So farewell then Section 73 CDPA...

Section 73 of the Copyright, Designs and Patents Act 1988 (CDPA) is repealed with effect from today, 31 July, as a result of the coming into force of section 34 of the Digital Economy Act 2017 (DEA).

Section 73, commonly known as ‘the cable retransmission defence’, provides that the copyright in broadcasts of public service broadcast (PSB) channels is not infringed by retransmission via cable in the area where the broadcast is receivable. The section was, according to DCMS, intended to encourage the rollout of cable services and ensure the provision of PSB channels across the UK by facilitating their retransmission in areas where aerial reception was poor. In effect, it allows cable platforms to retransmit PSB channels in the UK without paying fees.

A number of factors led to the demise of section 73. First, the Government considered that the objective of ensuring the availability of PSB channels throughout the UK had already been achieved, given the proliferation of platforms and the increase in cable networks’ capacity.


Second, concerns were raised about the ‘internet loophole’ opened by the defence. Relying on section 73, internet-based live streaming services argued that they were able to retransmit the content of PSB channels online without seeking permission or paying copyright fees. Thus, they could generate advertising revenues without transferring any benefit back to the public service broadcasters (PSBs), effectively exploiting the public funding granted to PSBs and directing legitimate commercial revenues away from the PSBs. There was cross-party agreement during the passage of the Digital Economy Bill that section 73 was never intended to be used in this way and the loophole it had created was liable to ‘fuel a vicious cycle of under-funding’.


Although not directly linked to its repeal, section 73 has also been declared incompatible with EU law, in the second ITV v TV CatchUp case, discussed by the IPKat here.


The repeal is expected to create what DCMS described as ‘a new market in copyright where one did not exist before’.  Or, as the Telegraph put it more bluntly last week "ITV readies hefty bill for Virgin Media".

The repeal of section 73 will also have the welcomed effect closing the loophole internet-based live streaming services had exploited. PSBs and underlying right holders may benefit from seeking retransmission fees from online service providers. The monetary value of their rights is yet to be ascertained but will this be the final chapter for TV CatchUp?  

THE COPYKAT - A copyright infringement oriented week!

This CopyKat by Lolita S.
Let’s start with a videogame, shall we?

Many of you have already heard about League of Legends, a MOBA (Multiplayer Online Battle Arena) extremely famous in the videogame world. A lot of tournaments based on this game are organised each year, and its reputation spans America. And who says fame, says copyright infringement. 

A Chinese video game studio is currently accused of making a very similar version of League of Legends!

From the characters to the map, everything is very similar! A report took an example of one of the most prominent figure of the game, the young girl “Annie”. And as you see below, well, it seems very clear doesn’t it?

The owner of League of Legends, Riot Games, has sued the Chinese company in the federal court in Los Angeles for copyright and trademark infringement. And soon we will see how this battle is going to end!

Forever 21, again and again!

Forever 21 is once again being sued by Mara Hoffman for copying one of her original prints. According to it’s complaint, Forever 21 infringed her copyright-protected “Leaf” fabric print.

The complaint is as follow: according to Mara Hoffman, Forever 21 ““infringed [its] copyright by manufacturing, importing, displaying, distributing, selling, offering for sale, promoting and advertising women’s swimwear which exploit, use or otherwise incorporate a design unlawfully taken from Mara Hoffman’s copyrighted work.”

And apparently, it’s not the first time! Mara Hoffman said that she has been the target of Forever 21 in the past: in 2012 and in 2013.

She is seeking for monetary damages in connection with the alleged copyright infringement.

The case: Mara Hoffman, Inc. v. Forever 21, Inc., 1:17-cv-05393 (SDNY). 

“Reproduction” of an original work

A lawsuit filed in New York this week has at heart a quite complicated question: how much can you conserve an artwork before it becomes something entirely different?

Cady Noland claims that a conservator has been paid to repair her sculpture Log Cabin without consulting her. By “repair”, she claims that it was way beyond the bounds of normal conservation.

According to her, this reparation is so different from the original work that it became a copy of her work. For her, the conservator destroyed the original work and created an unauthorized reproduction. According to the law, this is copyright infringement – yes, again!

Key Ingredient in Ethiopian Cookbook Copyright Infringement Claim Found Missing by Federal Judge

District Judge Brian M. Cogan from the Eastern District of New York granted on July 19 the motion to dismiss of the author of an Ethiopian cookbook, who had been sued for copyright infringement by the author of another Ethiopian cookbook. The case is Schleifer v. Berns, 1:17-cv-01649.

Plaintiff had published in 2007 a cookbook of vegetarian Ethiopian recipes. A second edition was published in 2016. Plaintiff registered the work with the Copyright Office in December 2016. The two editions of the book, however, are not similar, as the book published in 2007 was done using a word processing program and its binding was a plastic spiral. Judge Cogan even found that it “is hardly even a book; it is closer to a pamphlet.” The book published in 2016 is done in a more professional way, but the two books are different in number of pages and recipes. Plaintiff claims the two versions are identical.  

Defendant published a cookbook of vegan Ethiopian recipes in 2015. Plaintiff filed a copyright infringement suit against her, who moved to dismiss.

No substantial similarities between the two works

The elements of a copyright infringement claim are (1) ownership of a valid copyright and (2) copying of constituent elements of the work that are original, Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., at 361. If plaintiff is not able to provide direct evidence of copying, he must show that defendant had access to the original work and that there are substantial similarities of material which can be protected by copyright in the two works. Ideas are not protected by copyright and so copying an idea is not copyright infringement.

Judge Cogan evaluated whether there was substantial similarities between the two cookbooks, as such a review is allowed at the pleadings stage on a motion to dismiss. In the Second Circuit, the standard test for substantial similarity between two works is “whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same,” Yurman Design, Inc. v. PAJ, Inc., at 111.

However, if the original work incorporates elements which are in the public domain, then the court must undertake “a more refined analysis” and look for “substantial similarity between those elements, and only those elements, that provide copyrightability to the allegedly infringed [work],” Boisson v. Banian, Ltd., at 272.

In our case, Plaintiff failed to show that there were such substantial similarities. Judge Cogan used a table to compare elements of both works (see p. 7). He found that the common words used in both books to describe Ethiopian foods, ingredients, or culinary traditions were not protectable by copyright.

“To the extent the two works have general similarities – including the fact that both are about vegetarian or vegan Ethiopian cuisine, the inclusion of illustrations of prepared dishes, and descriptions of foods as spicy, spongy, or the like – these elements simply do not amount to a claim for copyright violation.  Instead, they are “scènes à faire,” or “unprotectible elements that follow naturally from [the] work’s theme rather than from [the] author’s creativity.”  MyWebGrocer, LLC v. Hometown Info, Inc., 375 F.3d 190, 194 (2d Cir. 2004).”

Not an original compilation either

A compilation of facts which are not protected by copyright can by protected “if it features an original selection or arrangement of facts, so that the selection or arrangement possesses at least some minimal degree of creativity,” MyWebGrocer at 193.  

However, Judge Cogan found both books to be “substantially dissimilar.” He noted that Defendant’s cookbook contained “ more than 185 pages of content, including cultural history, ingredients lists, shopping lists, over 140 recipes, and over two-dozen pages of photographs and illustrations” while Plaintiff’s 2007 cookbook contained “ only 46 numbered pages, including 12 recipes, six pages of commentary, a three-page interview, and nine pages of black-and-white photographs.”

Judge Cogan also found the “total concept and feel” of the two books to be distinct. As “the abstract similarities that “follow naturally” from the works’ common theme of vegetarian Ethiopian cooking are not protectable” (Lapine v. Seinfeld, at 83 (2d Cir. 2010)), the two works were not similar. In Lapine, the two books were explaining how to incorporate pureed vegetables into recipes.

Image is courtesy of Flickr user Jackie Finn-Irwin under a CC BY 2.0 license.

What can the possible implications of the CJEU Pirate Bay decision be? A new paper

[Apologies for the cross-posting to those readers who also subscribe to The IPKat, where this post was originally published on 22 July 2017]

As reported, on 14 June last the Court of Justice of the European Union (CJEU) issued its much-awaited judgment in Stichting Brein v Ziggo BV and XS4All Internet BV, C-610/15 (the ‘Pirate Bay’ case).

There, the Court developed further its construction of the right of communication to the public within Article 3(1) of the InfoSoc Directive, and clarified under what conditions the operators of an unlicensed online file-sharing platform are liable for copyright infringement.

The CJEU judgment builds upon the earlier Opinion of Advocate General (AG) Szpunar in the same case [reported here], yet goes beyond it. This is notably so with regard to the consideration of the subjective element (knowledge) of the operators of an online platform making available copyright content. Unlike AG Szpunar, the Court did not refer liability only to situations in which the operators of an online platform have acquired actual knowledge of third-party infringements, but also included situations of constructive knowledge (‘could not be unaware’) and, possibly, even more.

Overall, the CJEU decision is not limited to egregious scenarios like the one of The Pirate Bay: the Court’s findings are applicable to different types of online platforms, as well as operators with different degrees of knowledge of infringements committed by users of their services.

In my view the judgment is expected to have substantial implications for future cases (including at the level of individual Member States), and overall prompts a broader reflection on issues such as the interplay between primary and secondary liability for copyright infringement, applicability of the safe harbour regime within the E-Commerce Directive, as well as the current EU copyright reform debate, notably the so called value gap proposal within Article 13 of the draft Directive on Copyright in the Digital Single Market.

Further to a request of the International Federation of the Phonographic Industry (IFPI), I prepared a paper that would explore the possible implications of the judgment. The paper is going to be published as an article in the European Intellectual Property Review later this year. In the meantime, you can find a pre-edited version here.

Donald Graham’s Copyright Infringement Suit against Richard Prince Allowed to Go Forward

People interested in the U.S. fair use doctrine owe appropriation artist Richard Prince gratitude for providing several interesting fair use cases to monitor and comment about.

Prince has been the defendant in several high profile cases in the Second Circuit (see here and here). He famously won the Second Circuit Cariou v. Prince case (see here), where the Court of Appeals found that Prince’s use of Patrick Cariou’s photographs to create his thirty paintings and collages featured in his Canal Zone exhibition was fair use, as it was transformative.

Photographer Donald Graham filed a copyright infringement suit against Prince in 2016 (see here and here), claiming that Prince’s use without permission of Graham’s Rastafarian Smoking a Joint photograph, to create an Untitled (Portrait) featured in Prince’s New Portraits exhibition, was copyright infringement. Prince claims it is fair use.

On July 18, U.S. District Judge Sidney H. Stein from the Southern District of New York allowed the case to go forward, as, while granting Prince’s request to dismiss Graham’s demand for punitive damages, he denied Prince’s motion to dismiss the case. The case is Graham v. Prince, 1:15-cv-10160.

Judge Stein noted that, because the fair use defense is fact-related, discovery will be necessary to conduct the fair use inquiry. Therefore, the case cannot be dismissed and will have to go forward. Judge Stein quoted the Second Circuit in Cariou v. Prince, which stated that finding whether a particular use is fair or not requires “an open-ended and context-sensitive inquiry.”

Is this a dead end? 

Prince used Graham’s work almost in its entirety, when he printed and exhibited the original work as originally cropped and posted on Instagram, without Graham’s permission, by another Instagram user, then reposted by yet another user and finally reposted by Prince on his own Instagram account. Prince added the nonsensical comment “ReCanal Zinian da lam jam,” followed by an emoji. Is this add-on enough to make Prince’s work transformative enough to be found fair use?

Prince argued that the use was transformative as it added new messages such as “a commentary on the power of social media to broadly disseminate others’ work,” an endorsement of social media’s ability to “generate[ ] discussion of art,” or a “condemnation of the vanity of social media.” 

Judge Stein was not convinced, finding “evident” that Prince’s work is not “so aesthetically different” from the original work and thus not transformative enough. Untitled (Portrait) does not manifest “an entirely different aesthetic” from the original work, as required under Cariou. Unlike the works featured in the Canal Zone exhibition, Untitled (Portrait) does not render the original work, according to Judge Stein, “barely recognizable” as Princes works did in Cariou.  Instead,

“[t]he primary image in both works is the photograph itself… Untitled simply reproduces the entirety of Graham’s photograph – with some de minimis cropping – in the frame of an Instagram post, along with a cryptic comment written by Prince… There is no question that, notwithstanding Prince’s additions, Graham’s unobstructed and unaltered photograph is the dominant image in Untitled.”

Judge Stein concluded that “[b]ecause Prince’s Untitled is not transformative as a matter of law, the Court cannot determine on a motion to dismiss that a “reasonable viewer” would conclude that Prince’s alterations imbued the original work “with new expression, meaning, or message,” quoting the U.S. Supreme Court Campbell v. Acuff-Rose Music 1994 case.

“Given Prince’s use of essentially the entirety of Graham’s photograph, defendants will not be able to establish that Untitled is a transformative work without substantial evidentiary support.  This evidence may include art criticism, such as the articles accompanying defendants’ briefing, which the Court may not consider in the context of this motion.”

Judge Stein called Cariou v. Prince a “prequel to this action.” However, his fair use analysis does not bode well for Prince, who may this time be found to have appropriated a bit too much. To be continued…

THE COPYKAT

Two influential committees in the European Parliament have now voted on their respective responses to the draft European Copyright Directive, and in particular the position the EU will take on 'safe harbour' in the future, and the music industry has generally welcomed those responses. The Consumer Rights Committee had already responded, and now both the Culture (Committee on Culture and Education - CULT) and Industry (Industry, Research and Energy - ITRE) Committees have now had their say, and with regard to safe harbour, both committees resisted calls to abandon or weaken article thirteen, instead seeking to reinforce and further clarify the draft article and the new obligations of safe harbour dwelling services of the YouTube variety. They also responded to a proposal, put forward by the Consumer Rights Committee, which would provide an exception for user-generated content - and which many in the music industry have now said could have a profound impact on the creative community with rights holders having to initiate expensive legal proceedings to establish the actual boundaries of such an exception". In relation to that proposal, yesterday's committees voted (a) against the idea entirely, or (b) to leave such matters to national law within the EU, rejecting the idea that European law-makers should make such an exception compulsory for member states. Helen Smith from the independent label's IMPALA organisation said: "It makes complete sense to narrow the value gap and the parliament has sent a strong message this morning. That's very good news - recalibrating the digital market in this way is necessary to stop creators, start-ups and citizens being dominated by abusive practices of big platforms who don't pay fair or play fair". The important Legal Committee will lead the final round of responding after the summer break. The EFF have a very different take on this. 

Freelance photographer David Slater, who facilitated the now famous 'monkey selfie' taken by black macaque Naruto is now in a dire financial situation as the appellate proceedings regarding the now famous “monkey selfie” photos continue in the United States courts. Slater had to settle for watching a live stream of the proceedings from his United Kingdom home because he can’t afford the flight to the USA, and is also not able to pay for the lawyer representing him, according to The Guardian. In a slightly more surreal intervention, the Chepstow based photographer now says that PETA (People for the Ethical Treatment of Animals - the animal rights organisation) is representing the wrong monkey in court with Slater saying “They definitely have the wrong monkey, and I can guarantee that. My lawyers can confirm it too" adding “The American court system doesn’t seem to care about that, which is baffling.”

A new study carried out by PRS for Music and the Intellectual Property Office (IPO), has found that stream-ripping is now the most prevalent and fastest growing form of music piracy in the UK, with nearly 70% of music-specific infringement dominated by the illegal online activity. Research revealed that the use of stream-ripping websites, which allow users to illegally create permanent offline copies of audio or video streams from sites such as YouTube, increased by 141.3% between 2014 and 2016, overwhelmingly overshadowing all other illegal music services.

There has been a big 'fair use' ('fair dealing)' case in Canada which pitted content owners against Canadian Universities, with the latter's copying Guidelines under the microscope. And in Access Copyright v. York University, the Honourable Michael L. Phelan of the Federal Court of Canada came down on the side of Access Copyright, which exists to collect royalties on behalf of creators and publishers. Access had suffered a catastrophic decline in revenues after the Guidelines were adopted by York and other educational institutions, and sued York. York’s copying was for a permitted purpose, namely education, but Justice Phelan found that York’s dealing was unfair, or grossly unfair, on several of the six factors used to assess fair dealing (purpose of the dealing; the character of the dealing; the amount of the dealing (amount of copying); the available alternatives to the dealing; the nature of the work; and the effect of the dealing on the work. The court also found York’s guidelines to be unfair, poorly conceived and arbitrary, and that York made no effort to see that they were followed. There is more on the Financial Post here.

AND FINALLY, BUT IMPORTANTLY!

The MPA (Motion Picture Association) EMEA policy team is offering a full-time internship at its offices in Brussels for 6 months. The intern will receive financial compensation. The selected candidate will work closely with the MPA EMEA Policy Department and will primarily focus on supporting the team in implementing the EMEA Policy Strategy. More here. 

New York State Fails to Extend the Scope of its Right of Publicity Statute

New York State has a statutory right to publicity, New York Civil Rights Law §§ 50 and 51. It protects the right of publicity of a “person, firm or corporation” in order to prevent “uses for advertising purposes, or for the purposes of trade” of the “the name, portrait or picture of any living person without having first obtained the written consent of such person.”

The New York legislature recently tried to expand this right, but this attempt was so far unsuccessful, and the legislature is now in recess.

Assembly Bill A08155, introduced on May 31, 2017, proposed to establish a right of publicity for both living and deceased individuals. It also proposed that an individual's name, voice, signature and likeness would be a freely transferable and descendible personal property, making the right of publicity a property right more than a privacy right, as it is now.

If one of our readers know Japanese, please let us know what it says!

An expansion of the scope of the law

Readers of the blog may remember that Lindsay Lohan claimed that flashing the V sign was part of her persona and was thus protected by New York right of publicity law. She was unsuccessful as the scope of New York’s right of publicity law is narrow.

The bill would have considerably expanded the scope of the law, as it would have also have protected the “likeness” of an individual, which it defined as “an image, digital replica, photograph, painting, sketching, model, diagram, or other recognizable representation of an individual's face or body, and includes a characteristic.”

The bill defined the “characteristic" of an individual as “a distinctive appearance, gesture or manner.” So, Lindsay Lohan’s V sign could arguably be protected would the bill been enacted.

The geographic scope of the statute would also have been considerably extended. The bill would have protected the right of publicity of a deceased individual, for forty years after the death of the individual, and this, “regardless of whether the law of the domicile, residence or citizenship of the individual at the time of death or otherwise recognizes a similar or identical property right.” This could be interpreted as meaning that the law would have applied to virtually anyone in the world…

A right of publicity transferable and descendible

The bill considered the likeness to be personal property, freely transferable:

“A living or deceased individual's name, voice, signature and likeness, individually and collectively known as his or her right of publicity, is personal property, freely transferable or descendible, in whole or in part, by contract or by means of any trust or testamentary instrument…”

If an individual would have transferred his right of publicity, there could have been a risk of losing control over the use of one’s likeness, even for unsavory use, unless the contract transferring such rights would have been carefully written to protect the individual against such occurrence. One can imagine that a young, talented and beautiful, but nevertheless impecunious individual could have signed up his right of publicity in exchange for money badly needed at the time.  

New York State, unlike California, does not recognize that deceased individuals have a right to publicity and the bill would have provided such right. The bill detailed at length how such right would have vested to the heirs, whether by will or, in the absence of a will, under the laws of intestate succession. The bill also specified that the rights thus inherited could have been “freely transferable or descendible by any subsequent owner of the deceased individual's right to publicity…”

The right of publicity would have terminated at the death of the individual who would not have transferred it by contract, license, gift, trust or by will, and if he had no heirs who could have inherited it under the laws of intestate succession.

Such rights would not have “render[d] invalid or unenforceable any contract entered into by a deceased individual during his or her lifetime by which the deceased individual assigned the rights, in whole or in part, to use his or her right of publicity…”

First Amendment defense

The bill would have provided a First Amendment defense. It would not have been necessary to secure the consent of the individual for using her right of publicity if such right would have been

“used in connection with… news, public affairs or sports broadcast, including the promotion of and advertising for a public affairs or sports broadcast, an account of public interest or a political campaign;… a play, book, magazine, newspaper, musical composition, visual work, work of art, audiovisual work, radio or television program if it is fictional or nonfictional entertainment, or a dramatic, literary or musical work;… a work of political, public interest or newsworthy value including a comment, criticism, parody, satire or a transformative creation of a work of authorship; or an advertisement or commercial announcement for any [news, public affairs or sports broadcast, including the promotion of and advertising for a public affairs or sports broadcast, an account of public interest or a political campaign].

These exceptions are quite broad, and so, while the bill expanded the scope of the New York right of publicity, it also expanded the scope of the exceptions to this right.

The Authors Guild expressed its “grave concerns” about the bill, in a letter to three members of the New York legislature, as it “has the potential to cause great harm to our society’s knowledge-base and to stifle speech,” as it would make it difficult for authors “to write without restraint about public figures,” who may threaten to file a right of publicity suit to stifle speech critical of them.

A well-managed right of publicity is a golden egg

The law is not clear enough

A work thus exempted “that includes a commercial use and replicates the professional performance or activities rendered by an individual” would not have been exempt “where the replication is inextricably intertwined with the right of publicity of such individual,” subject, however, to the First Amendment and section eight of article one of the New York state constitution protecting freedom of expression. What does “inextricably intertwined” mean? Your guess is as good as mine…

Owners or employees of any medium used for advertising which would have published or disseminated an individual's right of publicity would not have been liable unless established that “they knew the unauthorized use was prohibited by [the New York statutory right of publicity]. Would owners and employees only benefited from this immunity if they did not know the use to be unauthorized and that such unauthorized use was prohibited by law, or would the knowledge that the use was unauthorized been enough? It is difficult to say.

Let’s hope that the bill will be written again in a more precise way, and that its scope will be narrowed. We’ll keep you posted.

Image of Japanese building courtesy of Flickr user antjeverena under a CC BY-SA 2.0 license.

Image of eggs is courtesy of Flickr user Karen Roe under a  CC BY 2.0 license.

The CopyKat. Friday the 13th without Jason Voorhees, sounds like a nightmare!

The Flamingos

June was certainly an interesting month in the world of copyright, and below you will find a selection of stories that have caught the eye of our new intern Matthew Lingard in the past month, supplemented by a couple of notes from Ben Challis!

Readers of this Blog will be aware that  there have been actions in New York, Florida and California about the existance of a 'common law' or state law right in the performance of pre-1972 sound recordings in the United States. These have been met with mixed results: Whilst some class actions exist, the main players have been the former members of the 60s combo The Turtles (Flo & Eddie) against internet broadcaster SiriusXM. Flo & Eddie had some initial success, although lately the prevailing mood has been with Sirius XM rather than the rights holders: In a new case  a court has again agreed with a broadcaster, here iHeartMedia, who had argued that the plaintiffs, husband and wife team Arthur and Barbara Sheridan, who own a number of master recordings from the pre-1972 era of popular musicincluding those The Flamingos and J.B. Lenoir,  had failed to make out a viable claim under state laws - with the court finding “By selling such recordings, the Sheridans did not, and could not, divest the compositions of their copyright protection. But they could, and did, divest the recordings of performances of those compositions of common law copyright protection by selling those recordings to the public.” For Judge Tharp, the primary issue on copyright was whether Illinois provides copyright protection to pre-1972 recordings sold to the public without licenses for public performance. And to this question the court had a simple answer - in Illinois, publication “extinguishes the common law copyright”. Judge Tharp explained “Both the Illinois Supreme Court and the Seventh Circuit, however, have construed the concept of dedication to the public to include acts by which members of the public could access copies of the work — particularly through sales,” Tharp said. Judge Tharp dismissed all claims saying “the dismissal is based on the incurable lack of any state law cause of action, rather than curable pleading deficiencies, the dismissal is with prejudice.”More on the Cook County Record here.

30 leading content creators and on-demand entertainment companies from around the world have launched the Alliance for Creativity and Entertainment (ACE), a new global coalition dedicated to protecting the dynamic legal market for creative content and reducing online piracy. The worldwide members of ACE are Amazon, AMC Networks, BBC Worldwide, Bell Canada and Bell Media, Canal+ Group, CBS Corporation, Constantin Film, Foxtel, Grupo Globo, HBO, Hulu, Lionsgate, Metro-Goldwyn-Mayer (MGM), Millennium Media, NBCUniversal, Netflix, Paramount Pictures, SF Studios, Sky, Sony Pictures Entertainment, Star India, Studio Babelsberg, STX Entertainment, Telemundo, Televisa, Twentieth Century Fox, Univision Communications Inc., Village Roadshow, The Walt Disney Company, and Warner Bros. Entertainment Inc.

ASCAP, the American Society of Composers, Authors and Publishers, and YouTube have signed a voluntary multi-year agreement, effective immediately, for U.S. public performance rights and data collaboration. The mutual goal of this agreement is to work together to ensure that ASCAP members get paid more fairly and accurately for the use of their music on YouTube. The deal combines ASCAP’s database of 10.5 million musical works with YouTube’s data exchange to aid in identifying songwriter, composer and publisher works on YouTube. The agreement is retroactive, allowing ASCAP to be compensated for content streamed on YouTube since the company’s 2013 deal to operate on a compulsory interim license with ASCAP. ASCAP CEO Elizabeth Matthews said, “This agreement achieves two important ASCAP goals – it will yield substantially higher overall compensation for our members from YouTube and will continue to propel ASCAP’s ongoing transformation strategy to lead the industry toward more accurate and reliable data. The ultimate goal is to ensure that more money goes to the songwriters, composers and publishers whose creative works fuel the digital music economy.

Dead sure: Will Jason Voorhees file an amicus brief?

The ongoing legal battle between Victor Miller, the original screenplay writer of Friday the 13th, and Horror Inc/Sean Cunningham continues to rumble on. Miller is seeking to terminate the grant of his rights in the script to recover ownership of the franchise but faces opposition from Cunningham, who directed and produced the first film and produced a number of further films. Miller is trying to use the provision in US copyright law that allows authors to terminate a grant of rights and reclaim ownership, giving him back Friday the 13th. Meanwhile, Cunningham and Co. are saying that Miller's screenplay was a work-made-for-hire, which invalidates any right he has to claim ownership in this case. Is there a settlement is sight? Its a complex case, not least as after the original film, a series of eleven more films followed and these in turn developed Jason Voorhees- now the main (much loved?) character in the franchise. Therei s also a television show, novels, comic books, video games, and tie‑in merchandise. Miller's attorney Marc Toberoff told The Hollywood Reporter: “Whereas Miller will thereby recover the U.S. copyright to his original film treatment and screenplay this does not prevent the continued exploitation by Plaintiffs or their licensees of prior derivative works, including the 1980 film and its many sequels; it solely relates to new derivative works after the effective 2018 termination date. Furthermore, as the U.S. Copyright Act has no extra-territorial application, the foreign rights to Miller’s screenplay remain with Plaintiffs or their licensees”.  Matthew adds: In simple terms this suggests that Miller will retain ownership of the concepts that were present in the original screenplay. As Jason Voorhees as he is currently portrayed is a relatively new addition to the franchise, Cunningham et all would retain the rights to utilise his character. Therefore we could see the scary possibility of Friday the 13th Films in the US that don’t feature Jason in addition to films in the same franchise made for outside the US that do. It is highly doubtful that a major studio is going to roll the dice on a film that has to be effectively rewritten dependant on the jurisdiction of release. Though the Friday the 13th films are a franchise that still draws fans, they are not significant in number enough to justify it. Until then horror fans will have to suffer without another Friday the 13th film.

When a group of museums and researchers in the Netherlands unveiled a portrait entitled The Next Rembrandt, it was something of a tease to the art world. It wasn’t a long lost painting - but a new artwork generated by a computer that had analysed thousands of works by the 17th-century Dutch artist Rembrandt Harmenszoon van Rijn. We've had monkeys taking photos - now theconversation.com asks "Should robot artists be given copyright protection?". 

Do robots dream of electric sheep?

Open Culture and Copyright: CREATe IP Summer Summit 2017

The CREATe IP Summer Summit 2017 took place over the course of last week, Monday 26 June – Friday 30 June. In this inaugural year, the theme of the Summit was ‘Open Science and Open Culture’. A range of speakers from around the globe presented on an array of Open Innovation issues, with attendees travelling from the National Law University in Delhi, IP Australia, the American University and the University of Trento in Italy. Organised by Dr Sukhpreet Singh – Senior Lecturer and CREATe Programme Leader – the Summit explored the benefits of developing openness within our culture, particularly within the global south. Dr Singh is an expert on market based approaches to IP protection and exploitation, and this shone through in the interdisciplinary reach of the Summit, with speakers from industry, government and academia in attendance.  

Background

The granting of property rights in intellectual creations is intended to facilitate scientific and creative progress. The archetypal expression of this approach is probably to be found in Article I, § 8.01.8 of the U.S. Constitution:

Congress is empowered “to promote the progress of science and the useful arts, by securing, for limited times, to authors and inventors the exclusive right to their respective writings and discoveries.”

The rationale behind intellectual property protection is that our society benefits if authors and inventors can generate profit from their work. If authors and inventors were not able to generate profit from their endeavours, why would they go to the trouble and expense to innovate at all?

A view that qualifies the property-based approach posits that where intellectual property rights are exercised in an over-restrictive manner, they can potentially inhibit the advancement of culture and knowledge, thereby undermining the very purpose for which these rights exist. Since all creative innovations are built upon work that has come before, the cultural and scientific advancement of our species relies upon accessing and using existing works.

Creating a counterpoint to an ‘all rights reserved’ culture

The open movement seeks to facilitate the dissemination of knowledge. It can be understood as a cultural shift against an ‘all rights reserved’ culture (where lawfully accessing and using works can pose difficulties for follow-on innovation), to a culture where use of copyrighted material is promoted through licensing or copyright exceptions and limitations. The ‘open’ paradigm is still evolving, with the concept potentially conveying varying meanings depending upon the context. In academia, the open science movement is focussed on making research available to anyone with an Internet connection, as also promoting the transparency of scientific methods. The Creative Commons movement is focussed on creating a standardised legal structure that allows copyright holders to make their works available to content users on a royalty-free basis. In Government, ‘openness’ can mean the use of policy tools that encourage licensing practices:

• The Orphan Works Licensing Scheme in the UK is a tool which facilitates the licensing of copyrighted works for which the rights-holder cannot be found. This licensing scheme reduces the risk associated with making use of orphan works and thereby potentially increases the likelihood of these works being used.

•  IP Australia’s IP Toolkit for Collaboration provides template contracts, guides and collaboration agreements that support collaboration between entities engaged in innovation activities. This tool helps those participating in collaborative projects to develop clear guidelines with partners, thereby promoting open innovation.

• Policy for open access in the post-2014 Research Excellence Framework has been a driver of open access in the academic environment. This policy requires that certain research outputs be made open access to be eligible for submission to the Research Excellence Framework, a framework which is used to measure the quality of research in higher education institutions within the UK. By correlating measures of excellence with a necessity for researchers to take an open access approach, this policy drives the goals of the open access movement.

International co-operation on the importance of a more open approach within culture can be traced back through a number of international efforts, such as the Budapest Open Access Initiative, the Montreal Declaration, the Bethesda Statement, the Berlin Declaration, the Durham Statement of Open Access to Legal Scholarship. These efforts focus on making scholarly knowledge available to anyone with an internet connection. The Berlin Declaration asserts that:

“The Internet has fundamentally changed the practical and economic realities of distributing scientific knowledge and cultural heritage. For the first time ever, the Internet now offers the chance to constitute a global and interactive representation of human knowledge, including cultural heritage and the guarantee or worldwide access.”

The Internet has been the major driver behind the Open Innovation movement. Our ability to share creative works around the globe instantaneously has the potential for our society to work together on a collaborative basis that has never before been possible, and these international efforts have endeavoured to enshrine into law values that will promote the development of culture and science.

The Summit

The Summit ran the gamut of what ‘openness’ can mean within society, as well as the potential benefits it brings. Peter Jaszi from the American University gave the keynote of the Summit, presenting on fair use as a driver in promoting openness within the U.S. jurisdiction. Professor Jaszi argued that the fair use doctrine makes the U.S. economy far more competitive than jurisdictions that employ a closed system of fair dealing. This is exemplified in text and data-mining; the fair use doctrine provided sufficient flexibility to allow for text and data-mining activities to take place in the U.S., whereas within the E.U. for example, text and data-mining exceptions are still being discussed after a dialogue of numerous years (for more, see this IPKat post). It is the flexible nature of the fair use doctrine that promotes a more ‘open’ agenda within the U.S. economy, while jurisdictions that employ a closed list of exceptions and limitations may have a tendency of lagging behind when new innovations are made.

Professor Bajpai of the National Law University of Delhi presented on a hugely ambitious open education project being undertaken in India called ePathshala. The ePathshala resource provides free access to educational materials to anyone with an Internet connection. There is also epg-Pathshala, which provides resources for students of post-graduate courses across a bewildering array of disciplines – readers can feel free to take a look at resources provided for students wishing to study intellectual property law here. Professor Bajpai linked the ePathshala programmes to the Indian government’s obligations under the various international efforts towards Open Access mentioned above (the Budapest Open Access Initiative, et al.), as well as Article 19 of the Universal Declaration of Human Rights:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

The Open Science movement received particular attention over the Wednesday of the week-long Summit, with Arul George Scaria from the Centre for Innovation, Intellectual Property and Competition with the National Law University of Delhi presenting on open access in science. For Dr Scaria, open science encompasses not only freely accessible scientific papers but also transparency in research methods and data collection. To this end, Dr Scaria discussed Retraction Watch – a blog that monitors retractions and revisions of previously published scientific papers. Transparency and repeatability in data collection are essential factors that will ensure the continued progression of science, with these qualities being more readily attainable in an Open Access environment.

Chris Banks from Imperial College London discussed her driving role in the development of the UK Scholarly Communications Licence (“UK-SCL”). The current practice in academic publishing is that universities generally do not claim copyright in the academic output of staff, with copyright in articles instead being assigned to publishers by academics. This approach entails a number of drawbacks, including restricting the author’s use of his or her own work and making compliance with funder Open Access mandates more cumbersome. In contrast, the UK-SCL would see research organisations retaining a non-exclusive licence to works their academics have generated. The benefits of this licence are numerous, including reducing the necessity for authors to rely of copyright exceptions in order to make use of their own academic works, academics will not have to negotiate with publishers directly and academic output will be freely available faster than ever before. Developments with the UK-SCL will be moving quickly in 2017, and the results should be interesting to observe.

Margaret Haig from the UK Intellectual Property Office (“UKIPO”) discussed the planning and implementation of the UK Orphan Works Licensing Scheme. Orphan works are copyright works for which one or more of the rights-holders is either unknown or cannot be found. The genesis of the UK Orphan Works Licensing Scheme emerged from the Gowers Review (2006) and the Hargreaves Review (2011). A rather pleasant anecdote describing the value that Orphan Works can create for society can be found on page 70 of the Gowers Review:

“Many works that lie unused could create value. For example, the film It’s a Wonderful Life lost money in its first run and was ignored by its original copyright owners. When the owners failed to renew their copyright in 1970, it was broadcast on the Public Broadcasting Service channel in the USA. It is now a family classic, and worth millions in  prime time advertising revenue. The book The Secret Garden, since copyright has expired, has been made into a movie, a musical, a cookbook, a CD-ROM version, and two sequels. For works still in copyright, if users are unable to locate and seek permission from owners, this value cannot be generated.”

It is the purpose of the UK Orphan Works Licensing Scheme to reduce the risk associated with making use of orphan works and consequently creating value within society, rather than merely allowing these works to languish in disuse.

The week-long Summit covered a whole host of important and interesting topics which would be impossible to capture in a single blog post. Over the coming weeks, this writer (hopefully working collaboratively with speakers from the Summit) will be exploring and developing further some of the issues raised in a series of blog posts that will examine the current ‘open’ paradigm and how this interacts with copyright law. It is hoped that this series will generate discussion amongst 1709 readers, as well as creating a legacy resource for the 2017 CREATe IP Summer Summit.

The open graphic is reproduced with the kind permission of Libby Levi.