Are you feeling worshipful? Fancy doing some copyright research ...?

The 1709 Blog has received the following notice which, we think, may interest some of our readers:

Postgraduate Research Studentship: Department of Information Studies, University College London in association with the Stationers' Foundation, the Charity of the Worshipful Company of Stationers and Newspaper Makers

The Department of Information Studies at University College London (UCLDIS) invites applications for a three year fully funded research studentship from suitably qualified candidates with a good upper-second or first class degrees in an appropriate discipline to conduct research into the near-market implications of copyright and intellectual property in the publishing industry in the digital age. The studentship will cover full UK and EU fees and pay a stipend of approximately £14, 000 per annum. Applications will normally be restricted to candidates from the UK and EU countries. The studentship is funded by the Stationers' Foundation, a charitable body, and is made possible by donations from Pearson plc, the Copyright Licensing Agency (CLA), The Newspaper Licensing Agency (NLA), the Publishers Licensing Society (PLS) and Euromonitor plc. The research will be supervised by Professor Iain Stevenson of the UCLDIS Centre for Publishing with secondary supervision from appropriate colleagues within UCL including from the Institute of Brand and Innovation Law of the Faculty of Laws.

The successful candidate is likely to possess a background in publishing or intellectual property management and will have some experience of working in the creative industries. An academic background in law, communication, information management or business will be advantageous. The studentship is full-time but teaching opportunities may be available in UCLDIS during its tenure. The successful candidate will spend periods of the studentship working in the offices of the donor organisations and will be expected to provide regular seminars and research updates to the donors, as well as academic presentations. Initial registration will be for the degree of MPhil and the candidate will be expected to present a seminar during their second year which will allow the upgrade of registration to PhD.

Interested candidates are invited to apply for the studentship by submitting a full CV and a statement of proposed research (not exceeding 750 words), together with letters of recommendation from two referees by 21 November 2012.  A short list of candidates will be invited for interview, the panel of which will include representatives of the Stationers' Foundation. Once the studentship has been awarded, the successful candidate will be invited to apply formally for admission to the UCL research degree programme and they should ensure they meet all the requirements for admission (available from the UCL website) Further details and informal discussion of the project can be had by contacting Professor Stevenson (i.stevenson@ucl.ac.uk). It is expected that the studentship will commence on 1 January 2013 but if the candidate can commence earlier, it will be possible to do so.

Still on copyright and Brussels I: new case referred to the CJEU

Nooo! Another reference
on copyright and Brussels I!

As Jeremy promptly reported yesterday on the IPKat, a new copyright case has just reached the ever-active Court of Justice of the European Union (CJEU).

This is Case C-138/12 HI HOTEL HCF, a request for a preliminary ruling from the Bundesgerichtshof (the German Federal Court of Justice) in a case concerning copyright infringement of photographs.

The German court is seeking clarification as to the proper interpretation of Article 5(3) of Regulation 44/2001 (also known as 'Brussels I'), which reads as follows:

A person domiciled in a Member State may, in another Member State, be sued ... in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur ...

As reported on the UK IPO's website, the question the CJEU has been asked to address is the following:

Is Article 5(3) of Regulation (EC) No 44/2001 to be interpreted as meaning that the harmful event occurred in one Member State (Member State A) in the case where the tort or delict which forms the subject-matter of the proceedings or from which claims are derived was committed in another Member State (Member State B) and consists in participation in the tort or delict (principal act) committed in the first Member State (Member State A)?

     Don't be silly! It's all so fun!

At the moment there seems to be indeed a lot of controversy surrounding the proper interpretation of Regulation 44/2001 in relation to intellectual property cases.

Readers of this Blog will promptly recall that a few months ago another case concerning the interpretation of Article 5(3) of Regulation 44/2001 was referred by the French Court of Cassation. This is Case C-170/12 PINCKNEY (see here and here), in which the French court is seeking clarification as to whether Article 5(3) is to be interpreted as meaning that, in the event of an alleged infringement of copyright committed by means of content placed online on a website,

- the person who considers that his rights have been infringed has the option of bringing an action to establish liability before the courts of each Member State in the territory of which content placed online is or has been accessible, in order to obtain compensation solely in respect of the damage suffered on the territory of the Member State before which the action is brought,
or
- does that content also have to be, or to have been, directed at the public located in the territory of that Member State, or must some other clear connecting factor be present?

Is the answer to Question 1 the same if the alleged infringement of copyright results, not from the placing of dematerialised content online, but, as in the present case, from the online sale of a material carrier medium which reproduces that content?

Similar issues have already been addressed by the CJEU in relation to online keyword trademark infringements. In Case C-523/10 WINTERSTEIGER (on which see IPKat posts here, here, here, here and here) the CJEU, among the other things, offered guidance as to the proper interpretation of the notion of “place where the harmful event occurred or may occur” in Article 5(3) of Regulation 44/2001 in the context of trademark infringements.

And you can comment on it!

It will be interesting to see what the CJEU responds in PINCKNEY and HI HOTEL HCF, also because copyright  - differently from trademarks - is not a registered right. Therefore, the interpretation of private international law notions appears quite difficult and, also, slightly unpredictable here. This is apparent if one thinks about the many approaches which have emerged at the level of individual Member States thus far. 

Going back to HI HOTEL HCF, do any German readers possess some more detailed background information about it?
In any case, you can let IPO know what you think of this reference, by emailing your comments to policy@ipo.gsi.gov.uk by 4 October 2012. 

Breaking the internet: a response

The 1709 Blog is committed to furthering the copyright debate on all matters of public interest and is therefore pleased to host this response by James Mackenzie (Commercial Director, Cutbot Ltd) to Simon Clark's recent comments on the dispute between Meltwater and the Newspaper Licensing Agency (NLA):

Last week Simon Clark from Berwin Leighton Paisner argued here that the infamous High Court and Court of Appeal rulings on Meltwater v NLA don't "break the internet", as others have claimed. There were two odd omissions from his piece: first, an acknowledgement that he helped to represent the NLA, and second, any direct quotes from the courts' judgments. I should therefore explain that I am a founder of Cutbot, a new online media monitoring firm. Nevertheless, my objections to his position and to the courts' rulings are to the principle more than to the commercial consequences. Let's start by disposing of one of Mr Clark's red herrings. He claims that the rulings rested in part on the terms and conditions posted as public notices (in the Hitchhiker's Guide sense) on publishers' websites. Entirely untrue. To quote the Court of Appeal (§49):

The purpose of these proceedings is to ascertain the rights of the parties in relation to copyright, not some independent contractual right of a publisher.

He also sets out a straw man argument, which he claims is regularly made, that the Court of Appeal has made "all browsing on the internet illegal". No, it has not. But nor does the ruling only affect paid-for monitoring services like Meltwater or Cutbot. To quote from the High Court (this is the bulk of §103):

When an End User clicks on a Link a copy of the article on the Publisher's website which appears on the website accessible via that Link is made on the End User's computer. … [I]t seems to me that in principle copying by an End User without a licence through a direct Link is more likely than not to infringe copyright.

The Court of Appeal, summarising the High Court's ruling, explained that (from §5):

[T]he copies made by the end-user's computer of … the article itself when clicking on the link indicated by Meltwater News are and each of them is, prima facie, an infringement of the Publishers' copyright.

Remember these are not copies in the sense of republication elsewhere for any purpose, commercial or otherwise. These prima facie infringements occur when a user clicks on a link in an email and their computer asks a publisher's server for a copy of a legitimate article, as posted on the publisher's site. The publisher's server freely provides the HTML and associated code required to view the page. Receiving this information is, the courts argue, prima facie an infringement of copyright. Furthermore, just viewing an email containing headlines and links to legitimate content will infringe, (High Court, §104):

An End User who uses the share function to forward a headline Link (and, a fortiori, an End User who simply forwards an email) to a client will make further copies and thus further infringe. Such forwarding will also be issuing a copy to the public under s. 18 CDPA.

The scope of the courts' rulings is actually this. All browsing of copyright material is a potential infringement unless a defence of non-commercial or private use applies. So too is merely referring to a work by its title (such as the headline). Simply receiving an email with links can be infringing – even if you have no contractual relationship with any media monitoring firm. The fact that the NLA have only hit media monitoring firms and our clients should not reassure anyone else who visits the Guardian or Telegraph websites at work. You should also worry that they require a licence from a small UK startup like ours, with a turnover of below £30k, but have exempted Google, whose UK turnover alone is nearly £400m. The Google News site is, of course, free to the end user, but Google is hardly a charity. As the two pigs fail to notice in the context of Facebook, we're not the customers, we're the product. But Google News is a sideshow compared to Google's main operation. They aim to index every public page with copyright material, and are not charged for the privilege. We index a small subset of those pages and are threatened with a charge equivalent to a third of our turnover (Meltwater are asked to pay 0.14% of theirs, incidentally). The upshot is that any search engine could, if the publishers wanted, be charged or excluded. They gave up in Belgium, but that's hardly reassuring either. Clearly newspaper articles are works for copyright purposes, which is why we do not show clients any part of the body of the article, unlike Meltwater. Headlines are titles, though, just like titles for any other work. Whether or not they are copyright, they are also the only clear way to refer to a work. Even if one agrees that headlines can be copyright, that should not necessarily imply that using them to reference articles constitutes infringement. That's an essential part of the democratic flow of information, as protected by Article 10 of the ECHR. In fact, the protocols on which the internet is built include inherent implied licences. We intend to challenge some of the consequences of these confused rulings: by negotiation with the NLA if possible, or through the Copyright Tribunal if not. For example, the NLA, acting as a collecting society, charge us and our clients a licence fee, and obtain our clients' contact details, while running a partially competitive service called eClips. It's hard to imagine a clearer prima facie breach of competition law, facilitated in this case by unclear legislation and a collecting society determined to see what Professor Lionel Bently calls "innocent acts" defined as infringements. Other problems caused here may be resolved in the Supreme Court, especially given developments in EU law (notably Infopaq II and FAPL). Some, I suspect, will have to be legislated on if Ministers don't want a uniquely heavy-handed copyright regime to stifle the sorts of legitimate businesses that thrive elsewhere, and if they don't want to hand UK markets over to our unhindered competition in the US or elsewhere in the EU.

MegaBox - barely legal or clearly legal?

I will preface this Blog by saying (a) I am not sure I quite understand the technology of what I am writing about and (b) it will therefor be brief - those interested can use the links - or make a more informed comment on this site!


Kim 'Dotcom' Schmitz, currently on bail in New Zealand awaiting extradition to the USA on criminal copyright infringement charges (see the 1709 Blog here and here),  has announced a new service - the MEGABOX -  and the linked MEGAKEY - which will seemingly allow artists to sell their creations direct to consumers and allow artists to keep "90 percent of earnings" with Dotcom telling TorrentFreak “We have a solution called the Megakey that will allow artists to earn income from users who download music for free,” adding  “Yes that’s right, we will pay artists even for free downloads. The Megakey business model has been tested with over a million users and it works. You can expect several Megabox announcements next year including exclusive deals with artists who are eager to depart from outdated business models”.

I did some checking and the idea isn't actually new - Dotcom had already launched a MegaKey in 2010 linked back to his MegaUpload service, and again was highlighting the app in June 2012, but this seems to be a new version - or at least another relaunch. And  Dotcom now boasts that musicians using his service will retain "90% of all earnings" and "generate significant income from the untapped market of free downloads". How so? Can Dotcom really eradicate music piracy and rebuild the music industry with one click of a mouse?

Megakey generates income by replacing about 15 percent of advertisements ("a small percentage") displayed on web pages visited by those who have it installed with ads hosted by Megabox - blocking ads on the site and replacing them with Mega's ads - a process described as being similar to malware - and described by one commentator as at best 'not clearly illegal'. Users who don't want to download the MegaKey can buy the music instead and I presume here Mega will take a small cut of the sale price. So what's the position with copyright for websites whose visitors don't view the ads they have carefully displayed to earn revenue - as the visitors instead seemingly instead see ads superimposed by the user's MegaKey, blocking the site's advertising? 

To be clear - this is NOT an issue about music and sound recordings being infringed - its about the right(s) of website owners to determine what a visitor sees when they visit their site - and that is far from clear what, if any, legal remedies site owners have against MegaBox.  In the USA include the dynamic nature of website design and appearance - and the fact many websites never register any 'artistic' copyrights related to the design and appearance of their site might well lead to problems although a related case from 2002, 1-800 Contacts v WhenU might shed some light in this whole tricky area but claims of copyright violation seem at best arguable. For more see  http://www.digitaltrends.com/music/megabox-is-probably-illegal/

Should private copying levies apply to the cloud?

A European Commission Cloud Computing Strategy document leaked on Monday says that "questions arise on the possible collection of private copy levies for any private copying of content to, from or within the cloud."



Things were simpler back in the day

Under the InfoSoc Directive, EU member states may introduce an exception to the reproduction right for private copying accompanied by "fair compensation" for rightsholders. Currently most EU member states (notably not the UK) permit such private copying. Legislation does not provide a method for the calculation of fair compensation. The approach adopted in the EU so far has been to impose private copying levies on sales of storage media such as blank CDs, memory sticks, hard disks and smartphones. The levies typically vary with the capacity of the medium.

It makes some sense that, in countries where the levy system is in place, the cloud should also be subject to such a levy, given that one use of the cloud is to store content. However arguably the cloud is primarily a storage place for legitimately acquired content. In that sense it is the original CD that is purchased, rather than being the blank CD onto which a copy is made.



Some cloud storage services that allow users to synch their content for different devices, such as iTunes Match, Spotify's Local Music Files and Kindle already directly remunerate the rights holders.

A further consideration is that  there is no limit to the memory capacity available in the cloud to a user. It is therefore difficult to work out the value of the levies that should be applied.

The Commission has said that it will "assess whether there is a need to clarify the scope of the private copying exception and the applicability of levies, in particular the extent to which cloud computing services allowing for the direct remuneration of right holders are excluded from the private copy levy regime."

The levy system is a controversial one. One the one hand the creative industry trade bodies have just signed a declaration calling on European politicians to ensure that private copying levies remain part of the copyright system in European countries where a private copying right exists. And just yesterday IMPALA, the European independent music companies trade body joined forces with international copyright representatives to argue in favour of remuneration related to private copying.

On the other hand Joe McNamee, of European digital rights group EDRi has said that "It's really quite amazing that the Commission put levies in the strategy in the first place as levies as they stand are an insult to the single market, and for the Commission to add another level of bureaucracy is incomprehensible", and Christian Engstrom, Pirate Party member of the European Parliament is of the view that "It's yet another example of how copyright legislation is completely out of touch with the reality and the times we live in."

Former European Commissioner for Justice and Home Affairs, Antonio Vitorino, is currently leading a. The aim is to lay the groundwork for legislative action on private copying levies at the E.U. level in 2013. His findings are expected by the end of the year.

 

Perhaps we will find clarity in the CJEU's responses to the questions on private copying referred by the Austrian courts in Kino.to in June and the Dutch courts in ACI Adam B.V. v Stichting de Thuiskopie last week on how the private copying exception applies to illegal content, and in the findings of the working group on private copying levies that was set up in November 2011 with a view to more harmonization across the EU.

More on this on CIO and PC Advisor's websites.

Declaration on Private Copying Remuneration

A number of creative industry trade bodies have signed a declaration calling on European politicians  to ensure that 'private copying remuneration' - levies - remain part of the copyright system in European countries where a private copy right exists, to compensate rights owners for copying for personal use.

European Commissioner Michel Barnier has appointed a mediator to discuss the matter with all stakeholders in Europe, and propose some long-term solutions which has seemingly prompted the creative industries, including EuroCinema, EVA (Europan Visual Arts), independent record label association IMPALA, FSE (Federation of Screenwiters in Europe) and musicians trade body FIM, to issue their statement saying:

"Rightsholders have always been and remain willing to discuss ways of making the system work better for everyone. This compensation for hundreds of thousands of creators across Europe has not hampered device sales in countries where it is applied. Our members do not understand the heavy lobbying of electronics manufacturers to abolish this remuneration system, which, although perhaps not entirely perfect (and we, the undersigned, are open to discussions on how to improve it), clearly achieves its objectives. Consumers are able to copy legally onto and between their different devices and creators are remunerated for such uses". "The undersigned organisations, representing authors, performers and producers of musical, audiovisual, literary and visual arts works, declare the following: 

* Rightsholders have a right to authorise all reproduction of their works but have accepted reasonable exceptions to this right in the interest of the public and practicality provided they received remuneration for such acts. 

* Rightsholders deserve to be fairly and proportionally remunerated for their work and all uses thereof. 

* Private copying generates an essential part of rightsholders' remuneration. 

* Remuneration payable on the copying media and devices is the best way of linking the act of making private copies to the payment of remuneration to rightsholders. 

* The current remuneration system, as applied in most European countries, is not intrusive and preserves the privacy of consumers". 

You can read the full declaration at http://www.ip-watch.org/weblog/wp-content/uploads/2012/09/EU-Private-Copying-Declaration-Sept-2012.pdf

The Digital Age: a thought on users and owners

This blogger recently received information concerning a half-day seminar, "Copyright in the Digital Age: What Users Say and Do About Intellectual Property", which will be held on 28 November 2012 in the lovely setting of RSA House, 8 John Adam Street, London WC2N 6EZ. Described as an event for "policymakers, consumer group members, researchers and industry workers", it seeks to reflect on the results of new research about the ways in which copyright is justified by users, rightsholders and policymakers. The promotional material continues:

The research, publicly funded by the Economic and Social Research Council, focused on the issues underpinning conflict and consensus between industry, policymakers, users and third parties in the current copyright debate. At the seminar, you will learn about how users in the digital age understand copyright, formulate ideas about reasonable use of copyrighted products in their day to day lives, and draw conclusions about the messages communicated to them by industry and policymakers.

The cast is quite imposing: Professor Ian Hargreaves (for it is he) will give a keynote address , Chair of Digital Economy at Cardiff University and author of Digital Opportunity: A Review of Intellectual Property and Growth. The keynote response will be given by Jim Killock (Open Rights Group chair) and Helen Goodman MP are also participating. Attendance is free, but places are limited. To confirm your attendance and secure your place, just email commcopyright@leeds.ac.uk by 15 October 2012.

At the moment there is no shortage of comment and discussion on copyright in the digital age.  The only thing in short supply is any measure of consensus as to what should be done about IP: should it be (i) bolstered to encourage firmer, fuller enforcement, (ii) reformed and purged of rights and effects that consumers consider anachronistic in an era of increasingly accessible content or (iii) left alone on the basis that a situation in which both the pro- and anti-rights lobbies appear to be equally dissatisfied is the best-balanced compromise we can hope for?

Are rights owners and those who depend on their well-being welcome at events that are so overtly and explicitly targeted at everyone except them? And would their presence either hinder discussion or assist it?  It is a little sad that, after rights owners are criticised for not taking heed of the interests and needs of IP users, those very users may be choosing not to take heed of rights owners in return.

Fashion and copyright

Unable to attend (meaning not invited to) Milan Fashion Week, this blogger spoke yesterday at the legal equivalent: the Intellectual Property in the Fashion Industry conference. 

The IP Kat was speed blogging at a rate of knots, so you may already have read his summary of the conference, however below is some more detail on the copyright issues that were discussed.

Copyright doesn't protect fashion

"Copyright doesn't protect fashion" is a statement frequently bandied around, however what is meant is that in the UK at least it is difficult to protect a garment using fashion. Our closed list common law system means that unless a garment can be said to fall into one of the eight protected categories, it cannot be protected. A garment could be said to be an original artistic work: a work of artistic craftsmanship. Case law is not in favour of this argument as a string of cases demonstrate how difficult it is to show that a garment is artistic (see for instance the baby's cape in Merlet v Mothercare, or the sweaters displayed in the V&A in Guild v Eskandar.) The requirement that a work be "artistic" is unusual in the copyright world as it requires a judge to consider the esthetic merit of the work. As Lord Reid said in Hensher v Restawhile, "it depends on whether a substantial section of the public admire the thing for its appearance". The result of this is that it is difficult to show that a garment is a work of artistic craftsmanship, and indeed no-one at the conference could remember a case where any work had been considered to be a work of artistic craftsmanship.

That said, it is possible to protect other works relevant to the fashion industry using copyright. There is far less controversy surroundin the protection of photographs, films, collages, sculptures etc.

The Red Bus Case

Temple Island v New English Teas (the red bus case) was discussed in relation to Kate Spade's alleged copying of Vera Neumann's poppy design. The case demonstrates how difficult it is to draw a line between copying an idea or concept such as a poppy, and copying the expression of that idea, i.e. Vera Neumann's design. Further, the PCC's finding that a person who recreates the subject matter of another person's photograph can infringe copyright in that photo is relevant to the fashion industry as magazines and catalogues often recreate runway or haute couture photographs to showcase high street clothes.

Harmonisation of protected subject matter

A string of recent cases from the CJEU indicate that in the EU a work is protected if it is its "author's own intellectual creation" (see Infopaq, Bezpečnostní softwarová asociace, FAPL and SAS v World Programming Ltd). This does not sit comfortably with the English law notion that a work is only protected if it falls within one of the eight categories set out at s.1 CDPA and it is not clear whether English courts will follow the CJEU's approach in protecting works in which the author's own intellectual creation vests. The notion of what is a protected work is not generally controversial however the EU test could enable protection of items currently not protected under English law, such as garments or perfume.

An allied concept is that of originality, for which the EU test has been applied in the UK by the High Court in NLA v Meltwater. Mrs Justice Proudman found that, when considering originality in relation to whether a substantial part of a work was taken, it was necessary to take European law into account. Answering her own question as to whether the test of originality had been changed by Infopaq she considered that the test had been 'restated but for present purposes not significantly altered by Infopaq'.

All this is indicative that fundamental copyright principles are changing and that we could see a shift towards increased protection for the fashion industry.

 Whether the fashion industry needs or wants increased protection is another question entirely. See here for an analysis of "why knock-offs are good for the fashion industry" and contrast with the fact that the US "Fashion Copyright Bill" has made it throught he Senate Judiciary Committee and is headed for the full Senate.

Consumers in the Digital Age

The Memorandum of Understanding Concerning the Interpretation of the Right of Quotation is an intriguing proposition. This initiative was sparked off by a meeting of stakeholders held at the European Parliament in May 2012, at which several participants indicated their support for the development of a memorandum of understanding between rights-holder representatives and consumers on a modern interpretation of the quotation limitation to copyright.

This draft of such a memorandum has been prepared for Consumers International by Martin Senftleben (Professor of Intellectual Property, VU University Amsterdam, and Senior Consultant to Bird & Bird, The Hague).

The rubric accompanying Version Zero (which you can read below) states that a future face-to-face meeting to finalise the memorandum is planned but not yet scheduled.  Consumers of other people's quotes -- and that includes most serious legal bloggers -- are invited to add their comments on the text below, where they will be taken into account in the development of the agreed version 1.0 of the memorandum. The draft memorandum can be downloaded as a PDF here; Professor Senftleben's commentary can be downloaded here.

This blogger is certainly in sympathy with the aims listed in the Memorandum's Preamble, though he must confess that, in his entire career as an academic, a writer, a publisher and a blogger, he has never been challenged in the use which he has made of any of quotations. It would be good to know how substantial the problem is.

Memorandum of Understanding Concerning the Interpretation of the Right of Quotation

Version zero, September 2012

Preamble [commentary]

The Signatories,

Acknowledging the outstanding significance of the protection of copyright and related rights as an incentive for investment in the creation and dissemination of literary and artistic works,

Acknowledging the mandatory nature of the right of quotation,

Recognizing the need to carry forward and appropriately extend the right of quotation into the digital environment,

Recognizing the fundamental role of the right of quotation in safeguarding freedom of expression and freedom of information,

Recognizing the need to maintain a balance between these freedoms and the protection of copyright and related rights,

Seeking to reduce legal uncertainty as to the scope and reach of the right of quotation,

Seeking to contribute to the consistent application of the right of quotation across EU Member States,

Have agreed on the following

Guidelines

Concept of quotation [commentary]

1. The term "quotation" is to be given a broad meaning, in the sense of a reference to protected material not necessarily requiring a description, comment or analysis.

Quotation purposes [commentary]

2. Quotations are permissible for the purposes of criticism, comment and review.

3. Quotations shall be permissible for the purpose of including pre-existing protected material in a new cultural creation, such as user-generated content.

4. Quotations shall be permissible in the context of an announcement, such as the display of protected material to inform users about contents available on the internet.

5. Quotations shall also be permissible for comparable purposes, in particular for safeguarding freedom of expression and freedom of information, and for scientific and educational purposes.

Categories of works [commentary]

6. The right of quotation shall apply to all categories of literary and artistic works, and other protected subject matter.

7. In the application of the rules governing quotations, no difference shall be made between the categories of works or other subject matter involved.

Extent of the taking [commentary]

8. Quotations shall not be restricted to the taking of small or short portions of protected material.

9. However, the taking shall only be permissible to the extent justified by the purpose. In ascertaining this extent, the following factors shall be taken into account:
   1. the purpose and character of the use, including whether such use is of a commercial nature and takes place in a professional context,
   2. the nature of the protected material,
   3. the amount and substantiality of the portion used in relation to the individual protected material as a whole,
   4. the effect of the use upon the potential market for or value of the protected material.
10. In particular, a quotation shall not be permissible if it substitutes the underlying protected material.

11. A quotation shall not be deemed impermissible, however, because its critical content has a negative impact on the marketing of underlying protected material.

Rights and remuneration [commentary]

12. The right of quotation constitutes a general exemption from infringement, in particular with regard to the right of reproduction and the right of communication to the public, including the right of making available on the Internet.

13. It shall be permissible to make quotations without being obliged to pay fair compensation.

14. However, the further dissemination of material including quotations may be subject to the payment of equitable remuneration if the revenue accruing from that dissemination, to a large extent, is due to the quoted works or other subject matter.

Requirements [commentary]

15. Quotations are only permissible from material that has already been lawfully made available to the public.

16. Unless this turns out to be impossible, the source, including the author's name, is to be indicated.

17. For quotations to be permissible, it is not required that the material incorporating the quotations enjoys protection itself.

Private copying of infringing works: questions for the CJEU

On Friday of last week the Hoge Raad der Nederlanden (Dutch Supreme Court) decided to refer some questions to the Court of Justice of the European Union (CJEU) on the issue of whether the private copy exception can also apply in a situation in which the copy is made from an illegal source. The name of the case is ACI Adam B.V. and others v Stichting de Thuiskopie and another.

Professor Tobias Cohen Jehoram (De Brauw Blackstone Westbroek N.V.) has kindly sent a copy of the judgment in full, in Dutch, which you can read here. From this short note, which this blogger has run through Google Translate, it appears that the nub of the underlying case is the method of calculating private copying compensation in respect of blank disks. Tobias has promised an English note in due course. We look forward to it.

Disney film on Mary Poppins Disney adaptation

Photographic representation of 
the typical mood of the
average copyright lawyer

The legal understanding and regulation of derivative works is a fascinating area of copyright, which can become even more appealing when discussion concerns Britain's best-loved nanny: Mary Poppins.

As readers of this Blog will know, Mary Poppins is set in 1910 London and tells the magical adventures of Jane and Michael Banks and their practically-perfect-in-every-way nanny. 

News have been spread that production of a new Disney motion picture starring Tom Hanks and Emma Thompson, and entitled Saving Mr Banks, has begun.

The film promises to be a must-see for any copyright lover, in that it tells the story of Walt Disney's twenty-year courting of Australian born writer PL Travers to secure the rights to her Mary Poppins children's novels. 

The 1964 Disney adaptation [which, in this blogger's opinion, is just fantastic, also thanks to its great soundtrack (how can a tear not drop from your eyes when you listen to songs such as Feed the Birds?)] was realised with PL Travers as an advisor to the production and was a huge success, both financially (Mary Poppins was the #1 moneymaker of 1965 and Walt Disney used the money to finance most of the 1967 expansion of Disneyland) and among the critics. As summarised by Drew Casper in 2011:

"Disney was the leader, his musical fantasies mixing animation and truly marvelous f/x with real-life action for children and the child in the adult. Mary Poppins ... was his plum. ... the story was elemental, even trite. But utmost sophistication (the chimney pot sequence crisply cut by Oscared "Cotton" Warburton) and high-level invention (a tea party on the ceiling, a staircase of black smoke to the city's top) characterized its handling."

As explained in a New Yorker article, despite such warm reception, PL Travers thought that the film had done a strange kind of violence to her work and would have eclipsed everything else that she had or would achieve, turning her into a persona: a spinsterish children’s author, creator of a spinsterish character. 

Julie Andrews, Walt Disney and
PL Travers at the Mary Poppins première

As reported by Wikipedia, in particular PL Travers disapproved of the dilution of the harsher aspects of Mary Poppins's character, felt ambivalent about the music, and hated the use of animation. 
At the première (which she had to ask to attend, since she had not been invited), the writer told Disney that the animated sequence had to go. Disney responded by walking away, saying as he did, "Pamela, the ship has sailed". Put it otherwise, PL Travers had to send the medicine down, with or without the famous spoonful of sugar. 

Appalled at Disney's adaptation, PL Travers prohibited any further cinematographic versions of the other Mary Poppins novels. 

In the 1990s she consented to the realisation of the Mary Poppins musical, but she did so upon condition that only English-born writers and nobody from the 1964 production were involved.  

Being this the story behind the Disney film starring a more-than-perfect Julie Andrews as Mary Poppins, it will be interesting to see what perspective Saving Mr Banks will adopt in telling the story of Walt Disney and PL Travers.

New paper on ISP liability: how to reconcile US and EU approaches?

Bruce adores Alvin and the Chipmunks movies, and 
says that he only downloads them legally ... oh well ...

As is well known, liability of ISPs for third parties' infringements is currently one of the most controversial topics in the enchanted realm of copyright&trademarks, from both a theoretical and practical standpoint. 

Different approaches have emerged in the EU and the US, and these seem sometimes difficult to reconcile. 

Béatrice Martinet, currently a research fellow at Stanford and a regular contributor to the TTLF Technology Law & Policy News blog, has just published an intriguing paper entitled  'Internet Intermediaries' Liability for Copyright and Trademark Infringement: Reconciling the EU and U.S. Approaches', which can be accessed here.

Her contribution compares the legal regulation of ISP liability for copyright and trademark infringements in the EU and the US, and provides guidelines and proposals on how to reconcile the two approaches.

As explained by Béatrice:

"Over the past ten years, the potential liability of online service providers for third party content has raised one of the most spirited and fascinating debates in the legal arena, putting right holders, service providers and Internet users at loggerheads.

In the United States and in Europe, lawmakers have endeavored to resolve this tension by enacting, more than ten years ago, a set of essentially consistent regulations – most notably the U.S. D.M.C.A. and the EU E-commerce Directive – aimed at fostering the growth of the digital economy, while not hampering the protection of IP rights in the digital environment.

However, courts in Europe and in the United States are facing increasing difficulties in interpreting these regulations and adapting them to a new economic and technical landscape that involves unprecedented levels of online piracy and new kinds of online intermediaries. As a result, courts in Europe and in the United States have reached contrasting conclusions and have failed to offer consistent guidelines in an increasingly global market.

The present study purports to show, after a short introduction (Part 1) that although the legal framework regulating Internet intermediaries’ liability in Europe and in the United States is globally consistent (Part 2), its interpretation by U.S. and different courts in Europe has however been very different (Part 3). The last part of this study offers a brief outline of the recently legislated and draft reforms of copyright law in Europe and in the U.S. (Part 4.1) and concludes that rather than through new legislative reforms, the U.S. and EU approaches to online piracy could be reconciled through a more consistent interpretation of our current legal frameworks and the implementation of a wide range of business-driven solutions (Part 4.2)."

The 1709 Blog welcomes such a timely contribution and hopes that its readers will enjoy it!

Béatrice is also on Twitter - follow @beamartinet to receive updates from her.