1709 Blog: for all the copyright community

Friday, 10 April 2015

The CopyKat - shark attacks back

The Federal Court decision in Red Label Vacations Inc v 411 Travel Buys Limited 2015 FC 19  has focussed on a detailed considerations by a Canadian court of the issues of copyright and trademark infringement via the use of metatags. The court held that the plaintiff's metatags were not subject to copyright protection, and therefore there could be no copyright infringement. The court further held that use of the plaintiff's trade name and similar words in the defendant's metatags was not passing off or trademark infringement since it would not likely lead to consumer confusion with te court saying on the issue of copyright "In this case there is little evidence of any sufficient degree of skill and judgment in creating these meta tags, as is required by the test set out by the Supreme Court of Canada in CCH, above, or for the originality required in compiling data or other compilations, as discussed by the Federal Court of Appeal in Tele-Direct." and Justice Manson added  "While in some cases there may be sufficient originality in metatags to attract copyright protection when viewed as a whole, the substance of the metatags asserted by the plaintiff in this case does not meet the threshold required to acquire copyright protection in Canada."

Billboard says Grooveshark, the controversial music-streaming service, could be closer to extinction after a court decision. Judge Alison Nathan of the U.S. District Court, Southern District of New York granted EMI Music North America's motion for summary judgment on claims that Escape Media Group Inc., Grooveshark's parent company, infringed its copyrights. Total damages could amount to $420 million based on the court's finding that 2,807 EMI-copyrighted sound recordings existed on Grooveshark's servers. The maximum statutory penalty per infringement is $150,000 for wilful violations, although the amount can be reduced. Having no licence from EMI, and having failed to prove that safe harbour protection would apply to Groveshark so called user uploaded content after evidence that it was Grooveshark's employees themselves uploaded a substantrial amount of material, and with a finding by Magistrate Judge Sarah Netburn that Escape had an insufficient recordkeeping system, failed to terminate repeat infringers, and "actively" prevented copyright holders from collecting information needed for the takedown requests required by the DMCA - the writing was always on the wall.  Judges Nathan and Netburn also disagreed with Escape's argument that pre-1972 sound recordings should be excluded, with Judge Nathan citing the recent decision in Flo & Eddie, Inc. v. Sirius XM Radio, Inc  saying "the New York Court of Appeals would recognize the exclusive right to public performance of a sound recording as one of the rights appurtenant [pertaining to something that attaches] to common law copyright in such a recording."  In a blog (see below) Grooveshark says that it "disagree[s] with various aspects of the ruling; for example, our ‘one-strike’ repeat infringer policy is even faster than the ‘three-strike’ policies used regularly in the industry for stopping infringing uploads, and we believe our ‘DMCA Lite’ option goes above and beyond DMCA requirements by executing good-faith takedowns in a variety of situations where proper DMCA takedown notices are not provided. 

In the wake of the ruling (and the phrase 'shutting the stable door after the horse has bolted' does spring to mind), Grooveshark has now announced additional anti-piracy measures. One of these is to create a database with data of repeat offenders. On its blog, the company states it will continue to keep track of repeat offenders, “we will now create an additional independent record of repeat infringers from our existing databases, until our appeal clarifies this issue for Grooveshark and other hosting services committed to complying with the DMCA.” The company is also working on tool that offers record companies insights on what music has been uploaded to the service, “we will provide a pre-screening tool for rights holders that provides immediate access to compare uploaded files on our servers that aren’t even yet available for end-user streaming with content owned by the rightsholder. When a rights holder provides a single file URL to the tool, they will receive a list of other files on our servers that have been found to be digitally different, but contain similar metadata.”

The Madras High Court has directed the Indian government not to appoint 'any bureaucrat' as chairman or member of the Copyright Board and directed that its earlier order on appointments in quasi-judicial boards be followed. The First Bench, comprising Chief Justice Sanjay Kishan Kaul and Justice M M Sundresh said, “Bureaucrat or lesser qualified candidates as chairman and members of Copyright Board should not be appointed and our earlier order on appointing judicial members to quasi-judicial boards, should be followed by government.” The Copyright Board’s judicial functions include determining the rate of royalty payable to copyright-holders, revoking copyright granted by the registrar and hearing appeals regarding copyright of products/works. More on the Sen Times here.

On Wednesday 6th of May 2015, Professor Jonathan Griffiths (Queen Mary University) will deliver a talk entitled "Parody and copyright in EU copyright law" at the City University. This is a topic of great interest to the CopyKat, and since the CJEU's intervention in (C-201/13) Deckmyn v Vandersteen, there are now in place some guiding parameters on the application of the exception for "caricature, parody or pastiche" in European Union copyright law. As this exception has only recently been introduced in the United Kingdom - the CopyKat is doubly excited! This talk will consider the impact of Deckmyn and, in particular, the Court's decision that national courts must apply the parody exception in a manner that maintains a "fair balance" between competing fundamental rights. City University, College Building, Room A110 13.00 (1pm). More on the City Law School website  here.

And finally on this Friday, More than twenty prominent European filmmakers including Michel Hazanavicius (“The Artist”), Wim Wenders (“Every Thing Will Be Fine”), Paolo Sorrentino (“La Grande Bellezza”), Ken Loach (“Jimmy’s Hall”) and Abderrahmane Sissako (“Timbuktu”) have rallied to "protect copyright laws" in the EU add ad their voice to move to reform copyright law across Europe - in particular rallying against proposed moves to remove traditional national exclusivity for film and TV licensing (and geo-blocking) and  allow audiovisual and film works to circulate freely across Europe using pan-European licenses. Saying the moves would undermine the way films are financed, The film makers argue that the E.U.’s proposal would harm right-holders, and solely benefit multi territory platforms like Netflix and Google saying "“We share the European Commission’s will to facilitate film availability to all… but let’s not go about it in a way that could be destructive for cinema.” The directors’ alternative proposals included bolstering existing support for Europe’s exhibition circuit,   and a new charter for the EU’s public broadcasters to aid the diffusion of more European films throughout the region. More on Screen Daily here and here.

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