IFPI welcomes Russian ruling on unlicensed streaming platform

The IFPI has welcomed what it calls a “landmark ruling” by a Russian court that internet company vKontakte’s music service is liable for copyright infringement. The commercial (“Arbitrazh”) Court of Saint Petersburg ruled that the social networking site with an unlicensed music service is illegally offering unlicensed music to its users. vKontakte is Russia’s most popular online entertainment platform. It has over 110 million registered users and over 33 million users per day, and is one of the top 50 most visited sites in the world. The case against vKontakte was brought by SBA Publishing and SBA Production, members of the Gala Music Group in Russia. The cases were based on vKontakte making Gala’s music compositions and sound recordings available without licensing agreements. The unlicensed vKontakte music service allows streaming of music from an extensive catalogue of Russian and international sound recordings and encourages software developers to create apps for illegal downloading of content via vKontakte. The IFPI says that several further cases are pending.

Reacting to the judgment, IFPI CEO, Frances Moore, said: “This is a very important ruling for Russia. It shows that sites like vKontakte cannot build a business on making music available without licences from content owners. Such services are directly liable for the unlicensed music they make available. They cannot avoid liability by shifting responsibility on to their users.” Moore added that: “Russia is a market with the potential to develop a thriving legitimate music market, but this prospect is currently being undermined by unlicensed services such as vKontakte. Millions of unlicensed songs are freely available through vKontakte, competing unfairly with licensed services, and this must stop.” Russia is now one of Europe’s biggest online markets. vKontakte is a business valued at between US$2 and US$3.9 billion.

www.ifpi.org

IP and Media in the Digital Age conference

Against the backdrop of the ever increasing demand by the 'connected world' to use online and digital methods to consume content, and the ever growing proliferation of illegal ways to access online material, this conference hopes to provide some answers and updates on what is happening with IP and media in the digtal age. With Kim Dotcom on remand, the Hadopi and Sinde laws in operation in France and Spain respectively, and with perceived success for content owners in Russia, in Newzbin 2 and against the Pirate Bay, it's been no secret over the last couple of months that the entertainment industry has "begun to fight back". There again, with SOPA and PIPA suddenly on the back burner, the DEA still unimplemented and ongoing issues of privacy, free speech and competition law, its not all rosy for the content businesses.

This Butterworths' conference says "it is essential that you keep up to date with the competing issues being fought out in the courts, as well as understanding the complexities of new online business models". To be held on 23rd March 2012 in Central London, IP and Media in the Digital Age conference will provide a comprehensive analysis of new approaches to protecting intellectual property rights. The expert speaker panel will be there to discuss the following critical issues:

• Understand the implications of Hollywood’s High Court win requiring BT to block the website Newzbin2
• Discuss what ‘communication to the public’ means in today’s digital environment
• Explore the regulatory issues surrounding the advent of “Connected TV”
• Debate whether new online business models will kill off the traditional entertainment industry
• Hear the latest on cross border licensing initiatives in Europe

To download the full agenda or to register, please visit: http://www.conferencesandtraining.co.uk/IP-Media or email registrations@lexisnexis.co.uk.

Plus, book before 10th February 2012 to receive a £50 discount. To claim it, all you have to do is quote the reference ‘IPMLUB’ when registering.

PRS' Digi Licensing Results - Good in Parts

Something here to cheer the European Commission, desperate to find a pan-European solution for collective licensing: Britain's PRS for Music announced this week that they have processed over one million pounds in licences to pan-European digital services for mobile and on-line mechanical rights in the Anglo-American catalogue. This service's acronym, IMPEL, stands for Independent Music Publishers' European Licensing - so good news for smaller publishers and their writers. The gaping hole in the system appears (still) to be the majors - plus ca change, plus c'est la meme chose. In this light it is "Good luck to the UK's Richard Hooper" for the Digital Exchange Feasibility Study - the deadline for submissions approaches - Friday 10th February!

Of biomedical research, academic publishing and copyright

Some doctors are not used to asking for permission ...

As our readers will probably know, on 16 December last, a controversial bill was introduced to US Congress, this being the Research Works Act (HR 3699). 

This short piece of legislation (it is comprised of just three sections) is co-sponsored by Republican representatives Darrell Issa and Carolyn Maloney and its purpose is "[t]o ensure the continued publication and integrity of peer-reviewed research works by the private sector."

If enacted, no federal agency will be allowed to adopt, implement, maintain, continue, or otherwise engage in any policy, program, or other activity that

(1) causes, permits, or authorizes network dissemination of any private-sector research work without the prior consent of the publisher of such work; or

(2) requires that any actual or prospective author, or the employer of such an actual or prospective author, assent to network dissemination of a private-sector research work.

The Research Works Act has attracted criticisms from the world of biomedical research, in that it will overturn the US National Institutes of Health (NIH) 4-year-old public open-access policy, notes the prestigious The Lancet. NIH policy requires its grantees to submit copies of their peer-reviewed papers to PubMed Central for posting no later than a year after journal publication. On PubMed Central, the public can freely access papers reporting publicly funded research.

As noted by Columbia University's Dr Abdulrahman El-Sayed, in the field of biomedical research,

"almost all high-quality health research is submitted for publication in academic journals -- journals like the Journal of the American Medical Association (JAMA), or the New England Journal of Medicine. They serve the purpose of coordinating peer-review, organizing the health literature, and benchmarking high quality research ...  This bill would make it illegal for the NIH to mandate unrestricted access to published NIH-funded material -- choking this crucial information off from health providers and researchers who are unable to pay."

Copyright restrictions in the access to the results of biomedical research are becoming increasingly frequent (see the case of the MMSE which was reported on this Blog here). However, as pointed out by The Lancet, which strongly opposes the bill, 

"Putting limitations on the dissemination of a scientist's own work is a startlingly ill-considered strategy. Science is a public enterprise. A scientific publisher's primary responsibility is to serve the research community. Their own interests—financial and reputational—depend upon the trust the public has in science. Obstructing the dissemination of publicly funded science will damage, not enhance, that trust." 

What do our readers think of this bill?

Signed, sealed, delivered - you're mine

With PIPA, SOPA and Mega hogging all the news space, the European Union and twenty two of its member states have signed the Anti-Counterfeiting Trade Agreement (ACTA) which is designed to ensure a basic system of global intellectual property protection. The signing ceremony went quietly in Tokyo yesterday (although there were some very public protests in Poland) and only five EU countries did not sign up yesterday - Germany, the Netherlands, Estonia, Cyprus and Slovakia - though they are expected to sign in due course. The EU signature itself must be confirmed by a vote of the European Parliament scheduled for June. The signatories join the USA, Canada, Australia, New Zealand, Singapore, South Korea and Morocco, who all signed up last October.

While there have been protests, supporters of the Treaty say that it does not commit signatories to any of the more extreme anti-piracy measures some countries have adopted (such as three strikes law in France) some expected or predicted, and supporters in Europe insist the agreement will simply force other participating countries to ensure the basic IP protections that already exist within the EU. But interestingly Kader Arif, the French MEP charged with the task of compiling background information about the Treaty for the European Parliament, quit his role and hit out at the way ACTA has been handled saying "I want to denounce in the strongest possible manner the entire process that led to the signature of this agreement: no inclusion of civil society organisations, a lack of transparency from the start of the negotiations, repeated postponing of the signature of the text without an explanation being ever given, and the exclusion of the EU Parliament's demands that were expressed on several occasions in our assembly" adding "As rapporteur of this text, I have faced never before seen manoeuvres from the right wing of this parliament to impose a rushed calendar before public opinion could be alerted, thus depriving the parliament of its right to expression and of the tools at its disposal to convey citizens' legitimate demands. Everyone knows the ACTA agreement is problematic, whether it is its impact on civil liberties, the way it makes Internet access providers liable, its consequences on generic drugs manufacturing, or how little protection it gives to our geographical indications.”

Arif concluded by saying "This Agreement might have major consequences on citizens' lives, and still, everything is being done to prevent the European Parliament from having its say in this matter. That is why today, as I release this report for which I was in charge, I want to send a strong signal and alert the public opinion about this unacceptable situation. I will not take part in this masquerade".

http://www.theinquirer.net/inquirer/news/2141813/european-parliament-official-resigns-acta

Image - 'V' masked MPs in Poland protest against ACTA

Innocent infringement is not a defence, says Judge Birss QC

Even if you don't think it's forbidden, it actually is ...

These are interesting times for copyright and photography in the UK.

Following by one week his decision in Temple Islands Collection (noted in this Blog here), His Honour Judge Birss QC published his ruling in David Hoffman v Drug Abuse Resistance Education (UK) Limited [2012] EWPCC 2. 

This was an action for damages for copyright infringement, brought by photographer David Hoffman against Drug Abuse Resistance Education (DARE), a now out-of-business government-affiliated charity, which operated in schools to help young people understand the dangers of substance abuse and to provide them with life skills to tackle peer pressure in this regard.

The claimant's case was that, from about 2004, the defendant's websites used 19 photographs of various drugs. The images used were apparently copies of his copyright photographs and the defendant was using them without his permission. 

Mr Hoffman issued proceedings in November 2010, under s.16 of the Copyright Designs and Patents Act 1988 (CDPA).

DARE did not dispute that the photographs were Mr Hoffman's and that it was using them without his permission. However, at the time of the alleged infringement, DARE had employed a firm to produce a website for the charity. This, claimed the charity, had found a website sponsored by the Deparment of Health (DoH) - Talk to FRANK - on which Mr Hoffman's photographs appeared. The defendant had therefore understood that the site was covered by Crown copyright, so that the text and images could be used without seeking to obtain a licence.

However, this was not the case, as copyright in the photographs - which Judge Birss recognised as being clearly original artistic works protected under s.4 CDPA  - belonged to Mr Hoffman.

This said, DARE's position was that it had not paid Mr Hoffman because it had not intentionally or knowingly infringed his copyright and that the DoH and its misleading website were the actual cause of any infringement.

This, found Judge Birss QC, did not avoid liability for copyright infringement under s16(1)(d) and s.20 CDPA, in that:

"The fact that the defendant may have thought that it had permission to use the images is not a defence to infringement under s16. There is a form of innocence defence in copyright law provided for by s.97 of the 1988 Act … The s.97 defence would not mean that the defendant had not infringed, it would be a bar to damages.

Thus if the defendant did carry out one of the acts provided for in s16, the fact that they thought they had permission is not relevant. Although this may seem harsh, it is not. From the copyright owners point of view, the copyright is his property and his rights have been infringed if he did not give permission. Copyright law provides for other secondary acts of infringement which generally amount to dealing in infringing copies and those acts only infringe if the person knew or had reason to believe that the copies were infringing copies. However for the primary acts of infringement set out in s16, the policy of the law is that if there was in fact no permission, an infringement has occurred even if the person genuinely thought they had permission.

The key question on liability therefore is whether the defendant has committed any of the acts restricted by copyright as set out in section 16."

This being the case, Judge Birss QC found that the defendant had committed acts restricted by copyright, specifically the act of communicating the work to the public, which thereby infringed Mr Hoffman's copyright. He ordered for £10,000 in damages and £2,444.57 in interest be paid to Mr Hoffman. 

As the photographer told the British Journal of Photography, though he welcomes the result, he does not expect to receive these damages.  "My claim originally was for around three times as much [as £10,000]. This was based on the flagrancy of the abuse, the lies and threats made by the defendant and the continued infringement for a long time after I had demanded the removal of the images. However when the time came for me to make my submission to the court the defendant was already in the process of becoming insolvent and so there was no point in putting in the additional work to support a higher claim as there was no expectation that it would be paid." He added: "For years, the Department of Health has been stalling this case, pretending that they were ready to settle when they were not. They've stalled long enough for DARE to go out of business. So, now, DARE has gone insolvent." 

1709 Blog Red Bus seminar: early announcement

The recent decision of Judge Colin Birss QC in Temple Island Collections Ltd v New English Teas Ltd & another [2012] EWPCC 1 has attracted a good deal of attention on the blogosphere and beyond in the way in which it has approached the scope of copyright protection which the creator of a photograph or digitally manipulated image might now expect to enjoy in the courts of England and Wales. Andy Johnstone authored a guest-note on this weblog here, while Catherine Lee provided this analysis for the IPKat and Rosie Burbidge has since posted her view of the ruling on Art & Artifice. Further comments come from ACID, NIPCLAW and beyond.

The 1709 Blog is to host a seminar on Tuesday 21 February 2012, 5.30pm to 7.00pm, at which Michael Edenborough QC -- who appeared for the successful claimant -- will give an explanation of the legal issues as the court has stated them. There will also be at least one other speaker who will seek to dissect the ruling, plus a small panel to help generate an informed discussion.  Olswang LLP has kindly once again consented to the use of its lovely High Holborn, London, office as our venue and 1709 Blogger John Enser, a partner in Olswang LLP, will take the chair.  Light refreshments are planned and at least 1 CPD point is hoped for. As usual for 1709 Blog events, admission will be FREE.

If you'd like to attend, please email me here, with the subject line "Red Bus Seminar" -- but don't expect an immediate response: I'll get back to you when I can.

Preliminary Injunction against 'Mein Kampf'

As German newspaper Frankfurter Allgemeine Zeitung (FAZ) reports (here), the District Court of Munich I (LG München I) today issued a preliminary injunction (case reference: 7 O 1533/12) on behalf of the Bavarian state government, prohibiting the planned publication of commented excerpts of Adolf Hitler's notorious 'Mein Kampf' by British publisher Peter McGee. 

A spokesperson for the publisher said they would wait for the written arguments of the court before deciding on possible next steps. Bavarian state officials confirmed that they would continue to use Bavaria's copyright in 'Mein Kampf'. Bavaria derives its copyright claim in 'Mein Kampf' from the fact that it is the legal successor of Hitler's publisher Eher-Verlag, which was liquidated upon instruction of the Allied Forces in 1945, though it has been argued that upon its liquidation copyright should have reverted to Hitler's heirs (apparently there is a second cousin and a few other relatives, according to an article by the Tagesspiegel available here).

Mr McGee does not challenge Bavaria's copyright as such, but argues that the publication of excerpts accompanied by critical comments falls within the scope of the quotation exception/limitation in § 51 German Copyright Act (UrhG):

Reproduction, distribution and communication to the public shall be permitted, to the extent justified by the purpose, where
1. individual works are included after their publication in an independent scientific work to illustrate its contents;
2. passages from a work are quoted after its publication in an independent work of language;
3. individual passages from a published musical work are quoted in an independent musical work.

It remains to be seen which event will occur first, the final resolution of the legal dispute or the passing into the public domain of 'Mein Kampf' on 31 December 2015...

Also see previous 1709 and IPKat posts here and here

"Great fun, interesting, rewarding": funded copyright PhDs with Estelle

The worst thing about
doing a PhD is the silly
uniform they make you
wear for graduation ..

This blogger's friend, the distinguished scholar Dr Estelle Derclaye (University of Nottingham, England), has received two fully-funded collaborative PhD scholarships. They are both in the field of copyright:

* one is in collaboration with a very prominent technology company on the liability of ISPs for copyright infringement but also other types of breaches eg privacy, defamation; 

* the other is with a prominent music company on parody and non-commercial use generally and specifically applied to music. This latter one will review French, Canadian, Australian and UK law. 

There will be a three month internship in each organisation (depending on which studentship the student applies for and obtains) which should be great fun, interesting, rewarding and very special and rare for a PhD student in the field of intellectual property. The supervisor will be Estelle herself and, in addition to the three months traineeship, the successful candidate will be in regular contact with the legal counsel of the company co-sponsoring the PhD.

There will be a selection process and short-listed candidates will be interviewed by Estelle and legal counsel of the two companies. Knowledge of intellectual property -- and more specifically copyright -- is highly desirable, as well as French language abilities, for the second scholarship.

Candidates do not have to draft a proposal but do need to provide a personal statement of their skills, knowledge, interest and motivation.

Enquiries on the topics can be addressed to estelle.derclaye@nottingham.ac.uk.  For procedural matters, send email Danielle.sinclair@nottingham.ac.uk or joanne.bailey@nottingham.ac.uk

If you are interested, you can see the advert on www.jobs.ac.uk, the Guardian online and the Times online or at http://www.nottingham.ac.uk/jobs/currentvacancies/ref/LSS350 

The deadline for receipt of applications is 20 February.  Good luck!

MegaBoss stays inside

MagaUpload boss Kim (Dotcom) Schmitz has been denied bail by a court in New Zealand after prosecutors said there would be a real risk that he would flee New Zealand and evade extradition to the United States to face criminal charges. Schmitz's defence lawyers had argued that his passport had been seized, bank accounts frozen and his size (he is VERY large) made it unlikely he would be able to evade immigration officials. But prosecutors argued that the MegaBoss may well have other passports and other bank accounts, and that he had a history of evading criminal charges. Judge David McNaughton agreed with the prosecution, saying that "with sufficient determination and financial resources, flight risk remains a real and significant possibility which I cannot discount and bail is declined" adding that the unlicensed shotguns which were found at Schmitz rented mansion (he was apparently located by New Zealand Police locked in the mansion's panic room with a shotgun) suggested criminal connections, who could possibly aid an escape from the country. Schmitz holds joint Finnish and German nationality and it was feared he would escape to Germany, who perhaps might be less to hand over one of their own citizens to the US authorities. The bail decision will be appealed.

Schmitz will now be held in custody until February 22nd. The other three MegaUpload team members arrested in New Zealand last week were also remanded in custody, with each requesting separate hearings to present arguments to attempt to secure bail. Mystery remains about the role Swiss Beatz, Alicia Key's rapper and producer husband, played in the whole Mega business where it was thought he was CEO. US authorities have not named Beatz as a suspect, and cyber commentators claim the title was a 'courtesy' title.

In the wake of the arrests, a number of websites have taken steps to block unlicensed and infringing content with two, Filesonic and Fileserver, putting blocks in place so users can now only download content they themselves uploaded.

http://www.computerweekly.com/news/2240114316/Megaupload-boss-denied-bail

and http://www.guardian.co.uk/music/2012/jan/23/swizz-beatz-megaupload?newsfeed=true

Obama promises action on piracy

President Obama used his State of the Nation address on Tuesday to make some far ranging comments on the United States, its economy and not least the need to try balance the interests of America’s ultra-rich and the rest of the public, trying to present an election-year choice between continued leadership and an economy “built to last” and what he called irresponsible policies of the past that caused an economic collapse saying "I will not go back to the days when Wall Street was allowed to play by its own set of rules". In one passage, delivered to a joint sitting of the Senate and the House of Congress, President Obama said the defining issue of the present time was how to keep alive the promise of America as a land of opportunity. "No challenge is more urgent. No debate is more important. We can either settle for a country where a shrinking number of people do really well, while a growing number of Americans barely get by. Or we can restore an economy where everyone gets a fair shot, and everyone does their fair share, and everyone plays by the same set of rules". In light of the revelations of the low tax rate paid by Mitt Romney, the mjulti-millionaire leading Republican presidential candidate, Obama cited the example of Warren Buffett, the billionaire investor who admitted last year that he paid lower tax rates than his secretary, Mr Obama called on Washington to “stop subsidising millionaires” and rescind a trillion dollars of tax breaks for the wealthiest 2 per cent.

But readers of the 1709 Blog might be interested to note that Mr. Obama also touched on the copyright industries saying "I will go anywhere in the World to open new markets for American products. And I will not stand by when our competitors don't play by the rules. We've brought trade cases against China at nearly twice the rate as the last administration - and it's made a difference. Over a thousand Americans are working today because we stopped a surge in Chinese tires. But we need to do more. It's not right when another country lets our movies, music, and software be pirated. It's not fair when foreign manufacturers have a leg up on ours only because they're heavily subsidized". President Obama proposed a new trade enforcement unit that would add to the number of government investigators pursuing unfair trade practices and that would be responsible for filing lawsuits against foreign countries saying "Tonight, I'm announcing the creation of a Trade Enforcement Unit that will be charged with investigating unfair trade practices in countries like China. There will be more inspections to prevent counterfeit or unsafe goods from crossing our borders. And this Congress should make sure that no foreign company has an advantage over American manufacturing when it comes to accessing finance or new markets like Russia. Our workers are the most productive on Earth, and if the playing field is level, I promise you - America will always win".



http://www.usatoday.com/news/washington/story/2012-01-24/state-of-the-union-transcript/52780694/1

Down, Beuys!

In as dispute between the heir of famous German artist Joseph Beuys and a museum (Schloss Moyland), the Regional Court of Dusseldorf (OLG Düsseldorf) held that the museum would have required permission from Beuys/his heir for an exhibition of photographs by Manfred Tischer showing a live performance by Joseph Beuys. The court held that Beuys’ live performance qualified as an artistic work (there’s no fixation requirement under German law) and the photographs constituted an unauthorised adaptation rather than free use. Please read Birgit’s excellent IPKat post (here) for all the details.

OLG Düsseldorf, 30 December 2011 – I 20 U 101/09, press release (in German) here

For what it’s worth

The Higher Regional Court of Celle (OLG Celle) recently had to decide a curious question: what is the value of a copyright injunction? It’s tricky enough to calculate damages in copyright cases – the actual damage more often than not is difficult to prove, and models such as the fictitious licence (‘Lizenzanalogie’) or the amount by which the infringer is unlawfully enriched due to the infringement (‘ungerechtfertigte Bereicherung’) all have their weak points. But how do you determine the value of an injunction? And why would anyone even want to know?

The answer to the second question is straightforward enough. In Germany, the amount in dispute (‘Streitwert’) determines whether a claim will be heard in a District Court (Amtsgericht) or in a Regional Court (Landgericht). The Amtsgericht deals with claims where the amount in dispute is 5,000 EUR or less (they also deal with specific areas of law regardless of the amount in dispute, but this does not affect copyright). If the amount in dispute is larger than 5,000 EUR, only a District Court is competent to hear the case.

The answer to the first question is of course the lawyer’s all-time favourite ‘it depends’. In the case at hand, the claimant had applied for an injunction ordering the defendant to cease and desist from communicating to the public football broadcasts in his pub. The court decided that the value of the injunction equalled the amount of the television broadcaster’s estimated loss of earnings during a period of three years. Why three years? I’m afraid the court failed to explain. Maybe three years was the typical duration of a licence agreement in the relevant market, but that’s just a wild guess… However, the court did elaborate that since the case only concerned the application for a preliminary injunction rather than a permanent one, the amount in dispute must be reduced by one third (i.e. the loss of earnings of two years).

In addition, the court pointed out that aspects of general prevention of copyright infringement must not be taken into consideration when determining the amount in dispute. It held that deciding on the amount in dispute is not the place to try and deter potential copycat infringers or penalise the defendant. In doing so, it openly contradicted previous judgments by a number of other Regional Courts, namely OLG Koblenz, KG Berlin, OLG Hamburg and OLG Thüringen. On the other hand, OLG Frankfurt, OLG Braunschweig and Schleswig-Holsteinisches OLG support the same view as OLG Celle.

So basically it’s a tie and something the Bundesgerichtshof (BGH) should be keen to jump on in the name of the unity of the legal system, but I think it’s not very likely that someone will take a case all the way to the BGH just because of a disagreement over the amount in dispute. Dear BGH, can we have an obiter dictum sometime soon, please?

Source: OLG Celle, 7 December 2011 - 13 U 130/11, available online (in German) here

Its Digital Growth! But Is It Good News for the IFPI?

The IFPI’s Digital Music Report 2012 has just been published and headline figures from the record industry’s global trade body highlight the good news. remember, this summary is from the IFPI, so please do feel free to dig deeper using the links provided at the foot of this Blog.

• Major international music services which include streaming services like Spotify are now in 58 countries, up from 23 in January 2011

• Digital music revenues are up 8 per cent to US$5.2 billion

• The IFPI say that anti-piracy action has made an impact in France, New Zealand with the US to follow in 2012 but the IFPI says that piracy and the ‘legal environment’ remain a problem

• The IFPI say that consumers are benefitting from a widening choice of services for experiencing digital music. In 2011, subscription services expanded and linked with new partners to reach new audiences. Meanwhile cloud technology is helping transform the way fans manage and store their music.

• Global revenues to record companies grew by an estimated 8 per cent to US$5.2 billion in 2011 - a faster rate than 2010 - with strong consumer demand for both single track downloads (up 11 per cent by volume), digital albums (up 24 per cent by volume) and fast-expanding subscription services. The number of users paying to subscribe to a music service leapt by 65 per cent in 2011 to 13.4 million worldwide, according to IFPI estimates.

• In the US, the world’s largest music market, digital channels have overtaken physical formats to become the primary source of revenues for record companies. Globally, 32 per cent of music industry revenues come from digital sources, far surpassing the film, newspaper and book sectors. New services launched across Latin America, while in China record companies are working in a landmark partnership with the largest internet company Baidu.

• The IFPI says that piracy remains an enormous barrier to sustainable growth in digital music. Globally, one in four internet users (28%) regularly access unlicensed services, according to IFPI/Nielsen. This is rigging the market for legitimate services, stunting growth and jeopardising investment in music. IFPI advocates an inclusive combination of graduated response, site-blocking and other measures to tackle the problem.

• There has been positive momentum in the fight against piracy in 2011. In France, the introduction of the new Hadopi graduated response law has seen peer-to-peer (P2P) piracy levels decline by 26 per cent, with around two million P2P users stopping the activity since warning notices were first sent out in October 2010 (according to IFPI/Nielsen).

• There was important progress elsewhere too. In New Zealand, a new graduated response law took effect in September 2011, with early indications of impact. In Europe the IFPI say that a string of court judgments has helped reduce copyright infringing activity on major sites like The Pirate Bay. In Belgium and Italy visits to the infringing sites dropped by 70-80 per cent in each case. In Spain a new law came into force to allow the blocking of illegal websites – a positive step, though disappointingly limited in its scope.

• The recorded music industry is now working directly with advertisers, payment providers, search engines and website hosts to tackle digital piracy. A partnership struck in 2011 between IFPI, the City of London Police and payment providers MasterCard, Visa and PayPal has prevented more than 60 illegal websites from abusing payment services since it began in March 2011.

• Better cooperation is being sought with search engines, which are a major channel for consumers to access music. The IFPI says that research in several countries indicates that between a quarter and a half of people illegally downloading access infringing music via search engines. However, many of the top results provided by search engines are linked to unauthorised content or sites which regularly infringe copyright.

more at http://www.ifpi.org/content/library/DMR2012.pdf and headline figures at http://www.ifpi.org/content/library/DMR2012_key_facts_and_figures.pdf

Entertainment Industry Talent Needs Better Tennis Facilities

Today sees the publication of IFPI's 2012 Digital Music Report - see Digitalmusic.org. The economists may have something to say about the numbers - but this blogger's joy cannot be unconfined when reports of revenues "up" are trumpeted to celebrate an industry of right owners that contractually serve their recording artists so very poorly (the endearing record contract practice of lending artists their own pipeline income to fund their own recoupable advances being a real favourite here). Of course, the movie deals too have their own shameful secrets. The European Audio-Visual Observatory reported last week that European digital movies screens are up from 4% in 2008 to 52% in 2011. Swift low-cost delivery to exhibitors is doubtless a boon to the MPAA members. But film contracts continue to permit huge cost deductions before applying revenues to recoupment. British directors of successful films, lacking the long-standing US residuals system, seldom see their net profit share materialise even on hugely successful pictures. The old Hollywood studio joke could equally apply to the record industry when it comes to paying out to third parties, in this case the talent: Q: Why does nobody play tennis at Paramount? A: Because there is no net!

Fortunately some little birds have convinced the UK powers that be that contracting practices need to be included in the evidence in the (seemingly endless) search for new business models. One hopes those in the know flood the UK's IPO with examples of these practices in March for the UK government's copyright consultation. What the Government wants here: http://www.ipo.gov.uk/types/hargreaves.htm

When Birss meets Bus: a study in Red and Gray

This weblog has received a note from Andy Johnstone on a recent copyright decision in which he reflects the concern of a number of recent correspondents.  Andy explains as follows:

"The week before last in the Patents County Court for England and Wales, His Honour Judge Birss QC gave judgment in Temple Island Collections Ltd v New English Teas Ltd & another [2012] EWPCC 1 which, while it is not binding on the High Court, nevertheless appears to represent a new and perhaps worrying development in copyright law. 

The case involved two photographs of a Routemaster London bus on Westminster Bridge with the House of Parliament in the background. Or perhaps that should read pseudo-photographs-- as both images were the result of varying degrees of post-production manipulation. However, nothing turned on that as the judge found that, even if they were collages, each potentially attracted copyright.

Looking at the two images, one is clearly not a faithful reproduction of the other. Yet the image on the right (the defendant's) was held to infringe the complainant's (above). It can be seen that they share a lot of the same 'look and feel' in the way the subject has been rendered -- but it has long been felt (see Laddie, Prescott & Vitoria paras 4.60 and 4.61) that the taking of two photographs of the same scene, especially where that scene is somehow iconic or distinctive, does not lead to infringement because each is original by virtue of to the creative input of the two photographers. In other words the 'idea' element assumes a lesser importance because it is obvious, and emphasis shifts to the 'fixing' of the idea. In this regard each photographer is independent of the other and so each has an equal claim to copyright in his or her respective work. 

Where this latest decision is of concern is that it seems to draw too heavily on the sort of analysis one might use to determine similarity in a trade mark. Judge Birss was clear that he had dismissed any suggestion that this case might have had overtones of passing-off, given that the two images were often to be found side-by-side on products aimed at tourists. But despite that he seems to have been persuaded to examine the 'idea' much more extensively than the way in which it was fixed. 

One factor which weighed against the defendant was the fact that he knew of the existence of the claimant's image before he created his own image. Indeed, he could hardly deny this since he  had lost an earlier action involving exactly the same claimant's image and another of his (the defendant's) which was very much more similar than the image in this case. Taking that as the starting point, the judge decided the case on the degree to which the second image used substantial elements from the claimant's image -- not in any mechanical sense of copying, but in the selection and emphasis of them. This is a long way from the argument in the American decision in Bridgeman Art Library v Corel, which involved the photographic reproduction of a painting, where it was held no copyright existed in the photograph because of a lack of originality. In the action before him, Judge Birss acknowledged the defendant's creative input by saying that his was a derivative work capable of copyright protection, but for the infringement which had been brought about by not having the permission of the owner of copyright in the underlying work. 

Another slightly surprising factor in this action was that several other examples of what might be termed 'prior art' were offered to the court, clearly indicating that there was nothing particularly novel about either the claimant's composition or rendition of his image. However the submission of this evidence did not alter the finding that the defendant used a substantial part of the claimant's work as the source for his own image. 

Most professional photographers are likely to find this decision worrying because it undermines the prevailing view of copyright within the industry".

If the learned judge's analysis, based on (among other things) the view of the Court of Justice in Case C-5/08 Infopaq as to what constitutes the protectable subject matter of an author's work, is correct, the advice which I have given law students since I first taught copyright in the 1970s is no longer reliable, that the photographer who recreates the effect of another's photograph of a public scene or monument is now a copyright infringer, and that there may now be a notion of copyright in an idea, a lay-out or a scheme for such a photograph.

I am also intrigued at the submission of evidence of 'prior art' in the form of a series of London bus-related photographs from Getty Images here, here, here, here, here, here and here. It seems to me that Corelli v Gray [1913] 29 T.L.R. 116 establishes that, once the claimant company has established that copyright exists in its work, that it owns the copyright and that  the defendant's work is similar, 'prior art' will avail the defendant if he can show that both he and the claimant copied from the same work -- and, by the same reasoning, Corelli v Gray should assist him if he can show that he infringed one of the Getty Images rather than the claimant's one. But wouldn't that be a case of jumping out of the frying-pan and straight  into the fire?

PM Monti opens the Italian market for neighbouring rights

Prof Monti explaining the reforms
included in the Decreto Liberalizzazioni

Here's some news from the Italian side of the world of collecting societies. 

On 20 January the new Italian government led by Prof Mario Monti passed a reform (known as "Decreto Liberalizzazioni", which is available in full here) aimed at boosting the Bel Paese's suffering economy, in particular by promoting the value of competition (our English-speaking readers may access details here). 

"The Italian economy has been held back for decades. More competition means more openness, more space for young people, less space for privileges and rent-seeking, more space for merit" said the Prime Minister.

Since his appointment in November 2011, Prof Monti has indeed made no secret of the fact that liberalisation of services is to be pursued wherever possible (you can read his interview with The Economist here).

Sectors involved in the liberalizzazione are - inter alia - taxis, pharmacies, local public transport, petrol stations, lawyers, MDs, dentists and ... the Italian collecting society SIAE (Società Italiana degli Autori ed Editori).

According to Article 39(2) of the Decreto Liberalizzazioni (the translation is mine),

Candidates for intermediary
positions are ready for interviews

"To favour the creation of new undertakings aimed at protecting the rights of artists, performers and executors, by enhancing competitive pluralism and allowing for a more economic-oriented management, as well as by favouring the actual involvement and control by rights owners, administration and intermediation activities relating to neighbouring rights, pursuant to the Italian Copyright Act - no matter how these are carried out - are free."

As some of our readers may remember, Article 180 of the Italian Copyright Act provided for intermediation activities in the field of neighbouring rights be carried out exclusively by SIAE.

It will be interesting to see, also in light of the recent ruling of the CJEU in Murphy (discussed in this Blog here and here and by the IPKat here), how things develop further, now that the Italian market for neighbouring rights seems open to competition by Italian and foreign intermediaries alike.

Megaupload team arrested in New Zealand

Reuters report that Kim Dotcom (Kim Schmitz, a 37 year old German national), the Megaupload boss, has been arrested by police in New Zealand and that the US Government has shut down the content sharing website which recently featured on this Blog. It can hardly have escaped anyone’s notice that the actions come against the background of heated debate over the proposed SOPA (Stop Online Piracy Act) and PIPA (Protect IP Act) legislation in the USA but Reuters report that a US Justice Department official said the timing of the arrests was not related to the battle inside and outside Congress. Schmitz lives in new Zealand and it appears that some 70 police officers raided 10 properties and also arrested the website's chief marketing officer, Finn Batato, 38, chief technical officer and co-founder Mathias Ortmann, 40 (both German nationals) and Dutch national Bram van der Kolk, 29, who is also a New Zealand resident. Alongside these arrests, NZ police seized several million dollars worth of assets and NZ$10 million from financial institutions. The Organised & Financial Crime Agency New Zealand said they would work with US Authorities to enable extradition proceedings to proceed. Those arrested have been remanded in custody after a court hearing in Auckland.

The indictment accuses seven individuals and two corporations – Hong Kong based Megaupload Limited and Vestor Limited -- of costing copyright holders more than $500 million in lost revenue from pirated films and other content. Megaupload has boasted of having more than 150 million registered users and 50 million daily visitors, according to the indictment. At one point, it was estimated to be the 13th most frequently visited website on the Internet.

And critics of the quickly showed their opposition to the shutdown of Megaupload.com, with hackers attacking the public websites of the Justice Department, the world's largest music company Universal Music, and the two big trade groups that represent the music and film industries, the RIAA and the MPA.

http://www.reuters.com/article/2012/01/20/usa-crime-piracy-idUSL1E8CJC1Q20120120 and http://www.foxnews.com/scitech/2012/01/19/feds-shut-down-file-sharing-website/

Automated half-hour TV trials for small copyright claims?

After the mega-controversies over SOPA/PIPA and Megaupload, it's good to see that the US has not lost sight of the smaller picture. This blog is reminded by Rob Kunstadt that, back in October of last year, the US Copyright Office requested suggestions for the handling of small copyright claims [Federal Register of October 27, 2011, Docket No. 2011-10]. Together with Professor Fritjof Haft (Professor of Law and Legal Informatics, EBS Law School, Wiesbaden, Germany) Rob has responded to this request with a 16-page comment which you can read here. In essence, Rob explains:

"The first prong is to institute special procedural rules to expedite such cases. The procedural rules must be designed so that the desired effect is achieved automatically, by ‘social engineering’ … A set of such rules for efficiently handling small business disputes has already been proposed by co-author Kunstadt, and they were published under the title ‘Half-hour Trials, as on TV’ in the National Law Journal of March 13, 2000, p. A22. They may readily be implemented for the handling of small copyright cases. 

The second necessary prong is use of computer-automation to facilitate the preparation and disposition of small copyright cases by easing the workflow for parties and judges. Work on such automation is already underway and it has been implemented in Germany by co-author Haft, in connection with NORMFALL software for expedited case-handling on a ‘one-write’ basis." (pp. 3-4).

This blogger is fascinated with the notion of social engineering as a means of resolving small copyright disputes, but wonders whether the world is ready for it ...

SOPA: a reader asks for information

Heat ... and light

The Stop Online Piracy Act (SOPA) in the United States has generated a good deal of discussion -- but from the point of view of the dedicated copyright student the words expended on it might be said to have produced more heat than light.

A reader has written to ask me if I can recommend "any serious, legal and dispassionate reflexion about SOPA, whatever be the position of the author".

Offhand I couldn't think of much writing that complied with these criteria. Accordingly I invite readers of this blog to crowd-source a response to her request, preferably by posting recommended reading via the Comment link below. Many thanks in anticipation!

Fair use and federal clarification of state law: some helpful information

On Monday, in "ALA, ARL prefer clarification to legislation", I discussed the copyright status of pre-1972 sound recordings in the United States and raised the issue as to whether the Copyright Office, itself a Federal agency, was able to make a pronouncement concerning a matter of state law.  David O. Carson (General Counsel, U.S. Copyright Office) has kindly emailed this blog on this topic:

"Here's what the Copyright Office said in its report on the subject of confirming that that fair use applies to state-protected works: 

ALA and ARL have requested that the Office “confir[m] the availability of a flexible fair
use doctrine under state law in all 50 states.” Given that we are aware of only a single state court case – from a trial court – that has actually applied fair use to a common law copyright claim, that is a rather ambitious request. Of course, the Copyright Office has no authority to confirm the substance of state law. Nonetheless, the Office believes that, under proper facts, it is likely that any state court would find that fair use is a defense that can be considered and applied under principles of state common law copyright. Note, however, that traditionally fair use was not available for unpublished works – and for the most part state common law copyright has protected only unpublished works. But at least with respect to commercially distributed sound recordings, arguments based on the unpublished nature of a work are not very persuasive. 

Moreover, because fair use is a judge-made doctrine (merely codified after the fact in the
Copyright Act of 1976), there is no reason to believe that state courts considering common law copyright claims would not find that the defense does exist under appropriate circumstances. 

As noted above, common law copyright is not the primary means by which pre-1972 sound recordings are protected under state law. The states more frequently protect those
recordings under theories of unfair competition, which typically do not include a fair use defense, and through statutes that include no such defense. However, some courts have constructed analogous defenses to torts separate from but similar to copyright. It seems likely that in any case in which an action by a library or archives would be considered a fair use under federal copyright law, it would also likely be considered permissible under state law. 

See http://www.copyright.gov/docs/sound/pre-72-report.pdf at pp. 136-37 (footnotes omitted)".

Thanks, David!

Unlicensed Sharks Need to Get with the Groove

Nascent music streaming service Grooveshark has been shut down in Germany citing difficulties in obtaining a licence from composer/songwriter/music publisher licensing and administrative body, GEMA. Reports from gigaom.com suggest that, aside from the licensing difficulties, Grooveshark is also experiencing increasing pressures from the music majors. Record majors are piling Pelion on Grooveshark's Ossa alleging infringement, and in particular accusing Groovehark execs personally of mass unlawful uploads, In retaliation Grooveshark has issued subpoenas seeking the identities, and ISP addresses of anonymous comments posted online on Digital Music News. The comments were apparently made by a party claiming to be a Grooveshark employee and were to the effect that they had been encouraged to upload content without owners of artists' consents. Digital Music News says they will not comply with the subpoenas.

For some sober reflection: the view from Mt Pelion to Mt Ossa.

US Supreme Court says public domain works can return to copyright

Yesterday the US Supreme Court, in its 6-2 decision in Golan et al v Holder, Attorney General, et al, held that §514 of the Uruguay Round Agreements Act (URAA) - which had been signed into law by President Clinton in 1994 and was aimed at restoring copyright protection in foreign works which had fallen into the public domain - does not exceed Congress's authority under the US Constitution's Copyright Clause. 

No longer a free concert 

Petitioners in the case (which was discussed in this Blog here and here and by the IPKat here) were orchestra conductors, musicians, publishers, and others who formerly enjoyed free access to works which §514 removed from the public domain. The chief plaintiff was Lawrence Golan, an orchestra conductor from the University of Denver, who argued that Congress exceeded its authority when it passed a law which took certain works by foreign artists out of the public domain and put them under copyright. Golan, who conducts a number of small orchestras, had been able to perform works such as Prokofiev's Peter and the Wolf for free before §514 became the law. 

Golan argued that §514 violated a basic principle of copyright, this being that works cannot be taken out of the public domain once they are there. He also claimed that the proviso was tantamount to a restriction of his free speech, and was thus contrary to the First Amendment.

This is the background to the case before it reached the Supreme Court. At first, the District Court had granted the Attorney General’s motion for summary judgment. Affirming, in part, the Tenth Circuit had agreed that Congress had not offended the Copyright Clause, but concluded that §514 required further First Amendment inspection in light of Eldred v Ashcroft. On remand, the District Court had granted summary judgment to the petitioners on the First Amendment claim, holding that §514’s constriction of the public domain was not justified by any of the asserted federal interests. The Tenth Circuit had then reversed, ruling that §514 was narrowly tailored to fit the important government aim of protecting US copyright holders’ interests abroad. 

Justice Ruth Bader Ginsburg

The opinion of the US Supreme Court was delivered by Justice Ginsburg (Justice Kagan did not take part in the ruling, while Justices Breyer and Alito dissented).

Justice Ginsburg first explained the background to the URAA.

The US had joined the Berne Convention in 1989. Article 18 of Berne requires countries to protect the works of other member states unless the works’copyright term has expired in either the country where protection is claimed or the country of origin. A different system of transnational copyright protection had long prevailed in the US. Throughout most of the 20th century - says the Supreme Court - the only foreign authors eligible for Copyright Act protection were those whose countries granted reciprocal rights to US authors and whose works were printed in the US. Despite Article 18, when the US joined Berne in 1989, it did not protect any foreign works lodged in the US public domain, many of them being works never protected there. 

In 1994, however, the TRIPS Agreement mandated implementation of Berne’s first 21 articles, on pain of enforcement by the WTO. 

In response, Congress applied the term of protection available to US works to preexisting works from Berne member countries.  

§514 URAA grants copyright protection to works protected in their country of origin, but lacking protection in the United States for any of three reasons: 

a- the US did not protect works from the country of origin at the time of publication; 

b- the US did not protect sound recordings fixed before 1972; or 

c- the author had not complied with certain US statutory formalities.

This said, the US Supreme Court held that the text of the Copyright Clause does not exclude application of copyright protection to works in the public domain. In Eldred, in fact, the Court upheld the Copyright Term Extension Act (CTEA), which extended by 20 years the terms of existing copyrights. The text of the Copyright Clause, observed the Court, contains no command that a time prescription, once set, becomes forever fixed or inalterable.

Furthermore, historical practice corroborates the Court’s reading of the Copyright Clause to permit the protection of previously unprotected works. 

In addition, contrary to what argued by the petitioners, §514 does not fail to “promote the Progress of Science” as contemplated by the initial words of the Copyright Clause. This is because the creation of new works is not the sole way Congress may promote “Science,” ie, knowledge and learning. Rather the Clause “empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.” (Eldred, at 222.) 

I want my royalties!

Nothing in the text or history of the Copyright Clause, moreover, confines the Progress of Science exclusively to incentives for creation. Also inducing the dissemination of existing works is said to be an appropriate means to promote science.  

Considered against this backdrop, §514 falls comfortably within Congress’ Copyright Clause authority, affirms the Supreme Court. 

Coming the claim concerning the First Amendment, Justice Ginsburg observed that this does not inhibit the restoration authorised by §514. The path-making Eldred decision is instructive in this respect, wrote the Justice.
There, the Court held that the CTEA’s enlargement of a copyright’s duration did not offend the First Amendment’s freedom of expression guarantee. Recognising that some restriction on expression is the inherent and intended effect of every grant of copyright, the Court observed that the Framers regarded copyright protection not simply as a limit on the manner in which expressive works may be used, but also as an “engine of free expression.” The traditional contours of copyright protection, ie, the idea/expression dichotomy and the fair use defence, moreover, serve as built-in First Amendment accommodations. 

§514 leaves undisturbed the idea/expression distinction and the fair use defence.  

The petitioners had also claimed that First Amendment interests of a higher order are at stake because they enjoyed vested rights in works that had already entered the public domain.

However nothing, said the Court, warrants exceptional First Amendment solicitude for copyright works which were once in the public domain.  

Congress has several times adjusted copyright law to protect new categories of works as well as works previously in the public domain.  §514, moreover, does not impose a blanket prohibition on public access. The question was whether would-be users of certain foreign works must pay for their desired use of the author’s expression, or else limit their exploitation to “fair use” of those works.  By fully implementing Berne, Congress ensured that these works, like domestic and most other foreign works, would be governed by the same legal regime. So, §514 simply placed foreign works in the position they would have occupied if the current copyright regime had been in effect when those works were created and first published.