According to the draft code's Executive Summary, what Ofcom proposes is

"a system of quality assurance reporting to ensure that where allegations are made against subscribers they are based upon credible evidence, gathered in a robust manner".

The code has to be up and running by 8 January 2011 unless the Secretary of State extends the timetable [or the Act is subject to a new Statutory Scrappage scheme?]. Variable factors such as the need to pass subordinate legislation, notification of the code to the European Commission and Parliamentary approval may slow things down.

Two further consultation exercises are planned. These will cover (i) enforcement of the code and the handling of industry disputes, which is expected next month, and (ii) tariff setting – i.e. sharing costs - from implementing and fulfilling requirements in the code (possibly as early as September, depending on the progress of the government's cost-sharing plans).

Responses to this consultation are invited by 30 July 2010. To respond, click here. To see if anyone else has responded yet, click here.

Eyeworks: Dutch court keeps an eye on Newzbin

From Boek9.nl, via Piter de Weerd, comes news of the Hague District Court's judgment in preliminary proceedings of 2 June 2010 in Case KG ZA 10-639, FTD BV v Eyeworks Film & TV Drama BV. Says Piter, this is a ruling in which

"facilitating downloading is ‘making available to the public’. The court explicitly follows Mr Justice Kitchin in Twentieth Century Fox v Newzbin".

According to the Dutch court,

"2.1. The issue of this case is the downloading from Usenet of copyright material and the role played by [the defendant] FTD in this …

2.6. FTD provides a service by which users can find and download files on Usenet in an easy way. To that end it gives access to a computer application, referred to hereinafter as FTD Application, by which users can share information about files stored in Usenet servers. In the FTD Application users post so-called spots, data regarding files which are considered interesting by users. A spot comprises the name under which the file in question can be found on Usenet.

4.3. The present preliminary proceedings concern the question whether by its behaviour FTD makes the work available to the public.

4.4. FTD argues that it does not make available, because the copyright files are not within its power at any time. The servers in which the files are stored are not controlled by it, nor does it have any influence on the downloading by users, so it argues. Be that as it may, provisionally judging it is not relevant whether the copyright files are actually in the power of FTD at any time. Instead it is important whether the behaviour of FTD allows users to download copyright files (in an easier manner) and that it thus makes such files in fact available to the public. This is the case, provisionally judging".

On the decision of Kitchin J the court had this to say:

"4.10. The Preliminary Relief Judge looks for adhesion with a recent decision of the English court. In a judgment with detailed reasons Mr Justice Kitchin finds that Newzbin, a company operating in a way which is similar on relevant points with the behaviour of FTD, infringes copyrights, despite the circumstance that on the site of Newzbin no copyright works have been posted. Just like FTD, Newzbin offers a platform for the exchange of data concerning inter alia the exact location of copyright works in Usenet servers. Thus Newzbin allows its users to download such works (in an easier way). Just like FTD in this provisional judgment, Newzbin was actively and substantially involved in the data posted by users, inter alia by categorizing such data and – at the request of users or not – removing unusable spots. Moreover the activities of Newzbin were aimed, in the view of the English court, at (enabling) large-scale copyright infringement".

You can read the judgment in translation here or, if you prefer it in the original, here. It's good to see how much more comfortable the judiciary in Europe is when looking at decisions of other national courts within the EU: there's no suggestion that a judge is bound by a decision made by a brother judge in another country, but there is at least the prospect of a sanity check, available to any judge who might otherwise feel he was heading in the wrong direction.