In search of (in)flexibilities

Fellow 1709 Blogger Eleonora Rosati is far too modest to tell you about her most recent article, "Copyright in the EU: In Search of (In)Flexibilities", so I'm happy to do that for her. This article takes further a number of strands of her thinking on the evolution of modern copyright law doctrine within the European Union and on the limitations imposed on that evolution by the legal superstructure within which it takes place. It has been great fun to watch Eleonora get to grips with contemporary copyright issues, subjecting them to both a rigorous academic analysis and leavening dose of practical reality. This article is the latest fruit of her intellectual endeavours.

According to the abstract:

Buses may bend -- but is
EU copyright so flexible? 

"Over the past few years consensus has grown around the idea that current EU legislative framework for copyright lacks the flexibility needed to accommodate emerging interests, specifically those arising in connection with technological development. In particular, the principal directive in the area of EU copyright, ie Directive 2001/29/EC (the ‘InfoSoc Directive’), has been widely criticised for having failed to increase legal certainty in the EU and, overall, has been considered a badly drafted, compromise-ridden, ambiguous piece of legislation.

While debate as to whether the InfoSoc Directive – notably, Article 5 and its enumerated system of exceptions and limitations – should be reformed has gained momentum, very limited (if any) attention has been devoted to exploring the relationship between this directive, the emerging doctrine of EU pre-emption and the room left for national initiatives. It remains uncertain to what extent Member States are free to legislate in areas affected by the InfoSoc Directive, notably exclusive rights and related exceptions and limitations.

This contribution seeks to address two main questions: Are Member States entitled to alter, ie broaden or restrict, the scope of the exclusive rights harmonised by the InfoSoc Directive? May Member States decide (as the UK did) not to transpose the full language of exceptions and limitations once they chose to implement a certain exception or limitation from Article 5 catalogue into their national laws?

The answer should be in the negative in both cases. This is because Directive 2001/29/EC leaves much more limited room for independent national initiatives than what has been so far understood. However, this may not be necessarily to the detriment of (re-)establishing a proper balance between exclusive rights and related exceptions or limitations. Furthermore, this interpretation appears necessary to comply with the principle of EU pre-emption and thus permit the establishment of a real level playing field in the area of EU copyright."

You can read Eleonora's article via SSRN here. It will be edited for publication later this year in the Journal of Intellectual Property Law & Practice (JIPLP)

Patently interesting developments in the ReDigi case

An interesting update on the ReDigi case: You will remember back in April 2013 Judge Richard Sullivan blocked ReDigi's interesting business model, holding that the first sale doctrine did not apply to digital goods - here music files. In his judgment he said “The novel question presented in this action is whether a digital music file, lawfully made and purchased, may be resold by its owner through ReDigi under the first sale doctrine. The court determines that it cannot”.  The reason, the judge ruled, is because copying, or an illegal “reproduction” of a music file, must take place, despite ReDigi’s claims to the contrary.   Judge Sullivan added “Because the reproduction right is necessarily implicated when a copyrighted work is embodied in a new material object, and because digital music files must be embodied in a new material object following their transfer over the internet, the court determines that the embodiment of a digital music file on a new hard disk is a reproduction within the meaning of the Copyright Act. The judge agreed with the claimant's (Capitol Records) claims that the service was guilty of direct, contributory, and vicarious infringement of Capitol’s reproduction rights, and said ReDigi had no fair-use defence to the infringement as the service was not "capable of substantial non-infringing use"s."

ReDigi had stressed that it “migrates” a file from a user’s computer to its Cloud Locker, so that the same file is transferred to the ReDigi server and no copying occurs. However, even if that were the case, the fact that a file has moved from one material object — the user’s computer — to another — the ReDigi server — meant that the court found that a reproduction has occurred. BUT, and its a big but, according to ReDigi the company has a newly awarded US patent that covers a method for “atomic transaction": a "cloud-based mechanism that instantaneously transfers an ‘original’ good from one owner to the next, without making a copy". Re-Digi had already alerted the World to it's soon to be launched '2.0' version with 'patent pending' technology when it lost the first round court case - well the pending is over and it's here - and it seems ReDigi’s patent also covers a “verification engine: a mechanism that analyzes each digital media file that enters the ReDigi system to ensure that it is legally eligible for resale” along with a “removal and monitoring mechanism: a digital management application that helps sellers identify and ensure personal-use copies of the sold media are removed.” Seemingly this technology took almost five years of research and testing before the United States Patent and Trademark Office granted ReDigi’s patent. will it make a difference? Well, an appeal against Judge Sullivan's ruling is expected by ReDigi, so watch this space!

More on Computerworld including an interview with Re-Digi's John Ossenmacher here

The CopyKat - Chinese walls, blocks, strikes and a football focus

More than 845,000 publications were registered in China for copyright protection in 2013, up about 23% year-on-year according to official statistics. A spokesman from the National Copyright Administration of China (NCAC) told a press conference that more than half of registrations were made in Beijing.The growth  was put down to the increased awareness of copyright protection and the use of copyright as an important financing device. Photographs accounted for more than half of registrations, and applications for software protection rose by about 18% in 2013, to more than 164,000. Tibet, Inner Mongolia and Xinjiang topped the list of growth regarding software, with applications growing by about 95% in Tibet.

Also in China, the popular video sharing website tudou.com has been ordered to pay two companies a total of 370,000 yuan ($61,129) for violating their copyrights in a film and a television programme.The claimants, EDKO Film Co and CNTV.cn, sued tudou.com for copyright infringement with the case heard at the Shanghai No.1 Intermediate People's Court. The court ordered Tudou to pay EDKO Film 125,000 yuan on January 17 for violating their agreement regarding the 2012 film Cold War. The production company, the sole copyright holder for Cold War on the Chinese mainland, pointed out that the film, which made 200 million yuan in the first 11 days of its release, was still playing in theaters at the time Tudou began showing it. In a separate case, the court ordered Tudou to pay CNTV.cn 248,000 yuan for violating the latter website's exclusive rights to show a popular food documentary series, A Bite of China, online, The series was first aired on China Central Television (CCTV) in May 2012.

The author of two books about South Africa’s political transformation is suing the makers of the documentary Miracle Rising: South Africa, which aired on the History Channel,  for over R2 million (approx £110,000) damages for allegedly adapting or reproducing from his work without his authorisation. Geoffrey Heald won the first round of his legal battle against Randburg production company Combined Artists CC when a North Gauteng High Court judge ruled that his claim would have to be tested by a trial court. Judge Bill Prinsloo dismissed Combined Artists’ exception that Heald’s claim did not reveal any cause of action against them.

Adolf Hitler's Mein Kampf is back in the news - with reports that a version, annotated with notes, will be published in 2016 following a reversal of a decision by the state of Bavaria which owns the copyright in te book and initially funded the annotated version,  to block any publications. The book itself will fall into the public domain in 2016. The Bavarian governor's chief of staff, Christine Haderthauer, had previously said that Hitler's anti-Semitic memoir amounted to incitement and the government would file a criminal complaint if anyone tried to publish the book. The state has now revised its ruling. “We have changed our minds,” said Ludwig Spaenle, the Bavarian Minister of Culture. He said Bavaria would not oppose the project because it was in the interests of “freedom of science” saying "the freedom of science to confront the topics which, in its view, are necessary is thereby not restricted". What would happen if the book was published in its original version in Germany remains unclear although the state stressed in a statement that it would seek to prevent any other full or partial publication of the 1924 book, written whilst Hitler was in prison.

Further to our update on possible criminal actions against 100 or more pubs in England and Wales who use foreign satellite services to show live Premiership football matches, the Telegraph reports that the Premier League is lobbying for an amendment to the Intellectual Property Act, currently making its way through the UK Parliament. FAPL has received backing from the record industry for an amendment to the Copyright, Designs and Patents Act 1988 that currently allows many venues – such as pubs or gyms, that do not charge patrons to enter their premises – to show broadcasts of video recordings without a licence from the copyright holder. Commenting on the Section 72(1) defence under the CDPA ("The showing or playing in public of a broadcast to an audience who have not paid for admission to the place where the broadcast is to be seen or heard does not infringe any copyright..."  for the recorded music sector David Harmsworth, PPL’s director of legal and business affairs, said: “It’s a very strange technological anomaly in the law that if music videos are broadcast rather than played from a system in the gym, then the gym doesn’t need a licence. Actually, the UK is in violation of European law on this. The discussions we’ve had with the Government on this suggest something will be done, although it may end up that the Intellectual Property Bill is not the vehicle.” See here for earlier comment on the IPKat on s72. 

The Dutch High Court has overturned a lower court order forcing two internet service providers in the Netherlands - XS4ALL and Ziggo - to block their subscribers from accessing the ever controversial music file sharing site The Pirate Bay. Calling the blocks "ineffectual", the court stated that the blocks would "constitute an infringement of [people's] freedom to act at their discretion".Blocking orders have been upheld in the United Kingdom, France and Belgium and the AG's opinion UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH und Wega Filmproduktionsgesellschaft GmbH (see Jeremy's blog here)  was that Member States are to ensure that copyright holders or holders of related rights are able to apply for an injunction against intermediaries whose services are used by a third party to infringe their rights - and that specific blocking measure(s) imposed on a provider relating to a specific website are not, in principle, disproportionate.

And finally, the Writers Guild of America West has added its thoughts to the debate on reforms to US copyright laws, with TorrentFreak saying that not only calls for a balance in copyright law, but stresses that censorship, surveillance and chilling of critical speech have no place in copyright policy. Interestingly the writers oppose moves by the Hollywood studios and the recorded music sector to put in place new penalties in the digital age - the studios argue that high damages are needed as a deterrent, and are looking at a proposal which would make streaming of copyrighted videos a felony. Noting the 'chilling effect' of the latter, the WGAW warn that the current legislation stifles innovation as people may be hesitant to start innovating businesses, fearing that copyright holders may come after them. With regard to the DMCA, the WGAW suggests that the Government could set up a common template for takedown notices, making them easier for smaller copyright holders to issue and for websites to process and finally, the writers warn against the voluntary anti-piracy agreements that have emerged recently, including the six-strikes Copyright Alert System - saying that these initiatives are not always in the best interests of consumers.

Prince Sues Twenty Two Fans For Linking to Infringing Content

Pop idol Prince caused controversy last week when he initiated a copyright action against twenty two fans. The defendants in question had created fan websites dedicated to the musician through the use of platforms like Facebook and Blogger. Prince alleges that the defendants used these websites to post links to torrent sites where recordings of his concerts could be downloaded for free.  He is seeking $1 million in damages from each defendant, only two of which are identified by name (the others remaining as John Doe defendants).

According to Prince, the defendants' websites constitute "an interconnected network of bootleg distribution which is able to broadly disseminate unauthorized copies of Prince’s musical compositions and live performances" and accordingly their actions amounted to "massive infringement and bootlegging" of copyrighted material.

Fans have expressed their shock at Prince’s decision to sue his own fan-base. At the fan-based web forum Prince.org, fans left messages such as: "Yes bootlegging is wrong, but … who is next? Dude will even go after regular ass fans … really sad," and "Prince will be remembered for making some of the most beautiful music ever created and for hating his fans." Many will no doubt be aware that Prince has track record of copyright litigation. This included an unsuccessful legal action brought against the Pirate Bay in 2007.  

Online Copyright + Enforcement = Happiness? A spring event in London

Awww ... Spring + copyright:
that is the real formula
for happiness!

Were you just wondering what copyright event you may attend this spring in London? Wonder no further!

On the afternoon of 1st April the IPKat is in fact holding an event on copyright chemistry, aimed at finding out - among other things - where the canapes are what the perfect formula for copyright happiness might be. In particular, might 'online copyright' + 'enforcement' be the answer?

1709 Blog team members Eleonora and Asim will speak about online copyright enforcement in the EU and France, respectively, and Jeremy will chair the entire event.

Other topics will include blocking injunctions in the UK and the recent online copyright enforcement regulation in Italy, how Google fights piracy, German ISP liability through interference, private agreements between ISPs and rightholders, the newly created UK Copyright Hub, and global enforcement strategies.

It all sounds very exciting, and indeed nearly 100 people have already registered. 

What does this mean? That you have to hurry up, as there are only 20 places left!

The event is free to attend and will be hosted in the beautiful offices of Bristows LLP. CDP points will be also provided.

You can register here. 

Research says that French “three strikes” law has no deterrent effect

The effectiveness of graduated-response anti-piracy systems that have now been implemented in France, New Zealand, Taiwan, South Korea and the USA has always been debated, and new research from American and French researchers, based on a survey of 2,000 internet users in France, has found that the so called 2009 ‘three strikes’ system in France (the 'Hadopi' law) has not deterred individuals from engaging in digital piracy and the system does not reduce the intensity of illegal activity of those who did engage in piracy. The researchers from the University of Delaware Alfred Lerner College of Business and Economics and the Université de Rennes I - Center for Research in Economics and Management also noted that for those internet users with closer links to the piracy community - a classification based on the piracy chat in said users' social networks - the introduction of three-strikes in France, which targeted exclusively P2P file-sharing, pushed file-sharers down other routes to accessing unlicensed content.  More than a third sampled —37.6 percent—admitted to illegal downloading, with 22 percent using P2P networks and 30 percent using "alternative channels." About 16.4 percent of those who had engaged in the downloads received a warning from Hadopi, the government agency with the same name as the law it enforces.

The Researchers say: “Consistent with theoretical predictions, our econometric results indicate that the Hadopi law has not deterred individuals from engaging in digital piracy and that it did not reduce the intensity of illegal activity of those who did engage in piracy” adding “While several factors affect the perceived probability of detection under the law, our results show that the propensity to engage in illegal file-sharing is independent of these beliefs.” 

The results suggest that those who have more 'pirates' in their social networks switch to alternatives, such as direct download sites and newsgroups with the researchers saying “There is evidence that the law encourages Internet users who better understand the law and alternative piracy channels (those with many digital pirates in their social network) to substitute away from the monitored P2P channel and to obtain content through unmonitored illegal channels,”  which conversely means that the three-strikes system is more likely to catch less prolific file-sharers.

That said, the authors cite another 2014 study which found that iTunes has seen a 20-25 percent increase in sales of French music just prior to implementation of the law. However, the authors attribute the increased sales to "public educational efforts," not to the deterrent effect of the law.

More on http://torrentfreak.com/three-strikes-law-does-nothing-to-curb-piracy-research-finds-140122/ and you can download the paper here

New commentary to the Marrakesh VIP Treaty

Today in Marrakesh

A few months ago Jeremy brought to readers' attention news of the release of a guide prepared by the Library Copyright Alliance on the recent WIPO Treaty to facilitate access to published works for persons who are blind, visually impaired, or otherwise print-disabled (the so called Marrakesh VIP Treaty). The 1709 Blog has now been informed that a commentary to the Treaty has been also prepared by Dr Mihály J Ficsor sr, world-renowned copyright expert, currently honourable president of the Hungarian Copyright Council, and probably one of the most active retirees in the world, as 1709 Blog good friend Peter Munkacsi explains:

“Listening to the refrain “Marrakesh, come to Marrakesh” in this famous early 80s song by Goombay Dance Band (which, by the way, became extremely popular across Eastern Europe at that time) - whether at the radio or courtesy of our neighbour's New Year's Eve Retro-Party - reminded me that I could bring to 1709 Blog readers' attention the existence of an article-by-article commentary (so far the most detailed) to the Marrakesh WIPO Treaty to facilitate access to published works for persons who are blind, visually impaired, or otherwise print-disabled.

Adoption of this new multilateral treaty at the Diplomatic Conference that took place in Marrakesh, Morocco, in June last under the auspices of the World Intellectual Property Organization was a remarkable success in the field of the international copyright in 2013.

Today in Budapest

The author of this commentary is Dr Mihály J Ficsor sr, who made it available for download from his website.

The Introduction to the Commentary stresses the importance of the Marrakesh Treaty, which - together with the Beijing Treaty on Audiovisual Performances (BTAP) adopted a year earlier (also analysed here) – seems to have put an end to quite a troubled period (ie more or less the last decade) in the international copyright relations, by contributing to a well-balanced international regulation of copyright and, at the same time, rejecting badly informed campaigns against certain indispensable elements of the existing copyright norms (in particular the three-step test and TPM protection). 

The Commentary also discusses why the Marrakesh Treaty has been rightly considered as exceptional and unique and why it cannot be regarded as a model for future treaties on other limitations and exceptions.

     

Several papers on key copyright developments are now published on Dr Ficsor’s new website, on belief that the topicality of certain issues call for swift publication (and what is swifter than the internet?): so do take a look!” 

New Open Access Resource Center opens

"Copyright Clearance Center and ALPSP Launch New Open Access Resource Center" is the latest bit of IP information from beSpacific, the incredibly useful news-and-research-spotting website.  The story is this:

“The non-profit Copyright Clearance Center announced this week that is has launched an Open Access Resource Center in partnership with the Association of Learned and Professional Society Publishers (ALPSP). ... CCC officials say the new web-based resource center will include a variety of information, including “links to the latest open access news, reports, whitepapers, webinars and Web sites.” Users can also complete a feedback survey to add suggestions for what they would like to see included going forward. Roy Kaufman, managing director of New Ventures, CCC, said the resource center “aims to be a comprehensive resource for all things open access.”

This blogger notes that the resource centre is not solely US-centric and that its scope includes materials from the UK and Europe, the Middle East and Africa (just one item so far) and the Pacific Rim. It may be worth paying a visit from time to time, to see what's there.

The CopyKat, balancing on that narrow fence between copyrights and copywrongs

The Delhi High Court has held.that exclusive rights over yoga and pranic exercises, which are derivatives of ancient technique of yoga in India, cannot be claimed under the Copyright Act. Business Standard reports that the Court made the observations while rejecting the plea of Philippines-based Institute for Inner Studies seeking to restrain persons from teaching the 'asanas' (postures) claimed to be developed by the founder of the Institute.  The court relied upon the position of law on the matter in the US and noted that the court there had denied protection to Yoga asanas in case of Bikram Choudhary who is also teaching modern yoga techniques in the US.  Justice Manmohan Singh also held that the expression 'Pranic Healing' cannot be monopolised as trademark by the Institute. More on yoga and copyright here. 

The California-based 9th U.S. Circuit Court of Appeals - aka the "Hollywood Circuit" - has been accused of routinely siding with the home-turf entertainment industry in the past. Critics say that judges sided with film studios in the early 1980s when the studios sued Sony for infringing their copyrights by selling the Betamax video recorders (the Supreme Court reversed that decision), and a majority sided with "Wheel of Fortune" TV personality Vanna White when she claimed her "right to publicity" had been violated by a commercial spoof featuring a robot with a blond wig who stood next to big block letters. Now, the court's alleged pro-Hollywood slant is being cited again by a the daughter of Frank Petrella, who, along with boxer Jake LaMotta, wrote a 1963 screenplay that was said to be the basis for the Oscar-winning film Raging Bull - and again the Supreme Court has been asked to overturn a 9th Circuit decision that blocked her copyright claim against Metro-Goldwyn-Mayer in a dispute over the 1980 movie. Whilst Chief Judge Alex Kozinski has criticised the court in the past for being overprotective of the entertainment industry, he "bristles" at the suggestion that the 9th Circuit takes sides saying "We get a lot of cases, but we go every which way" adding "I don't think we are particularly protective of studios." An update on the 'sparring' Supreme Court judges can be found here.

An excellent update on the right to control a 're-transmission' by  journalist and Mediabeak blogmeister Edgar Forbes appears on the IPKat here - looking at differing approaches taken by the UK, European and then US courts in Cablevision, MPS v Murphy, TVCatchup and now Aero. Edgar is as clear as can be in this muddled and confused landscape! Why does anyone bother? In the USA JVC estimated that retransmission fees would grow rapidly from $1.4 billion in 2011 to an estimated $3.6 billion in 2017, with full service HD News/ENG TV stations poised to get the lion’s share. More in JVC's  Pro HD Report here.

Sarah Palin has lost bid to move copyright lawsuit against her to her home turf of Alaska. The claim was brought by newspaper publisher North Jersey Media Group who sued the former darling of the Tea Party and vice presidential candidate, and her political action committee, last September, claiming copyright infringement over the use of an iconic 9/11 photograph. The photo depicts three New York City firefighters hoisting an American flag amid the rubble at the World Trade Center hours after the attacks - Palin’s Sarah PAC posted a copy of the photo on its fundraising website and Facebook page without permission. The case was moved to New Jersey. More on Mondaq here.

The shift away from collective licensing in the digital domain stepped forward again as Universal Music's publishing business in America announced it had entered into a direct licensing agreement with US-based streaming service Pandora which had previously licensed content through collective licensing - having had deals with ASCAP and BMI (both of which were challenged in court at the end of 2013). Universal's Zach Horowitz rather marvellously told reporters: "Our deal with Pandora is another step toward reaching our goal of ensuring that there is a vibrant digital marketplace where both music services and the songwriters and composers who make those services possible can thrive. This arrangement will allow music fans to enjoy our music on Pandora while protecting our songwriters and composers".

The Conan Doyle Estate Ltd., owned and run by the family of writer Sir Arthur Conan Doyle, has appealed to the Seventh Circuit Court of Appeals from the lower court decision in Klinger v Conan Doyle Estate Ltd. It's not unexpected - the District Court's ruling that all but ten of Coinan Doyle's Sherlock Holmes stories were in the public domain would prevent the Estate from licensing all but those ten works - as well as potentially profitable spin offs, and new stories based on the characters of Holmes and Dr Watson. The Estate had argued that the characters of Holmes and Watson was not fully developed until the final ten short stories - still in copyright - were published and so should remain under copyright protection - but the Court disagreed and although noting that writers using character developments from these last ten stories would require the Estate’s permission, held that the public may use the Pre-1923 Elements without obtaining a license from the Conan Doyle Estate.

And finally, both Fight Copyright Trolls and TorrentFreak have noted the District Court ruling from Seattle, where Judge Robert Lansik noted that the producers of the movie Elf Man failed to state a claim for relief, since the only evidence they had was an IP address - which wasn't enough to actually implicate any particular person in copyright infringement - and that that IP address-only evidence fails to meet the pleading standards required to pursue for copyright infringement Judge Lansik said  “Simply identifying the account holder associated with an IP address tells us very little about who actually downloaded ‘Elf-Man’ using that IP address”. 

CJEU says that circumventing a protection system may not be unlawful

As announced on the IPKat, this morning the Court of Justice of the European Union published its handy 39-paragraph judgment [press release available here] in Case C-355/12 Nintendo v PC Box [on which see also AG Sharpston's Opinion, commented here and here] 

This was reference for a preliminary ruling from the Tribunale di Milano (Italy), seeking clarification as to the interpretation of Article 6 of the InfoSoc Directive on technological protection measures. 

In particular, the questions referred by the Italian court read as follows:

1.  Must Article 6 of Directive 2001/29/EC be interpreted, including in the light of recital 48 in the preamble thereto, as meaning that the protection of technological protection measures attaching to copyright protected works or other subject matter may also extend to a system, produced and marketed by the same undertaking, in which a device is installed in the hardware which is capable of recognising on a separate housing mechanism containing the protected works (video games produced by the same undertaking as well as by third parties, proprietors of the protected works) a recognition code, in the absence of which the works in question cannot be visualised or used in conjunction with that system, the equipment in question thus incorporating a system which precludes interoperability with complementary equipment or products other than those of the undertaking which produces the system itself?

2.  If it should be necessary to consider whether or not the use of a product or component to circumvent a technological protection measure predominates over other commercially significant purposes or uses, may Article 6 of Directive 2001/29/EC be interpreted, including in the light of recital 48 in the preamble thereto, as meaning that the national court must apply criteria which give prominence to the particular intended use attributed by the rightholder to the product in which the protected content is inserted or, in the alternative or in addition, criteria of a quantitative nature relating to the extent of the uses under comparison, or criteria of a qualitative nature, that is, relating to the nature and importance of the uses themselves?

   Here's what the CJEU replied:

"Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the concept of an ‘effective technological measure’, for the purposes of Article 6(3) of that directive, is capable of covering technological measures comprising, principally, equipping not only the housing system containing the protected work, such as the videogame, with a recognition device in order to protect it against acts not authorised by the holder of any copyright, but also portable equipment or consoles intended to ensure access to those games and their use.

It is for the national court to determine whether other measures or measures which are not installed in consoles could cause less interference with the activities of third parties or limitations to those activities, while still providing comparable protection of the rightholder’s rights. Accordingly, it is relevant to take account, inter alia, of the relative costs of different types of technological measures, of technological and practical aspects of their implementation, and of a comparison of the effectiveness of those different types of technological measures as regards the protection of the rightholder’s rights, that effectiveness however not having to be absolute. That court must also examine the purpose of devices, products or components, which are capable of circumventing those technological measures. In that regard, the evidence of use which third parties actually make of them will, in the light of the circumstances at issue, be particularly relevant. The national court may, in particular, examine how often those devices, products or components are in fact used in disregard of copyright and how often they are used for purposes which do not infringe copyright."

Newsflash - Murphy's law to be tested again

Will Swansea pubs face a penalty?

It seems like the Premier League is launching at least 100 new actions against publicans who use foreign decoder cards to show live Premier League football matches in their pubs. BBC Wales reported that pubs in Cardiff and Swansea, suspected of showing Premier League football matches illegally using foreign satellites, face prosecution after the Premier League's private investigation firm visited nearly 200 pubs in south Wales in the last four months and the BBC say the first action for copyright infringement will be against The Rhyddings Hotel in Brynmill, Swansea, shortly. The pubs have subscriptions with foreign channels and show 15:00 GMT Saturday Premier League kick-offs live to their customers. 

Dan Johnson, the Premier League's director of communications, told the BBC: "BT Sport and Sky Sports invest huge amounts of money in the Premier League and that then is in turn invested by the clubs in new stadia, developing players, acquiring players, the whole range of things that make Premier League football so popular" adding "So anything that damages the ability of broadcasters to invest in that has the potential to damage the ability of the clubs to invest in that" and "With the advent of Cardiff and Swansea being in the Premier League clearly the interest in Premier League football has gone through the roof in south Wales.".

Previous efforts to bring pubs to court resulted in a partial victory for Portsmouth pub landlady Karen Murphy who used a subscription to the Greek Nova service to show live Premiership games. Ms Murphy was convicted at Portsmouth Magistrates Court of "dishonestly" receiving a programme "with intent to avoid payment of any charge applicable to the reception of the programme". The conviction under section 297(1) of the Copyright, Design and Patents Act 1988 was upheld by Portsmouth Crown Court. The Court of Justice of the European Union held that national laws that prohibit the import, sale or use of foreign decoder cards were contrary to the freedom to provide services and cannot be justified either in light of the objective of protecting intellectual property rights or by the objective of encouraging the public to attend football stadiums - and also that football matches did not fall under the protection of an author's own "intellectual creation" as works. So Ms Murphy herself could use the Greek service and her criminal conviction was overturned by the High Court.

But neither CJEU nor the High Court directly resolved the wider issue of copyright infringement in those elements of the matches that could be protected by the Premier League - logos and graphics, the the league's anthem and pre-recorded and edited short films from earlier matches used in live broadcasts - and the CJEU noted that when these were shown in public - and the transmission in a pub of the broadcasts containing those protected works, such as the opening video sequence or the Premier League anthem, constitutes a ‘communication to the public’ within the meaning of the copyright directive - the the authorisation of the author of the works is necessary, because when a pub transmits those works to the customers present on the premises the works are transmitted to an additional public which was not considered by the authors when they authorised the broadcasting of their works.

http://www.bbc.co.uk/news/uk-wales-25849670 

More on Murphy v MPS here and  joined cases C-403/08 Football Association Premier League Ltd and Others v QC Leisure and Others and C-429/08 Karen Murphy v Media Protection Services Ltd 

North of the border - a Scottish perspective here

New UK Copyright Laws - coming soon...

 Earlier this week, the House of Commons gave a Second Reading to the Intellectual Property Bill and in doing so, gave a commitment around the new SIs dealing with copyright exceptions.

not the IP Minister David Willetts - a fan of New Order's
"Blue Monday" according to his Labour shadow.

As I am sure readers of this Blog are aware, while the Bill has little of interest to pure copyright lawyers, beyond some technical updating of the rules about recognition of foreign works, it contains some complex alterations to the law of designs and paves the way for the implementation into UK law of the Unified Patents Court.

The debate did however allow MPs to mention their favourite local copyright causes (Ian Paisley Jr referencing Game of Thrones, filmed in Northern Ireland) as well as a chance to raise issues about the joined-up (or not) nature of Government policy on the cultural sectors - and whether the Prime Minister knows who the IP Minister is.

The future of section 73, recently criticised in the TV CatchUp case, as discussed previously on this Blog in the context of the Government's Comms Bill White Paper, was also raised.

Most interesting, in closing the debate, the Minister confirmed the timetable for introducing the Hargreaves Exceptions SIs following the consultation last summer. The relevant extract from Mr Willett's speech reads as follows - with apologies for the slightly arcane parliamentary language:

Several Members, including my hon. Friend the Member for Hove (Mike Weatherley) and the hon. Member for Perth and North Perthshire (Pete Wishart), asked where we are on copyright exceptions and what the next stages will be. There has been a consultation process on these provisions. It is correct to say that it has taken a long time; it is a complicated question. Given the technical nature of some provisions, we put out some draft regulations for further consultation, adding another stage to the process. 

*At this point there was a random interruption about the copyright status of the Simon & Garfunkel version of Scarborough Fair, which is not included in this Blog post - you need to read the entire debate to understand the interruption which was part of a running "joke" through the debate - although the discussion missed the real copyright story about how Paul Simon took and adapted the great British folk guitarist Martin Carthy's version of the song without acknowledgement*


What the Government intend [sic - surely there is only one government?] to do on copyright exemptions is to lay down the regulations in February, and they will then be subject to a debate under the affirmative resolution procedure. We understand the need for individual consideration; the regulations will not be completely bundled up.

This Blogger believes the last sentence means we will have a series of Statutory Instruments not just one, but how many is anybody's guess.