More on US Termination, a How to

I don’t have any moving stories of the importance of the Village People in my life like Nicholas Smith’s wonderful post on the US termination right at IP Whiteboard.  - Although I will admit that The Village People’s Greatest Hits was the first cd I purchased with my own money; – But, I would like to draw your attention to a very detailed how-to-guide on termination rights by Digital Music News: The Comprehensive Guide to Reclaiming Your Old Masters…

Note: If you’d like some background on the US termination right before getting into the guide, see Ben’s earlier post, Terminal Blues for Record Labels?

The Guide gives a bit of background on the termination law, explains the affect terminations may have on record labels and outlines the steps artists wishing to terminate their contracts should follow. 

It also, and perhaps most interesting to the copyright gurus reading this blog, explores in detail the ‘work for hire’ issue that will often be the deciding factor in whether a termination is successful or not.  As the Guide points out, if a work was created as a work for hire, the person who created the work cannot reclaim the rights.  This is because although they created the work, they are not the legal author.  Authorship in works for hire vests with the hiring entity. 

Of course, most record label agreements would state that the works at issue are works for hire.  The golden nugget lies in the fact that saying something doesn’t make it so.  (A common theme in copyright lately.)  The Guide gives a great analysis of the work for hire doctrine, complete with Congressional drama and RIAA trickery.  Check it out.

Book reviews

Here are a couple of new titles which touch on copyright topics, brought to your attention for your interest, amusement and discernment ...

Infringement Nation: Copyright 2.0 and You, by John Tehranian, is one of the most startling titles to grace a book on copyright law as one might encounter on the timelessly respectable shelves of publishers Oxford University Press.  Its author, currently a tenured Professor of Law at Chapman University where he serves as Director of the Entertainment Law Center, is no mere academic: he is also a founding partner of Southern California entertainment and IP firm One LLP which specialises in high-profile infringement litigation.

So what might one find in a book with a title like this? OUP explains:

"... Infringement Nation presents an engaging and accessible analysis of the history and evolution of copyright law and its profound impact on the lives of ordinary [American] individuals in the twenty-first century. Organized around the trope of the individual in five different copyright-related contexts - as an infringer, transformer, pure user, creator and reformer - the book charts the changing contours of our [American] copyright regime and assesses its vitality in the digital age. In the process, Tehranian questions some of our  [here: not only American] most basic assumptions about copyright law by highlighting the unseemly amount of infringement liability an average person rings up in a single day, the counterintuitive role of the fair use doctrine in radically expanding the copyright monopoly, the important expressive interests at play in even the unauthorized use of copyright works, the surprisingly low level of protection that American copyright law grants many creators, and the broader political import of copyright law on the exertion of social regulation and control.

Drawing upon both theory and the author's own experiences representing clients in various high-profile copyright infringement suits, Tehranian supports his arguments with a rich array of diverse examples crossing various subject matters - from the unusual origins of Nirvana's "Smells Like Teen Spirit," the question of numeracy among Amazonian hunter-gatherers, the history of stand-offs at papal nunciatures, and the tradition of judicial plagiarism to contemplations on Slash's criminal record, Barbie's retroussé nose, the poisonous tomato, flag burning, music as a form of torture, the smell of rotting film, William Shakespeare as a man of the people, Charles Dickens as a lobbyist, Ashley Wilkes's sexual orientation, Captain Kirk's reincarnation, and Holden Caulfield's maturation. In the end, Infringement Nation makes a sophisticated yet lucid case for reform of existing doctrine and the development of a copyright 2.0. 

Readership: Lawyers, law students, legal academics, other students, sophisticated general readers with an interest in culture, technology, law and the entertainment industries".

Books on copyright these days are very much like those doctor-and-nurse romances that used to be popular in the days when people didn't have to apologise for their poor taste in literature: they all have the same plot and the same ending. You know that, in approximate order, you are likely to encounter an explanation as to what copyright is, a nod to the fact that it was once regarded as serving a useful purpose, an account as to how it no longer addresses the day-to-day life of Joe Citizen even when he's not online or at the end of his hand-held device and how much more so when he is, a damning description of what some rogue personages -- usually collective ones -- do with the copyright when it's in their hands, concluding with the wise observation that something ought to be done about it.  Some of these accounts are not great; others bounce along with the vigour of a John Grisham novel and also with the promise that, whatever twists the plot takes, the ending you hope for will generally be found in that place where endings are found.  Given this author's experience, erudition and literary skills, this book is definitely at the upper end of this genre and will not disappoint.  Indeed, it makes the reader wonder how we even put up with this tiresome inconvenience. This makes it all the more surprising to discover the existence of another book, from the stable of the same publisher, that shows just how effectively a combination of contract and, among other things, copyright law, can be wielded in order to preserve the old order which Professor Tehranian has so deftly painted.

Bibliographic data: xxx + 289 pages. Hardback. ISBN 978-0-19-973317-0. Price: £30.00. Web page here. Eyesight warning: don't do anything that might make you go blind if you propose reading this before it's available in an e-book format where you can adjust the font size on-screen: it's mighty small print for a mighty good read!

Digital Media Contracts, by Alan Williams, Duncan Calow, and Andrew Lee, is about as distant from Infringement Nation as you can manage.  It doesn't even have a pretty cover (but at least the print is big enough to read -- and even has CAPITALS for IMPORTANT TERMS used in CONTRACTS ...). Alan Williams is consultant to DLA Piper, a firm in which Duncan Calow is a partner. while Andrew Lee is consultant to the eponymous firm of Andrew Lee & Associates. These good souls are not Infringement Nationalists; they deal in the certainties of done deals, personal and corporate commitments, the nailing down of rights to publish, use, access and share works, among other things. Much of the zone which they inhabit is a business-to-business world, in which there is less scope for humans to be astonished at the unseemly amount of copyright infringement they commit each day.  As the publisher's blurb explains:

"Digital Media Contracts contains a collection of sample agreements, presenting annotated contracts from the digital media industry in typical formats for the industry. Included are agreements for digital downloads, user generated content, social networks, wireless apps and cloud computing [the book is stated to be current to October 2010; the technologies and issues in question appear still to be in current use]. It goes beyond traditional precedents by giving practical, commercially-grounded commentary and background information to assist both readers intending to draft their own documents and those looking for hands-on guidance when reviewing standard form documents received from other parties. Lawyers working in the digital media industry, private practitioners and in-house lawyers will find this work especially useful. Its jurisdictional scope is primarily focused on the UK with comparative comments on similar agreements in the US, with input from lawyers based in the US [This is important not just because so many contract-related issues arise in the US before the corresponding technologies and business arrangements take place in the UK and Europe but because of the temptation to adopt and (mis)adapt US provisions which are not fully understood]. This comprehensive guide will provide practical support in the form of checklists and flow-charts, and will include additional supporting documents such as standard NDAs and sample Heads of Agreement. 

Readership: Lawyers working in the digital media industry, both private practitioners and in-house lawyers; more general commercial lawyers, business development executives and contract managers in companies within the digital media industries. Suitable for those working in UK and US jurisdications".

Bibliographic data: viii + 381 pages. Hardback. ISBN 978-0-19-956220-6. Price: £145. Web page here.

That European Copyright Code: spreading the word

The Centre for Intellectual Property Rights at the University of Leuven is holding a symposium on the European Copyright Code: the Wittem Project (which the 1709 Blog mentioned here, last year). This takes place on the afternoon of Friday, 16 September, and it's followed by a reception. What's this symposium all about? Let the organisers explain:

"Efforts of harmonization in the field of copyright law have only brought partial results for certain aspects of the law of copyright in the Member States of the European Union. 

Therefore, at a meeting at the chateau of Wittem in 2002, scholars across the European Union, invited on the initiative of three Dutch universities (Radboud University of Nijmegen, University of Amsterdam and Leiden University) started a network project with the aim of drafting model
provisions for a more comprehensive European Copyright Code. 

The aim of this “Wittem Project” and the resulting Code, published in April 2010, http://www.copyrightcode.eu, is to promote transparency and consistency in European copyright law. The members of the Wittem Group share a concern that the process of copyright law making at the European level lacks transparency and that the voice of academia all too often remains unheard. The Group believes that a European Copyright Code drafted by legal scholars might serve as a model or reference tool for future harmonization or unification of copyright at the European level. 

The members of the Wittem Group hope that this European Copyright Code will contribute to the establishment of a body of transparent and consistent copyright law that protects the moral and economic interests of creators, while serving the public interest by promoting the production
and dissemination of works in the field of literature, art and science. 

It will now be necessary to disseminate these proposals in all countries of the European Union and to discuss them as widely as possible. CIR, acting within the collaboration framework between the Universities of Leuven and Nijmegen wants to contribute to the achievement of this goal by organising a study session on the Wittem proposals for the Benelux".

Full details of the programme and to register for it can be found here.  There's a strong cast of distinguished academic speakers and you can be sure that the fare will be stimulating and at times provocative!

The Lib Dems’ stimulating policy

A Lib Dem policy paper, ‘Preparing the Ground: Stimulating Growth in the Digital Economy’, recently published, argues that sections 17 and 18 of the DEA should be repealed. The other copyright provisions should not be commenced until it has been demonstrated that they are necessary and effective.

The paper advocates criminal prosecution of pirates rather than civil litigation. Piracy is a form of theft, it says. Since there is already legislation on theft, there is no reason why digital offenders should not be prosecuted under the criminal law in the same way as those who steal tangible goods. (Legally accurate, I would say, though not everyone would agree.) The paper frowns on rights-holders pursuing individuals ‘aggressively’. Instead they should put their efforts into education to tackle the culture of piracy. Labour, it says, focused on reducing piracy by ‘authoritarian means’. So civil litigation is ‘authoritarian’, while criminal prosecution is not? Rights-holders will be delighted to find the burden of dealing with illegal file-sharing being taken over by the police. Perhaps the Anti-looting Squad can take this on?

‘While it is difficult to “compete with free”, an essential part of any solution has to be to improve the quality of services provided legitimately,’ the paper predictably opines. Since most piracy is of hit songs and movies that are readily available, that box has already been well and truly ticked.

‘We are concerned about sites that sell material without having the right to do so, and would work with the advertisers on such sites, and the credit card companies, to cut off their sources of funding and reduce this harm.’ Not sure they’ve thought this one through.

Commons committee takes "Digital Opportunity" ... to ask for more responses

A House of Commons Select Committee is taking the Hargreaves Review (and the UK government's responses to it) to the next stage, according to the Parliament website here:

The Business, Innovation and Skills Committee has announced its intention to conduct an inquiry into the Hargreaves Review of Intellectual Property and the Government’s response to that Review. 

The Inquiry will focus on: 

• The recommendations set out in the Hargreaves Review on Intellectual Property and the Government’s plans for the implementation of its recommendations.

The Committee will be reviewing the submissions made to the Hargreaves Review and requests that evidence be confined to points not already made in those submissions. 

The Hargreaves Review can be found at: http://www.ipo.gov.uk/ipreview.htm
The Government Response can be found at: http://www.bis.gov.uk/assets/biscore/innovation/docs/g/11-1199-government-response-to-hargreaves-review 

If you wish your evidence to remain confidential, please contact the Committee staff. 

Written submissions must be submitted by close of business on Monday 5 September and should be submitted in accordance with the guidelines provided here.

To refresh readers' memories, short summaries of Hargreaves's proposals can be found here and here. Responses from interested parties are noted here, here and here.

For the record, the Business, Innovation and Skills Committee consists of the Members of Parliament listed below.  It may be doing the members an injustice to say so, but quick click through their interests and expertise reveals little to suggest that they have any experience of, familiarity with or commitment to the world of online business, orphan works, copyright clearance and the like.

Member	Party
Mr Adrian Bailey (Chair)	Labour/Co-op
Mr Brian Binley	Conservative
Paul Blomfield	Labour
Katy Clark	Labour
Rebecca Harris	Conservative
Margot James	Conservative
Dan Jarvis	Labour
Simon Kirby	Conservative
Ian Murray	Labour
Mr David Ward	Liberal Democrat
Nadhim Zahawi	Conservative

Is the DCMA biased?

The decision in Capitol Records v MP3tunes neatly encapsulates the different tensions that US legislators faced when they put together the Digital Millennium Copyright Act - and in particular the rights of creators and content owners to protect their content and monetise that content, against the rights of technology companies and internet service providers to develop new technologies and new systems in the digital age, without unfair restrictions and the threat of endless litigation. Or put it another way - were the US content industries (film and television companies, record labels, music and book publishing companies, and the games and software companies) worth more or less to the US legislators than the new technology and internet companies - Apple, Amazon, Google, the telecoms giants and the ISPs - to name but a few! Surely Professor Hargreaves' review of Intellectual Property law in the UK was written against a similar backdrop.

According to the Observer, in Free Ride, Former Billboard magazine editor Robert Levine argues that the worldwide web took the content industries by surprise and in the ensuing melee it was the technology companies who were far more adept at exploiting the confusion and lobbying for favourable laws such as the DCMA. Levine argues that these legislative changes, coupled with academic and other social comment from 'internet gurus', promoted a new environment that was toxic to the content industries, saying "for media companies, getting advice from technology pundits was like letting the fox lead a strategic management retreat in the henhouse".

Is online piracy and the 'free culture' business model slowly destroying culture - or at the very least the culture industries? Make up your own mind, but Robert Levine's thoughts can be found in Free Ride available for £15.99 from www.guardian.co.uk/bookshop or call (UK) 0330 333 6846.

Cloud lockers protected by 'safe harbor' provisions

In a potentially highly damaging day for the US content industries, the New York District Court has ruled that digital music 'cloud' lockers don't need licences from record labels to store recorded music and that the operators of digital locker services are protected by the ‘safe harbour’ provisions of the US Digital Millennium Copyright Act, something that will bring cheer to both Amazon and Google who launched their cloud storage services without licences from record labels or music publishers,

The New York District Court handed Capitol Records, part of the EMI Group, a mixed verdict in its lawsuit against MP3tunes, the San Diego music locker service founded by technology entrepreneur Michael Robertson. The lawsuit, filed in November 2007, contended that MP3tunes (and Robertson personally) violated copyright law when they allowed users to find music online and add songs to an online locker service that let them listen to those songs from any Internet connection. In its defence MP3tunes argued that it qualified for a so-called “safe harbor” exemption under the DCMA.

Judge William H. Pauley, III, in the U.S. District Court for the Southern District of New York ruled that MP3tunes did qualify for safe harbor exemption when it responded to requests from EMI and other copyright holders to ban links to sites known to distribute pirated music but gave EMI a partial victory, noting that whilst MP3Tunes did have copyright notices on its site prohibiting the storage of infringing material, a policy of excluding repeat copyright infringers and a takedown service, MP3tunes did not go far enough to enforce copyrights and was guilty of contributory infringement as it also should have deleted the pirated songs from its users' accounts. Whilst MP3tunes would remove identified links to pirate material, it did not delete material from users lockers.

One of the key elements in the case was a feature called Sideload.com, which let MP3Tunes users put any MP3s they found anywhere on the Internet into their locker, on the condition they provided the source URL. EMI contended that it was obvious MP3Tunes condoned (or contribted to) copyright infringement but the court disagreed noting that the DCMA “does not place the burden of investigation on the Internet Service Provider” , that words like “MP3” and “file-sharing” did not automatically mean that material was infringing and and noted that many legitimate services give away “free” songs for promotional and other purposes: “Because of these activities, EMI’s executives concede that internet users, including MP3tunes’ users and executives, have no way of knowing for sure whether free songs on the internet are unauthorized” particularly where songs have been used in online viral marketing campaigns and other give aways.

The ruling specifically says “MP3tunes users alone choose which websites they link to Sideload.com. and the songs they sideload and store in their music lockers. MP3tunes does not participate in those decisions. At worst MP3tunes set up a fully automated system where users can chose to download infringing content”

Additionally, the ruling determined that playing back songs stored in a digital locker was not a public performance requiring a license, as EMI contended it was, saying that the service does not use a “master copy” for users to play back music in lockers and indeed the service is “precisely the type of system routinely protected by the DCMA safe harbor”. The Judge also dismissed any immediate summary relief relating to use and storage of album artwork on MP3tunes - MP3tunes links users to Amazon.com so users can see album artwork.

EMI also failed to convince the court that MP3Tunes profited from infringement. The court ruled that the “the financial benefit must be attributable to the infringing activity” saying “While Sideload.com may be used to draw users to MP3tunes.com and drive sales of pay lockers, it has non-infringing users. Moreover, MP3tunes did not promote infringement. Rather, it removed infringing links… and terminated the accounts of users who blatantly shared copyright files with others.”

The court’s ruling did side with EMI regarding two aspects of Sideload.com: It agreed that MP3Tunes had failed to remove some tracks from lockers despite having received a takedown notice, and held the company liable for not doing so for some 350 of the 3,189 tracks EMI had indetified. It further ruled that Robertson is personally liable for songs that he sideloaded into the service, a potentially very expensive decision for Mr Robertson given that US statutory damages apply.

It is believed EMI will appeal the ruling.

http://news.cnet.com/8301-31001_3-20095599-261/court-says-mp3tunes-protected-by-dmca/

http://latimesblogs.latimes.com/entertainmentnewsbuzz/2011/08/emi-mp3tunes.html

Capitol Records, Inc. et al v MP3Tunes LLC et all (2011) 07 Civ 9931 ia600404.us.archive.org

Feeling cultural and relational? Try a little copyright ...

Copyright, Communication And Culture: Towards a Relational Theory of Copyright Law, is a hot-off-the-press title from Carys J. Craig (Associate Professor of Law, Osgoode Hall Law School, York University, Toronto). It is this reviewer's impression that a great deal of bright, sparkling thinking on copyright is emanating from Canada at the moment, and this is just the latest example of it.

What does the publisher say? According to the web-blurb:

"In this provocative book [This is a given: as readers of this blog will know, there is no obscure nook or cranny of contemporary copyright law and practice that is so bland and inoffensive that it will fail to provoke anyone at all], Carys Craig challenges the assumptions of possessive individualism embedded in modern day copyright law, arguing that the dominant conception of copyright as private property fails to adequately reflect the realities of cultural creativity [though it does adequately reflect the realities of the human urge to retain control, if not absolute ownership, of (i) the fruit of one's labour and (ii) anything one has paid for.  Can we choose our realities?].

Employing both theoretical argument and doctrinal analysis, including the novel use of feminist theory, the author explores how the assumptions of modern copyright result in law that frequently restricts the kinds of expressive activities it ought to encourage [This is a tricky proposition, with that great big 'ought' in the middle of it. And is there a serious criticism that the same assumptions result in the encouragement of expressive activities which ought to be restricted -- or is that too sensitive a point?]. In contrast, Carys Craig proposes a relational theory of copyright based on a dialogic account of authorship, and guided by the public interest in a vibrant, participatory culture. Through a critical examination of the doctrines of originality and fair dealing, as well as the relationship between copyright and freedom of expression, she explores how this relational theory of copyright law could further the public purposes of the copyright system and the social values it embodies.

This unique and insightful study will be of great interest to students and scholars of intellectual property law, communications, cultural studies, feminist theory and the arts and humanities [Funnily enough, the publishers -- who almost routinely say their books will be useful to practitioners -- don't say so here. There is actually some significant discussion of case law, by the author and by those whom she cites, from which policy-oriented lawyers and judges can benefit]".

This is a fascinating read, and a slow one for anyone who takes time to absorb the impact of abstract nouns and their full import. For various readers -- including those who love raw, undiluted Locke and those who felt that Lior Zemer's re-imagination of him in The Idea of Authorship in Copyright (Ashgate 2007) hit their intellectual sweet spot -- this book will be a bit of a bumpy ride. For those who see virtue in the creative tensions which exist in current copyright norms, it is even bumpier. Buy it for a friend you enjoy discussing copyright with, read it together and you'll never be bored.

Bibliographical data: publisher: Edward Elgar Publishing, 2011. viii + 265 pages, hardback. ISBN 978 1 84844 839 1. Price £65 (online, direct from the publisher, £58.50). Book's web page here.

Kiwi ISP boss says that three strikes is the wrong model

Allan Freeth, The chief executive of New Zealand ISP TelstraClear, has spoken out against his country’s Copyright (Infringing File Sharing) Amendment Act 2011, which comes into force on September 1st. The New Zealand legislation is another example of the 'three strikes' legislative approach adopted by France, South Korea and which will be implemented in the UK. The Act introduces a set of penalties (described by some as 'draconian', others as 'inffective') that impose fines and possible account suspension for infringing activities, and it involves Internet Service Providers in the process of identifying and notifying account holders based on IP addresses.

Freeth said that “TelstraClear respects copyright and supports the ability of rights owners to realise value from their intellectual property. But a business model that has to be propped up by specific legislation in this way is flawed and needs to change,” adding The new law will not help copyright owners defend their rights" and “It may encourage parents to take more notice of what their kids are doing online, and that’s a good thing. But it won’t stop those who really want content from getting it.”

Freeth said his company’s market research found definitive reasons why people illegally downloaded content which were: (a) the legal product takes too long to become available; (b) it costs too much; (c) the packaging and distribution of physical music, movies and games is unnecessary and costly; and (d) they believe the business model is outdated and out-of-touch.

Three main themes emerged from TelstraClear’s study which hopes to reconcile the financial needs of content owners and creators with customers’ expectations for content in a broadband world. One was to forge stronger bonds between the artists and the audience, which the respondents thought would result in reducing the overhead costs of traditional business practices major companies and therefore lowering the cost of legitimate content. Second was to implement different business models, such as advertising supported, sponsored, or getting lower quality for free and paying for improved quality. Third was to distinguish between consumers who copy for personal use and people who profit from illegally copying and selling content, with the latter receiving harsher punishment.

Freeth said “Instead of bringing in a law that we believe will not and cannot work, our government should be breaking monopolies, allowing personal choice and letting New Zealanders experience information and entertainment when the rest of the world does” adding “Instead, it has chosen to introduce a law that could turn ordinary Kiwis into law-breakers.”

http://www.theregister.co.uk/2011/08/17/telstraclear_sticks_it_to_download_police/

How fair is fair?

A couple of days ago, Birgit Clark from the IPKat team posted a piece on proceedings brought by Marcus Off, a German actor who dubbed Johnny Depp's Jack Sparrow character in the first three "Pirates of the Caribbean" films. Mr Off claims additional compensation for his performance under §§ 32a, 79 (2) (2) UrhG (German Copyright Act). You can read Birgit's post here. § 32a proceedings seem to be all the rage – in February, the OLG München (Higher Regional Court of Munich) had to decide a case concerning the title sequence of Germany's longest-running and most popular TV crime series "Tatort" (see Birgit's IPKat post here), and later this year the Bundesgerichtshof (Federal Court of Justice, BGH) is going to pass judgment on claims for additional compensation brought by the cameraman of famous German submarine thriller "Das Boot" (you can read Jeremy’s IPKat report on the early stages of the proceedings at first instance here).

So I think it is time to have a closer look at the provision in the German Copyright Act that is responsible for all those cases. § 32a UrhG is rather dryly entitled "Weitere Beteiligung des Urhebers" ("Further participation of the author"), but it is usually more emotionally referred to as the "fairness clause". What the fairness clause purports to do is the following: If an author has licensed his work (no such thing as a complete transfer of copyright under German law, remember) and his work turns out to be so successful that the consideration he received for granting the licence appears strikingly disproportionate in light of the profits generated from it, he receives a further equitable share of those profits.

Fairness v Bestseller

What is important to note is that the fairness clause was only implemented in 2002 and is a rather weird mix of retroactivitiy and prospectivity. On the one hand, it applies retroactively even to contracts concluded before 1 January 1966 (the entry into force of the UrhG). On the other hand, it applies only to circumstances that have arisen after 28 March 2002. So where does that leave us?

In each case where compensation for uses before 1 April 2002 is claimed, ex-§ 36 UrhG is applicable, the so called "bestseller clause". It is similar to § 32a UrhG, but requires that the agreed consideration be "grossly disproportionate" to the profits generated from the use of the work, a higher threshold than under § 32a UrhG. In addition, ex-§ 36 UrhG is understood to apply only if the parties did/could not foresee the success of the work, something that is expressly declared to be immaterial in § 32a (1) (2) UrhG.

Only in respect of compensation claimed for exploitations of the work from 1 April 2002 onwards does the more lenient § 32a UrhG come into play. However, the legislative materials on § 32a UrhG make it clear that particularly when it comes to films or other multimedia works, contributions that are of secondary importance for the work as a whole shall not usually be the subject of further compensation (the same was established case law in respect of ex-§ 36 UrhG). While the contribution need not be the cause of the work’s success, the legislator envisaged that it should primarily be substantial contributions that would lead to successful claims for fairness compensation. This is why the “Tatort” case failed. The court argued that the title sequence had a function similar to a logo or a trade mark or the cover of a book, but was of only minor importance for the films as such. Things might have been different if the sequence were extensively used elsewhere, but while there were instances of isolated exploitation of the title sequence, no striking disproportionality between the income generated and the consideration received could be established.

Das Boot

Let’s take a look at the chances of “Das Boot” lead cameraman Jost Vacano. “Das Boot” dates from 1981, so the first 21 years of exploitation are governed by ex-§ 36 UrhG and only the last 9 by § 32a UrhG. That does not sound promising. The film is still frequently shown on television and numerous DVD editions are readily available as well. Indeed, an anniversary edition priced at 30.99 EUR is going to hit the stores on 15 September. That means the film is still being steadily exploited after 30 years. That does sound promising. The cameraman’s contribution was also considerable, that again works in his favour. I would guess it is quite probable that the BGH will affirm the judgments in favour of Mr Vacano that were handed down at first instance and on appeal. The not so good news is that he had to raise a claim for information first because the other side were not telling how much income they made from the film. So assuming he wins, his lawyers must then try to figure out how much further compensation would actually be fair and start suing all over again. Nightmare (for those fluent in German, you might also want to read this interesting article by Patrick Jacobshagen, available here).

Pirates of the Caribbean

Now, the first "Pirates of the Caribbean" film hit the cinemas in 2003, so there's a clean-cut § 32a UrhG case for you. At first instance, the Kammergericht Berlin dismissed Marcus Off's claims, though. As Birgit stated in her post, "that the court's assessment of the content of the film as consisting of mostly special effects (and rather little acting) might surprise some of the viewers" - it is important to stress, however, that we are talking about Mr Off's acting here. From what I remember of the films, Johnny Depp does an impressive bit of swaying, swaggering, smouldering and swashbuckling; but he does not do quite so much in the way of talking. In other words, there was not as much to do for Mr Off as there might have been. Also, his job was basically to speak the text given to him in a voice imitating Johnny Depp's way of portraying the Jack Sparrow character. He did that really well, no doubt about that, but I share the view that it probably is not enough in this special case, especially given that he spent only 12 days in total dubbing the three films.

Another point worth adding is that the court held that in respect of the first film, claims for further compensation were time-barred. Mr Off must have become aware of the extraordinary financial success of the first film in 2004, so he would have had to raise such claims by 31 December 2007.

Closing Remarks

§ 32a UrhG and ex-§ 36 UrhG were drafted with the main contributors to successful works in mind - the author of a book or a film script, the director, the lead actors, etc. What they were not supposed to achieve was that everyone involved in a successful work - extras, session musicians, composers of TV series theme tunes - should be able to turn up and demand an additional piece of the cake. Even where there is a valid claim inasmuch as significant contribution is concerned, though, it will be difficult to determine whether the consideration received was "strikingly disproportionate" to the profits generated, and equally difficult to calculate the further compensation the author or performer should receive.

Terminal blues for the record labels?

There has been a lot of excitement in cyberworld as the US press wakes up to the rather interesting idea that an ever growing list of major recording artistes and songwriters are looking to reclaim their copyrights from record labels and music publishers.

The New York Times focussed on a number of 1978 hit albums such as Bruce Springsteen’s “Darkness on the Edge of Town,” Billy Joel’s “52nd Street,” the Doobie Brothers’ “Minute by Minute,” Kenny Rogers’s “Gambler” and Funkadelic’s “One Nation Under a Groove” which of course have generated tens of millions of dollars in sales for record companies and music publishers alike. Why the story then? Well thanks to "a little-noted provision in United States copyright law, those artists — and thousands more — now have the right to reclaim ownership of their recordings, potentially leaving the labels and music publishers out in the cold". And the list nas grown and currently includes Bryan Adams, Bob Dylans, Tom Waites, Kris Kristofferson, Kool & The Gang, Fleetwood Mac and now Victor Willis, frontman and songwriter with the Village People (he was the naval officer!) who is seeking to regain control of over thirty of the band’s hits including Y.M.C.A, from two music publishing companies who are contesting the move.

The background to this is the revision to US copyright laws in the mid-1970s, when musicians and songwriters, like creators of other works of art, were granted “termination rights,” which allow them to regain control of their work after 35 years, so long as they apply at least two years in advance. Recordings from 1978 are the first to fall under the law, but in a matter of months, hits from 1979, like “The Long Run” by the Eagles and “Bad Girls” by Donna Summer, will be in the same situation — and then, as the calendar advances, every other master recording once it reaches the 35-year mark. But don't expect the music industry to just hand over the rights! The Recording Industry Association of America have issued a statement saying with General Counsel Stephen Marks saying "We believe the termination right doesn't apply to most sound recordings." The labels are preparing to argue that the albums they released were "works for hire," that musicians were effectively employees and the fruits of their labors always belonged to the companies saying We believe the termination right doesn’t apply to most sound recordings,” said Steven Marks, general counsel for the Recording Industry Association of America. As the record companies see it, the master recordings belong to them in perpetuity, rather than to the artists who wrote and recorded the songs, because, the labels argue, the records are “works for hire,” compilations created not by independent performers but by musicians who are, in essence, their employees.

http://www.nytimes.com/2011/08/16/arts/music/springsteen-and-others-soon-eligible-to-recover-song-rights.html?_r=1


http://www.nytimes.com/2011/08/17/arts/music/village-people-singer-claims-rights-to-ymca.html?_r=1 (A Village Person Tests The Copyright Law)

http://www.perthnow.com.au/business/media-marketing/music-legends-reclaiming-recordings/story-e6frg2rc-1226116806582

http://www.techdirt.com/articles/20110816/09574115549/dear-musicians-riaa-is-about-to-totally-screw-you-over-again.shtml

Bingo for Binley's as fictional seeds bear fruit

This blog is delighted to host the following guest case note from Chris Sleep (Birketts LLP, which acted for the victorious claimants) on a point that will be really useful for prudent parties who seed their databases in order to identify their use in the hands of third parties.  Chris writes:

"Leading British healthcare information provider Binley's--part of the Wilmington Group Plc [owners of CLT, who run conferences on copyright and other IP rights, among other things] -- recently won an important decision in the Patents County Court, England and Wales, against a competitor which infringed its database rights. This ruling, Beechwood House Publishing Limited (t/a Binleys) v Guardian Products Ltd and another [2011] EWPCC 22, has important implications for the protection and enforcement of sui generis database right, particularly in relation to the practice of 'seeding'. It's a decision of Judge Birss QC and you can read it in full here.

Binley's has provided specialist healthcare databases for nearly 20 years, including its Database of GP Practices - widely used by the pharmaceutical industry. To monitor unlawful use of its databases, Binley's 'seeds' them by planting the details of fictional contacts and other unique indicators.

In August 2007 one of Binley's practice nurse 'seeds' received a medical catalogue from the Precision Marketing Group - a pharmaceutical mailing and marketing business. It transpired that the practice nurse data formed part of a larger database that Precision had purchased from another company, Bespoke Database Organisation Limited, in May 2006.

The 1709 Blog reported on the summary judgment hearing in this case held in October 2010. At that hearing, Judge Birss QC found that database right subsisted in the GP Practices Database, and that it was owned by Binley's. He also struck out those parts of the defendants' defences that the claim had already settled. However, the judge was then unwilling to decide the issue of infringement because it was not yet known how many seeds had been included.  This made it impossible to assess how much data had been taken (even though he considered it "highly probable" that the amount used by Precision was substantial).

The sole remaining issue to be decided at trial, therefore, was 'substantiality' -- did Precision extract and/or reutilise a substantial part of the Database (assessed either quantitatively or qualitatively).

The key question for data-owners, as alluded to in the previous post, is how a fictional 'seed' can be used as the basis (or starting point) to assess whether a substantial amount of 'genuine' data has been extracted. There must always be the possibility that genuine contact details could have been obtained from another source. It can never be entirely discounted that a defendant mailed only a single seed, however unlikely this might be. For that reason, there has long been uncertainty as to how the courts might treat evidence derived from 'seeding'.

The variations in the seed details used by Binley's over time enabled them to identify that the data must have derived from Edition 5 of the Database, available between February and September 1997. Binley's was then able to pinpoint the source to a dataset licensed to a business operated by Philip Bothwell - a director of Bespoke - in April 1997.

Following disclosure, it became clear that only two seeds had been included in the database in 1997 - both of which appeared in the data used by Precision in 2007. In fact, of 8,363 records supplied in 1997, 6,901 of them matched the 2007 data. The judge was willing to accept these differences, which he put down to processing of the data over time, and found that the data had derived from Binley's. This represented about 11% of the Database, which was found to constitute a substantial part. The Court also found it to be a substantial part on a qualitative basis, given the scale of investment made by Binley's in developing and maintaining the database. This suggests that Precision would have been found liable even if a lower percentage had been used.

The key to the approach taken by Judge Birss QC is that, in contrast with the test at the summary judgment hearing, he was now required to decide whether Precision had, on the balance of probabilities, extracted a substantial part of the Database. It is clear that he found the 'seed' evidence sufficiently compelling to find that the data must have derived from Binley's database, particularly given the nature of bulk mail-shot marketing. Given his comments at the time, had Judge Birss QC known in October 2010 that there had only been two seeds he might have been swayed to award summary judgment on infringement.

This decision is of huge benefit to the Wilmington Group, the data-publishing industry and for database owners generally, in that it underlines the role that a properly implemented 'seeding' strategy can play in the enforcement of rights in data. This judgment provides an invaluable insight into the approach that the Courts will adopt when considering what might constitute a 'substantial' part based on evidence determined through the analysis of seeds, shedding light on a previously uncertain area of the law, which should provide data owners with some confidence when it comes to enforcing their rights through the Courts in future".

German Model Law on Intellectual Property

Being from the civil law world, I am of course very fond of codes (not as in Da Vinci Code, more as in Civil Code, Criminal Code, etc). And since I am even fonder of intellectual property law, I don't mind telling you that this piece of news makes me almost as giddy as a school girl: Later this year, a model law on intellectual property ("Modellgesetz für geistiges Eigentum") is going to be published, proposing the creation of a comprehensive German intellectual property code. The model law is authored by Professor Hans-Jürgen Ahrens (left) and Dr Mary-Rose McGuire (right), both of University of Osnabrück, and the publishers are sellier.european law publishers in cooperation with GRUR (German Association for the Protection of Intellectual Property).

There are currently seven different intellectual property acts in Germany (the usual suspects: copyright, trade marks, designs, patents, utilitiy models; and the slightly more exotic ones I sometimes forget about: plant varieties and semi-conductors), all of which have developed separately and been amended at different times and under different circumstances. As a result, the implementation of the Enforcement Directive (Directive 2004/48/EC) was quite a cumbersome affair that led both to further fragmentation and the insertion of virtually identical provisions seven times over. Drawing inspiritation rather than frustration from this state of affairs, the authors decided to form a research team in order to come up with a solution that avoids unnecessary divergences as well as needless repetition.

According to its introduction, which has already been made available by the publishers here, the model law consists of ten books. Book 1 contains a general part with material provisions that are common to all intellectual property rights. Book 2 does the same for procedural issues. Books 3 to 9 are largely made up of the material law as it stands today, minus the provisions that have become part of Books 1 or 2. Book 10A contains the law on employee inventions, and Book 10B proposes an alternative possible transformation of that law into a new general law on employee creations.

Book 1 is particularly interesting, given that it tries to stake out a common ground for the sometimes radically different IP rights. One rather ambitious aim pursued with Book 1 is to come up with general requirements for and limitations of protection. Another aim is to close existing loopholes, for instance in respect of supplementary protection of IP and protection for secret know-how under unfair competition law, the economic exploitation of personality rights, and the protection of organisers of major sporting and cultural events against the making of unauthorised recordings. General provisions on civil remedies and criminal sanctions including customs seizures are also included, as well as general rules on the legal transfer of rights and the granting of licences.

The text of the model law is going to be on sale from September 2011, the commented version (at nine times the price of the text-only version, I'm afraid to say) from December 2011 (see the publishers' announcement here and here).

Dead author, old manuscripts, live issues: a reader writes

This weblog has received an inquiry from a perplexed person who is trying to establish the legal status of some old manuscripts in respect of which some curiously complex problems arise  There are two questions here:

"(1) My first question relates to the statement in the British Library's Help for Researchers: Manuscripts Collections: Copyright guidance that 

"Manuscripts with an author, created and published before 1989, but after the author's death, remain in copyright until the year published + 50 years".

Given a situation where an author died (say) in 1900, leaving unpublished letters, the copyright of which is now owned by his/her literary estate, does this mean that if a third party published the text of or an image of one of these letters in (say) 1905, but was not given permission to publish the document by the literary estate, could that publisher really claim copyright of the text of the letter for 50 years from the time of publication? If so, then the copyright (in this example) will now have expired, so is the text of the letter now public domain?

A slightly different example:- Given a situation where an author died (say) in 1900, leaving unpublished letters the copyright of which is now owned by his/her literary estate, does this mean that, if a third party published the text of or an image of one of these letters in (say) 1905 and was given permission to publish it, but not own the copyright of it, by the literary estate, could the publisher really claim copyright of the text of the letter for 50 years from the time of publication? If so, then the copyright will have expired, so is the text of the letter now public domain?

It would seem most 'unjust' if a third party could publish a copyright-protected unpublished manuscript without permission and then gain the copyright of it for 50 years, but perhaps this is what the law says!! This could even mean that the original copyright owner is prevented from publishing a work, e.g. if an unpublished manuscript was published in 1988, it would be copyright of the publisher until 2038.

I have searched the Web for an answer to this, but to no avail. It is important for the collection I have in mind, where the author's letters were published after his death - and some of these were even published several times by some well-known recipients of them.

(2) The following guidance cited on the same website seems to suggest that no-one would own the copyright of an unpublished copyright-protected work by the author whose manuscripts I'm holding and which was published after 1989: 

"Manuscripts with an author who died before 1989 but which were published after 1989 remain in copyright until the end of the year in which the author died + 70 years".

Does this mean that my author's copyright of a work would expire as soon as the work was published (he died in 1913)? Would the publisher have any copyright of the work (apart from the typographical arrangement of it), or does the work immediately become public domain on publication? If there is still copyright associated with the work, could it be retained by the Literary Estate of the author if the Estate stipulated that publication of a work was only on the condition that the copyright was owned by the Literary Estate?

Given the above I am not sure how to proceed - any ideas would be very welcome".

Well, readers, here's a challenge for you! Please feel free to post your guidance below, and/or email it to Annette here.

Why did Google launch its cloud service without licences?

I’ve been sitting on a story from BusinessWeek from two months ago when the magazine reported that Google offered the major record labels $100 million to obtain licenses for its new cloud music service, but that one of the reasons that talks broke down was that the labels wanted Google to be more proactive in the fight against digital piracy. Google then launched a cloud locker service – without licences - and the legality of that has yet to be tested in the US courts. It is also interesting that Google filed a Amici curiae brief back in January in support of the defendant in the main case looking at this issue, EMI v MP3Tunes. MP3tunes operates a digital cloud “locker” service and is being sued by the major labels.

CNET asks why the labels would pass up big dollars for antipiracy considerations. Whether the story is true or not, it is clear that the large entertainment companies are trying to pressure Google to make changes – and the news of the new scheme brokered in the USA with the major ISPs means to me that this story makes more sense now. As the top Internet search engine, Google is believed to be in a position to make it more to difficult to find pirated materials online, for example the company's ads are often found on sites accused of trafficking in pirated or counterfeited materials. To be fair, Google has already agreed to a series of changes, and those include booting alleged copyright violators off AdSense, and blocking terms associated with piracy from appearing in the search engine's Autocomplete function, but maybe the record labels and other content providers recent success with ISPs in the USA mean that they are now prepared to take a tougher line when it comes to Google’s current stance.

Read more: http://news.cnet.com/8301-31001_3-20066799-261.html#ixzz1NdejMtcs and see US content industry and ISPs agree to be alert in Music Law Updates, August 2011 www.musiclawupdates.com and see http://the1709blog.blogspot.com/2011/01/cloud-is-future-google-joins-eff-in.html

Capitol Records, LLC. et al v MP3Tunes, LLC., and Michael Robertson
No. 07 Civ 9931 United States District Court Southern District of New York

After Hargreaves: further reflections

After all the Hargreaves hype and hullabaloo (see 1709 Blog posts here and here), further responses to the UK Government responses are fluttering down like leaves from early autumn trees.  Here are a few more copyright-specific responses:


The British Library

The BL: if ever there was a statue
crying out for a witty caption,
it must be this one ...

The BL has welcomed the Government’s response. According to CEO Dame Lynne Brindley,

“The British Library is delighted that the Government has recognised the importance of copyright in the digital age to education and research, and particularly welcomes the recognition of the need for legislation to ensure that hard won copyright exceptions are protected and cannot be overridden by individual contracts. 

Professor Hargreaves’ recommendations are important, as not only do they update many existing provisions in the law so they are fit for purpose in the digital age, but also strongly support innovation and scientific discovery for UK plc as is specifically the case around the proposal for text and data mining.”

Proposals to promote format-neutral research copying exceptions, streamlined rights clearance mechanisms, the digitisation of orphan works, text and data mining and digital preservation are all cited as having "an immediate benefit for research, life-long learning and teaching.


Eversheds (UK-based international law firm)

A media release from Eversheds' Neil Mohring opens with the news that, following a policy review by telecoms regulator Ofcom, the Government announced it was to drop plans to block websites that host copyright infringing material -- a key provision in the Digital Economy Act but not one that endeared the Act to internet service providers which never did like the prospect of having to shut down websites. Adds Neil:

“... it seems that the government is looking at other ways to achieve the same objective and ISPs will remain concerned about the injunction that the Motion Picture Association obtained against BT last week [noted by this blog here]. However the government has to deal with the issue of unauthorised copying if it is committed to the growth of the creative industries. There is little incentive for creators, particularly those in small businesses, if unauthorised copying is not addressed and measures such as the relaxation of the rules regarding parody are merely scratching at the surface".

Neil then turns to format-shifting which, he notes "will have little substantive effect overall. Format-shifting has been occurring for many years without action by the copyright owners, so the proposed changes will merely formalise the current position”.


Federation Against Software Theft (FAST)

FAST General Counsel Julian Heathcote Hobbins takes a positive overall view of the government’s response which, he stresses, shows that "the government clearly understands the importance of intellectual property to the growth of the UK economy and our position globally as a creative and innovative hub". However,

"The decision not to bring forward streamlined site-blocking sanctions to be enforced by Internet Service Providers is a damaging limitation on the arsenal available to tackle piracy. A variety of tools are needed for effective enforcement and this is a worrying retrograde step.The pirates just reposition these sites utilising the internet’s global structure in a game of cat and mouse".

In the same media releas, Beachcroft LLP partner Robin Fry, added that last week's NewzBin2 ruling

"makes it clear that software vendors will still be able to get direct orders against ISPs to block access to file-sharing websites. Such action is likely to be predictable and cost-effective but only after a number of successful applications have been brought where rights holders become familiar with the system”.

He adds that cost is such a significant factor for small and micro-sized organisations when deciding to press their cases that the government decision t drop site-blocking plans "only weakens their position".

FAST concludes by welcoming the principle of a Digital Copyright Exchange -- but it does not see how this proposal could apply to software.

FRAGILE! Members of the Public

The Solicitors Disciplinary Tribunal has fined two solicitors £20k each and suspended them for three months for sending intimidating letters to people about illegal filesharing, the SRA reports here.

Some litigators may be puzzled to find that the solicitors' crimes included demanding compensation, disregarding protestations of innocence and being interested in making money.

Yeeeesssssssss! (yes, some more on the Response to Hargreaves)

Following on from Jeremy’s post earlier, and now that the news that UK Government’s very positive response to Professor Ian Hargreaves' review of IP law is out is not really news at all, I thought I would add some detail to the Response which, as we now know, seemingly accepts all ten of Professor Hargreaves’ recommendations.

The Government say that their goal is to have measures in place by the end of this Parliament that will realise the Review’s vision and deliver real value to the UK economy, and to the creators and users of Intellectual Property saying “the Government announced plans to support economic growth by modernising UK intellectual property laws. Ministers have accepted the recommendations made in an independent review which estimate the potential to deliver up to £7.9 billion to the UK economy”. You can read the response in full here (pdf download) http://www.ipo.gov.uk/ipresponse as well as a letter from UK Business Secretary Vince Cable to stakeholders saying that consultation will begin this autumn.

The Response covers a number of topics (I haven’t covered patents and design rights in this Blog) and even suggests a new name for the Patents County Court along with a new ‘small claims’ track for IP (something that may have come out of the SABIP review of IP law). The only seemingly negative response for content owners is that site blocking legislation will not be brought in, although in light of the decision in Newzbin2 this may not be of such concern. Anyway, to précis the Response, and using the Reponse’s headings:

“Intellectual Property is important to growth”
The Government accepts the Review’s overall conclusion that IP is important to growth and that IP laws are, in some cases, obstructing growth. The Government is particularly concerned to reduce barriers to creating viable IP-using small firms, whether in existing industries or in new niches. IP is intensely valuable to the UK; that value can be increased if we act effectively now and will decrease if we do not.

The IP framework is falling behind and must adapt”
The Government shares this concern. There is a constant need for the IP system to adapt to new forms of innovation, creativity and technology, but that need is now particularly marked in copyright because technology has made copying and communicating many works very easy and created opportunities for the widespread and efficient use of digital content. As the Review notes, the advent of 3D printing may herald a time where copying material objects becomes similarly straightforward. Cloud computing and the ‘internet of things’ are based on ever-increasing flows of data. There are implications here for privacy and security that go far beyond IP but have a bearing on future public policy, IP included.

“Evidence should drive policy”
Fundamentally, the Government agrees with not only the Review’s headline conclusion but also with its underlying critique: too many past decisions on IP have been supported by poor evidence, or indeed poorly supported by evidence To deal with the first issue, the Government has strengthened the IPO’s economics team and begun an ambitious programme of economic research with partners. The IPO will publish its research programme for the coming year, including work in response to the Review, in Summer 2011. The fundamental issue however is that key data is held by business and other organisations. IPO will work with those organisations to help them offer good-quality evidence; our challenge to them is to do so.

“A digital copyright exchange will facilitate copyright licensing and realise the growth potential of creative industries”
The Government agrees it is right to help develop effective markets in copyright licensing where they are not emerging spontaneously. We believe a Digital Copyright Exchange (Recommendation 3) has the potential to offer a more efficient marketplace for owners and purchasers of rights, as well as opening up new markets to creators who may not have previously been able to access them.

Consideration is currently being given to how this complex project is best taken forward, and by whom. The Government will announce these arrangements in due course. The person or persons commissioned to lead this work will be asked to:

- facilitate the creation of a viable financial model for the DCE;

- bring together industry partners and sectors of the creative world to create a framework for a distributed rights exchange and the necessary supporting systems to allow a functioning licensing system by the end of 2012; and

- report on progress, by the end of 2011

The Government will work to ensure that Crown copyright materials are available via the exchange and will encourage public bodies to do likewise.

“Further steps to modernise copyright licensing”

Cross-border licensing: The Government welcomes the Review’s identification of opportunities for UK licensing bodies in European moves to improve the operation of copyright licensing (Recommendation 3). An efficient and flexible cross-border licensing framework is essential to the creation of a single EU market for content that smaller firms can readily enter and succeed in. The Government welcomes the European Commission’s initiative in proposing a cross-border licensing framework and will work with UK interests and the Commission to develop proposals that are compatible with current effective licensing models in the diverse industries affected.

Orphan Works: There are opportunities too in respect of so-called orphan works (Recommendation 4). The Government agrees with the Review’s fundamental premise that it benefits no-one to have a wealth of copyright works be entirely unusable under any circumstances because the owner of one or more rights in the work cannot be contacted. This is not simply a cultural issue; it is a very real economic issue that potentially valuable intangible assets are simply going to waste. The Government will this autumn bring forward proposals for an orphan works scheme that allows for both commercial and cultural uses of orphan works, subject to satisfactory safeguards for the interests of both owners of ‘orphan rights’ and rights holders who could suffer from unfair competition from an orphan works scheme.

The role of collecting societies: Copyright collecting societies play a major role in copyright licensing. The Government sees collecting societies as an important part of the UK’s future success whose status would be reinforced by visible adherence to good practice. Like the Review (Recommendation 3), the Government has heard a range of concerns about the operation of copyright collecting societies in the UK and elsewhere: from members on questions of transparency and governance, and from licensees concerning what they see as heavy-handed, misleading or unfair practice in charging for usage of works. The EU is looking at the need for a common standard within Europe, which the Government welcomes; such transparency would be in the interest of UK creators and rights holders. If the UK is going to be a leader in European licensing, we will need also to be a leader in good practice. This is particularly true if we are to introduce an orphan works or extended collective licensing regime. The Government will publish minimum standards for voluntary codes in early 2012 and consult with collecting societies on
their implementation.


“Copying should be lawful where it is for private purposes, or does not damage the underlying aims of copyright”
There is a fundamental role for copyright in providing appropriate incentives for the creation of valuable works. The Government has no intention of prejudicing this role, on which much value for the UK depends. We nonetheless believe the Review is right to identify activities that copyright currently over-regulates to the detriment of the UK, and to propose changes to tackle the problem (Recommendation 5). the Government agrees with the Review’s central thesis that the widest possible exceptions to copyright within the existing EU framework are likely to be beneficial to the UK, subject to three important factors:

- That the amount of harm to rights holders that would result in “fair compensation” under EU law is minimal, and hence the amount of fair compensation provided would be zero. This avoids market distortion and the need for a copyright levy system, which the Government opposes on the basis that it is likely to have adverse impacts on growth and inconsistent with its wider policy on tax.

- Adherence with EU law and international treaties.

- That unnecessary restrictions removed by copyright exceptions are not re-imposed by other means, such as contractual terms, in such a way as to undermine the benefits of the exception.

The Government will therefore bring forward proposals in autumn 2011 for a substantial opening up of the UK’s copyright exceptions regime on this basis. This will include proposals for a limited private copying exception; to widen the exception for non commercial research, which should also cover both text- and data-mining to the extent permissible under EU law; to widen the exception for library archiving; and to introduce an exception for parody.

“Building future-proofing into the legislative and regulatory framework…”
The Review recognises that the UK’s scope for action on copyright exceptions is limited. It makes the case for broader changes at the EU level in order to enhance economic growth now and – through building in adaptability to new technologies – in the future. In the Review’s judgement, and the Government’s, there is a need for a wider set of exceptions at EU level to achieve this, again without prejudice to the provision of appropriate incentives for creation of works (Recommendation 5). The Government will aim to secure further flexibilities at EU level that enable greater adaptability to new technologies including use of data for research. We support a review of relevant EU legislation to this end and will be in dialogue with European partners to identify how this can best be achieved. IPO will make the removal of EU-level barriers to innovative and valuable technologies a priority to be pursued through all appropriate mechanisms.

“Effective enforcement requires education, effective markets, an appropriate enforcement regime and a modern legal framework…”
An effective IP enforcement regime – and the UK’s is one of the best in the world – is a necessity for any advanced economy. The Government shares the Review’s perspective that intellectual property rights (IPRs) cannot fulfil a useful function unless they are enforceable:
- There is a fundamental reason to ensure that valuable IPRs are enforceable, and
- where society - both users and owners - acknowledges in practice that the enforcement of rights is uneconomic or unreasonable, for example over private copying, these should ideally be taken out of scope of the IP system through properly limited exceptions. Otherwise respect for legitimate enforcement is diluted.

With the Reponse saying:

- Action against IP crime will remain a priority
- Serious organised crime will be the leading priority within finite public resources
- Content owners should continue to inform, educate and guide consumers
- Government and public sector enforcement bodies will work with industry, with a particular focus on supporting efforts to develop new legitimate digital markets, tackling organised IP crime and enhancing the availability of high-quality evidence.
- it would be desirable for Ofcom to begin establishing benchmarks and data on trends in online infringement of copyright as soon as possible.
- The Government is publishing alongside this document a cross-government IP Crime Strategy that commits us to better coordinated action to make the most of scarce resources, including on online infringement of copyrights and trade marks. Progress on the strategy will be reported in annual IP Crime reports from summer 2012 onwards.
- The Government is also publishing today a statement setting out how it plans to move forward with implementation of the Digital Economy Act initial obligations, following a successful defence of the Act’s provisions in judicial review. Following the judicial review ruling, the Government is removing the obligation on internet service providers (ISPs) to contribute towards the costs of Ofcom and the independent appeals body in setting up and administering the regime (bit not other costs). The Government has received further advice from Ofcom on the potential costs of the DEA appeals system, which we are publishing today. In order to minimise the risk of the system being disrupted by vexatious or non bona fide appeals, we are introducing a £20 fee for subscribers to appeal. The fee will be refunded if the appeal is successful.
- The Government will, subject to establishing the value for money case, introduce a small claims track in the Patents County Court for cases with £5000 or less at issue, initially at a low level of resource to gauge demand, making greater provision if it is needed. It may also rename the Court the Intellectual Property County Court.
- Following advice from Ofcom - which the Government is publishing today - site blocking will not be brought forward at this time. However, the Government is keen to explore the issues raised by Ofcom’s report and will do more work on what other measures can be pursued to tackle online copyright infringement.

“Creating an IP framework which adapts to changes in technology and markets requires changes to the IPO…”
The Government is committed to policies based on sound evidence and to the transparent operation of public bodies. The Review found past decisions on IP did not always live up to this standard, apparently influenced by strong lobbying from interested parties. The Government believes it is important to avoid not only the fact but also the appearance of bias and therefore believes there is a good case for change to the IPO that will support more evidence-based decisions in future. The Government will explore options for a future role for IPO that involves a strengthened focus on innovation and growth, a greater emphasis on publicly available evidence, enhanced ability to promote competitive markets whilst retaining Ministerial oversight of IP policy; and will bring forward these proposals by the turn of the year (i.e. late 2011 or early 2012).

http://www.ipo.gov.uk/ipresponse-full.pdf