Art for Art's $ake?

It is rather depressing to hear that once again Wikimedia is being threatened with a copyright suit for publishing digital images of works of art which are themselves in the public domain. Like the spat between the UK's National Portrait Gallery and Wikimedia back in 2009, the current case involves another museum, this time it's the ReissEngelhorn Museum in Mannheim, Germany. Arguably Germany's domestic copyright law is less sympathetic to facsimile photographic copying of works of art than is thought to be the case under UK law. In fact of course both jurisdictions are likely to follow the EU acquis found principally in the Infopaq case where the CJEU decided that the test for originality was whether the new work was an expression of the spirit of the author. No doubt, like the 2009 dispute, the Reiss Engelhorn's complaint may well feature other matters such as database right and/or technical prevention measures, however this posting is concerned just with the copyright aspect.

The latest development is depressing for a number of reasons, not least because one might have hoped this would be settled law by now, considering that one of first test cases on the subject - the Graves Case - took place in 1869, a mere seven years after copyright protection in the UK had been extended to include photographs. In that case the photographer Henry Graves won his case, with the trial judge (Blackburn J) concluding "And it seems to me that a photograph taken from a picture is an original photograph, in so far that to copy it is an infringement of this statute [the Fine Art Copyright Act 1862]." Despite this slightly elliptical reasoning, the courts in England and Wales have not seriously upset this finding ever since. Although the test for originality more generally has been refined on many occasions, most notably in recent times in Designers Guild [2001], Hyperion Records [2005], Baigent v Random House [2006] and more specifically with regard to photography, in Antiquesportfolio.com v Rodney Fitch [2001], the line taken by the UK courts has been that if the photographer uses sufficient skill and labour in his or her choices (such as the timing, choice of viewpoint, exposure, depth of field, lighting etc) then the resulting photograph would be entitled to copyright as an original work. In contrast to this, in the US case of Bridgeman Art Library v Corel Corp [1999], the District Court of the Southern District of New York sought to apply UK law to the subject of photographs of classic works of art, and came to the opposite conclusion, namely that copyright did not subsist in mere photographic reproductions. And that was at a time when such photography was based on the use of film which arguably required greater skill on the part of both the photographer and the printmaker when it came to correctly reproducing the colours of a painting. By comparison, today's digital photography together with the widespread use of sophisticated editing software to faithfully recreate colours requires rather less skill and labour. And although not a case about photography, in Interlego AG v Tyco Industries, the UK Privy Council found that where design drawings were being manually copied, "[t]here must in addition be some element of material alteration or embellishment which suffices to make the totality of the work an original work. But copying per se, however much skill and labour be devoted to the process, cannot make an original work"

In mainland Europe, photography has always been something of a Cinderella artform. A typical response of the national courts can be seen in the Jimi Hendrix portrait case reported on by Marie-Andree a couple of months ago. And as well as Infopaq, in Painer [2001] we have a decision of the CJEU which provides additional clarity on the specific subject of originality in photographs. Taking German national law and the two CJEU decisions, Infopaq and Painer, all together, I wouldn't rate the Reiss Engelhorn Museum's chances of success in court as being too good.

And although the matter was settled, it is worth looking back at the outcome of the NPG & Wikipedia dispute from six years ago. According to the Wikipedia article referred to above, it would appear that the NPG resolved from an early stage not to resort to litigation, and the status quo today is that Wikimedia continues to host the images at the heart of the dispute. No money appears to have changed hands, so are we to conclude that the NPG effectively lost the battle? They have certainly amended their conditions of access allowing a large number of low resolution images to be freely accessed, and have made higher resolution images available 'for free' to the academic community. But it remains to be seen whether the Reiss Engelhorn will be forced to adopt a similar outcome.

There is without doubt a valid argument that works in the public domain should be readily accessible by the public, especially in the digital age, but where each work is unique and often very valuable (such as art), can such access invariably be free? There is considerable expense involved in the digitisation process itself, in preserving, restoring and protecting the original artworks, and in making them available to be viewed in person as well as online. Museums and art galleries cannot be expected to absorb this cost without passing at least some of it on to the public, although many institutions seek to offset these costs by charging commercial publishers and the like for access to high resolution images, rather than by charging higher public entry fees. But should copyright be used, possibly fraudulently, to underpin this business model? And if so, how can any work of art which is not already sited in a public place, ever be said to be truly in the public domain? And given that the EU has recently given museums, libraries and archives greater ability to make their orphan works available to the public, while recouping no more than the cost of digitization, how does this new right sit with the less justifiable (ab)use of copyright in cases where the copyright in the original is known to have expired long ago?

The CopyKat

A Czech man called Jakub F has struck a novel dea to avoid penalties for copyright infringement. Admitting “I had to start this site, because I spent eight years spreading pirated software and got caught”, he now has a website set up to promote a YouTube video in which he apologises for his behaviour. If the video reaches 200k views, he will pay only a faction of a hefty damages bill, after he was found guilty of copyright infringement. TorrentFreak reports that he struck the deal with rightsholders including Microsoft, HBO, Sony Music and Twentieth Century Fox to produce and promote his anti-piracy mea culpa on YouTube. He has reached 141K views. Whatever happens, he has a three year prison sentence suspended for three years from the district Court in Litoměřice. The damages were set at CZK 5.7 million (£148k).

The UK's Competition and Markets Authority is launching a review of undertakings given by the Performing Right Society (PRS) following a competition investigation in 1995/6.  The decision to review the undertakings follows a Competition and Markets Authority (CMA) consultation in July, which sought views on whether to carry out reviews of 13 sets of market and monopoly remedies that had been put in place by the CMA’s predecessors prior to 2005. The CMA expects to launch further work following this consultation in the coming months. This consultation formed part of its commitment, set out in its 2015/16 annual plan, to commence a systematic review of existing merger, market and monopoly remedies. The CMA has decided there are grounds to review the PRS undertakings. This is due to internal changes made by the PRS; legislative changes including the forthcoming implementation of a new EU Directive covering collective rights management; and wider changes in the music industry including the growth of online and digital music including downloads and streaming.The PRS gave undertakings in 1997 allowing its members to administer their own live performing rights, as well as making other commitments over its corporate governance and the provision of information to the Office of Fair Trading (now the CMA).  More here.


Yunghi Kim, the award winning photojournalist and 20 year long member of Contact Press Images, is  donating $10,000 to create ten one-time grants for US photographers of $1,000 with money that she has received “from fees recovered from unauthorized use of my work”. The Awards will be made to promote copyrght registration - with Kim saying "I am doing this to emphasize that, YES it makes a difference if you copyright register your work and everyone should make a practice of it in your workflow. Think of it as digital teeth brushing." More here.

London fashion label Kokon to Zai (KTZ) has been accused of copying a garment designed in 1922 by Aua, one of the last Shaman of the Canadian Inuit. His great-granddaughter Salome Awa spotted the sweatshirt online and says she was “shocked” by its resemblance to the one created by her ancestor to protect him from drowning. You can see both of the designs in better resolution on the Evening Standard here. Earlier this year KTZ were accused by fashion designer Bethany Yellowtail of copying her dress which featured a design from her great, great grandmother, a Native American. Ms Awa said a legal action is pending. The Standard reports that KTZ issued a statement saying: “Over the last 20 years KTZ has always been inspired by and paid homage to indigenous cultures and tribes" and “It’s part of KTZ’s DNA to take inspiration from all indigenous cultures around the world and celebrate multiculturalism as a form of art. Our appreciation isn’t the same as appropriation”. KTZ say they have already removed the item from sale online, and will remove the items from stores.” Edward Sheriff Curtis's extraordinary images of Native American tribespeople from the early 1900s can be found on Mashable here.

And finally - the CopyKat must bid a very fond (but slightly sad) farewell to Jeremy Phillips - our blogmeister, our mentor and a beacon of common sense; teacher, academic, writer, editor, blogger extraordinaire, consultant, and our friend. He will be so missed. And so, with lasting admiration and respect Jeremy - can we just say we are wishing you a fabulous retirement - but we hope to see you soon! 

Bye!

Just a short note to say I'm retiring and hanging up my 1709 Blogging boots. It's been great fun and I shall miss you all!

Do please continue to give this wonderful blog your full support.

MusicTank debate points out the reality of how the music industry uses the law to underpay performers

Performers and songwriters - the actual creators of recorded music - have been making noises recently in the ongoing debate about reforms to copyright. Indeed the Featured Artists Coalition and the globally-focused International Artists Organisation have issued an urgent call to the European Parliament demanding That the Parliament ensures that performer rights be included in the European Union's current review of copyright law. The move comes as part of the campaign called Artists In Europe which is a bid to "ensure that protection for artists' intellectual property sits at the heart of the new legislation".

Songwriters have already had a say. BASCA chairman Simon Darlow has used his speech at the 2015 Ivor Novello Awards to criticise current 'safe harbour' provisions in EU and US law, pointing out that the likes of YouTube undermine streaming services, and were exploiting safe harbour legislation saying this was "undermining the value of our music". But even those who do pay songwriters and their publishers don't pay much. Internet radio service Pandora is currently appealing the US Rate Court's decision to order it to pay 2.5% of revenues to compensate BMI songwriters and publisher members. The rate of rival PRO ASCAP of 1.85% was upheld by the US Second Circuit Court of Appeals. And some don't pay at all!  In late August PRS for Music wrote to it's members saying it is beginning legal action against online music streaming platform SoundCloud after "five years of unsuccessful negotiations".

On Tuesday 10th November it was the turn of London to be at the centre of this ongoing debate - with a panel and debate at the University of Westminster organised by MusicTank. The context of the event were the conclusions of a Report titled Making Available, Communication To The Public & User Interactivity by former LLM student Fiona McGugan (Featured Artists Coalition & Music Managers Forum) which considers the evolution of communication rights that overshadow conventional distribution and reproduction rights as music consumption increasingly shifts away from ownership, towards access models of streaming services. Understanding how this right is applied, territorial variations in the application of rights, and how licensing structures are determined according to the levels of user-interactivity of digital services lie at the heart of possibly the single biggest issue facing the music industry in recent times - how much artists (performers) get paid. Fiona kicked of proceedings with a presentation explaining that many artistes were facing desperate times because streaming was considered (at least by the major record labels) to be a 'making available' right and so no 'Equitable Remuneration' would apply - which of course it would IF streaming was considered a form of broadcasting - a communication to the public. So artistes get paid a seeming pittance.

But the underpayment of artistes is not new. Back in 2004, Californian state senator Kevin Murray wrote this in a report in US recording industry practices:

“Much like the public generally dislikes politicians, but love their individual representatives, Artists have respect for their record company handlers, but distrust the companies themselves and the system they operate under. They see themselves as victims of an indentured servitude system designed to keep them perpetually indebted to the companies who also own the product of their labor. Some artists expressed gratitude for the initial investments made by the record companies in their talent, but feel cheated by their meagre share of the proceeds when the gamble pays off. One artist’s representative went so far as to accuse the record companies of running a continuing criminal enterprise.

The record companies are genuinely appalled at the accusations and feel that they are the true victims. They are insulted that after making multi-million dollar investments in artists, few of which actually pay off, that they are then held hostage by the successful few. They claim they are forced to pay large advances and otherwise accede to whims of spoiled, pampered artists who make millions, yet whine that they are oppressed. They further complain that artists should be helping fight the real enemy of digital piracy, instead of accusing record companies of thievery.”

More recently in the context of the class actions brought by artistes in an attempt to increase their digital download royalties, the Dixie Chicks called the royalty and accounting process “systematic thievery”.

With Universal announcing on the same day that its last quarterly figures showed that streaming income had now overtaken download revenues (with digital already having taken over physical sales and licensing combined), it's important to stress that the definition of what a stream is makes a huge difference to artiste's payments, as the major labels are seemingly applying old style royalty rates to streaming income - in many cases (and in particular with heritage acts), taking 90%+ of all streaming income they receive This has been successfully challenged in the courts in Sweden and Finland and panellist Horace Trubridge (Assistant General Secretary, Musicians Union) said that the MU would fund a challenge in the UK - and said that the MU now  think they had found a suitable litigant (although the CopyKat notes that in the US, the majors simply ignored a ruling won by FBT Productions against Universal which gave FBT a 50% share of digital revenues) and Warners, Sony and UMG all managed to persuade thee artistes in class actions to settle on terms that were little better than old style physical product contracts with marginally better royalties and the carrot of the share of a lump sum pay off (that had already been raided for huge legal fees). Trubridge, who had once been in a successful 70s pop band, said his band got just 3% of the 'recorded music' share of any stream - with his label (who were originally Magnet, now owned by Warners) taking the rest - 97%.  As Horace said, hardly fair and there are many heritage artistes and non-featured artistes in the same boat (or worse!), although Horace reserved his real venom for YouTube - the world's leading streaming company, which has somehow avoided directly paying for using sound recordings. 

Benoît Machuel (General Secretary, International Federation of Musicians) provided some very useful statistical information, and pointed out that much of the information pumped out by the record label's trade bodies including the BPI, RIAA and in particular the IFPI is NOT reliable, and is clearly presented to suit their business models, as well as giving a useful European perspective and alerted the packed audience that the Fair Internet for Performers campaign says:  "performers are still not fairly rewarded when their performances are exploited via online on demand services. Most of them receive an all-inclusive fee at the time of the recording for all type of exploitation of their performances. Others receive an insufficient proportional remuneration. The campaign has called on European institutions to "create a sustainable cultural and creative sector where performers get a fair share of online revenues, through an unwaivable remuneration right for digital uses of their work, collected from the users who make the performances available on demand and subject to mandatory collective management." Benoît told the packed room that from an average €9.99 monthly streaming subscription (e.g. Deezer or Spotify:

- all featured artists combined and listened to in a month share €0.46 euros
- authors (SONGWRITERS)  €1.0 euro
- the state/ taxation €2.0 euros (more than the authors/ performers’ share combined)
- producers (labels) and streaming services combined received €6.54.

With no record labels willing to provide a panellist, it was left to Alexander Ross (Partner, Wiggin LLP) and chair Keith Harris OB (a band manager and until recently PPL's Director of Performer Affairs) to offer some balance. Fiona McGugan also suggested that the rental right (which does offer the much needed Equitable Remuneration) could play a part. 

Interestingly Ross revealed details of a recent paper from the University of Amsterdam, commissioned by and written for the EC (DG, Internal Market), and titled Remuneration of authors and performers for the use of their works and the fixations of their performances, which had made a number of recommendations on the remuneration of authors and performers (or the “creators”) for the use of their works and the fixations of their performances - noting in particular the complexities of the music industry - "The supply chain in the music industry is particularly complex with distinctions between offline and online distribution of music, different repertoires and authors and performers" and further notes that transparency is lacking and payment flows complex. But this is what they suggest:

- Policy 1: Specify remuneration for individual modes of exploitation in the contracts
of authors and performers.

- Policy 2: Improve the cross-border transparency of the national systems.

- Policy 3: Limit the scope for transferring rights for future works and performances
and future modes of exploitation.

- Policy 4: Create a more conducive environment to support the role of trade unions,
freelance associations and CRMOs when they fulfil similar functions.

- Policy 5: Facilitate the exercise of the right of making available. This policy option
effectively represents a fall-back in the event that the other policies fail to protect
authors and performers sufficiently and is broken down into three possibilities:

- Voluntary collective management of the right of making available.

- Unwaivable right to obtain equitable remuneration from the producer/publisher.

- Unwaivable right to equitable remuneration administered by a CRMO.

This writer is sure the major record labels will NOT be happy with this report - although some points  - particularly (1) and (2) above, seem both aspirational and couched in Eurobabble. (5) is particularly interesting and gets to the heart of the problem, not least as it is becoming increasingly obvious that allowing labels to directly collect revenues will not help artistes, either in the short term or the long term.

As the debate drew to a close, it was clear that whilst both recording artistes and record labels - as well as non featured artistes and the the UK's recorded music collection society PPL - have shared goals in fighting piracy,  getting US terrestrial radio stations to pay for the use of sound recordings and maximising revenues from new digital formats, not least through improved models with the streaming platforms and other digital players, the real ire was reserved for the major record labels, who seemingly have no intention of changing their business models and offering a fair share of digital revenues to artistes - and yet want artistes to support their move in, for example, extending the copyright term for sound recordings and striking better deals with the digital platforms.

Keith Harris had opened the panel discussion suggesting this was an issue that needed simple solutions. But as the panel progressed,  it was clear where we have ended up is anything but 'simple' playing field. With the record labels making the calls - its going to be artistes who have to fight for change. To my own mind - and in that classic situation where the EU Directives really DON'T fit the new technologies (which of course were never even imagined when some of the legislation was put in place) - you need to go back and ask what streaming really is - and almost certainly we need to redefine 'making available to the public' and 'communication to the public'. Whilst the the Court of Justice of the European Union (CJEU) has pronounced on on the right of communication/making available to the public within Article 3 of the InfoSoc Directive in Svensson and also in  C More Entertainment AB v Linus Sandberg, C-279/13 - this whole area is getting more and more confused - and that won't help artistes get a fair share of the digital pie. Whether the artist community can persuade either legislators or perhaps arguably the courts that streaming should be properly defined - and that they should be getting a fair share of digital (and indeed other revenues) remains to be seen. As it stands, labels will be quite happy that the CJEU said that "in order to be classified as an act of 'making available to the public' within Article 3(2) of that directive that, in order to be classified as an act of ‘making available to the public’ within the meaning of that article, an act must meet, cumulatively, both conditions set out in that provision, namely that members of the public may access the protected work from a place and at a time individually chosen by them" as it means that almost any service EXCEPT for a traditional radio or TV broadcast including even 'skipable' internet playlists can be classified under the making available right - amongst the rights the labels hoover up in standard terms and which they can 'remunerate' artists for on a royalty basis - with no need to make any payments that might be equitable. So here the nuances of technological development not only fall outside of any specific legislation, that legislation which was put in place to protect performers and artistes is now somewhat annoyingly being used against them.

Berklee’s Fair Music report and the French Government’s Agreement For A Fair Development Of Online Music - a voluntary code of conduct between artists, labels and digital platforms - have also added heat to the debate, not least in the wake of a well-documented leaked streaming contract, that shed light on a model renowned for its fondness for NDAs, which highlighted the inequality of bargaining power between creators and rightsholders. The French code provides that: "Labels agree to share with artists ‘all revenues and remuneration they receive from digital music broadcasting and distribution services when monetising their recordings’. (‘Revenues and remuneration’ means monetary and non-monetary benefits directly linked to recordings, including where those benefits cannot be specifically attributed to a rights-holder. This must include all the unrecouped advances/minimum revenue guarantees obtained from online music service providers – aka “breakage")"; a limit on royalty reducers used by labels to artificially reduce the already often pitiful percentages paid to performers;  provides that labels will ensure transparency in accounting -  showing an overall summary of reductions, explicitly showing their cumulative effect on the artist’s revenue as a value and/or percentage, and that the position of the major label's equity stakes in streaming and other platforms will be discussed.

France may have taken a lead here. McGugan's report calls for:

-  Precision and clarification in the EU Directive And WIPO Performances and Phonograms Treaty (WPPT) 

-  A new deal for legacy contracts

- Collective licensing for the "making available"  right

- Compulsory licensing for first reproductions

As Featured Artists Coalition board member and Pink Floyd drummer Nick Mason said: "Artists are not looking to fight technology, or the fantastic access digital services and technology gives music fans. We want to foster innovation and push the uptake of these new and exciting opportunities for communication and creativity. However, we must make sure that the system pays back the artists of the future whose hard work and talent will make the services successful for the long term".






http://musiclawupdates.blogspot.co.uk/2015/10/music-streaming-timely-update-in-ever.html

http://musiclawupdates.blogspot.co.uk/2015/10/performers-speak-up-for-their-rights-in.html

Nils Svensson, Sten Sjögren, Madelaine Sahlman, Pia Gadd v Retriever Sverige AB, CJEU, Case C. 466/12 2014 and also see Rosati, E. (2014) Early Thoughts on Svensson”
communication/making available, ‘new’ public, altering the scope of exclusive rights 

Remuneration of authors and performers for the use of their works and the fixations of their performances (2015) Dr. L. Guibault , Mr. O.M. Salamanca &  Dr. S.J. van Gompel. This study was carried out for the European Commission by Europe Economics by the University of Amsterdam (IViR).  ISBN 9789279471629 and the report is downloadable here: http://www.ivir.nl/publicaties/download/1593

http://musiclawupdates.blogspot.co.uk/2015/10/should-we-take-lead-from-france-on-fair.html

US Recording Industry Practices was written by California state senator Kevin Murray, Chair, Senate Select Committee on the Entertainment Industry in 2004.  This proposed both a fiduciary duty on record labels and statutory penalties on labels failings to account for royalties. Senator Murray, formerly a talent agent,  reportedly later joined the recorded music industry. I can no longer locate the paper online, but some of the detail can be found here: California 's Recording Industry Accounting Practices Act, SB 1034: New Auditing Rights for Artists  http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1571&context=btlj

Footnote: Best revelation of the night? having been asked why established and successful bands re-sign with record labels - the agreed answer was 'so the band's manager has someone to blame when something goes wrong' !

Copyright Royalty Board reference cheers indie labels

The U.S. Register of Copyrights has delivered her Memorandum Opinion in response to a “novel material question of law” referred to her on September 11, 2015 by the Copyright Royalty Board (CRB) who will be setting royalty rates for the period of 2016-2020. 

The question asked whether the Board would be prohibited by the governing statutes from setting rates and terms that may differ across different types of categories of licensors – in essence, whether they can set statutory webcasting royalty rates that vary depending on the identity or category of the record company that owns the recordings performed by a webcaster.

The Register of Copyrights concluded that the question was not properly referred to the Copyright Office for consideration, and therefore she could not offer an opinion on the question of differentiated rates for licensors; BUT and its a big 'but', the Register further stated that because all participants in the Webcasting IV proceeding had assumed a non-differentiated rate structure for licensors, that is the only reasonable outcome in the Web IV proceeding, effectively dismissing calls from the major record labels, Sony and Universal, for a variable royalty rate for internet radio play in their favour, a prospect that had horrified the indie labels. 

Pandora supports a uniform rate structure for all musicians, said Dave Grimaldi, director of public affairs at Pandora, adding: “We look forward to the certainty the CRB's December decision will bring to the music industry, particularly as Pandora continues to improve our partnerships with music makers.” This next big statutory licensing decision in the US for the 2016-2020 per-stream rate, the Web IV rate,  is expected in December.

More here

Cox on the back foot in claim by BMG

A District Court in America has made a potentially devastating ruling for Internet service Providers and possible online platforms, ruling that the current U.S. DMCA legislation does not, on the facts of a case brought by two music publishers and Rightscorp against Cox Communications, shield the major Internet provider from liability for illegal music downloading by its subscribers.

Two music companies, BMG Rights Management LLC and Round Hill Music LP, filed a lawsuit against Cox in 2014, claiming that Cox, which provides Internet service to millions of people, deliberately turned a blind eye to illegal downloading by its subscribers stating: “Cox has repeatedly refused to terminate the accounts of repeat infringers“and ”The reason that Cox does not terminate these subscribers and account holders is obvious—it would cause Cox to lose revenue.” BMG and Round Hill claimed that Rightscorp Inc had informed Cox  of “hundreds” of repeat infringers. They allege that Cox had failed to ​do anything in regard to these customers and has thus given up its "safe harbor" protection under the provisions of the DMCA. Rightscorp's data allows them to identify "repeat infringers" that use BitTorrent to download large quantities of music. Rightscorp insists that ISPs like Cox must respond when it identifies those users, and forward its notices demanding a setlement of $20 per song or else face a copyright lawsuit. BMG and Round Hill were seeking damages for contributory and vicarious copyright infringement and a judicial order requiring Cox to "promptly forward 
plaintiffs' infringement notices to their subscribers."

Cox Communications, the third largest cable TV company in the U.S., but was the one major player absent from the deal struck between the content owners and service providers back in 2011 (the Copyright Alert System) which did involved the likes of Cablevision, Comcast, Time Warner and Verizon.

Cox responded In court papers stating it had no “actual” knowledge of any specific infringements, and that the plaintiffs had no evidence of Cox account holders personally infringing through their Cox accounts.

The case is now expected to go trial next week, to determine whether Cox should be held liable for its alleged role in any infringement, and, if so, how much it should have to pay. A full opinion is also expected. It is also likely that Round Hill will drop out of the claim, after the ruling cast doubt on their standing as a plaintiff. 

In the order, Judge Liam O’Grady agreed with the plaintiffs, saying that Cox essentially failed to set up and enforce a “repeat-infringer” policy - a decision that could potentially open a floodgate for new claims against the cable industry and ISP by content owners: “This ruling is potentially very concerning to every user of the Internet, who may stand substantially less protected than before,” said Charles Duan, a staff attorney with Public Knowledge, the Washington, D.C., group that advocates for greater consumer access to the Internet and other technologies. The Judge held:  "There is no genuine issue of material fact as to whether defendants reasonably implemented a repeat-infringer policy" as required by the law. 

The Judge refused to allow the Electronic Frontier Foundation and Public Knowledge to file an amicus brief supporting Cox saying (according to TechDirt): "It adds absolutely nothing helpful at all" and "It is a combination of describing the horrors that one endures from losing the Internet for any length of time. Frankly, it sounded like my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework. And it's completely hysterical."

In a rebuttal to BMG's accusations, Cox described Rightscorp as selling "shady services" to copyright owners. Rightscorp "shakes down ISP customers for money without regard to actual liability, and it tries to enlist ISPs in its scheme," Cox lawyers write. The ISP doesn't act on Rightscorp's notices because they're "wrongful" and inadequate, but Rightscorp kept dumping "thousands of notices per day" on the ISP. When Cox wouldn't get on board, Rightscorp and its biggest client sued. "This suit is Rightscorp's retribution, with Plaintiffs’ complicity, for Cox’s refusal to participate in Rightscorp’s scheme," state Cox lawyers.

Cox said it  "works well with many copyright holders," but considered Rightscorp notices "improper, as involving extortion and blackmail." In a mostly redacted section of its legal brief, Cox describes its system of "graduated response" for responding to allegations of copyright infringement. Cox notes that account termination is "not the industry norm" but goes on to emphasize that it does, in fact, terminate some account holders because of copyright complaints. But "the decision requires discretion," since some subscribers don't understand what gave rise to copyright complaints and may need help keeping their Internet access secure, or removing malware, before the company takes the "extreme measure of termination."

On the other hand ........ Comcast's practice of injecting copyright warners into the video streams of customers who may be illegally watching content has drawn renewed criticism from Internet pundits who say the company should leave its users' traffic alone. Privacy and security fears have been raised by San Francisco developer Jarred Sumner who published a code for the Comcast alert banner on his GitHub page.  Drawing interest from ZDNet and others, Sumner described Comcast's injection of the warning banners as a "man-in-the-middle" attack in which the MSO intercepts traffic between the user and their servers. 

http://arstechnica.com/tech-policy/2015/11/with-a-week-to-go-before-rightscorp-trial-cox-loses-key-dmca-motion/ and  http://www.wsj.com/articles/judge-rules-against-cox-communications-in-copyright-case-1448404833

The CopyKat

Minneapolis attorney Paul Hansmeier, who is most known to this blog for being associated with the Prenda Law 'trolling' saga, is facing suspension or disbarment. Minnesota's Office of Lawyers Professional Responsibility has now filed a petition with the state Supreme Court seeking disbarment or "otherwise appropriate discipline," citing Hansmeier's "unprofessional conduct." In 2013, Hansmeier, along with Chicago attorneys John Steele and Paul Duffy, filed multiple 'John Doe' copyright infringement claims, and faced scathing criticism from U.S. District Judge Otis Wright II, other federal judges and the US Court of Appeals for the 7th Circuit. Reports say Hansmeier remains an active civil litigation attorney. His solo practice -- a Minneapolis firm called Class Justice PLLC -- consists wholly of suing businesses that do not comply with disability access laws. Hansmeier's attorney, Eric Cooperstein, told reporters that they look forward to presenting their side of the case.

Rocky P. Ouprasith, who operated the website RockDizMusic.com website between May 2011 to October 2014 has been sentenced to three years in prison. Ouprasithhad  admitted obtaining copies of copyrighted songs and albums from online sources and encouraging others to upload music to the website. Court documents say the market value of Ouprasith's illegally obtained material was more than $6 million. Ouprasith was sentenced to serve 36 months in prison in the US. Chief U.S. District Judge Rebecca Beach Smith of the Eastern District of Virginia also sentenced Ouprasith to serve two years of supervised release and was ordered to forfeit $50,851.05 and pay $48,288.62 in restitution. Brad Buckles, EVP of Anti-Piracy at RIAA, said: “We congratulate the Department of Justice and Homeland Security Investigations and thank them for their diligence and hard work to bring to justice those who cause millions of dollars in damage to music creators" adding  “This sentence should send a message that operating a flagrantly illegal business that steals from others by engaging in criminal activity online has real consequences.” Indeed.

'YouTube sensation' CassetteBoy have been talking about copyright implications of the recent changes in United Kingdom coyright law and the new exception for parody at an event at Bournemouth University. The pair, whose 2014 'mash up' of David Cameron's speeches featured in their 'Conference Rap' has been seen by more than 6 milllion people, said: "We were infringing copyright for 20 years before the law changed, and never dreamt that our work would ever be legalised. The change in the law has had a huge impact on the work we've been able to do, and we're very happy to be able to talk about it and share our experiences." The event  was organised by the Centre for Intellectual Property and Policy Management. Co-director for the Centre and associate professor in law, Dr Dinusha Mendis, told the Bournemouth Daily Echo : “The reforms to copyright law which came about last year were certainly seen as a welcome change and much needed in a digital world dominated by user-generated content and collaborative creators.

The World Intellectual Property Organization Deputy Director General responsible for copyright, Anne Leer, has decided to resign her post, citing personal reasons.

YouTube has set up a $1 million fund to support video creators who have been targeted in Digital Millennium Copyright Act (DMCA) takedowns. The company’s copyright legal director Fred von Lohmann confirmed the new funding in a blog post saying that that  whilst YouTube will only provide its legal support “to a handful of videos,”  who would be arguing 'fair use' for the posting, the company will cover the cost of any copyright lawsuits brought against its creators and adding “We’re doing this because we recognize that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it,” Lohmann himself is a former Electronic Frontier Foundation (EFF) staffer who have previously argued that YouTube is not doing enough to protect the so-called “fair use” provision. 

And TorrentFreak tells us that YouTube parent company Google is facing "a never-ending flood" of DMCA takedown requests from copyright holders, breaking records. The company currently processes a record breaking 1,500 links to "pirate" pages from its search results every minute, which is a 100% increase compared to last year.

Meeting the Legal Needs of the Creative Industries: an intensive course

"Copyright Law: Meeting the Legal Needs of the Creative Industries in the 21st Century" is the title of a forthcoming course at University College London (UCL). Running from Monday 18 to Friday 22 January 2016, its aim is to help young practitioners, advising in accordance with current statutes and existing contracts, to look to the future and explore copyright and related laws in a digital context together with imminent legal developments.

The Faculty has a strong 1709 Blog flavour to it.  Apart from the fact that the course convenor is one of this blog's founder members, Amanda Harcourt, the speakers include both Eleonora Rosati (Southampton University and e-LAWnora) and John Enser (Olswang LLP). A full list of speakers can be accessed along with the course content and brochure by clicking here.

Do please note the following guidance:

As the UCL Law Faculty is currently virtually “homeless” because of building works, the Faculty will be securing an outside venue for this conference. Choice of venue will, naturally, be dependent upon numbers. As a consequence applications for entry from attendees will close on Wednesday 16 December 2015.

Some recent copyright books

Here are a couple of recent copyright publications that may be of interest to readers of the 1709 Blog.

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The first is Concepts of Music and Copyright: How Music Perceives Itself and How Copyright Perceives Music, edited by lawyer-musicologist Andreas Rahmatian (School of Law,l University of Glasgow).  This is the second book Andreas has published with Edward Elgar Publishing in recent times, following the well-received Copyright and Creativity: The Making of Property Rights in Creative Works in 2011 (details here).  According to the web-blurb:

Copyright specialists have often focused on the exploitation of copyright of music and on infringement, but not on the question of how copyright conceptualises music [this blogger is not surprised. While trade mark law in Europe makes specific reference to conceptual meaning and patent law focuses on the expression in concrete form of the abstraction of the invention, copyright law has made fewer demands for conceptualisation on the part of its practitioners]. This highly topical volume brings together specialists in music, musicology and copyright law, providing a genuinely interdisciplinary research approach. It compares and contrasts the concepts of copyright law with those of music and musical performance. Several tensions emerge between the ideas of music as a living art and of the musical work as a basis for copyright protection.

The expert contributors discuss the notions of the musical work, performance, originality, authorship in music and in copyright, and co-ownership from the disciplinary perspectives of music, musicology and copyright law. The book also examines the role of the Musicians’ Union in the evolution of performers’ rights in UK copyright law, and, in an empirical study, the transaction costs theory for notice-and-takedown regimes in relation to songs uploaded on YouTube.

This unique study offers an interdisciplinary perspective for academics, policymakers and legal practitioners seeking a state-of-the-art understanding of music and copyright law.

The cast of contributors really is multidisciplinary: it includes John Butt (Gardiner Professor of Music at Andreas's university) and his colleagues Bjorne Heile, Martin Parker Dixon and John Williamson, plus law academics Charlotte Waelde and Alison Firth and the engagingly persuasive polymath Paul Heald. This is a truly enjoyable and accessible music even for non-musicologists, and will be particularly interesting to admirers of the late Duke Ellington. 

Details: xiv + 231 pp.  Hardback (£75, but only £67.50 if purchased online from the publisher). ISBN: 978 1 78347 818 7.  More details from the book's website here.

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The second new title is Understanding Copyright: Intellectual Property in the Digital Age, penned by the University of Leeds triumvirate of Bethany Klein, Giles Moss and Lee Edwards. This is not a law book as such: all three authors hail from their university's School of Media and Communication, from which it will be swiftly intuited that this is more a book about what copyright allows and doesn't allow in the modern digital climate than about the procedural niceties, the splitting of jurisprudential hairs and the sanctification of time-worn precedents.  It is also a book about policy and politics. Issues and arguments are summoned from both sides of the Atlantic and the copyright which is under the authors' scrutiny is a sort of generalised, non-jurisdiction-specific law -- a slight disappointment to those who think that copyright behaves in quite different ways in the United States from the rest of the world and that the policy debate there is both quite different and a good deal more advanced than its stodge-bound European equivalent.

This is what the book's web-blurb has to say about it:

Digital technology has forever changed the way media is created, accessed, shared and regulated, raising serious questions about copyright for artists and fans, media companies and internet intermediaries, activists and governments. Taking a rounded view of the debates that have emerged over copyright in the digital age, this book:

• Looks across a broad range of industries including music, television and film to consider issues of media power and policy.
• Features engaging examples that have taken centre stage in the copyright debate, including high profile legal cases against Napster and The Pirate Bay, anti-piracy campaigns, the Creative Commons movement, and public protests against the expansion of copyright enforcement.
• Considers both the dominant voices, such as industry associations, and those who struggle to be heard, including ordinary media users, drawing on important studies into copyright from around the world.
• Offering media students and scholars a comprehensive overview of the contemporary issues surrounding intellectual property through the struggle over copyright, Understanding Copyright explores why disagreement is rife and how the policy-making process might accommodate a wider range of views.

From the words "Considers both the dominant voices, such as industry associations, and those who struggle to be heard, including ordinary media users" one can appreciate that this is a book with an attitude.  Those who struggle to be heard do not presumably include professional musicians or the large number of authors whose low levels of copyright-dependent income are recorded by organs such as the Musicians Union and the Authors' Licensing and Collecting Society, but who don't quite make it into this slim volume.  Maybe next time?

Details: vii + 152 pp  Soft covers. ISBN 9781446285848. Price £23.99. More details from the book's website here.

New Music Put the Seal on US Collective Management

Matthew Billy, who hosts a podcasts called Between the Liner Notes, contacted the 1709 Blog to inform us about a podcast episode on the turf battles between BMI and ASCAP.  Explains Matthew:

"It details the events that led up to the great radio boycott of 1941 and how that event impacted the development of American popular music for the rest of the century. It dives into the history of the 1909 Copyright Act and the resulting Herbert v Shanley Co. Supreme Court case. It also makes clear what the differences between ASCAP and BMI are". 

Fellow copyright enthusiast and 1709 founder-blogger Amanda Harcourt kindly listened to the podcast and has written the following review:

Bills, bars and Bourget 

If I had a pound (even a Euro) for every time I have told students the story of the French composer (Ernest Bourget) arguing with the patron of the café concert Ambassadeurs over his bill (as opposed to his public performance fees) and the consequent founding of collective management organisation SACEM, I wouldn’t need to work. It was fun to learn that ASCAP’s foundation was similarly triggered by a row in a bar. What is it with songwriters and composers? Spending inordinate amounts of time in bars seems to be a sine qua non for creation.

Sidebar: In the mid-1990s, the USA came full circle in this respect – restaurants and bars got their own back with the passing of the US act exempting certain shops, bars and restaurants from paying public performance fees.

There are similarities. Bourget’s music was being performed at the Paris Opera Comique when the row erupted over the bill. In parallel, , shortly after the founding of ASCAP, the American composer, Victor Herbert challenged the use of his song “Sweetheart” in the fashionable Times Square restaurant Shanleys (where Herbert was dining with Puccini). Composers should thank famed jurist Oliver Wendell Holmes who delivered the majority opinion (he did not recuse himself , which maybe, as his father made a living from copyright, he should have done). The right to be paid for public performance of a copyright work, was set, in circumstances where those supplying the music did so for profit – a condition that became a key plank in challenges to ASCAP’s desire for fees.

The podcast coverage of the 1909 Copyright Act is brief but Sharkey, a performing seal, takes centre stage in the story.

The rise of radio in the US led to case after case being brought by ASCAP, as stations sought to demonstrate they were not using music “for profit”. They also argued they were not broadcasting “music” but that “particles of the air” were being stimulated! They argued they were a “public service” and that they were helping citizens ease their “pain” by distracting them. Fortunately, we have yet to see a variation of those arguments coming from today’s streaming services. ASCAP won in lower courts and the US Supreme Court supported the lower court’s decision. Licence fees were negotiated and, reluctantly, paid by the radio stations. As the profits from radio grew, so ASCAP got bolder and at the end of the 1930s sought to double their radio licence fees.

The broadcasters looked for a way to challenge what they saw as an abuse of ASCAP’S monopoly power and found what they believed to be the society’s Achilles Heel. ASCAP membership was not open to all – the society had rules about a potential members catalogue size, value and even, whether the works were recent. Most members were white males who wrote Broadway successes or music for Hollywood. They were “skimming the cream” and there were scores (no pun intended) of US songwriters who could not collect.

BMI is born 

In 1939, at the radio industry’s annual meeting ,the broadcasters founded a new collective management organisation, Broadcast Music Inc or BMI. In what proved to be a key move for the future of music, BMI signed writers of roots music, blues, country, jazz and the aspiring writers ruled too young and unproven to belong to the ASCAP “club”.

Confident in the quality of their repertoire and sure of their hold on the public’s taste, in 1940 ASCAP put the broadcasters on notice that, if they refused the increased licence fee, they would not be permitted to broadcast the ASCAP catalogue past the end of the year. One radio station in Montana brought felony extortion charges against the President of ASCAP, and he was arrested and jailed in Arizona – though the charges were not pursued.

As the year and the argument dragged on, fewer and fewer ASCAP songs were being broadcast and by December 1940 radio bandleaders were instructed to stop playing music in the ASCAP catalogue. At midnight on December 31st 1940 the ASCAP licences expired.

To the astonishment of ASCAP the public were not as upset as ASCAP expected, the new music captured the public’s heart and revenues from the ASCAP songs plummeted . This was a row that, with a PhD in hindsight, by briefly changing the landscape of American music being broadcast, may have fundamentally influenced the country’s public taste and the longer term strength and popularity of the genres added to the BMI repertoire. Maybe even the birth of rock and roll with this change in America’s “collective musical ear”.

Enter the seal.

An animal trainer, who had lost all but two of his performing seals in a devastating fire, opened a nightclub in Kingston, New York state. But by the time of the radio boycott he was determined to re-establish himself in the work he loved and built a large seal training facility – a Seal College. The scout for talented “pupils” began and Sharkey was discovered. He was an intelligent pinniped, was trained and learned to play a homemade instrument. Guided by a conductor, Sharkey pressed levers to create the musical notes and “Where the River Shannon Flows” became his standout performance. It was an ASCAP tune. On a national tour in 1941 Sharkey was booked to perform on a radio station in New Orleans. On March 5th, with the boycott still in place, the station contacted the ASCAP lawyers asking for an exception. They refused and the press, instead of the crowd, went wild.

The public outcry that had failed to materialise with the boycott now kicked in over Sharkey the seal and his heartless Louisiana legal ban. The radio boycott endured for 10 months and by November 1st 1941 a new ASCAP national radio rate was agreed, nearly identical to that which had applied before the radios went silent on ASCAP’s repertoire. But it was 1949 before Sharkey was completely exonerated. Sharkey finally got his chance to perform on the networked Ed Sullivan Show, juggling, playing Frisbee and…..performing “Where the River Shannon Flows”.

The podcast goes on to explore the flawed membership policies of both societies in a fast changing music landscape. It highlights the link between broadcasters, record labels and the BMI repertoire and ASCAP’S misguided attempts to clip BMI’s wings on anti-trust and collusion grounds. BMI embraced African Americans as members but the integration was limited – publishers would be signed up but often it was left to the publishers’ discretion about whether the songwriters were sharing revenues. ASCAP was slow to recognise the “new” music until the 1960s when new leadership led to a change in policy that ultimately meant that ASCAP and BMI became equivalent – so-called “parity products” – save for the Board composition at the two societies.

You can listen to the podcast yourself by following this link.

One Year on, the Private Copying Exception is now Dead

Following the CJEU's decision in the Reprobel case (reported here and here), it is perhaps not surprising that the UK Intellectual Property Office has announced that it is to abandon the UK's private-copying exception which was introduced in October 2014, and which was effectively declared illegal by the High Court in July of this year, and so had to be withdrawn. 

For the background to Mr Justice Green's decision in July's Judicial Review, please see this blog post. It now seems clear that the IPO were never going to find a workable scheme which met the criterion of 'fair compensation' for rights holders demanded by the EU InfoSoc Directive, while at the same time avoiding unpopular levies on consumables and hardware capable of being used to copy, in particular, music, computer games, ebooks and films, for personal use.

The Reprobel decision, although not specifically concerned with copying for private use, highlights just how complicated the levy system can become. Each EU member state has found its own way of tackling the issue, with no overall EU-wide harmonisation in prospect. It seems that the IPO and those representing rights owners could not find an existing model to achieve 'fair compensation'.

So where does this leave ordinary users in the UK? Clearly some will have been unaware of the introduction of the exception last year, and possibly a larger minority will have been unaware of the rescinding of the exception, so they will no doubt continue to format shift their personally owned music and store tracks on the cloud in blissful ignorance that that is not legal in most cases. Then there is the grey area of the legality of copies made while the exception was in force. Those users who are aware of the changes face a difficult decision: whether to make copies for personal use in contravention of the law in the reasonably sure knowledge that they won't get caught, or abide by the law and deny themselves a degree of sensible flexibility in their viewing and listening choices. One thing they will not do is go out and buy a digital replacement such as a download, for a CD or DVD they already own.

The decision not go ahead with the private copying exception will also have implications for other parts of the music distribution industry. Operators of cloud services may face pressure to amend their terms of service to reflect the new status quo, and some streaming services may be forced to tighten up their procedures to prevent users from creating multiple copies of the same download. But what also seems clear is that the music industry has won a Pyrrhic victory since whether or not it is illegal, many users will continue to make private copies of their legally owned music etc, just as they used to do in the pre-digital age. No doubt the BPI and its members will complain that they will lose revenue through this behaviour but I think it is fair to say that they will, privately, continue with their old policy of not seeking to sue or prosecute anyone for personal format shifting. To do otherwise would undoubtedly alienate the buying public and strengthen the argument that the record labels are out of touch with what music fans want. It remains to be seen how organisations such as the Featured Artists Coalition and the collecting societies will react to this latest development. Arguably it was the artists who stood to gain from the imposition of a levy on consumables etc, but even they would no doubt acknowledge that a blanket system is neither fair to consumers, in that much copying is of non-copyright material, nor does it result in a fair distribution of the proceeds to the artists and authors of the works, since there is no way to monitor which actual works have been copied.