Sunday 23 December 2012

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.

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, 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 


Andy J said...

Many thanks Ben for the thorough review of the copyright year. May I add a footnote in the form of a posting on Techdirt which describes a truly bizarre set of decisions in the German courts which seem to have utterly confused the law on music sampling there: Techdirt.

Pouting Poutine Person said...

In Canada, we had immensely important amendments to the Copyright Act, which, among many other things, added ““education, parody or satire” to fair dealing. We also had five fantastic Supreme Court decisions (on the same day, no less!) that will cut back on double-dipping and greed on the part of collectives, promote technological neutrality, and ensure that fair dealing will flourish.

In fact, it looks as if the UK is falling all over itself to play catch-up with Canada on at least some of these issues. That’s OK. We won’t threaten to disallow your legislation, as you once did ours.

You needn’t all but ignore Canada just because we are a former colony and no longer bring our appeals to your Privy Council. Your Queen is our Queen. Long may she reign:

Ben said...

Thanks Andy - I have read and re-read that article - and like you, I am not sure it makes much sense, to me anyway - and I am actually interested in this area!

And Pouting Poutine Person, apart from the fact you should get a prize for the BEST BLOG NAME ever, I should (of course) have referred to those five decisions - our guest blogger Lorraine Fleck (Hoffer Adler LLP, Toronto)covered them all in some detail back in July and like much of Canada (except tar oil sands extraction) I found them inspiring! Just as we here in the UK now find your legislation hehe! "Fleck's Five" can all be found on the 1709 Blog starting with No 1 here - looking at free music previews -

Unknown said...

Dear Pouting Poutine Person,

I agree with Ben that you have the best blog name ever! It certainly is a poutine day in Montreal today!

I have written an article comparing the 5 Canadian Supreme Court copyright decisions to UK/EU law. It was published in JIPLP today and you can read it here if you are interested: