Breaking news - boadcasters triumph in Aereo battle

On 25th June the U.S. Supreme Court ruled that Aereo, the controversial streaming video service which used the much mentioned 'mini antennae' to deliver its service to paying customers - has violated US copyright laws by “capturing broadcast signals on miniature antennas and delivering them to subscribers for a fee.” The split court - in  a 6-3 decision - has handed down a decision which will prevent Aereo selling a service that allows its subscribers to watch television programs over the Internet at about the same time
as the programs are broadcast over the air agreeing that Aereo was infringing the broadcasters right to 'perform' their copyrighted works 'publicly'. The District Court has denied a preliminary injunction and the Second Circuit had affirmed. The decision has wide-ranging implications for the television industry: but it is a victory for current business models and will undoubtedly be seen a victory for the major television networks, which had argued that Aereo’s business model amounted to theft of their programming - and that Aereo 'performs' the works and doesn't merely provide equipment allowing others to so do.

I must be brief but the decision is here: http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf

Background here http://the1709blog.blogspot.co.uk/2013/10/aereo-battles-seem-destined-for-supreme.html

Japan nods to Beijing, opts for right to equitable remuneration

Things are bouncing in Beijing! By Beijing Notification No. 4 Beijing Treaty on Audiovisual Performances the World Intellectual Property Organization notifies us of the deposit by the Government of Japan, exactly a fortnight ago, of its instrument of accession to the Beijing Treaty on Audiovisual Performances. However, it's not a straightforward matter. Japan's instrument of accession contains the following declarations:

"Pursuant to Article 11, paragraph 2 of the Treaty, the Government of Japan will establish a right to equitable remuneration, instead of the right of authorization provided for in Article 11, paragraph (1) of the Treaty, for the broadcasting of a performance done in accordance with Article 94 of the copyright law of Japan by:

(a) a broadcasting organization, using the audiovisual fixation that it made for the broadcasting under the authorization of the person entitled to the right to broadcast the performance in accordance with Article 93, paragraph 1 of the copyright law of Japan;

(b) a person to whom the broadcasting organization referred to in (a) provided the audiovisual fixations referred to in (a), using those audiovisual fixations; or

(c) a person to whom the broadcasting organization referred to in (a) otherwise supplied a broadcasting program pertaining to the authorization referred to in (a), using that broadcasting program."

- "Pursuant to Article 11, paragraph 2 of the Treaty, the Government of Japan will establish a right to equitable remuneration, instead of the right of authorization provided for in Article 11, paragraph (1) of the Treaty, for the simultaneous cablecasting of a broadcast performance and for the "automatic public transmission of unfixed information" made in order that a broadcast performance be received simultaneously with the original broadcasting exclusively in the broadcasting service area (as defined in Article 34, paragraph 1 of the copyright law of Japan) pertaining to the original broadcasting."

For the purposes of this declaration, "automatic public transmission of unfixed information" shall mean transmission by means of inputting information into an automatic public transmission server (as defined in Article 2, paragraph 1, subparagraph 9 quinquies, i, of the copyright law of Japan) already connected with a telecommunication line that is provided for use by the public, which is carried out automatically in response to a request from the public and which is intended for direct receipt by the public.

- "Pursuant to Article 11, paragraph 3 of the Treaty, the Government of Japan will not apply the provisions of Article 11 paragraphs (1) and (2) of the Treaty to the communication to the public of a performance fixed in audiovisual fixations done by means other than cablecasting or "automatic public transmission of unfixed information"."

The date of entry into force of the Treaty will be notified when the required number of ratifications or accessions is reached in accordance with Article 26. Meanwhile Japan joins the three countries that have already committed themselves to the Treaty: Botswana, the Slovak Republic and Syria.

Should the EU have a specific UGC exception or even fair use?

Earlier today, the IPKat launched a poll [which you can find at the top of the left-hand side of the IPKat side bar] asking readers the following question:

DO YOU THINK THAT EU COPYRIGHT SHOULD HAVE A SPECIFIC EXCEPTION FOR USER-GENERATED CONTENT?

The poll was prompted by publication on Facebook of California-based "blue-eyed gang member" Jeremy Meeks's mugshot. 

The photograph has attracted immediate and increasing popularity, probably because of Jeremy's good looks. 

There have been also suggestions that this particular Jeremy would make a perfect model. To prove why this would and should be the case, some users have created fake fashion campaigns using Jeremy's mugshot and a bit of Photoshop. 

But, by using his photograph, can any copyright-related issues arise?

Under US law the response should be pretty straightforward, in the sense of 'No' being likely answer, as any potentially infringing activities might be considered fair use within §107 of the Copyright Act, particularly because of their transformative nature [as recent examples, see Cariou v Prince, here, and Seltzer v Green Day, here].   

But what would happen in a different jurisdiction, say the UK?

As current [and future: see leaked Commission's White Paper here] EU copyright framework does not provide for a specific exception for user-generated content, potential infringement issues might arise given the likely insufficiency of current and forthcoming exceptions - such as parody - to cover activities like those of Jeremy's fans.

Should things change? You have time until 7 July to let us know what you think! Do vote! 

The Copykat - just before we rest our paws in Glastonbury .......

The Church of Jesus Christ of Latter-day Saints - the Mormons -  has been accused of copyright infringement and breach of contract by the owner of a popular audio recording of the Bible in a lawsuit filed Tuesday in a U.S. District Court in Florida by Litchfield Associates Ltd. Inc., the owner of audio of the King James Bible read by Alexander Scourby. Reports say that The Mormon Church entered into an agreement with Litchfield in 1988 to use the recording to produce cassette tapes that would also include Latter-day Saint chapter headings and footnotes. The Church is accused in the suit of improperly sub-licensing the copyrights with for-profit Deseret Book, a Church-owned bookstore with locations in 35 cities in Utah and the Western U.S., using the recording in apps, and making them available online without permission.

The Guardian asks "Will News Corp's Australian newspapers win a legal battle with Mail Online over its lifting of articles?" and comes to the conclusion that according to three media law experts canvassed by the Crikey website the view is that it is hard to claim that online copy is covered by copyright. With the Mail Online's pursuing a strategy of allegedly reproducing the 'heart' of the work of every other media organisation as a summary in order to ensure that it becomes a "one-stop shop" for web news surfers the Mail does follow certain protocols - the original source is credited fairly high up and most often there is also a hyperlink to the original article, news story or interview. But is it legal? News Corp has now served Mail Online's parent company with a legal letter listing 10 instances of alleged theft of content. Examples were highlighted in Monday's Australian, above.

Having previously told Prenda lawyer Paul Duffy "To fabricate what a federal judge said in a ruling before another court falls well outside the bounds of proper advocacy and demonstrates a serious disregard for the judicial process",  Arts Technica tells us that  US District Judge John Darrah has now agreed to a $11,758 sanction as costs in a defamation lawsuit filed by the 'copyright trolls'. It is the eighth known award against Prenda and its various lawyers. Prenda, also known as the anti Piracy Law Group and linked with a number of firms involving three main principals, John Steele, Paul Hansmeier and Duffy, had previously incurred the wrath of federal judge Otis D Wright II (who had heard 45 Prenda cases and who had latterly described the firm's business methods as 'extortion') who decided to investigate and get to the bottom of exactly what was going on in his courtroom saying  "It should be clear by now that this court's focus has now shifted dramatically from the area of protecting intellectual property rights to attorney misconduct[,] such misconduct which I think brings discredit to the profession. That is much more of a concern now to this court than what this litigation initially was about". Sanctions of $81,000 off were applied in that matter. Judge
Mary Scriven in the Middle District of Florida was equally unimpressed, and Scriven is reported as stating that she would entertain a motion for sanctions against Prenda and its attorneys for "attempted fraud on the Court", as well as against Duffy for "lack of candor".

The new UK exceptions to copyright for the private use of personal copies, quotation and parody of copyrighted material have been put before Parliament and are expected to come into force from October 1. The draft regulations are identical to those introduced before, but were withdrawn last month. On the withdrawal, Intellectual Property Minister Lord Younger stated: “The Committee [JCSI] has some questions about the private copying and parody exceptions”  after the British Copyright Council (BCC) raised concerns that some of the wording of the SIs failed to meet specific requirements of EU law. It seems no more! The most controversial move is the proposed exception to legalise actions such as copying music from a CD for personal use, long resisted by the recorded music sector. This also allow rights holders to legally deploy ‘restrictive measures’ which prevent private copies of their work being made, although this only applies to audio visual material. But the most debated provision is the the right to use copyrighted material in works of caricature, parody or pastiche - in effect ‘fair dealing’.  The wording for the thee exceptions remain unchanged and will be considered by the Secondary Legislation Scrutiny Committee (SLSC) and the Joint Committee on Statutory Instruments (JCSI). They will then be debated in the House of Commons and House of Lords. If approved by Parliament, the regulations will be brought into force at “the next available opportunity”, which is expected to be 1st October.

Canada - now we always make sure to try and keep up to date with Canada whenever we can (to avoid slighting "poor little Canada, your erstwhile colony" (c) 2013 Castor Canuck Redux) and reports say that The federal government has confirmed that it will introduce the long-awaited notice-and-notice system which will compel ISPs to target serial copyright infringers - although critics says that the system stops short of the notice-and-takedown regime used south of the border under the U.S. Digital Millennium Copyright Act. The first-time notice-and-notice system compels ISPs to tell subscribers suspected of piracy that they are breaking the law. The annoucement is the final step in implementing the Copyright Modernization Act, which the government says is a “balanced” approach to modernising Canada’s copyright laws better to protect the rights of creators and innovators in the digital age - Industry Minister James Moore and Minister of Canadian Heritage and Official Languages Shelly Glover said that the regime would be brought into force without additional regulation in recognition of the flexibility ensured by the Act. ISPs are encouraged to continue to work together to develop market solutions to address online piracy.

It's only just related to copyright - but Google owned YouTube's threat to remove content owned by small independent record labels from the video streaming service who refuse to sign up to the web giant's new music streaming service - on apparently rather disadvantageous terms - has stirred up quite a media storm. The indie labels - who collectively have something approaching a 30% market share in some territories - are dwarfed by the two big majors Sony and Universal - who are believed to be prime position to get the best deals possible from YouTube. Now the indie labels trade bodies IMPALA and WIN have called on the European Commission to intervene - saying that  the the threat of removing material if the independent labels didn’t play ball could constitute an abuse by Google of YouTube's near monopoly in the video streaming domain to give the firm an unfair advantage in the audio space with Helen Smith, Executive Chair of IMPALA, commenting "YouTube is behaving like a dinosaur, attempting to censor what it doesn't like. This is completely out of sync in Europe where the EC has systematically insisted that European citizens should be able to access the cultural diversity and choice they demand. Europe has already had to take a tough line with Google on issues such as search and privacy. Prompt intervention with YouTube must be the next step". Meanwhile Alison Wenham, head of the Association of Independent Music in the UK and who also heads up the Worldwide Independent Network, added: "We will start this process in Europe with IMPALA referring YouTube to the EC for urgent regulatory action, which will be the first step in a global campaign. Our fellow trade associations around the world, representing tens of thousands of independent companies, also take issue with the actions of YouTube towards the most creative sector in the music industry. We must therefore do everything we can to protect the independent sector from the actions of one very powerful company, which seeks to railroad content owners, and by association their artists, into unfair and unjust contracts while threatening to block access to their platform". Wenham also wrote to the UK’s Business Secretary, Vince Cable, calling on hi to act in the matter. More on this in the Observer newspaper in comment that leads with From YouTube to Amazon, tech innovators need to be held to account - YouTube's threat to indie music labels is just one of many examples of why the new cultural gatekeepers need to follow the rules. Making the record labels look like the good guys is some going - and YouTube move may yet backfire ....

Over on the IPKat Eleonora has posted up details of an internal draft of the White Paper on "A Copyright Policy for Creativity and Innovation in the European Union".  This is the document that Commissioner Michel Barnier announced for release before the summer break, following the conclusion of the Public Consultation on the Review of EU Copyright Rules The issues covered in the White Paper refer to three main objectives: (1) further facilitating the availability of and access to content in the digital single market; (2) ensuring the optimal articulation between copyright and other public policy objectives; and (3) achieving a copyright marketplace and value-chain that works efficiently for all players and gives the right incentives for investment in creative and intellectual work.

And now to Somerset for (hopefully) sun, fun and lots of great music!

Breaking News - 7th Circuit confirms that Sherlock Holmes and Dr Watson are in the public domain

Today the US Court of Appeals for the 7th Circuit issued its decision in Leslie Klinger v Conan Doyle Estate, in which upheld the decision of the US District Court for the Northern District of Illinois - Eastern Division that Mr Klinger was free to use material in the 50 Sherlock Holmes stories and novels that are no longer protected by copyright. Writing on behalf of the Court, Circuit Judge Richard Posner recalled the decision in Silverman v CBS, in which the 2nd Circuit held that when a story falls into the public domain also its story elements - including its characters - do. Works derived from earlier works whose copyright has expired may nonetheless be protected, but copyright will only extend to the "incremental additions of originality contributed by the authors of the derivative works." 

Much more from Eleonora on the IPKat here

Background here http://the1709blog.blogspot.co.uk/2013/12/the-return-of-sherlock-holmes.html and here http://the1709blog.blogspot.co.uk/2013/09/the-expiring-detectives-last-case.html and here http://the1709blog.blogspot.co.uk/2013/03/sherlock-holmes-and-case-of-copyright.html 

UK library lending right gets an update

This blogger has always taken an interest in the compensation of authors for notional loss of sales inflicted upon them through the borrowing of their books from public libraries [this once-common and indeed formerly almost universal custom still lingers on in the age of e-books and downloads, along with other quaint British practices such as Morris dancing and shove ha'penny].  The statutory scheme for authors' remuneration (a shove of a bit more than a ha'penny into a substantial number of authorial pockets) is now over 30 years old, but it is infused from time to time with the occasional amendment, the most recent of which --SI 2014 1457 The Public Lending Right Scheme 1982 (Commencement of Variations) Order 2014 -- is noted here:

The Public Lending Right Scheme 1982 (the Scheme) provides for payments to be made to authors based on the number of times their books are lent out of public libraries. This Order brings into force on 1st July 2014 variations to the Scheme following the extension of the public lending right to narrators and producers and to audio-books and e-books on 30 June 2014.

The Appendix to the Order sets out the variations to the Scheme.

Article 4 of the Scheme is amended so that producers and narrators of audio-books can be eligible for payments under the Scheme. A person can prove their eligibility in respect of an audio-book or an e-book by reference to a written contract with the publisher, or to the case in which the audio-book is sold, or by being named within the audio-book if these identify them as a writer, translator, editor, narrator or producer.

Article 6 of the Scheme is amended so that it extends to audio-books and e-books. Article 9B is inserted in order to specify the shares in the payments made under the Scheme to the various contributors to an audio-book.

Article 14A is amended so that payments can be made in respect of a posthumously eligible producer and narrator in accordance with the shares specified in article 9B.

Article 17 is expanded to include a producer or narrator applying for registration of an audio-book for payments under the Scheme.

In Article 39(a) ‘marked’ is replaced with ‘separately identified’ as a more appropriate term in relation to the obligation on designated library authorities to identify individually the printed, audio-book and e-books whose loans are recorded and reported so that payments can be made.

The Impact of this Order on business, charities and the voluntary sector is negligible and for that reason, no Regulatory Impact Assessment is required to accompany it.

Thanks go to Graham Titley (Information Specialist, Copyright Advisor and Subject Lead for Biomedicine; Dentistry; Law; Medicine. Technology and Information Services at the Charles Seale Hayne Library, Plymouth University) for spotting this information and for drawing it to my attention.

Compromise, and a Victory for Moral Rights?

Another day, another Picasso Tricorne blog post! Right on the heels of Mira's piece on the 1709 Blog yesterday, there's a bit of hot news which Mira has swiftly transformed into this follow-up:

Four Seasons: a work of art
facing imminent destruction ...

Litigation is not the answer to everything; a settlement usually is. In this case, Aby Rosen, owner of the Picasso curtain that was threatened with destruction upon removal from its current home in the New York Four Seasons (where it has hung since 1959), has reached a happy agreement with the New York Landmarks Conservancy: Mr. Rosen has agreed to "pay for restoration, moving and reinstallation of the $1.6 million Picasso" in a new home, also accessible to the public, the New York Historical Society (as reported by the New York Post, here).

Their conflict, though undoubtedly painful, led to a valuable opportunity for many of us to consider some difficult issues surrounding artworks - the effort of balancing the interests of artists and the rights of property owners, the status of historical works in a modern context, and the validity of community and public interests in art. A happy ending for the Picasso, and, hopefully, an enriched dialogue on the protection and preservation of artworks, and a city's heritage of public art.

The CopyKat - Friday's furballs of fun

The Australian internet service provider  iiNET, which has long resisted federal efforts to mandate copyright protection schemes, and which won an important High Court decision in April 2012 that confirmed that internet service providers are not liable for authorising copyright infringement by making their services available to people who do infringe copyright, has called on its customers to make their voices known by writing to politicians at the heart of moves to introduce legislation which the ISP says would require ISPs such as iiNet to send infringement notices to its customers while, at the same time, blocking certain websites which provide access for customers to download and share unauthorised content. Writing in the iiNET blog, Steve Dalby, Chief Regulatory Officer, notes what he describes as “recycled” claims suggesting Australia is the worst nation in the world for Internet piracy. “This may not actually be the case, but there can be no debate that work still remains to be done to effectively combat piracy,” he says. More on Advanced Television here.

With both the RESPECT Act (which would close the loophole that allows digital music services, like SiriusXM, to stream music recorded before 1972 without paying for the use of the sound recordings, and the Songwriter Equity Act, which if passed would give songwriters more leeway to argue for higher royalties when their songs are played by digital streaming services - facing scrutiny in the U.S. House of Representatives, alongside a new  push was for a comprehensive registry of music, with songs given unique identifiers, so that YouTube, Spotify, Pandora and others could easily determine who owns the various rights to any song in order to assure payment, arguments are mounting for one, combined bill to address music licensing reform. “Consumers don’t know the button they push on their car dashboard or smartphone dictates whether artists are paid,” for that song, said New York Democrat Rep. Jerrold Nadler during a hearing on copyright reform - with Nadler is referring to the patchwork of laws governing compensating music artists whether the song they produced is aired on satellite radio, terrestrial radio or Internet radio. Nadler confirmed he’s working on one "omnibus bill", to bring “fairness and efficiency to our music licensing system, and ensure that no particular business enjoys a special advantage against new and innovative technologies”  in an update to the  subcommittee of the House Judiciary Committee.

A gushing press release from the record label's trade body IFPI tells us that Plácido Domingo, the world renowned artist and chairman of IFPI, has addressed the International IP Enforcement Summit being held in London where he urged governments not to allow copyright to be eroded in the digital age and highlighted the importance of intellectual property enforcement for protection of creators and culture. He told the meeting that protecting and enforcing intellectual property rights “is one of the most important missions in our society and for our culture today.” Domingo added: “There is a view – mistaken in my opinion - that in the digital world copyright matters less than in the physical world.  It is emphatically not so.  In fact, copyright needs protecting as vigorously – if not more vigorously – on the internet.” He addressed the debate around copyright reform in the EU.  “Europe will this year have new Commissioners and a new Parliament.  I urge them, in their review of copyright, to promote and protect copyright, not to weaken it.  Please, do not allow artist and producers’ rights to be eroded.  Rather, look at how they can be better enforced.” Domingo stressed the need for collaboration to protect intellectual property rights in the online world.  “We, in the creative world, cannot protect our rights alone.  We need help from the bigger actors.  The search engines, for example. When someone uses a search engine to find music, they should not be directed to illegal sources of music. This directly hurts artists and other creators.” He also called for help from governments.  “Enlightened governments will understand that strong, properly-enforced intellectual property rights lead to a rich culture and economic prosperity.”

And America's National Music Publishers' Association has estimated that the country's music publishers generate about $2.2 billion in revenue each year, but this is only about half what they should be making because of "outdated copyright law and government regulations". The gripe is really with about the role of the two main collection societies in the USA, ASCAP and BMI, and the major music publishers now want to start negotiating the 'public performance' right with the main streaming services directly rather than through the collective licensing system. NMPA chief David Israelite told reporters: "We are finally able to capture what the industry is worth and, more importantly, what our industry is losing. The new digital marketplace is changing how songwriters and their music publishing partners can thrive. As the marketplace evolves, it is essential our industry no longer be hamstrung by outdated laws and government regulation".

Techdirt tells us about a fascinating court filing made by lawyers acting for Malibu Media who, depending on whose camp you in, are either quite rightly defending the copyrights it owns and represents - or copyright trolls out to extract unneeded dollars from unsullied individuals having filed thirteen hundred lawsuits in the US in the last year. To be fair one US federal judge did support the erotic film company saying “Malibu [Media] is not what has been referred to … as a ‘copyright troll’ ”. Judge Michael Baylson added, “rather, Malibu is an actual producer of adult films and owns valid copyrights.” But now Malibu attorney Mary K Schultz has filed papers that seems to suggest a massive conspiracy against the fikm company - and that conspiracy includes opposing counsel saying:  "Plaintiff is the target of a fanatical Internet hate group. The hate group is comprised of BitTorrent users, anti-copyright extremists, former BitTorrent copyright defendants and a few attorneys. Opposing counsel is one of its few members. Indeed, as shown below, opposing counsel communicates regularly with the hate group’s leader. Members of the hate group physically threaten, defame and cyber-stalk Plaintiff as well everyone associated with Plaintiff. Their psychopathy is criminal and scary"

and  "By administering and using the defamatory blog www.fightcopyrighttrolls.com, “Sophisticated Jane Doe” (“SJD”) leads the hate group. SJD is a former defendant is a suit brought by another copyright owner... She is a self-admitted BitTorrent copyright infringer. SJD’s dedicates her life to stopping peer-to-peer infringement suits" and "Opposing counsel regularly Tweets with the other members of the hate group. Further, his Tweets are often part of a series of Tweets intended to harass Plaintiff and its counsel. Opposing counsel also Tweets about on-going litigation including this case and disparages Plaintiff... He even called Plaintiff a liar."  and "Opposing counsel is SJD’s and the other hate group members’ darling. They give him Kudos as he works toward trying to criminalize peer-to-peer copyright infringement suits."

Never publicity shy, Rightscorp Inc., the digital copyright protection service and of course the provider of copyright monetization for record labels and film companies across the globe, has unveiled brand new technology that could flood the Internet with millions of notices to alleged copyright infringers, according to Arts Technica. The strategy is based on telling the ISPs that they will face a high-stakes copyright lawsuit if they don't forward the notices that Rightscorp creates to their customers. If the ISP agrees, then they will have to forward Rightscorp's notices -  telling end users who have allegedly infringed the rights Rightscorp controls, that they could "be liable for $150,000 in damages unless they click on a provided link and agree to settle their case at a very low price." According to Rightscorp COO Robert Steele, asking for $20 per infringement is a fair way to create a deterrent. The company hopes to make the cost of infringement equal to a standard traffic ticket, while still keeping the threat of statutory damages. "Entertainers don't want to do that very often," said Steele. "They want to make people happy. For most people, a $10,000 judgment is a really tough thing. We're giving an opportunity for people to resolve the matter and recoup some loss to the creative, for a relatively small amount of money."

And finally, a US court has granted a request from MegaUpload founder Kim Dotcom to put two lawsuits being pursued against him from the film and recorded music sectors on hold pending the ongoing criminal investigation into his former business. The stay will be reconsidered in August. Under the motion, the MPAA and RIAA are still free to add extra defendants and otherwise modify their lawsuits while the matter is on hold. Judge Liam O'Grady also agreed that the RIAA and MPAA  were free to take action to stop moves in New Zealand and Hong Kong to return previously frozen MegaUpload assets to Dotcom and his colleagues saying "[T]he court finds that each of the plaintiffs' proposed conditions are reasonable under the circumstances of this case because of the possibility that defendants' assets abroad may become unfrozen. Plaintiffs may institute and pursue any action in the United States or a foreign jurisdiction to preserve defendants' assets in the event that such action becomes necessary".

Saving Picasso’s Le Tricorne and other pre-1991 Artworks: Can VARA help?

Mira T. Sundara Rajan's blogpost last month, "Picasso and Potato Chips", on this weblog here, attracted a good deal of attention and a number of comments.  In this, a sequel to her earlier blog post, Mira elaborates on the theme of art works that are damaged or destroyed when moved, also addressing a number of issues raised following her earlier post. This is what she writes:

Saving Picasso’s Le Tricorne and other pre-1991 Artworks: Can VARA help?

Many thanks to readers for their interest in the issue of moral rights in the Picasso artwork whose fate quite literally “hangs” in the hands of the owners of the Four Seasons Hotel property in New York. In my earlier piece, I focused on the concept of using law to prevent the destruction of artworks. This issue has been debated by copyright experts over the years because, it is argued, the destruction of an artwork may or may not have a negative impact on the reputation of the artist – the test established by Article 6bis of the Berne Convention, and mirrored in most copyright laws in the world, for claiming a violation of the artist’s right of integrity (in the context of Amar Nath Sehgal v Union of India, I commented: “destruction of a work can prejudice an author’s reputation by reducing the volume or quality of his creative corpus”, language reproduced by the court in para 31 of the judgment; see also para. 41). I noted the interesting point that U.S. law, in the form of the Visual Artists Rights Act of 1990, explicitly seeks to prevent works from being destroyed.

To be precise, section 106A (a) (3) (B) provides that the author “shall have the right— ...(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.” This provision is “subject to the limitations set forth in section 113 (d),” which deals with artworks incorporated into, or installed in, buildings. In the case of a work that is “incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction...of the work,” and the artist has “consented to the installation of the work in the building either before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, or in a written instrument executed on or after such effective date that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal,” the right to prevent destruction “shall not apply.” If, on the other hand, the work “can be removed from the building without the destruction... of the work,” then the owner needs to make a “diligent, good faith attempt ... to notify the author of the owner’s intended action affecting the work of visual art.” Once such notice has been provided, the onus is on the artist to respond, and to “remove the work or to pay for its removal.” If the artist fails to respond to good faith attempts to notify him or her of the intention to move it, the owner is within his or her rights to remove the artwork after 90 days.

The scheme overall seems well-focused on protecting murals and other works installed in buildings, like the Picasso, from destruction (the approach under California’s Art Preservation legislation was different; see California Civil Code, s. 987(h). Presumably, this provision has been pre-empted for post-VARA works, and those pre-VARA works that qualify for VARA protection). As I noted previously, when compared to moral rights legislation worldwide, and to Berne, U.S. law seems quite ambitious in this respect.

The specific question of whether VARA could apply to the Picasso artwork in this case, or to another artwork in similar circumstances, calls for several legal hurdles to be leapt. The key issues are the passage of title in the original work, duration of VARA rights, standing, and the concept of a work of “recognized stature” under VARA.

Let’s deal with title first, since it affects the other issues. VARA came into effect in 1991, but that leaves us with a factual paradox – a statute that seeks to protect artworks confronted the problem of what to do about artworks that already existed at the time the statute was adopted. Harm to an artwork is harm, after all, whenever the art was first created.

VARA doesn’t exclude pre-existing artworks; rather, it tells us that, for artworks created before 1991, the issue is one of whether or not the original artist has retained title in the artwork. Section 106A (d)(2) provides that, for “works created before the effective date set forth in subsection (a) but title to which has not, as of such effective date, been transferred from the author,” the rights “shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106” – the copyright provisions.

Copyright aficionados will sense a potential issue here, as ownership of an artwork and copyright in that work are distinct from one another. Which, exactly, does “title” mean? According to experienced VARA (and CAPA) litigator, Brooke Oliver, the transfer of “title” under VARA should be taken at face value: it simply means transfer of ownership. In other words, if the artwork has been sold by the artist prior to 1991, VARA cannot be invoked. Oliver cites William Patry’s famed copyright treatise, noting:

“Ownership,” not “title” is the term of art used throughout the Copyright Act when referring to ownership of copyright. The statutory language in Section 106 (a)(d)(2) refers to title to tangible property, i.e., the installed mural or sculpture. The legislative history makes clear that “title” refers to the particular copy. Both the legislative history and rationale are explained in PATRY,COPYRIGHT LAW AND PRACTICE, Vol. II at 1061 (Bureau of National Affairs 1994) c 5, The Visual Artists’ Rights Act of 1990.”" 

He explains:

“The House agreed to limit VARA to copies (including the original) of “works of visual art” created before the effective date (June 1, 1991), the title to which had not, as of that date, been transferred by the author. The term “title” refers to title to the physical copy of the work of visual art at issue, and not to title to any intellectual property rights. Id. at 1061". 

The applicable footnote also explains:

“By focusing on the title to particular copies, VARA permits retroactive application where a work created before the date of enactment may be protected as embodied in some copies, but not others. Where title to a particular copy was not transferred before June 1, 1991, the copy is protected; where title to a particular copy was transferred before that date, that particular copy is not protected.” Id. at 1061". [emphasis removed].

But this perspective is not universally shared: Nicholas O’Donnell, discussing a pending lawsuit on behalf of Los Angeles artist Victor Henderson comments:

“The effective date of VARA is June 1, 1991. This paragraph thus first means that as long as the original author (Henderson) still holds the copyright, his VARA rights will exist as long as his copyright does, and expire at the same time. Assuming that Henderson had never transferred the copyright in the 1969 mural, those rights would not have expired, and his VARA rights would still be enforceable for a previously-created work.”

... An opening for a different approach to interpretation?

William Brutocao and Eric Bjorgum, lead trial attorney and team member in the case of the famed Los Angeles mural of Ed Ruscha by Kent Twitchell point out that “a mural is [a] piece of property comprising separate ownership rights of title, possession, copyright and moral rights”.

In the case of “Le Tricorne,” the work was painted by Picasso for Serge Diaghilev, and a deeper examination would be needed to uncover the intricacies of their arrangements. We can imagine that their relationship was probably informal and not regulated by a written contract. Nevertheless, the work was made for Diaghilev and was also physically delivered into his possession for the purpose of staging the ballet; the existing artwork at the Four Seasons has already been “cut down from its original size” (see here). As noted earlier, the work is not a mural per se, but the different interests identified by Brutocao and Bjorgum would seem to apply to an artwork like this one – part of a set design prepared for a collaborative, interdisciplinary, and creative use by another artist. Per Oliver’s assessment, if title in Le Tricorne passed out of Picasso’s hands into Diaghilev’s, the artworks would clearly be beyond the reach of VARA. If, however, title to the work had remained with Picasso, and passed to his heirs upon his death – and this is something to keep in mind in relation to other pre-1991 works of art – VARA could reach the work despite the fact that it was created long before anyone had ever dreamt of the statute.

The issue of standing is also interesting, and, at a practical level, is related to the question of duration. VARA specifies that the moral rights provided by the statute are personally held by the artist and cannot be waived. For the most part, this will mean that VARA rights can only be exercised by the artist: in works created on or after the effective date of VARA, the rights endure only for the lifetime of the artist. In the case of pre-existing works that are eligible for protection, however, VARA rights will endure after the author’s death (perhaps one of the policy anomalies arising from VARA). In line with copyright practice, the heirs of the artist would be able to act after the author’s death; but, what about other organizations, to whom the artist might bequeath works and, implicitly or explicitly, rights?

For example, if an artist were to appoint an organization like the New York Landmarks Conservancy to protect his or her works for the post mortem auctoris period when they would remain under copyright protection, it would seem that the designated organization should be able to assert VARA rights on behalf of the deceased artist. Nevertheless, the general position of VARA is not to recognize the rights of public interest organizations. In this respect, VARA offers more limited protection than state statutes in at least two states, California and Massachusetts, which both allow public interest organizations to sue for integrity. Writing in the year 2000, Christopher J. Robinson aptly commented that this approach amounts to “granting a public cause of action for what are effectively community moral rights” – and these provisions in state law, which go beyond the scope of VARA, should not be pre-empted by the federal statute. Internationally, Russian copyright law, which gained some U.S. exposure in the Russian Kurier case of 1998 provides for such contingencies, stating that “any interested person” can sue for moral rights protection; Russian law also allows an author to designate a moral rights “executor” who will take care of the author’s moral rights after his or her death (see Russian Civil Code Art. 1228.2; Arts. 1266 & 1267).

“Recognized stature” is something that would need to be shown before the VARA provisions on destruction could be invoked. In the case of the Picasso, the test would seem to be easily satisfied; but the recent destruction of the murals at 5 Pointz raises some sobering reflections about the limits of courts (and others) to perceive recognized stature in contemporary and unconventional creative works (see IPKat here and here; Lexology here).

... And, what about the resale right, droit de suite, in works that are no longer owned by the original artist but sold on for ever more fabulous sums by subsequent owners? It’s beyond the scope of VARA, but California, once again in the vanguard, has its own Artists Resale Royalty Act (s. 986 of the California Civil Code, available here). The Act has faced Constitutional invalidation in the United States (2012, currently pending appeal), but the U.S. Copyright Office is interested in introducing a resale royalty in the United States to reflect the harmonized droit de suite in the European Union (see here and here). The title of the latest proposed bill?... “American Royalties, Too” (Feb. 2014).

Posted for Mira by Jeremy

What do the Slovaks, the Syrians and the Batswana have in common?

Here's another media release -- this time relating to one of WIPO's recent successes, the Beijing Treaty on Audiovisual Performances. According to Beijing Notification No. 3: Beijing Treaty on Audiovisual Performances,

The Director General of the World Intellectual Property Organization (WIPO) presents his compliments to the Minister for Foreign Affairs and has the honor to notify the deposit by the Government of the Slovak Republic, on May 22, 2014, of its instrument of accession to the Beijing Treaty on Audiovisual Performances, adopted at Beijing on June 24, 2012.

The said instrument of accession contains the following declaration: "In accordance with Article 11, paragraph 2 of the Treaty the Slovak Republic declares that it has set conditions in its legislation for the exercise of the right to equitable remuneration." ...

Things are going a bit slowly for the Beijing Treaty so far. While Article 26 requires the ratification or accession of 30 signatory states, plus a pause of three months, before it comes into force, the Slovak Republic is only the third country to commit itself, along with unlikely bedfellows Botswana and Syria.

Pharmaceutical licence goes on trial

This blogger is hopelessly addicted to media releases, particularly those which have an unexpected slant to them.  Here's one such release, which provides a rare opportunity to post the word "pharmaceutical" on a weblog dedicated to copyright.  It's from the UK's Copyright Licensing Agency, a.k.a. the CLA, and it reads like this:

New CLA licence facilitates collaboration in the pharmaceutical industry

Companies holding CLA’s Pharmaceutical Licence are offered the opportunity to gain new permissions with the release of the Trial Pharmaceutical Collaboration Licence (TPCL). The Licence will legitimise the sharing of content between separately licensed companies for the first time.

The TPCL is designed to support the requirements of an industry that relies heavily on collaboration between companies in the development of new products. The Licence is designed as an upgrade to the CLA Pharmaceutical Licence and Multinational Pharmaceutical Licence and will incur no extra cost to current licensees [well, that sounds like good news -- but ].

This free upgrade is available to a wider number of organisations from across the industry, including medical communications agencies, which can apply for a Pharmaceutical Licence or Multinational Pharmaceutical Licence for the first time to enjoy freedom to share content with external collaborative partners.

CLA’s Commercial Director and Deputy CEO, Mat Pfleger, said of the licence:

“We are very pleased to offer this licence upgrade for the pharmaceutical industry. CLA is committed to providing licensing solutions that enhance efficiency for our licensees; we are confident that the new offering will complement business practices within an industry which pioneers a collaborative approach to research and development. 

The new licence is being introduced on a trial basis and feedback will be requested from licensees later in the year. Customer comments are welcomed to ensure the licence provides maximum benefits for users".

For further information on the licence and how to apply, visit the CLA site.

This is not the only copyright licence offered to the pharma sector: details of the Publishers Licensing Society's Pharmaceutical Licence can be found here.

The CopyKat - Pirate Bay founder sails into an unsafe Swedish harbour

Peter Sunde , co-founder of file-sharing website The Pirate Bay, has been arrested in southern Sweden and is now expected to serve an outstanding sentence for copyright violations after being on the run for nearly two years. Sunde had been wanted by Interpol since 2012 after being sentenced in Sweden to one year in prison and fined for breaching copyright laws. "We have been looking for him since 2012," said Carolina Ekeus, spokeswoman at the Swedish National Police Board. "He was given eight months in jail [the sentence was reduced on appeal although the fines increased] so he has to serve his sentence." Sunde had been living in Berlin, Germany, but returned to Sweden at times due to having family there.His final appeal against his sentence failed when his request for another appeal was denied by Sweden’s Supreme Court.

In the U.S. the Department of Justice is conducting a review of the consent decrees governing the nation’s largest music performance rights organisations, which many see as a critical development amid the ongoing debate over copyright reform. ASCAP last had its consent decree, which governs how the collection society collects and distributes royalties, updated in 2001, while BMI’s has not been updated since the 1990s - and boy oh boy, has technology moved on since then! Both songwriters and publishing companies have suggested that the consent decrees need serious revision, with some even arguing they should be abolished - and ASCAP have already publicised some suggested changes. But the push for updates grew louder earlier this year when a federal rate court gave an unfavorable ruling to ASCAP in its royalty rate dispute with Pandora. Review of the consent decrees will trigger a 60-day public comment period, which is sure to draw in stakeholders ranging from songwriters and publishing companies, to broadcasters and record labels.

Colin Kaepernick

The arm tattoos on San Francisco 49ers quarterback Colin Kaepernick will be duplicated on his digital avatar in the next “Madden” video game: According to ESPN, Kaepernick secured copyright waivers from the two tattoo artists who inked the biblical psalms and other religious references and which were copied into the biceps of the virtual Kaepernic and so, and as the NFL Players Association suggests, he has their permission to include their work in the game. More here.

Just as Shakespeare could not copyright iambic pentameter, an architect can't claim clapboard siding on colonial houses as his intellectual property, the 2nd Circuit Appeals Court has ruled, saying "Shakespeare wrote his sonnets; Brahms composed his Hungarian dances; and plaintiff designed his colonial houses"  ...... "Because we must preserve these forms for future artists, neither iambic pentameter, nor European folk motifs, nor clapboard siding are copyrightable." in a case brought by architect  James Zalewski and his firm Draftics Ltd. against construction companies T.P. Builders and Cillis Builders, the court held that the similarities Zalewski spied between his designs and the defendants' buildings "are features of all colonial homes, or houses generally" and not protected.

The Beastie Boys have won $1.7m (£1m) in a copyright violation case against the Monster Energy Co who produce the energy drink.of the same name. The case was for copyright infringement and implied endorsement. Monster had used a montage of Beastie Boys tracks in a promotional video relating to a snowboarding event the brand sponsored, which was posted shortly after the passing of Beastie Boy Adam Yauch, who had included a clause in his will prohibiting his name, image or music being used in advertising or marketing materials. Monster conceded that it had used the music without permission, but said that it had done so by mistake, after one of its marketeers mistakenly inferred from Z-Trip, the DJ the company had worked with on the party in the promotional video, that the music had been cleared. The beverage maker had insisted it should owe no more than $125,000 (£74,000). The Beastie Boys had sought $2m (£1.1m) - and got most if it. 

China is considering raising penalties for copyright infringement, according to a draft amendment. The draft amendment to the Copyright Law will see miscreants face fines of five times their illegal gains, or up to 250,000 yuan when the exact sum cannot be established. Previously the figures were three times and 100,000 yuan. The draft document was published by the Legislative Affairs Office of China's State Council to solicit public opinion, (which must be submitted before July 5th). 

Extended collective licensing schemes: to opt out -- or not to opt out?

This blogger's attention has been drawn to what is described as an "independent and voluntary survey on extended collective licensing". According to the accompanying explanation:

"By October this year copyright legislation in the UK will change and authorised legal entities will be able to extend an existing collective licence so that they can license on behalf of all rights holders in the sector, except those who opt out (even if they are not members of a collecting society). This will affect any author who has made their work available online or published their work in print in the UK.

We are a group of visual creators and strategists who want to get answers on the practicalities of how an Extended Collective Licensing scheme might work for authors in particular, what it is that authors and rights owners might be opting out of and how. We want to hear, ideally on mass, from companies and individuals who will most be affected by the legislation; this includes photographers, illustrators, photo agents and representatives, publishers and broadcasters. We are especially interested in hearing for overseas artists on how UK law might affect them.

We are doing this work voluntarily and will share the information gathered from the survey with relevant parties such as rights holders (if you leave us a way to be in touch), collecting societies and associations across the globe".

Why complete the survey? The organisers of the survey explain:

"We want to give authors on mass the opportunity to have their say on ECL, what you would expect of an opt-out procedure and how you think it may affect your business and that of your photographers and illustrators in the future. We want to enable creators and government to make sound judgment based on research data". 

There are only about three months to act so, the organisers, ask, if you can think of others that might want to take part, please pass on this link: https://www.surveymonkey.com/s/ECL-Opt-out. The survey is short, easy to complete and anonymous -- though respondents can leave contact details if they choose.  The deadline for responses is 17 June at 12 pm. If you are likely to be affected by this potentially impact-making but poorly-publicised bit of copyright licensing reform, you can't lose out by expressing your opinions.

The Government response to the technical consultation on draft secondary legislation for extended collective licensing (ECL) schemes (48 pages) can be accessed here.

CJEU decides that Web browsing DOES fall within Article 5(1)

In the case of  Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd and Others,  case C‑360/13,The Court of Justice of the European Union has held that browsing and viewing articles online does not require authorisation from the copyright holder, with PRCA director general Francis Ingham saying: "We are utterly delighted that the CJEU has accepted all of our arguments against the NLA". PRCA had lost in the Hiugh Court and the Court of Appeal and the case was referred to the CJEU by the UK's Supreme Court where Lord Sumption summarised the case thus:

The ordinary use of the internet will involve the creation of temporary copies at several stages. Copies will be created in the course of transmission in internet routers and proxy servers. Where a web-page is viewed by an end-user on his computer, without being downloaded, the technical processes involved will require temporary copies to be made on screen and also in the internet “cache” on the hard disk. The screen copy is self-evidently an essential part of the technology involved, without which the web-page cannot be viewed by the user. It will remain on screen until the user moves away from the relevant web-page. The function of the internet cache is somewhat more complex. It is a universal feature of current internet browsing technology. It would be possible to design browsing software without an internet cache, but in the present state of technology the result would be that the internet would be unable to cope with current volumes of traffic and would not function properly. The cache may be deliberately cleared by the end-user, but otherwise it will in the ordinary course be overwritten by other material after an interval which will depend on its capacity and on the volume and timing of the end-user’s internet usage [...] The copies temporarily retained on the screen or the internet cache are merely the incidental consequence of his use of a computer to do that. The question which arises on this appeal is whether they are nonetheless infringing copies unless licensed by the rights owner." 

At the heart of the case was whether such copies fall within the meaning of Article 5(1) of The InfoSoc Directive 2001/29/EC (and and its corresponding provision in Section 28A of the UK Copyright, Designs and Patents Act 1988). The test is actually five steps - the referring court had already determined that the on-screen copies and cached copies satisfy the fourth and fifth conditions set out in Article 5(1), so the CJEU had just to consider the first three conditions.

- it is temporary;
- it is transient or incidental;
- it is an integral and essential part of a technological process;
- its sole purpose is to enable a transmission in a network between third parties by an intermediary or a lawful use of a work or other subject-matter to be made, and
- it has no independent economic significance.

The court decided that yes indeed such copies WERE (i) temporary (ii) transient or incidental and (iii) an integral and essential part of the technological process.  For the copies at issue in the main proceedings to be used without authorisation of the copyright owner as an exception,  the use also had to satisfy the conditions laid down in Article 5(5) and again the Court found that the test was satisfied: The exception would apply only (1) in certain special cases (2) which do not conflict with a normal exploitation of the work and (3) do not unreasonably prejudice the legitimate interests of the rights holders. Yes said the Court  - all three steps are satisfied - concluding "Article 5 of 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 copies on the user’s computer screen and the copies in the internet ‘cache’ of that computer’s hard disk, made by an end-user in the course of viewing a website, satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, as well as the conditions laid down in Article 5(5) of that directive, and that they may therefore be made without the authorisation of the copyright holders."  

PRCA director general Francis Ingham added "The Court of Justice, like the Supreme Court before it, understands that the NLA’s attempts to charge for reading online content do not just affect the PR world, but the fundamental rights of all EU citizens to browse the internet" and "This is a huge step in the right direction for the courts as they seek ways to deal with the thorny issues of internet use and copyright law. We are pleased that we have stood up for the PR industry – along with Meltwater – when everyone else rolled over."

However, David Pugh, managing director of the NLA, stressed that the result of the case had no bearing on the licences NLA Media Access issued to Meltwater and other media monitoring agencies or to those agencies' clients telling PR Week  "Media monitoring agencies still require a licence to copy online content to create paid-for services for their clients and their clients still need a licence to receive those services. This ruling does not change anything in that. If you're a client of Meltwater, you still need a licence to view that content." adding  "This will only have an impact if new services are developed in future where the agencies create a portal that their clients access to view the content; if that means the end user does not need to pay a licence fee then we would seek to increase the fees paid by Meltwater and other agencies."

More from Eleonora on the IPKat here.