The CopyKat ..... hoping for a new public

The Drum reports that Google's move to "strangle" websites which publish copyrighted material has seen some sites suffer a 98 per cent collapse in visibility as a result of the measure - that's according to data from Searchmetrics.  The worst affected websites have been those which display links to, or directly host, copyright protected music, TV and movies. Searchmetrics has released a "top 30 loser" list, to highlight which sites have seen their rankings plummet since the changes, with Movie4k.to among those to see a 98 per cent drop.  Thepiratebay.se saw a 48 per cent fall in its Search Engine Optimisation (SEO) visibility.

And more on Google: Günther Oettinger, the man who will become the European Union’s digital economy and society commissioner in place of Nolie Kroes, is said to be considering taking the so-called “Google tax” law from his native Germany and applying it across the EU. Germany’s Leistungsschutzrecht für Presseverleger (LSR), or “ancillary copyright for press publishers” law was passed in 2013 at the behest of publishers such as Axel Springer. The LSR gives publishers the right to demand royalties from aggregators such as Google News for the use of copyrighted text in their listings. the Spanish Parliament has passed a law to levy a charge on  aggregators and search engines for using snippets or linking to infringing content - with TechDirt saying "As plenty of folks have described, the bill is clearly just a Google tax". The Irish Minister of State for European Affairs Dara Murphy said the idea veered towards protectionism.and that itwent against the principles of Europe’s single market saying "“It’s important that Europe doesn’t lurch further and closer towards protectionism just because – to date – large Silicon Valley companies have been market leaders”. In his future role, Oettinger won't be responsible for EU competition policy, but he has been a vocal critical of Google's search antitrust settlement with the EU and may have more influence over negotiations during the next phase of negotiations. Previously, he's suggested that Google could be forced to display search results objectively and neutrally, the FT noted. 

It's all about linking right now! Now with both Svensson and Bestwater out, in their  recently published opinion, ALAI believes that the CJEU got it very wrong in Svensson, in particular, the adoption of the "new public" criterion - and on that very matter, Eleonora has just posed a very interesting piece on the IPKAt here .  Some early thoughts here.

And following on from the above, BLACA are hosting what looks like a very very interesting seminar simply titled "linking" with a distinguished trio of speakers:  Prof Dr Silke von Lewinski (Max Planck Institure) will be speaking about the CJEU's concept of the  'new public', Prof Dr Jan Rosen (Stockholm University) will be speaking about the ALAI opinion and Svensson, and Prof Lionel Bently  (University of Cambridge) will be speaking on the the basis of the opinion of the European Copyright Society. It's on Thursday 13th November at 18.30 at the offices of Berwin Leighton at London EC3R 6HE - and we are promised details on the BLACA website soon http://www.blaca.org/

And finally, every three years, the U.S. Copyright Office accepts petitions on what activities should get an "exemption" under the 1998 Digital Millennium Copyright Act (DMCA). The sixth tri-annual rulemaking is now upon us, and the deadline is this Monday, November 3. Public Knowledge say they will be submitting petitions asking to legalize consumer ripping of DVDs, as well as allowing circumvention of DRM-based input to 3D printers. 

Designs, copyright and UK law reform post-Flos

A perplexed 1709 Blog-reader has written to us with the following request for clarification. If any reader(s) would like to respond by posting their comments below, our reader would be hugely gratified, though possibly no less perplexed.  The request runs as follows:

I understand that the CJEU’s decision in Case C-168/09 Flos is about pre-1989 designs that have copyright protection because they were protected according to the law of an EU member state at the relevant time. In response, the UK Government is proposing to repeal section 52 of the Copyright, Designs and Patents Act 1988 (CDPA) which restricts copyright protection for some artistic works that have been industrially exploited to 25 years (instead of 70 years post mortem auctoris).

The repeal of section 52 applies (I believe) to pre-1989 designs that were the subject of Flos, but I am sure that it applies to post-1989 designs that have copyright protection, such as being works of artistic craftsmanship.

As noted in a recent IPKat post, ACID’s consultation on the topic focuses on the effects on pre-1989 designs only, which is consistent with Flos but ignores the totality of the effect of the repeal of section 52; Peter Smith’s comments on that post on the other hand referred mainly to works of artistic craftsmanship, which is all very well post-1989, but seems irrelevant to Flos-derived reason for the repeal of section 52.

(1) The repeal of section 52 seems to be much wider in ambit than is required to address the mischief identified in Flos – why is this? and has there been any consultation about the appropriateness of the repeal of section 52 as a means to achieve the UK’s obligations under Flos?

(2) Does the effect of the repeal have the same effect, or a different effect, vis-à-vis designs pre- and post- CDPA 1988?

(3) Is there anything else I have missed?

Do let us know what you think!

Starting today, UK has new licensing scheme for orphan works

Orange (or Orphan Works
Directive)?
So spring/summer 2014!

The Orphan Works Directive? So last season! Even if the deadline for implementation is today [but how many Member States have transposed it into their national laws yet? Not all, The 1709 Blog is told ...] and this means that there should be a new exception to the rights of reproduction and making available to the public [see Article 6] that would allow [very] limited uses of orphan works, excitement for prospective users of orphan works might be even greater in the UK.

The orphan works licensing scheme pursuant to s77 of the Enterprise and Regulatory Reform Act 2013 [the lawfulness of which this blogger questioned here] launched in fact today. This means that it is now possible to apply for a licence to use "at least 91 million culturally valuable creative works - including diaries, photographs, oral history recordings and documentary films." 

UK IP Minister, Baroness Neville Rolfe, said: "The UK's trailblazing orphan works licensing scheme enables access to a wider range of our culturally important works. The scheme has been designed to protect right holders and give them a proper return if they reappear, while ensuring that citizens and consumers will be able to access more of our country's great creations, more easily."

Apparently, "[t]his ground breaking scheme builds on UK and international best practice and is the first to use an electronic application system and searchable register of the licences granted. It is being implemented alongside the EU Orphan Works Directive that enables cultural institutions to digitise certain orphan works in their collection and display them on their websites.Together these two schemes will help to display more of the UK’s cultural work at home and across Europe."

The UK scheme will be administered by the UK Intellectual Property Office.

In all this, if you are wondering about the meaning of one of the key concepts in orphan works jargon, ie 'diligent search', just click here.

Who framed the CopyKat?

The UK government has confirmed another two years of funding for the City Of London Police's Intellectual Property Crime Unit, or PIPCU, which has been spearheading a number of anti-piracy initiatives since its launch last year.

Finnish Parliamentarians have voted to reject a proposal to reform copyright laws by reducing infringements by private individuals to a misdemeanour. The bill reached the attention of lawmakers by way of a citizen’s initiative following a highly-publicised case in which anti-piracy authorities fined a 10-year old girl for illegally downloading pop music on to her home computer. The Finnish Parliament's Education and Culture Committee had already proposed rejecting the Bill.

Napoleon Crossing the Alps,
Jacques-Louis David (1805)

"Napoleon's conquest of Italy led to a copyright-fuelled opera boom" - well that caught my eye! And it seems a new study provides evidence of how copyright laws inspire more and higher-quality artistic works. Michela Giorcelli and Petra Moser, Stanford University economists, studied Italian opera from the late 1700s through 1900 and found that after Napoleon invaded Italy — bringing with him French copyright laws — those copyright laws were associated with both more and higher-quality operas. More here. 

Over on the IPKat, Eleonora has alerted all CopyKats to a new decision from the CJEU which follows in the wake of Svennson: in the  BestWater  case the Court of Justice of the European Union handed down a "landmark" verdict - ruling that embedding or framing copyrighted videos is not copyright infringement, even if the source video was uploaded without permission. The CJEU said (this is a translation from German and may not be wholly accurate) as long as the original video not altered or communicated to a new public.- and in this case the original video was already available on YouTube - embedding it is not seen as a new communication with the court saying "“The embedding in a website of a protected work which is publicly accessible on another website by means of a link using the framing technology … does not by itself constitute communication to the public within the meaning of [Article 3(1) of the EU Infosoc Directive] to the extent that the relevant work is neither communicated to a new public nor by using a specific technical means different from that used for the original communication”. The CopyKat thinks this is an important decision - with major ramifications for owners of audio visual content - Eleonora has already updated this breaking news with a second post over on the IPKat with some assistance from a guest contribution from Oliver Löffel who says this was the answer to the question posed by the  Bundesgerichtshof (as translated):

The embedding, within one’s own website, of another person’s work made available to the public on a third-party website, by means of a link using the framing technology, such as that at issue in the main proceedings, does not by itself constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29 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 [the InfoSoc Directive], insofar as the work concerned is neither directed at a new public nor communicated by using specific technical means that differ from that used for the initial communication. 

This means that embedding videos which are freely available on, for example (and is it was the case here) YouTube, does not constitute an infringement of the right of communication/making available to the public if the work concerned is neither directed at a new public nor communicated by using specific technical means different from that used for the initial communication.

Another case referencing Svennson is the recent decision by Mr Justice Arnold in 1967 Ltd & Others v British Sky Broadcasting Ltd & Others [2014] EWHC 3444 (Ch) (23 October 2014). Here - in another clear judgment on how website blocking injunctions should be applied for pursuant to section 97A of the Copyright, Designs and Patents Act 1988 (itself a result of Article 8.3 of the InfoSoc Directive which provides that  "Member States shall ensure that rightsholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right) Arnold J noted that the following four matters had to be established: (1) that the Defendants are service providers; (2) that users (i.e. consumers) and/or the operators of the target websites infringe the Claimant's copyrights; (3) that users and/or operators of the target websites use the Defendants' services (here ISPs - the big UK five of BSkyB, BT, EE, Talk Talk and Virgin) to do that; and (4) that the Defendants have actual knowledge. These four matters had been covered by the record label claimants and so Arnold J had no difficulty in finding all four matters established.  And Arnold J found that users infringe by copying and communicating the Claimant's works to the public and also found that the website operators infringe by communicating those works to the public - and here held that in the case of the 13 target websites, it is a communication to a new public, "...which is to say a public which was not considered by the rights holders concerned when they authorised the original communication or other act of dissemination of the recordings." (emphasis added).

CopyrightX returns

Brian Stevens (Senior Intellectual Property Consultant, Danfoss Limited) writes to tell us how much he enjoyed the 2014 CopyrightX online course offered by HarvardX, Harvard Law School, and the Berkman Center for Internet & Society, which will be offered again in 2015. Says Brian: "Their use of real-time online discussion was very helpful and overall it provided a very useful and interesting educational experience".

The 12-week course begins on January 26. The application process for the online sections opened on October 15 and closes on December 15. Information about this course is available here.

No "controlling mind"? Never mind, you can still be liable ...

Phonographic Performance Ltd v John Nash (T/A Charlie Wrights International) is another Chancery Division, England and Wales, ruling from judicial "super-sub" Judge Pelling QC, who has picked up quite a few intellectual property cases without being one of the jurisdiction's specialist IP judges. This decision, on 23 October, is extempore and has been noted on the Lawtel subscription-only service.

In this action the PPL sued Nash, the premises licence holder and designated premises supervisor of a music bar, for copyright infringement and sought summary judgment on the basis that Nash had either played musical recordings at the venue without being licensed or permitted to do so, or had authorised others to do so -- or both. Said the PPL, Nash was perfectly aware that PPL held the public performance rights in the relevant recordings. The company sought a final injunction on the basis that Nash was going to carry on infringing its copyrights unless he was restrained from doing so. Nash resisted the application for summary judgment and argued that (i) the venue was operated by a company that employed him as a manager, (ii) he never traded from the premises on his own account, and that (iii) he was not the "controlling mind" of any company operating from that address. He also applied for two previous orders to be set aside on the ground that they violated his right to a fair trial since they were made in his absence.

Judge Pelling QC granted the relief sought by PPL. In his view:

* Even if the court proceeded on the assumption that Nash had not traded in the manner alleged, that was not going to help him since being an employee was not a defence to copyright infringement and Nash could not avoid personal liability on that basis.

* In any event, the suggestion that Nash was only ever an employee was unreal and fanciful given (i) evidence of his continuing, intimate involvement in the operation of the business at the premises, plus (ii) evidence of his continuing role as the responsible office holder under the licensing legislation.

* PPL had shown that there was a continuing risk of Nash's direct infringement, so the company was entitled to a final injunction restraining him from continuing to infringe its copyrights.

* Nash's application to set aside the two previous orders failed. One of the orders actually permitted Nash to apply to set it aside, and so it plainly did not violate his right to a fair trial and, so far as the judge could see, the other order had not been made in his absence.

This decision offers a useful reminder that being in the employ of someone else is no defence to an action for copyright infringement in the UK (though the employer may be vicariously liable too).

Donaldson v Becket(t): revising the revisionists?

H. Tomás Gómez-Arostegui (Kay Kitagawa & Andy Johnson-Laird IP Faculty Scholar and Associate Professor of Law, Lewis & Clark Law School, Portland, Oregon) has recently sent me a copy of an article that he thought might be of interest: "Copyright at Common Law in 1774", 47 Conn. L. Rev. 1 (2014). This article takes a look at one of the seminal pieces of English litigation on common law copyright: Donaldson v Becket(t). According to the abstract:

As we approach Congress’s upcoming re-examination of copyright law, participants are amassing ammunition for the battle to come over the proper scope of copyright. One item that both sides have turned to is the original purpose of copyright, as reflected in a pair of cases decided in Great Britain in the late 18th century—the birthplace of Anglo-American copyright. The salient issue is whether copyright was a natural or customary right, protected at common law, or a privilege created solely by statute. These differing viewpoints set the default basis of the right. Whereas the former suggests the principal purpose was to protect authors, the latter indicates that copyright should principally benefit the public.

The orthodox reading of these two cases is that copyright existed as a common-law right inherent in authors. In recent years, however, revisionist work has challenged that reading. Relying in part on the discrepancies of 18th-century law reporting, scholars have argued that the natural-rights and customary views were rejected. The modified account has made great strides and has nearly displaced the traditional interpretation. Using a unique body of historical research, this article constitutes the first critical examination of the revision. Ultimately, it concludes that the revision is incorrect and that we must return to the orthodox view.

The article also contains information regarding, more generally, appellate procedure in the House of Lords and the publication of appeals, particularly in newspapers and periodicals. Tomás also includes an appendix that traces the numerous newspapers and periodicals that published material on Donaldson v. Beckett.

I welcome this approach, having sometimes been faced with revisionist propositions that seemed to me to be so far from my recollection of old cases that I have had to return to the original sources in order to reassure myself that my memory was not at fault.

You can read this article via SSRN here.

There's also a spot of further background reading in a very much shorter piece which I wrote several lifetimes ago, noted in "Past historic 5: common law copyright in England".

More copyright creation opportunities for women? Not if they are film directors in Europe

The European Audiovisual Observatory has been at it again.  This time it has published Female directors in European films, which it describes as a "first-of-its-kind pan-European analysis of films by female directors".

This slender (61 page) report reveals that only 16.3% of the European films produced between 2003 and 2012 were shot by female directors -- a percentage which is even lower when it comes to the share of admissions, with European films by women directors accounting for 8.9% of the total admissions in Europe during the same period ["admissions" in this context is not a synonym for "confessions", but rather a reference to the number of viewers admitted to cinemas to watch the films].

The report is available in English with an executive summary in French and German -- something that might make French and German women directors feel even more discriminated against.

You can check out the further particulars of this work and even order it by clicking here [it's a good old-fashioned 484-character URL, so we're not reproducing it in full ...].

How to heal a Broken-Heart … under the Enforcement Directive

Dorothea Thompson

For a select few, the recent damages assessment in Henderson v All Around The World Recordings may provide an excuse to reminisce about the ‘glory’ of late-noughties Bassline music. For everyone else, it provides the first guidance on the interpretation of the Enforcement Directive and implementing UK Regulations, with particular regard to the notion of ‘unfair profits’ and ‘moral prejudice’, as 1709 Blog friend and music loving trainee solicitor Dorothea Thompson (Bray & Krais) explains in her guest contribution.

According to Dorothea, “this case confirmed that inquiry as to damages and account of profits remain available as alternatives only, and ‘additional damages’ for infringement of performance rights under the Copyright, Designs and Patents Act 1988 (CDPA) are now effectively redundant.”

Here’s what Dorothea writes in more detail:

“Background

The song Heartbroken was recorded by Jodie Henderson (aka Jodie Aysha) and Tafazwa Tawonezvi (aka T2) in 2005. In 2007 Mr Tawonezvi re-mixed the track to produce a Bassline version and signed a record deal with 2NV Records Ltd (2NV). 2NV then signed a deal with All Around the World Recordings Ltd (AATW) to release Heartbroken (for those readers with an enquiring/nostalgic mind, the song in its released version can be found here). 2NV offered Ms Henderson £1,500 for her performance, but she refused. She then entered into a publishing contract with Sony ATV.

In November 2007 AATW released Heartbroken. It was a big hit, reaching No.2 in the singles charts, staying there for 5 weeks, and remaining in the Top 40 for 46 weeks.

To date Ms Henderson had received no performance royalties for AATW's release, nor been paid for her participation in the video or the use of her name.

Breach of performance rights

Back in February 2013, in the Patents County Court (as it then was) HH Judge Birss QC found that Ms Henderson had consented to the recording of her vocal, but not any future exploitation. Objectively, there were no grounds for AATW to infer consent, as they knew Ms Henderson had not signed with 2NV. 2NV had not obtained consent which could be passed on to AATW, and Ms Henderson had no contractual right to royalties.

AATW had "gone ahead at risk" in the knowledge that Ms Henderson had not signed a contract. AATW had thereby infringed the singer's rights by making copies of her performance and issuing those copies to the public without her consent, contrary to sections 182A and 182B CDPA.

Fair enough, but:
can you at least claim damages?

Assessment of damages

Ms Henderson elected for an inquiry as to damages. Aside from loss of royalties, assessed under the standard ‘user-principle’ (royalties that would have been paid had there been a licence negotiated between willing licensor and willing licensee), Ms Henderson sought damages under the Enforcement Directive and additional damages under the CDPA.

Enforcement Directive

It was not disputed that Ms Henderson was entitled to rely on reg. 3 of the 2006 Regulations, implementing art. 13(1) of the Directive, which applies where the infringer knowingly, or with reasonable grounds to know, engages in infringing activity. However, Ms Henderson argued that reg. 3 allowed a claim for both damages and defendant's profits, and required the court to consider both and make an award in relation to both as appropriate.

Judge Hacon reiterated that as a matter of English law, inquiry as to damages and account of profits are only available as alternatives. In intellectual property proceedings a claimant is free to choose between them but may not have the benefit of both.

Under art. 13(2) in respect of unknowing infringement, it is clear that there is a choice between inquiry as to damages or account of profits. Where knowledge is proved, art.13(1)(a) requires the court to take into account relevant aspects of the actual prejudice suffered, including both lost profits and unfair profits. However, the overall task is to order damages appropriate to the actual prejudice suffered, and this is usually profit lost (possibly plus expenses). Recital 26 of the Directive confirms the aim is not to impose punitive damages but to achieve objectively assessed compensation.

‘Unfair profits’

Judge Hacon considered that art. 13(1) did not mean that the court must always take into account profit made by the defendant from his knowing infringement. Instead, if the claimant would not receive adequate compensation for actual prejudice suffered where damages were assessed as lost profits, moral prejudice and expenses, or account of profits, there was flexibility to award an additional sum related to profit that the defendant has generated through the knowing infringement.

He referred to the example of a defendant making no direct financial profit from the infringement, but his business expanded in volume and/or in reputation on the back of loss-leader infringements.

What about 'moral prejudice'?

‘Moral prejudice’

Damage for 'moral prejudice' is rooted in continental civil law, but there is little guidance to a single meaning according to EU law. Judge Hacon held that art.13(1)(a) entitles recovery for three of the categories of non-economic loss on which Ms Henderson relied: mental distress, injury to feelings and humiliation.

He considered that the moral prejudice contemplated by this provision was confined to prejudice arising in limited circumstances, particularly where a claimant had suffered little or no financial loss and would otherwise either be left with no compensation, or the compensation would not be proportionate to the overall damage suffered.

For example, if a defendant were to infringe the copyright in photographs disclosing private grief by publishing them on the internet (which, unfortunately, seems like an entirely plausible situation these days), that might generate no profit for the defendant and no financial loss for the copyright owner, but the emotional stress caused might be acute. In such circumstances, the court could award compensation for moral prejudice, previously unavailable in England to copyright owners.

Additional damages under the CDPA

Section 191J(2) CDPA provides that in an claim for infringement of performer’s rights, the court may award additional damages, having regard in particular to the flagrancy of the infringement.
Judge Hacon held that art. 13 (with reg. 3(3)) now provides a lower hurdle - of knowing infringement.  Consequently, s. 191J(2) has effectively become redundant.

***

In conclusion, Ms Henderson was awarded damages according to the 'user principle' of £30,000 and a further £5,000 pursuant to art.13(1)(a) of the Enforcement Directive, making a total of £35,000. This might not seem like an enormous result for her, some 7 years after the infringement, but the case has provided welcome clarification on the assessment of damages post-Enforcement Directive.”

United Arab Emirates sign up for more copyright treaties

The United Arab Emirates have been busily upgrading their copyright commitments. Only a couple of months ago we reported that the UAE had renewed its Berne Convention relaxations (here). But now the Emirates have opted to sign up for WIPO's two most recent international copyright treaties.

First, by Beijing Notification No. 6 we are informed that the UAE has deposited its instrument of accession to the Beijing Treaty on Audiovisual Performances (the date of entry into force of this Treaty remains unknown but will be notified when the required number of ratifications or accessions is reached in accordance with Article 26 of that Treaty). Further, by Marrakesh Notification No. 3 we learn that a similar commitment has been made with regard to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled -- the commencement date for which is also uncertain, depending on receipt of the required number of ratifications or accessions under with Article 18 of that Treaty.

French Ruling on Internet Re-transmission of TV Channels

How do you say Aereo in French?

On October 9th, the Paris High Court issued an interesting ruling in a case involving the internet simultaneous, full re-transmission of various channels broadcast by French public broadcaster France Télévisions (FTV).

Playmedia laucnhed a web-based service called playtv giving users free access to various television channels, including those offered by FTV.  It did so without any contractual agreement with FTV as it was relying on the must carry regime applicable to FTV channels.

After having failed to convince the Conseil Supérieur de l'Audiovisuel (regulatory body overseeing television in France) of the merits of its argument that the must carry regime allowed (or rather required) it to carry the FTV channels, the matter was brought to the Court.

The CSA rejected Playmedia's claim in July 2013 pointing out that the the must carry provisions of the Communications Act of 1986 referred to distributors who have "susbscribers" and given that this was not the case  for playtv, it could not rely thereon.

Before the Court, FTV justified its refusal to allow the re-transmission of its channels by arguing that its agreements with its own content providers (producers) expressly prohibited open internet re-transmission such as that being proposed by playtv and that black outs (of the affected programming) was not possible as the result (a partial re-transmission) would be inconsistent with FTV's public mission.

Playmedia attempted to argue against this by contending that the provisions of the 1986 Communications Act (regarding must carry) constituted an exception to the provisions of the Intellectual Property Code.  In other words, Playmedia was argiung that, assuming that the must carry rules applied, they could not be avoided by the broadcaster due to intellectual property concerns (i.e., lack of rights clearance).  The Court rejected this argument, pointing out that the list of exceptions to copyright set out in the 2001 InfoSoc Directive is exhaustive and that no mention of any such exception is made.

As regards the applicability of the must carry rules, the Court addressed this issue on the basis of the revamped playtv service which offered short excerpts of the channels to non-subscribers but required a subscription for full access (thereby dealing with the CSA's objection, at least in Playmedia's view).  The Court was not however convinced that this procedure was genuine inasmuch as the subscription form did not require a verified identity and address.  For this reason (and others), the Court held that Playmedia could not rely on the must carry rules.

In light of these findings, the Court found that Playmedia was infringing FTV's neighbouring rights in its signal, copyright in certain programming and the producer's neighbouring right in certain videograms (video recordings) as well as infring its trademarks and ordered it to pay €1 M in damages (for the copyright and neighbouring right infringements) and €25,000 in damages for trademark infringement.

The ruling is online (in French):  here

Academic outrage at appeals court fair use ruling

Georgia State University

There have been some grumbling in US academia after a federal appeals court overturned a decision in the District Court which a number of academics had found clear and understandable - and of course somewhat favourable to their own, their students' and their institutions' benefit!  As one commentator put it "The U.S. Court of Appeals for the 11th Circuit revoked the quantitative benchmarks previously used in determining what constitutes “fair use” of copyright material  — a decision which could have implications down the road for colleges and universities and their use of electronic resources."

The District Court's decision had recognised that colleges and universities can legally create digital reserves of books in their collections.  Judge Orinda Evans had ruled that de minimis use of copyrighted texts (such as when a faculty member posts a work but no student ever accesses it) is not a violation of copyright, and that in most cases, using one chapter or 10 percent of a book would meet the fair use test.  The appellate court for  Georgia, Florida and Alabama was not so generous,  deciding in favour of a more individual case-by-case evaluation of what is considered fair use, "potentially making it more difficult for instructors to ascertain how much material they are permitted to scan and distribute through online course sites to students."

Academics and librarians said that provisions for fair use were created to allow academics to share and expand upon each other’s publications without paying restrictive fees. But in a unanimous decision, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit  in Cambridge v. Patton rejected a broad ruling on how to determine fair use. One academic website noted "The decision guarantees the case has a long and litigious road ahead of it by reversing the district court’s opinion and sending the case back for further deliberations" and "Rather than strike a decisive blow against fair use, the legal concept that places some limits on the rights of copyright holders, the appeals court instead issued a stern warning against quick-fix, one-size-fits-all solutions to legal disputes - specifically, the idea that copying less than a chapter or 10 percent of a book automatically protects an institution from a lawsuit" - a so called 'bright line' guideline. 

Academic librarians and their lawyers have described the case as a "nightmare scenario. Barbara Fister, a librarian at Gustavus Adolphus College, suggested that the plaintiffs had lost sight of their missions, which include furthering education and scholarship. Having posted an article on his institutions's website in 2011 before either decision,  Kevin Smith, the director of scholarly communications at Duke University said that a broad holding in the plaintiffs' favour would have "catastrophic consequences" either limiting the information that students can read or greatly increasing the cost of higher education.

The case revolves around a challenge by several publishers against Georgia State University’s electronic reserve systems, where faculty members and librarians would scan in excerpts of books for students to access digitally, "a technological improvement over the traditional practice of leaving a copy or two on reserve at the library circulation desk". The publishers claimed mass copyright infringement and claimed that Georgia State University engaged in "systematic, widespread and unauthorized copying and distribution of a vast amount of copyrighted works" through its e-reserves system while Georgia State cited the fair use provisions of Section 107 of the Copyright Law.  The court said “Like many recent issues in copyright law, this is a case in which technological advances have created a new, more efficient means of delivery for copyrighted works, causing copyright owners and consumers to struggle to define the appropriate boundaries of copyright protection in the new digital marketplace”. 

Its undoubtedly an important case, and reports say similar cases are afoot in Canada (against York University), in India (against University of Delhi in the Delhi High Court) and in New Zealand in a Copyright Tribunal case brought by Copyright Licensing New Zealand against all eight of the nation's universities.

The costs of the litigation were funded in large part by the Copyright Clearance Center, a licensing company which funded 50% of the costs along with the Association of American Publishers (AAP).

Cambridge University Press et al. v. Patton et al. (also captioned v. Becker), 1:2008cv01425

More on TechDirt here and Inside Higher Ed here and here and the University of Virginia's Cavalier Daily here

When VoD gets a legislative nod ...

Video on Demand and the Promotion of European Works is the latest work to emanate from the European Audiovisual Observatory which impinges on the interests of 1709 Blog readers. As the publishers explain:

The rise in the on-demand content market has meant that, potentially, a new channel for promoting European films and TV programmes now exists via the various on-demand services. But how has Europe incorporated these on-demand services and their potential into its legislation? 

This volume, at 106 pages being a little chubbier than some of its fellows, offers "current legislation of the VoD market in Europe regarding its potential for promoting European films and TV programmes".  Further information is available here.

If you are counting your pennies, you may like to know that you can order now and get your print copy for just €78,80 (instead of €98.50), or you can opt for a PDF version for €100.40 (instead of €125.50). The best deal of all appears to be print plus PDF, which you can get for €103.60 (down from €129.50) -- though this blogger is a bit puzzled by these options and wonders why anyone would want to pay more for  PDF file than for something that has been published in print. He wonders if he is missing something  ...

Copy-me and an animated debate

"Copy-me Ep. 3 is now complete!" is the first line of an excited message from Alex Lungu, who writes to let us know that Episode 3 of Early Copyright History is now available to view (you can access this seven-minute episode via its web page here). As Alex explains:

It features censorship, hangings, dissent and criticism, a whole bunch of state and church control, angry queens, sad Stationers, and, of course, our terrible culprit: the printing press.

Copy-me is the world’s first ever animated web series about copyright, copying and open culture. The webseries is about originality, public domain, digital copies, artists and how they can make money, and lots more. We hope our episodes will bring some light to these issues and maybe start a much needed constructive debate.

From the name Copy-me and some of the text that appears on the Episode 3 page,

"We should always remember that early copyright history is an important aspect of the copyright debate. On the one hand, history shows us that copyright was designed for control more than anything else and that the state got away with this for over two centuries. On the other hand, businesses always feared new technology and lobbied for state protection, with arguments about authors’ safety. These two sides have always lurked in copyright’s underbelly and, over the course of three more centuries, managed to erode all the public good that copyright was primarily designed to promote",

one might take a reasonable stab at guessing the position taken by the clip's producers with regard to copyright.  That said, it's good to know that the ancient debate between pro- and anti-groups continues apace and this website provides both provocation and some "know your enemy" source materials for those who assume that copyright in all its forms is somehow above criticism.

The CopyKat - SiriusXM on the ropes as US judges align

GMA News tells us that the Intellectual Property Office of the Philippines is strengthening copyright protection and awareness in the country, ahead of the Asean economic integration in the latter part of 2015. IPOPHL director-general Ricardo Blancaflor highlighted moves during the 35th Manila International Book Fair in a move to reverse the inclusion of the Philippines on the watchlist of the US Trade Representative. In the recent copyright forum between the Philippines and Korea, IPOPHL and the Korea Copyright Commission (KCC) signed a Memorandum of Understanding to strengthen the copyright industry of both countries. Sharing the copyright protection system of Korea to the Philippines is one of the main goals of KCC which is under the supervision of the Ministry of Culture, Sports and Tourism (MCST) of the Republic of Korea. The purpose of this signed partnership is to establish a collaborative relationship between the two countries in the field of copyright and related rights, in order to protect the rights of authors and related rights, to promote the fair use of works and to endeavor to improve and develop the culture and creative industries of both countries. 

Following the publication of his copyright and education report last week, Mike Weatherley MP has announced he is stepping down from his role as Intellectual Property Advisor to David Cameron after a year in the job. Weatherley had already announced that he would step down as MP for Hove and Portslade at the next election, and with that new election looming, Mike no doubt realises that copyright will be buried deep beneath isues such as the UK's membership of the European Community, NHS reforms, the economy, education, immigration, sleaze and and English parliament - to name but a few burning topics.  Confirming he was stepping role, Weatherley said: "It has been a wonderful opportunity to work with the Prime Minister in this way. Feedback from industry has been very encouraging throughout the time that I served as the Prime Minister's adviser and I have very much enjoyed the work that was involved in both tackling IP crime and boosting the profile of IP generally".

The IFPI's Head of Global Legal Policy, David Carson, is leaving the global recorded music body to return to a role in the US government. The organisation is not directly replacing Carson, but instead expanding the remit of its Director of Licensing, Lauri Rechardt. Carson joined the IFPI in August 2012 from the General Counsel of the US Copyright Office, where he had served as General Counsel since 1997.

And copyright attorney and former Library of Congress digital director Mary Rasenberger has been named executive director of the Authors Guild in the US. The Guild, which represents thousands of published writers, announced the change Thursday. She succeeds longtime head Paul Aiken, who has been diagnosed with ALS.

YouTube has hit $1bn in payments to companies that participate in its 'Content ID' programme that sells advertising on user-generated clips that could/would otherwise infringe copyright "in a sign that media groups increasingly see the video site as a friend rather than foe". More on the Financial Times here.

The Geeks are up in arms! Microsoft appears to be taking down YouTube videos with content related to Windows 8 based on copyright claims. Bruce Naylor, a techology reviewer and analyst at his YouTube channel FrugalTech, received a takedown notice sent from a brand protection company called Marketly on behalf of Microsoft. Naylor explained  that he filmed the video on January 6th, 2013, and called it an “op-ed piece”  saying “At no point during the video did I actually use any third-party copyrighted material,”  and “No music, video, photos — nothing like that. It was strictly talking about why Windows 8 was failing in the marketplace at that time.” And  Scott Hanselman, who works for the Web Platform Team at Microsoft (yes!)  made a how-to video for Windows 8.1 that was cited for copyright infringement - one of two copyright complaints. Microsoft responded saying "“While we are still investigating the recent YouTube takedown notices, it appears some of these videos were inadvertently targeted for removal because there were stolen product keys embedded in the comments section of the videos. Our intention was not to target legitimate YouTube content and we are sorry for the impact this has had.  We have already taken steps to reinstate legitimate video content and are working towards a better solution to targeting stolen IP while respecting legitimate content.”

SiriusXM have had some more bad news: A California federal judge Phillip Gutierrez had already delivered a "legal earthquake"by finding that SiriusXM had violated the claimant's (sixties band the Turtles)  pre-1972 master copyrights by playing their music without licensing it or paying performance royalties and now another fesderal judge who had indicated some support for SiriusXM's decision has now had a change of heart and now is minded to follow the Carifornian court.  Los Angeles Superior Court Judge Mary Strobel is presiding over a similar case brought by Capitol Records and other record industry giants; Judge Strobel had previously expressed her inclination to reject proposed jury instructions offered by the record companies, but now she had a change of heart by granting what the record companies were seeking. "Plaintiffs ask the court to take judicial notice of the order granting summary judgment in Flo & Eddie Inc. v. Siruis XM Radio, Inc," she writes. "While a federal trial court opinion is not binding on this court, the court finds the logic applied in that order interpreting Civil Code §980 to be persuasive."

Google is rolling out an update to its search engine next week that will downrank websites containing pirated content. The new, improved algorithm pushes copyright violators lower in search results. "We've now refined the signal in ways we expect to visibly affect the rankings of some of the most notorious sites," Google says in its latest transparency report. The update will also affect search autofill behavior to prevent sites with pirated content from appearing in results. Furthermore, “legitimate” media sites like Netflix, Amazon, and Google Play will be prioritized to the top of Google's results page when users search for a particular movie, TV show, or song. More on the fastcompany website here.


And finally, in Germany Uploaded.net has been found liable for not deleting copyright content in a timely manner. Anti-piracy company Pro-Media informed the file-host of the infringement via a ‘takedown’ email, but Uploaded claimed not have been aware of the notice. A notic detailing infringing URLs on the file-hosting site was sent to the given abuse contact of the site,” Mirko Brüß, a lawyer with record label lawfirm Rasch Legal, told TorrentFreak. However, three days later the album was still being made available so the lawfirm sent Swiss based Uploaded an undertaking to cease and desist. When the file-hosting site still didn’t respond, Rasch Legal obtained a preliminary injunction against Uploaded. The Regional Court of Hamburg has now ruled that Uploaded is liable, even if no notice has been viewed. The Court followed our reasoning, meaning it is sufficient that the file-hoster actually receives the notice in a way that you can expect it to be read under normal circumstances.

Who needs section 97A? A comment on Cartier v BSkyB

It's that man again!  As reported by IPKat, the latest "section 97A" success is out in Cartier, Montblanc and Richemont v BSkyB, BT, TalkTalk, EE and Virgin (Open Rights Group intervening) [2014] EWHC 3354 (Ch), but this time, it relates to trade marks. Although 1709 is strictly a copyright blog, this blogger thought that if trade marks can hop on copyright’s 97A bandwagon, then 1709 can hop on theirs!

Last year, we noted the increase in use of the section 97A legislation and its success in a move towards combatting piracy, and since then, in February 2014, three further sites were blocked after an application by major film studios. 

However this time, the powers under section 97A have gone further than we imagined, and has led to the granting of injunctions against ISPs in relation to trade marks, following an application by Cartier, Montblanc and Richemont. 

As Arnold J notes in his judgment, there is no section 97A equivalent for trade marks.  However, construing the Court's general jurisdiction to issue injunctions under section 37(1) of the Supreme Court Act 1981 in the context of Article 11 of the Enforcement Directive (Directive 2004/48/EC on the enforcement of intellectual property rights), and in particular drawing on the decision of the CJEU in L'Oreal v eBay, he concludes "even if the Court would not have power to grant a website blocking injunction in a trade mark case upon a purely domestic interpretation of section 37(1), section 37(1) can and should be interpreted in compliance with the third sentence of Article 11 by virtue of the Marleasing principle.  If it were otherwise, the UK would be in breach of its obligations under the Directive."  

He does point out in passing the absurdity of the Government's position on implementation of the Enforcement Directive - if they were right that no specific implementation of Article 11 was necessary (which he concludes they were), then why did they not repeal section 97A, on the basis that it is not needed!

Having determined that jurisdiction was available, he applied the same tests as to when that jurisdiction should be exercised as he had previously established in the section 97A cases - 1. Are the ISPs intermediaries, 2. Are the operators of the websites infringing trade marks? 3. Are they suing the ISPs service to infringe? 4. Do ISPs have actual knowledge?

What this does show is yet again the court’s (and especially Arnold’s!) willingness to help the fight against piracy, and their willingness to put responsibility on ISPs, and this time without an explicit statutory provision to assist. It seems that the Court's inherent powers may be even more helpful to the creative industries than initially thought.