HADOPI: Where Things Stand

                                                                    
News has emerged of the results of France's so-called HADOPI law, the three-strikes law designed to fight peer-to-peer piracy and, more generally, illegal downloading.

According to a parliamentary reply made by the Minsiter of Justice, the fruits of the 2009 statutes (there are two) are as follows:

1,150,000 first warnings, 100,000 second warnings and 340 files in third stage with 14 having been forwarded to the local prosecutors.

Of the 14 cases being prosecuted at the local level:
  

 - 9 are still being investigated; 

- 1 is being scheduled for court;

- 1 has been filed without a trial; and

- 3 have given rise to definitive judgements, broken down as follows:

- 1 acquittal;

- 1 conviction (fine of €150); and

- 1 conviction (no sentence due to circumstances).

They died in 1942 -- 7: Robert Musil

Seventh in the series of twelve mini-biographies of notable authors and creators whose works fall into the public domain in life-plus-70 copyright jurisdictions is Robert Musil, described here by guest contributor Miriam Levenson:  

Robert Musil (1880-1942)

Austrian-born Robert Musil spent a great deal of his life in poverty, desperately trying to gain recognition as a writer. An introvert from childhood, Musil was happiest with his own company. His favourite pastime was sitting outside in the garden, quietly watching and observing the world go by. His parents found him a difficult child, and sent him to military boarding school from the age of 12. His experiences there led him to write his first novel, The Confusions of Young Törless, in 1906. Descriptions of the physical, psychological and sexual abuse of the schoolboy Törless at the hands of his peers caused quite a scandal amongst the Austro-Hungarian public. At the time of its publication, Musil was studying for a doctorate in psychology and philosophy in Berlin. He continued to publish stories, developing his expressionist style, whilst working as a librarian and editor. Musil’s masterpiece, The Man Without Qualities, was a complex ‘story of ideas’ published in three parts between 1920 and 1942. Although he was nominated for the Nobel Prize and greatly admired by contemporary writers, Musil never gained commercial popularity and was often bitter about those writers who had found success.

The Man Without Qualities was never finished. Musil’s wife Martha published the scripts he was working on at the time of his death, but his work was largely forgotten in subsequent years. The Man Without Qualities is now considered to be one of the most important modernist novels of the 20th century, but the intricacy and length of its plot does not easily lend itself to the reader. Not all of his stories, essays, diaries and novels were published during Musil’s lifetime, but recent renewed interest in his life and philosophy has led to the posthumous publication of a number of works.

They died in 1942 -- 6: Frank Churchill

At the halfway stage of the 1709 Blog's pen-portraits of twelve notable creators whose works fall out of copyright in life-plus-70 countries in the coming year, guest contributor Miriam Levenson offers this short sketch of Frank Churchill, who wrote some of the most irritatingly catchy music ever to grace a Disney cartoon film:

Frank Churchill (1901-1942)

"Heigh-ho, heigh-ho! It's home from work we go!"

Frank Churchill’s musical career began at the age of 15, when he worked as a cinema pianist. After dropping out of medical school to pursue his passion for music, Churchill continued to work as a pianist for a Los Angeles radio station before joining Disney in 1930. Many of Churchill’s animated shorts were a huge success, with his song 'Who’s Afraid of the Big Bad Wolf?', from The Three Little Pigs, becoming a particular favourite. His first full-length film soundtrack was for Snow White and the Seven Dwarfs in 1937, which included popular numbers 'Whistle While you Work', ‘Heigh-Ho’, and 'Some Day My Prince Will Come'. The sound-track was such a success that Churchill was appointed supervisor of music at Disney. Churchill continued to work on film scores over the next few years, writing some of the music for Peter Pan, Bambi, The Adventures of Ichabod and Mr Toad and Bambi. In 1942, Churchill was awarded an Oscar in the category of ‘Scoring of a Musical Picture’ for his role in co-writing the music for Dumbo with Ned Washington.

Frank Churchill committed suicide in May 1942, and was found at the piano with a self-inflicted gunshot wound. He had been suffering from depression and alcoholism following the deaths of two close friends earlier that year. Churchill received a number of posthumous Oscar nominations soon after his death for songs in Bambi and Dumbo, his last pictures.

Apple liable for copyright infringement in China

According to the official news agency Xinhua, a court in China has ordered Apple to pay compensation to eight Chinese writers and two companies for violating their copyrights after claims that Apple had sold unlicensed electronic versions of their books in Apple's online store. The Beijing No 2 Intermediate People's Court ordered Apple to pay 1.03m yuan ($165,000 / £100,000) in compensation for the sales on the Apple App Store. The claimants had lodged claims for nearly 10 million yuan to compensate for their losses. 

In September, a Chinese court ordered Apple to pay compensation of 520,000 yuan to a Chinese encyclopaedia publisher for alleged copyright violation. The US technology firm has appealed against that decision. 

Apple pledged it does its best to protect copyright. "We're always updating our service to better assist content owners in protecting their rights" Apple spokeswoman Carolyn Wu said. 

More on the BBC here

They died in 1942 -- 5: Faik Konica

Faik Konica is the first Albanian to feature in any 1709 Blog review of authors and creators whose works are falling into the public domain in the coming year. This note is brought to blog readers by guest writer Miriam Levenson.

Faik Konica (1875-1942)

By the age of 22, Albanian Faik Konica had been educated in four different countries and was fluent in seven languages. His first-hand knowledge and experience of different countries allowed him to be a strong proponent of Western culture in Albania, while spreading awareness of Albanian culture across Europe. Konica produced the periodical Albania, which was published in Brussels and Paris during the years 1896-1910. In the very first issue, Konica published an article entitled "On the Foundation of an Albanian Literary Language", in which he emphasised the need to fuse the two main Albanian dialects, Tosk and Gheg, in order to create a unified literary language. Konica was one of the first to edit the texts of early Albanian literature, and the fluidity of his writing style was a major influence in the refinement of Tosk prose. Decades later, this formed the basis of the modern Albanian literary language. During his years living in Brussels and London in the early 20th century, Konica wrote and published under the pseudonym Thrank Spirobeg.

Konica was often scathing and heavily sarcastic in his articles about the backwardness of Albanian culture, but his passion for change was rooted in a love for his country’s traditions and ancient texts.

His legacy, in the words of French poet Guillaume Apollinaure, was to have ‘turned a rough idiom of sailor’s inns into a beautiful, rich and supple language’.

They died in 1942 -- 4: L. M. Montgomery

The fourth of Miriam Levenson's twelve guest pen portraits of creative geniuses whose work is about to enter the public domain in "life-plus-70" copyright regimes is L. M. Montgomery, an author whose work has enthralled generations of children:

L. M. Montgomery (1874-1942)

Out of 500 short stories and poems, and 20 novels, Lucy Maud Montgomery is best remembered as the creator of Anne of Green Gables. Much like her heroine, Canadian-born Montgomery lost her mother whilst still a baby. She was sent to live with her maternal grandparents, who brought her up very strictly. She was lonely for much of her childhood, and comforted herself by creating imaginary friends and worlds. At the age of 16, to her great excitement, Montgomery had her first poem published in the local newspaper. She continued to have hundreds of short stories published in various papers and magazines, which she wrote in addition to pursuing a teaching career. Anne of Green Gables was Montgomery’s first published novel and, although her characters and stories were beloved to so many, Montgomery never felt that she had achieved her ‘one great book’. After a string of unsuccessful romances, Montgomery settled down to marry Presbyterian minister Ewen Macdonald. She suffered from several bouts of depression, triggered by the birth of a stillborn child, coping with the religious melancholia of her husband and her duties as a church wife. Despite her unhappiness, Montgomery continued to write. She produced a further seven novels in the Anne of Green Gables series, as well as a biography, a book of poems and several other novels and short stories.

Anne of Green Gables became an international success. Every year, thousands of tourists from all over the world visit Montgomery’s home and Green Gables in Prince Edward Island, and a national park has been established in Cavendish in honour of her works. Montgomery was the first woman to be named a fellow of the Royal Society of Arts in England, and in 1935 she was awarded the Order of the British Empire. A year after her death, the government of Canada named her a ‘Person of National Historic Significance’. Her legacy continues to inspire children and adults alike all over the world, through books, films, television shows and cartoons.

Italian copyright debates and updates

Carrying Italian
children's favourite gifts:
copyright-related news

Just a few days before Christmas, as the festive mood was heating up in Italy, a couple of copyright-related news made the headlines (well, sort of). Both pertain to topics also covered by The 1709 Blog in the past few months.

AGCOM’s online copyright regulation

1709 Blog readers will remember that the Italian Communication Authority (AGCOM) has been trying to adopt an administrative regulation to protect copyright over the internet for the last couple of years or so (see earlier posts here, here and here).

However, no such regulation was adopted before the office of former AGCOM commissioners and president ended last June.

One of the problems encountered by the members of the Authority was AGCOM's apparent lack of competence to legislate in the area of copyright. In a speech delivered before the Italian Senate, former AGCOM president (and poet) Corrado Calabrò observed that some of this Authority's competences touch upon fundamental rights, including the freedom to conduct a business, social dignity, children's rights, media pluralism, and freedom of expression and information. This said, the nature and extension of AGCOM powers in the field of copyright were not utterly clear. As a result, AGCOM decided not to go ahead with its online copyright regulation, lacking an interpretative provision to this end. The Italian Government should have adopted this, said Calabrò.

The summer passed, and so did autumn. Thankfully (?), there are things that never change.

Indeed, as reported by ICT magazine Key4Biz, one of the new members of the Authority, Maurizio Decina, has recently spoken about the next moves of AGCOM in relation to copyright. 

Incidentally, Decina declared that he is against the idea of asking ISPs to pay for displaying links to and snippets of contents [elsewhere in Europe this idea does not seem to be very fashionable at the moment: see here, here, and here].

This said, the commissioner referred to the Regulation saga and agreed that the Italian Government has to clarify the nature and extension of AGCOM competencies in this field. However, even should this not happen, the Authority will go ahead, sometime in the near future [when?]. Extended piracy impoverishes legal offers of contents and, to contrast it, Italy needs to embrace swift and effective enforcement, which is still lacking according to Decina. 

There will be a race to administer rights
also in these songs from now on

A free market for neighbouring rights

Back in January this year, Prof Mario Monti's government passed a reform (known as "Decreto Liberalizzazioni"), which was meant to boost Italian suffering economy, in particular by promoting the value of competition (see 1709 Blog post here). Pursuant to Article 39(2) of the Decreto,

"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, as per the Italian Copyright Act, shall be free, no matter how these are carried out."

Now, almost a year later and shortly before Monti resigned as Italian Prime Minister, the provision concerning neighbouring rights management has been given a definitive legal shape. This means that new IMAIE will no longer be the only player active in the remunerative market for administering neighbouring rights.

The challenge of the new

Copyright and the Challenge of the New, edited by: Brad Sherman and Leanne Wiseman, is the 25th and latest in the line of titles in the Wolters Kluwer Information Law Series, which has both led and reflected thought in that field for many a long year under the inspired guidance of Professor Bernt Hugenholtz.  This collection of essays, despite its title, is as much about the reassuring comfort of the old as the challenge of the new: in retrospect one cannot but admire the versatility of copyright in adapting itself to so many new technologies by simultaneously marketing itself as the friend of the creator, the investor and even the user.  It is only really in the past 20 years or so that the increasing transparency of a world driven by internet access and the social media has caused an increasingly knowledgeable world to recognise both the spin and the reality that lies behind it -- for better or worse.

But what do the publishers say about this compilation?  According to the book's web page:

"Copyright is not, as is often thought, something that is periodically ‘extended’ to cover a new field or medium; rather, copyright redefines itself whenever its efficacy is challenged. While many factors have contributed to this process, the most consistent has been the challenges created by new technologies. The contributing authors build upon this insight to show that copyright law is, and has always been, a creature of technology. Each chapter focuses on a specific technology or group of technologies – photography, telegraphy, the phonogram, radio, film, the photocopier, the tape player, television, and computer programs – emphasizing the changes that each technology instigated and the challenges and opportunities it created. Perhaps the most profound insight of this extraordinary book is the authors’ claim – ably supported in a series of intriguing chapters – that the way the law responds and reacts to new technologies is always mediated by the political, social, economic, and cultural environment in which the interaction occurs. For example, these chapters describe and explain how:

• statutory schemes of remuneration arose from failures to effectively police new forms of piracy; 

• persistent litigation and lobbying by copyright owners forces legislatures and courts to devise new laws; 

• content (e.g., sporting events) generates new rules of access to broadcasts; and ‘fair copying’ (e.g., by libraries) is the necessary exception that proves the rule.

As well as providing insight into the ways that copyright law interacted with old technologies when they were new, the book also offers important insights into problems and issues currently confronting copyright law and policy such as the appropriate scope of copyright and the relation between copyright and the public interest. With the broad perspectives opened by these essays, academics, practitioners and policymakers in the field will find themselves well equipped to deal with the problems that will inevitably be created by technologies in the future".

Contributors to this collection include Lionel Bently, Graeme Austin and Pamela Samuelson (who rightly describes the use made of copyright in the clumsily inappropriate field of computer program protection as a genuine success story). Kathy Bowrey's chapter on The World Daguerreotyped was the one that most appealed to this blogger, who is currently going through a bit of a photographic phase right now, but he has not yet had the courage to face up to Leanne Wiseman's contribution on photocopying since he still bears the scars of a far too detailed scholarly lecture on that topic which he had to attend some years ago, delivered in a droning monotone by a professor who read from his text and was impervious to coffee breaks.

Bibliographic data: hardback, xii + 273 pages. ISBN 9789041136695. Price:US$ 135 .Web page here.

They died in 1942 -- 3: Walter Sickert

The third in this year's series of twelve creative personalities whose deaths in 1942 are about to enrich the copyright public domain in 2013, in "life-plus-70" copyright jurisdictions is Walter Sickert.  Here guest contributor Miriam Levenson outlines his life:

Walter Sickert (1860-1942)

Painting was in Sickert’s blood. The son and grandson of painters, Walter Sickert initially tried to make his way as an actor before turning to the study of art in 1881. The biggest influence in his artistic life was Edgar Degas, whom Sickert met in Paris. Degas encouraged art that was free from the ‘tyranny of nature’, and as a result Sickert painted mostly inside his studio, from memory or from drawings. His first important works depicted scenes from London music halls, usually from an ambiguous perspective with a confused sense of spatial relationships. At the time, female performers were considered morally equivalent to prostitutes, and many of Sickert’s ‘provocative’ paintings incited controversy. Sickert became fascinated with urban culture, and purchased a number of studios in working-class areas of London. He produced several realist paintings inspired by the Camden Town murder, an event in 1907 which featured prominently in the press. Sickert also displayed a strong interest in the murders of Jack the Ripper, creating a painting called Jack the Ripper’s Bedroom. 

The Camden Town Murder

Although his style was heavily influenced by Impressionism, the realistic aspect of Sickert’s paintings was unprecedented in Britain. He became famous for his paintings of obese nudes, with the fleshiness of his subject equivalent to the thickness of paint used in the picture. Sickert was a founding member of the Camden Town Group of British painters in 1911. Focus was laid on scenes of ordinary suburban life. Sickert’s best known work, Ennui, portrays a couple sitting in a drab room, gazing into space.

Sickert taught at Westminster School of Art for a number of years, and set up an art school in Manchester where he taught Henry Rutherford – named by Sickert as his ‘intellectual heir’. The work of Walter Sickert had a strong influence on later generations of British artists, including Lucien Freud, Francis Bacon and Frank Auerbach.

They died in 1942 -- 2: Akiko Yosano

The second in this year's series by Miriam Levenson on authors and creators who died in 1942, and whose works fall into the public domain in countries which protect copyright for life plus 70 years, introduces a writer and personality who is little known in the West, Akiko Yosano.

"Akiko Yosano (1878-1942)

Akiko Yosano left a remarkable legacy. In her 63 years, the Japanese poet wrote around 40,000 poems, 11 books of prose, and was the mother of 13 children. Her first volume of poetry, Midaregami (‘Tangled Hair’), was published in 1901 and fiercely denounced by literary critics. Nevertheless, it was widely read and brought Akiko tremendous popularity with the free-thinkers of her time. Yosano’s favoured genre of poetry was the traditional five-lined tanka. Although she tended to write in old, classical Japanese, the content of Akiko’s poetry was uninhibited in its sensual evocation of love and passion. Amongst Akiko’s most controversial poems was Kimi shinitamou koto nakare (‘Thou Shalt Not Die’), written for her younger brother during the Russo-Japanese war of 1904-5. This poem was turned into a song, and used as an anti-war anthem during the long and violent siege of Port Arthur. 

During the Taishō period (1912-1926), a time of increased democracy in Japan, Akiko’s poetry began to promote her feminist philosophy, and her criticism of the growing militarist culture. Her autobiography Akarumi e (‘To the Light’) was published during this period, alongside famous poetry anthologies such as Hito oyobi Onna to shite (‘As a Human and as a Woman’). Akiko was extraordinarily prolific, and was capable of producing as many as 50 poems in one sitting.

Akiko’s husband, Tekkan Yosano, was also a poet. While Tekkan was responsible for introducing the young Akiko to tanka poetry, his reputation was soon eclipsed by his prodigious pupil. Tekkan remained supportive of his wife’s literary career, and continued to publish her poetry. In addition to her output of poems, Akiko was a strong proponent of women’s education and founded a school for girls. She also translated a number of Japanese classics into the modern Japanese language".

They died in 1942 -- 1: Stefan Zweig

Last year, the 1709 Blog posted twelve vignettes of worthy souls who, having died in the course of 1941, fell out of copyright in 2012 in the large number of jurisdictions in which the copyright term for authors' works is life (i.e. death) plus seventy years. This year guest contributor Miriam Levenson kindly provides us with a further twelve creative personalities, starting with Stefan Zweig:

Stefan Zweig (1881-1942)

Although he considered himself a patriot, Austrian-born Stefan Zweig was an ardent pacifist who believed in the establishment of a unified Europe. Rather than bear a rifle during the First World War, Zweig spent most of the war years in Switzerland, where he shut himself away from politics and concentrated on his writing. His novellas, novels and biographies brought him a great deal of popularity during the 1920s and 1930s, and Zweig enjoyed close association with many great names of the day – such as Arthur Schnitzler, Theodore Herzl, Richard Strauss and Sigmund Freud. Strauss in particular greatly valued his collaboration with Stefan Zweig, and continued to ask the writer to provide libretti for his operas even after Zweig’s works were banned by the Nazis. After receiving threatening letters from the Gestapo warning Strauss to sever ties with Zweig, Strauss resigned as president of the Reichsmusikkammer (the Nazi State Institute for Music). Describing himself as a Jew purely by ‘accident of birth’, Zweig decided to flee Austria soon after this episode. He found refuge first in England, and then in the USA and Brazil. As the Second World War progressed, Zweig grew increasingly depressed by the intolerance of humanity and the spread of authoritarianism. In February 1942 he wrote a note detailing his feelings of hopelessness and desperation, and took an overdose.

Zweig’s most notable work is his autobiography, The World of Yesterday, which analyses society during the dying days of the Austro-Hungarian Empire, and provides colourful descriptions of various high-profile personalities of the time. Zweig also had a passion for collecting literary and musical manuscripts, and some of his collections are currently on display in the British Library. While Zweig’s oeuvre was never embraced by the British public, his works remain popular in Europe and America today.

Can you pre-empt an assignment of future copyright?

Performing Right Ltd v B4U Network (Europe) Ltd is a Chancery Division decision dating back to 22 October, but this blogger has only just got round to dealing with it.  The judge, Mr Justice Vos, is now one of the regular IP judges in England and Wales.  The analysis below is based on a note published on subscription-only service Lawtel; the decision is an extempore one which is not available on BAILII.

The PRS had entered into contracts with two song composers under which, inter alia, copyright which the composers "may acquire or own" while remaining a member was assigned to the PRS. After entering that agreement, the composers entered into a commissioning agreement with Indian producers to compose the music and lyrics for a film. It was accepted by all that the commissioning agreement was a contract for the song writers' services as composers. Under that agreement, the rights in relation to musical works composed for the film (i) vested in the film's producer, (ii) included all present and future works arising out of the contract for services and (iii) covered all territories of the world.

The composers subsequently notified the PRS of the composition of a song which had, as B4U conceded, been broadcast on its United Kingdom music channel. The PRS claimed that, as copyright had vested in it under the Copyright, Designs and Patents Act 1988 (CDPA) s.91(1) by virtue of a future assignment, B4U's broadcast infringed its copyright because B4U did not hold a valid licence from it.

In proceedings before Vos J in which the PRS sought summary judgment, the court had to construe the assignment clause in the PRS agreements and to determine whether there was a material difference between an assignment of future rights and a present assignment of copyright in all future musical works. Said the PRS, this was a distinction without a difference: the relevant words in the PRS agreement dealt with the present assignment of future or prospective copyright. No, said B4U: the distinction was one of significance.  In this case, the argument went, the assignment to the PRS was subject to a condition precedent, this being the acquisition of ownership -- which could not take place until after the song rights had been assigned to the film's producer -- and that the copyright in the song therefore passed to the film's producer under the commissioning agreement without ever vesting in the PRS at all.

If you have had to read this paragraph several times to satisfy yourself either (i) that you have understood it or (ii) that this argument is unintelligible nonsense, don't worry, you are not alone ...

Vos J must have taken a deep breath before deciding that this was something he could decide. After all, as he observed, if the court was satisfied that it had all of the evidence necessary for the proper determination of a point of law, and that the parties had had an adequate opportunity to address it in argument, the court should jolly well grasp the nettle and decide it.  But how?

The court's task was to construe the two assignments: the agreements with the PRS agreements and the commissioning agreement. In doing so, it could be said that, unless the later-in-time commissioning agreement had already whisked away the copyright from under the noses of the PRS, the PRS agreements, being the first assignments in time, would prevail.

In reality, Vos J found, the commissioning agreement did not whisk away any copyright in the song. The relevant words in the PRS agreements were not a condition precedent but a present valid assignment of future rights and, as the PRS maintained the defence was based on a difference without a difference. Taking a look at the CDPA's s.11 (which dealt with ownership of authors' works) and s.91 (which dealt with assignment), he affirmed that there was an effective assignment to the PRS of future copyright where it vested in the two composers under s.11, where the first in precedence was the first in time. This result was not commercially absurd, as had been suggested, but rather was the outcome that was to be expected. The PRS agreements were contracts to allow the PRS to collect royalties for music in the UK as first owners of copyright; they did not contain a condition precedent.

Since there was no real prospect that B4U could defend that part of the infringement claim, judgment was given for PRS.

Romania approves Protocol for Audiovisual Works Royalties

It has been a little while since this blogger picked up this news via a Petosevic news letter, but the 1709 Blog doesn't often get a chance to report on developments from Romania, so here it is: on 18 October the Romanian Copyright Office issued a decision outlining the protocol for the remuneration payable by television companies to copyright holders for broadcasting cinematographic and other audiovisual works from the copyright collectives’ repertoires. The decision entered into force on 27 October.

According to the protocol, TV companies must obtain a non-exclusive licence from the collectives in order to broadcast audiovisual works from the collective’s repertoires. This non-exclusive licence may be granted for the period of one year, or less, at the user’s explicit option, with the possibility of getting an extension. The TV companies may review the entire repertoire before acquiring the licence and, once they have the licence, the collectives must provide a CD listing the repertoire under their management and agree to update the repertoire every three months.

In return, the TV companies must pay 2.5% of their income from broadcasting the audiovisual works, net of certain local and state taxes, proportionate to the effective use of the licensed works.That amount is calculated on the basis of a quarterly report by the TV companies on their use of the works. Remuneration is payable quarterly; late payments are penalised. This methodology does not however apply to use of audiovisual works for which TV companies concluded a direct agreement with copyright holders or their agents.

TV companies that do not have sufficient income or which cannot pay an equitable remuneration may agree with the copyright collectives to pay a lump sum to be established annually by the Romanian Association for Audiovisual Communications, representing the interests of Romanian broadcasters.

2012 - The Copyright Year

What do you mean- you didn't have time to read the 1709 Blog this year? Shame on you - but here's a quick recap of 2012. It's from my personal perspective, a UK lawyer working in the music industry, so please feel free to comment and add what you think I may have missed out. It's been a "mega" twelve months! Oh, and since it's nearly the end of 2012, can we wish you a very happy, fulfilling and prosperous 2013!

That red bus

In early January, the European Union and twenty two of its member states signed the Anti-Counterfeiting Trade Agreement (ACTA) - designed to ensure a basic system of global intellectual property protection. The signing ceremony went quietly in Tokyo (although there were some very public protests in Poland) and only five EU countries did not sign - Germany, the Netherlands, Estonia, Cyprus and Slovakia – but that was really that last success ACTA saw, as the Treaty received a global PR bashing. The  Spanish Parliament implemented the somewhat controversial Sinde law, which was planned to make it easier for content owners to target copyright and block infringing websites. In Holland a court in The Hague ordered Dutch ISPs Ziggo and XS4ALL to block access to controversial website The Pirate Bay, in order to prevent illegal downloading of music, films and games. In the UK HH Judge Colin Birss QC gave his landmark judgment in Temple Island Collections Ltd v New English Teas Ltd & another – the ‘red bus’ case with Jeremy commenting “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”. Question: Can the concept of a picture of red London bus set against a stylised monochrome Houses of Parliament attract protection? Answer: yes it can - on the facts! And the MegaUpload saga began with US raids on Mega's servers, shutting down the website, and the January 19th New Zealand arrest of Kim "Dotcom " Schmitz and three associates on copyright infringement charges - and the seizure of $10 million from banks, and other assets.

MegaUpload

In February the first doubts started to trickle out in the ‘Megaupload’ case and whilst Kim ‘Dotcom’ Schmitz and his colleagues remained in custody at this point (released on bail later in the month) the case was to proving to be required reading during the year. And back to ACTA: some of the previously committed EU signatories started to voice doubt over their commitment – and the EU referred the Treaty to the European Court of Justice. In Spain the law Sinde faced a challenge in the country's Supreme Court, who agreed to hear an appeal from the Association Of Web Users who claim the law is unconstitutional – and the the Court of Justice of the European Union published its long-awaited judgment in Case C-360/10 SABAM v Netlog – and said that the owner of an online social network cannot be obliged to install a general filtering system, covering all its users, in order to prevent the unlawful use of musical and audio-visual work by some, which made for interesting reading for British ISPs who had just digested Mr Justice Arnold's thoughts in Newzbin 2, then compared it to the ECJ's position in SABAM v  Scarlet (Tiscal) and the provisions of Art. 15(1) of the E-Commerce Directive, and then later on the year faced another blocking order against The Pirate Bay.

The Pirate Bay

In March, as The Pirate Bay co-founder Carl Lundstrom prepared to serve his four month prison sentence under house arrest in Sweden, the current Pirate Bay organisers announced plans to put copies of their database onto servers in the sky - on "small airborne drones" connected to the mobile internet - that would have to be literally “shot down” to take the site offline.  The High Court of Justice in London ordered telecoms company O2 to hand personal details of more than 9,000 broadband subscribers to film company Golden Eye International and pornography producer and distributor Ben Dover Productions under a Norwich Pharmacal order. Leave to appeal was granted. In Europe, the ECJ handed down its decisions in two copyright cases. In the first, Public Performance (Ireland) v Ireland, Attorney General (C-162/10), a reference from the Irish High Court, we learned that communications by hotels to hotel bedrooms are communications to the public - although we didn't really learn that, as it had already been decided in the SGAE/Rafael Hoteles case.  We also learned that the ECJ did not think that Ireland was acting consistently with the Rental and Lending Directive Article 8(2) in exempting hotels from the right to equitable remuneration for the communication of sound recordings to the public.  In the second case, SCF v Marco Del Corso (C-135/10), a reference from the Court of Appeal in Turin, John explained that the ECJ had found that the playing of phonograms in dental surgeries was not such as to trigger the remuneration right, because it did not constitute a communication to the public for the purposes of the same equitable remuneration right.  Talking of remuneration, an ongoing theme all year was the paucity of royalties paid by the new online digital services such as Spotify and Vevo, with complaints from both songwriters and recording artistes, music publishers, and even independent labels, that they were being underpaid - if they were being paid at all. 

In April Australia's High Court, the nation's highest, gave a clear ruling that internet service providers are not liable for authorising copyright infringement by making their services available to people who do infringe copyright. The High Court unanimously dismissed the appeal in the case and the Court observed that iiNet had no direct technical power to prevent its customers from using the BitTorrent system to infringe copyright in the appellants' films. Rather, the extent of iiNet's power to prevent its customers from infringing the appellants' copyright was limited to an indirect power to terminate its contractual relationship with its customers. Monika reported that YouTube had lost  a dispute before the Regional Court of Hamburg (LG Hamburg) against German collecting society GEMA and YouTube was held liable under the principle of 'Störerhaftung' ('disturbance liability' - secondary liability for contributing to someone else's breach of a third party's rights) and was issued with a permanent injunction to take down a number of songs in which GEMA administers the making available rights, and was told to ensure that the songs in question do not reappear on the platform in the future. Jeremy brought us news of  Advocate General Bot's opinion in Case C-128/11 Axel W. Bierbach (liquidator of UsedSoft GmbH) v Oracle International Corp: According to Advocate General Bot: creators of computer programs may oppose the resale of 'used' licences which allow their programs to be downloaded from the internet again. However, AG Bot suggested that they may not oppose the resale of 'used' copies, downloaded by their own customers from the internet, given that their exclusive right of distribution relating to those copies is 'exhausted'. And Weird Al' Yankovic became the latest artist to file a digital royalties claim in the US in a wide ranging royalties lawsuit that accused Sony Music of improper reporting of its costs, of failing to pass on any of the damages it won from file-sharing companies and of paying him a record sale royalty on download sales when such revenues should be treated as licensing income, joining the ranks of artistes including of FBT (Eminen's producers), Cheap Trick, The Allman Brothers, Chuck D, Sister Sledge, Boz Scaggs, Whitesnake, the estate of Rick James,  Dixie Chicks, Peter Frampton, REO speedwagon, Toto, The Temptations, Rob Zombie and Kenny Rogers in the fight to get increased digital royalties based on a share of digital revenues rather than the far less attractive 'per unit' royalty based on each digital sale which are then usually then subject to further royalty reducers. Later in the year Def Leppard took the unusual step of re-recording their entire back catalogue to release themselves to circumvent record label practices and poor royalties.

At the beginning of May we reported that the High Court in London had issued orders requiring five internet service providers to block access to The Pirate Bay file sharing site. The five ISPs were Sky, Everything Everywhere, TalkTalk, O2 and Virgin Media, with BT asking for more time. Neelie Kroes, the European Commissioner for the Digital Agenda  said that the Anti Counterfeiting Trade Agreement (ACTA) was likely to follow the US’s SOPA (Stop Online Piracy Act) into the dustbin of failed legislation saying “We have recently seen how many thousands of people are willing to protest against rules which they see as constraining the openness and innovation of the internet” adding “there is a strong new political  voice, and as a voice for openness, I welcome it even if I do not always agree with everything it says on every subject … we are now likely to be in a world without SOPA and ACTA”.  And In a court ruling which has significant implications for the music industry, a Californian judge dismissed a suit by two song publishing companies aimed at preventing Victor Willis, the former lead singer of The Village People, from exercising his right to reclaim ownership of YMCA and a number of other massive Village People hits which he wrote and co-wrote in the 1970s. The right to reclaim arose when the Copyright Act amendments went into effect in 1978 and it meant that songwriters could terminate copyright grants to publishers and record labels 35 years later. Also in the USA, the US Supreme Court  refused to hear the Joel Tenenbaum case on appeal (in a case brought by the Recording Industry Association Of America) which resulted in a win for the RIAA and damages of $675,000 awarded by the jury for illegally sharing 30 songs online. In the yo-yo world of US copyright infringement damages in this and the Jamie Thomas-Rasset case, the damages were then reduced 90% by the trial judge Nancy Gertner on constitutional grounds, but the appeals court subsequently criticised the judge's process, and reinstated the $675,000 damages sum. And Clear Channel, the biggest radio company in the US with 850 stations, entered into a landmark agreement with country music label Big Machine which will see the broadcaster pay a royalty for the use of sound recordings on it's terrestrial radio channels for the first time.

In June the European Parliament's influential International Trade Committee recommended that members of the Parliament vote against adopting the Anti Counterfeiting Trade Agreement (ACTA), prompting an angry backlash from trade groups representing the content industries including the record labels international body the IFPI who said in statement "The recommendation by the European Parliament's International Trade Committee that the Parliament should reject ACTA is a disappointment to Europe's creative, innovative and manufacturing sectors, which employ over 120 million people across Europe and depend on intellectual property to support and grow their businesses". Wikipedia founder James (Jimmy) Wales came out in support of Richard O'Dwer, the 24 year old multimedia student at Sheffield Hallam University who set up TVshack.net, making some £140,000 in the process, and who was then facing extradition from the UK to the USA on copyright infringement charges. In the US the Electronic Frontiers Foundation said that “In an important ruling for free speech” the Court of Appeals for the Seventh Circuit had affirmed that a parody of a popular online video "What What (In the Butt)" was a clear case of fair use and that the District Court's early dismissal of the claim was correct and that early dismissals can be appropriate. In France  the Syndicat National de l'Edition (SNE, the French Publishers Association) and the Société des Gens de Lettres (an authors' group) put an end to a six year long running litigation against Google, over its project of digitising out-of-print books and here on the 1709 blog, Mira T. Sundara Rajan's guest post "Getting Paid is a Moral Right, too! Why Creative Commons Gets itWrong" became one of the most controversial pieces to appear  - and has certainly attracted some of the strongest criticism – and it's well worth another look to see what Mira, now a permanent 1709 nlogger, was suggesting .

Am I legal?

In July the judgment of the Court of Justice of the European Union in Case C-128/11 UsedSoft GmbH v Oracle International Corp was given, holding that "An author of software cannot oppose the resale of his ‘used’ licences allowing the use of his programs downloaded from the internet. The European Parliament voted against the much maligned Anti-Counterfeiting Trade Agreement. And they voted against it in some numbers with just 39 in favour, 165 abstained and 478 were against - interesting as you will remember that all but 5 of the EU's 27 member states have already signed up to the Treaty. In New Zealand statistics from the Federation Against Copyright Theft (FACT) claimed  that since New Zealand's "Skynet Act" three-strike law was implemented in September 2011, the number of illegally viewed films in the top 200 online has dropped from 110,000 to 50,000, i.e. by just over 50%. And in the UK  Richard Hooper published his final report on the creation of a UK based Digital Copyright Exchange. The report, "Copyright Works:  streamlining copyright licensing for the digital age" set out four main recommendations under the remit of setting up a not for profit industry led and industry funded Digital Copyright Exchange and the "Copyright Hub".

ivi - I am not a cable network

In August  the US based television streaming service ivi suffered a major setback after the federal appeals court upheld a lower court’s temporary injunction against the controversial company in a case brought by ABC, NBC, Universal, Univision, Fox Television, CBS and several other broadcasters, asserting that the startup was infringing their copyrights by live-streaming their programming without permission. The US Court of Appeals for the Second Circuit said that allowing ivi to resume service could “threaten to destabilize the entire industry” and inflict irreparable damage on the networks.   It also determined that ivi was not legally the same as a cable network, noting in particular that it “retransmits broadcast signals nationwide, rather than to specific local areas". Also in the US, Federal authorities  seized three domains which they believed were involved in the illegal distribution of pirated Android apps.  In Germany the  Federal Court of Justice, the Bundesgerichtshof, held that internet service providers (ISPs) must disclose the name and address of illegal file sharers when requested by copyright owners. In the UK Anton Vickerman, the owner of TV streaming links site SurfTheChannel, was sentenced to four years custody at Newcastle Crown Court  after being found guilty of conspiracy to defraud for “facilitating” copyright infringement under the Criminal Justice Act. China released a second draft revision of its Copyright Law for public comment, dropping the controversial Article 46 that raised an outcry from Chinese musicians. In India the Madras High Court passed an interim order prohibiting a dozen ISPs and one named individual from uploading the Tamil film "Mirattal" or any portion of it to the Internet. The order also prohibited facilitating downloads of the film. In addition, the Court granted five "John Doe" orders imposing the same restrictions on persons whose identity was not known at the time that the order was granted. And Google said it had taken significant step against online piracy after saying it would alter its search algorithms to favour websites that offered legitimate copyrighted movies, music and television. Google said that it's algorithms would now take into account the number of valid copyright removal notices sites have received and  sites with multiple, valid complaints about copyright infringement may appear lower in Google search results.

So, September! Time for Neelie Kroes, Vice-President of the European Commission responsible for the Digital Agenda, to give a speech entitled "Copyright and innovation in the Creative Industries" addressing why, in a changing digital age, copyright reform is the right way to support the creative sector.  She began by saying that the debate on copyright often involves extreme positions, rigid views, and emotive arguments but that a pragmatic rather than philosophical approach is necessary and commenting that "In 1998, Mark Zuckerberg was 14. Today, almost one billion people around the world actively use Facebook, to share photos, videos, and ideas" pointed out that the world is changing rapidly and that the internet had opened that the creative space up to individuals who can publish their books, blogs, songs and art easily and globally. Staying with Europe, the proposal for a directive on certain permitted uses of orphan works was approved by the European Parliament who voted in favour of the proposed directive by 531 votes to 11, with 65 abstentions. Bruce Willis was said to be considering legal action against technology giant Apple over his desire to leave his digital music collection to his daughters having discovered that, like anyone who has bought music online, he did not actually own the tracks but is instead was  ‘borrowing’ them under a licence. The story was probably a hoax, but made for a great debate! And Simon Clark's guest blog in the 1709 caused quite a stir. 'Why the Meltwater case won't break the internet' provoked widespread comment and indeed a response here , all debating whether Meltwater was a fair and reasonable victory for rights owners - or a chilling clamp down on the freedom to link and browse online.

And what of October I hear you ask? Well my fellow bloggers were busy again. The month started with the news that illegal downloaders in Japan now face prison terms of up to two years and fines of nearly 2 million yen (U.S. $25,679 or £15,900) from today. The Japanese government said that the move was aimed to protect the film industry and stop falling music sales in the World's second largest music market, where record industry officials estimate only one in 10 downloads are legally purchased. The Recording Industry Association of Japan says the legal download music market shrank 16% in 2011, the second consecutive year of decline. The slide comes despite global sales of digital music increasing 8% last year to $5.2 billion. In Europe, Eleonora reported that  the Orphan Works Directive, which has long been in the pipeline, was finally been adopted by the Council. The Council's approval marks the final step in the legislative procedure meaning that the Directive will formally enter into force and Member States will then have two years to transpose it into national law. And Google hit the news , firstly after the search behemoth sent a dramatic letter to several French ministerial offices, threatening to exclude French media sites from search results if France goes ahead with plans to make search engines pay for content (after a number of  leading French newspaper publishers had called on President Hollande's government to adopt a law to force internet search engines such as Google to pay for content )and in other aggregator v publisher battle, 154 members of the Brazilian National Association of Newspapers (ANJ) opted out of the Google News service.

Frog Wars - Disney v Brightspark

November – the nights a drawing in over the Northern hemisphere – and we are nearly there! The Swedish court, the Svea hovrätt, made a request for a preliminary ruling from the CJEU regarding the infringement of exclusive rights to make copyright protected work publicly available by a third party subscription search engine. The case is Nils Svensson, Sten Sjögren, Madelaine Sahlman, Pia Gadd v Retreiver Sverige AB (Case C-466/12). In Finland an ill advised 8am police home raid resulted in the seizure of a nine year old girl's laptop which was used in the failed attempt illegal download  of a song by pop star Chisu from The Pirate Bay website. As Iona commented, it is probably one of the first Winnie-the-Pooh laptops to be seized for attempted illegal activity. Talking of hardware, in The Netherlands Hewlett-Packard, Acer, Dell and Imation filed a claim against the Dutch government at the District Court of the Hague claiming damages caused by the new, higher, private copying levies which were extended to  apply to all hardware from January 2013. And the Spanish Government’s public consultation over the new draft regulation for collecting fair compensation for private copying ended. The consultation was set up after the December 2011 abolition of of the Spanish copyright levy:  it's main objective is to establish a new system to compensate right holders for private copying. Taking a look at Germany, Iona blogged asking the question “should parents be legally responsible for their teenager's actions?” and commented that  “As whilst teenagers are a law unto themselves”  the thought of being legally responsible for one is pretty frightening – and highlighted the decision of the German Federal Court, der Bundesgerichtshof, which said that the parents of a 13 year-old file-sharer could not be held responsible for their son's infringement. Further, they could not be required to monitor or hinder his activity online. Phew! Asim (our French Kat) reported that the  long-running court battle between French FTA television broadcaster M6  and the publisher of a website that gave access to the broadcaster's catch-up TV sites (without permission) ended after the French Supreme Court (Cour de Cassation) rejected the appeal against the appellate court's ruling in favour of the publisher. Richard O'Dwyer, the 24 year old UK student who created TVShack, escaped extradition to the USA. O'Dwyer had done a plea bargain - whereby he would attend the USA and visit a court - and pay over a limited amount of compensation, avoiding both extradition and a criminal trial for the infringements. Iona posted a very interesting blog asking the very timely question "Is the term of protection of copyright too long?", In the US, the debate over who pays what (if anything) to SoundExchange and ASCAP/BMI for using recorded music and songs on internet, satellite and terrestrial radio services continued, and finally, Disney won it’s battle with UK independent production company Brightspark Productions after claiming it was misleading consumers with a series of budget family DVDs which appear to be copycat versions of Disney's own popular animated films (but when viewed most certainly were not).

It’s December – its nearly Christmas, but no time for turkey and Christmas pud yet. The Pirate Party in the UK disabled it's proxy - which provided access to The Pirate Bay, following a legal challenge from UK record labels trade body the BPI. Iona let us know that the Canadian Supreme Court had decided in Cogeco Cable Inc, et al v. Bell Media Inc et al that Canada's broadcast regulator does not have the authority to impose a "value for signal" plan under which television broadcasters would charge cable and satellite firms for retransmission of their content. This seems to be the opposite to what has been decided in Europe - in Airfield the CJEU found that satellite package providers who retransmit content give access to a "new public" and must therefore get authorisation to retransmit the work. The new Spanish copying levy was passed into law. Eleonora reported that the EU Commission held an orientation debate on content in the Digital Economy to address "whether the copyright framework remains fit for purpose in the digital context". In the UK in the aftermath of the Hargreaves Review, a group of creators and copyright owners urged the UK government to reconsider impending changes to copyright law which they say would seriously restrict the ability of British creators and copyright holders to license and earn revenue from their rights - by widening and redefining exceptions to copyright infringement - perhaps to something more akin to the US 'Fair Use' doctrines. The press release pre-empted the Government's Modernising copyright, a modern, robust and flexible framework which detailed planned revisions to 'fair dealing'. The Business Secretary Vince Cable outlined his plans to have a dedicated team at the City of London police force to tackle IP crimes And three EC commissioners, Michel Barnier (Internal Market and Services), Androulla Vassilliou (Education, Culture, Youth) and another mention for Neelie Kroes (Digital Agenda), jointly issued a press release which detailed the four issues they thought should be addressed by "stakeholder dialogue" for copyright reform - cross border access and portability of services to promote multi territory access, user generated content and licensing of small scale users, efficient solutions for text and data mining, and commercial and non commercial uses in the audio-visual sector. And finally, It didn't take Facebook long to backtrack over it's controversial policy changes that it intended to make regarding photo-sharing app Instagram. In a move that reminded me of Myspace's ill advised policy of trying to "own" it's own users' music, Facebook said that user's photos would be owned and could be potentially exploited (in perpetuity) by the web giant without notification or payment,effectively transforming the Web site into the world's largest stock photo agency. Cue the angry backlash, an apology and the terms were swiftly reverted to their 2010 format, but the damage from this and from earlier "user hostile" changes to privacy settings, was done. So as 2012 ends, do we see the beginning of the end  of Facebook?

Let's hope 2013 proves just as interesting!

Last year's review here