Elsewhere, the Court of Justice of the European Union has defined, re-defined and refined its own and (perhaps) our understanding of what the right of 'communication to the public' under Article 3(1) of the InfoSoc Directive actually is. The topic had already been subject to nearly 20 references to the CJEU for preliminary rulings, and yes, there would be more from the court in 2017 as the decisions in Filmspeler, C-527/15, and Ziggo, C-601/15 (The Pirate Bay) loomed! And what of copyright itself? In an ever changing world, courts around the globe continue to revise our understanding on the subsistence of copyright, sometimes moving on from the classic definition (where copyright subsists in "original literary, dramatic, musical and artistic works") to approaches such as the CJEU's 2009 concept of protecting works which are the "author's own intellectual creation'" in its decision in Infopaq. But this approach and indeed traditional approaches presume that a particular person is the author of a work - and it a world of selfie taking monkeys, animal rights and very smart robots ....... do we even know what a 'person' is any more - a conundrum confusingly explored and partially explained in Ex-Machina (pictured).
January and our first update of 2017 was news from India that three Indian music copyright collection societies were restrained by the Delhi High Court from granting any licences until April. Justice Sanjeev Sachdeva made an interim order against the Indian Performing Right Society (IPRS), the Phonographic Performance Ltd (PPL) and Novex Communications Pvt Ltd preventing them from contravening section 33 of India's Copyright Act, which provides that only registered societies can grant licences in respect of copyrighted work(s). In the USA, one of the major musical works collection societies (and there are now four!) BMI filed an action in Federal Rate Court to set interim fees for radio stations represented by the radio industry's trade body the RMLC, while BMI and the RMLC negotiate the terms of a new five-year deal. Again in the US, the Second Circuit affirmed the January 2016 order of Judge Furman of the Southern District of New York (SDNY), which had found that the use of the Louis Vuitton logo and the representation of the Louis Vuitton bags on fabric totes (pictured) with one side representing a somewhat cartoonish rendition of a famous luxury bag, while the other side read “My Other Bag is…” with the Louis Vuitton ‘LV’ logo replaced by the initials 'MOB' (and retailing for $35 to $55) was fair use. And AG Szpunar issued his opinion in The Pirate Bay case, advising the CJEU to answer the question posed by the Dutch Supreme Court of whether the Pirate Bay undertakes the act of communication to the public in the affirmative saying "the fact that the operator of a website makes it possible, by indexing them and providing a search engine, to find files containing works protected by copyright which are offered for sharing on a peer-to-peer network, constitutes a communication to the public within the meaning of Article 3(1) of [the InfoSoc Directive], if that operator is aware of the fact that a work is made available on the network without the consent of the copyright holders and does not take action in order to make access to that work impossible".
February began with Tibbie McIntyre posing the question "Should Press Publishers be Given an Exclusive Neighbouring Right?" in the context of Article 11 of the Proposed EU Directive on Copyright in the Digital Single Market. In Spain, a press publisher right was introduced which automatically made Google pay, without the press publishers having to pursue payment under an exclusive right. Google’s response was simply to close down Google News in Spain. Further consequences were felt, with online Spanish news sites garnering less traffic. Tibbie opined that the cogent opinion released by CIPIL stated that “If the real problems facing press publishers relate to licensing and enforcement, the best answer is surely to focus on licensing and enforcement rather than to create new rights” and that “Multiple rights are associated with clogging and opportunistic behaviour” wisely noting that "Realising policy objectives is a complex and difficult goal, with almost endless variables to consider", with drafting of new laws posing a particularly challenging task. The debate being played out across the globe presents many challenges, and it will be interesting to review further developments with this proposed right in future. The Turtles ongoing tri-state litigation against SiriusXM over the satellite radio broadcaster's refusal to pay to broadcast pre-1972 sound recordings reached the the Florida Supreme Court, who looked again at Judge Darrin Gayle's decision which found in favour of SiriusXM and agreed that "There is no specific Florida legislation covering sound recording property rights, nor is there a bevy of case law interpreting common law copyright related to the arts" and "If this Court adopts Flo & Eddie’s position, it would be creating a new property right in Florida as opposed to interpreting the law" adding that it's the job of the Florida state legislature to address the issue, and that a decision to plug the gap would bring up a host of other issues such as resolving who sets and administers licensing rates, who owns sound recordings for dead artists and what exceptions there might be to a public performance right. A host of impressive signatories (including the Centre d’Etudes Internationales de la Propriété Intellectuelle (CEIPI), University of Strasbourg, CREATe at the University of Glasgow and the Max Planck Institute for Innovation and Competition) penned an open letter with the heading "EU Copyright Reform Proposals Unfit for the Digital Age". And singer, songwriter and producer T Bone Burnett delivered a telling contribution to the US Copyright Office's review of Digital Millennium Act 'safe harbor' provisions in the USA, saying in a video that whilst the law that was supposed to "balance the internet's openness with creators' ability to earn a living wage from their work ..... [T]hose safe harbours have failed".
|We've won an WEB BLOCKING ORDER !! |
(Photo by Ben Challis)
|Prince by Andy Warhol (1984) Copyright AWF|
In May we said farewell to our excellent blogging interns, Tibbie McIntyre and Davis Liao, who added so much to the 1709 Blog. Thank you David and Tibbie. You were both exceptional. And we welcomed Matthew Lingard and Lolita Huber-Froment to carry on where Tibbie and David left off, not least with our regular CopyKat updates. In Australia, in the midst of a big review of copyright, examining the impact of extending a 'fair dealing' doctrine to a wider 'fair use' approach came news that a collection society was channelling fees intended for authors into their ‘fair-use opposition fund’. The Copyright Agency had set aside a A$15 million fund specifically to oppose the implementation of a fair-use system. Astonishingly, the fund came from payments made to the Australian Copyright Agency for the use of orphan works! Staying 'down under', the Eminem song ‘Lose Yourself’ was at the centre of a trial in the Wellington High Court: a campaign advert during New Zealand's general election by the ruling party was alleged to have infringed the copyright in ‘Lose Yourself’ - but the song used was a 'sound alike' entitled ‘Eminem-esque’. Did it matter? The answer was no - the copyright in the song had been infringed and damages of NZ$600,000 were awarded. Prenda Law attorney John Steele was disbarred by the Illinois Supreme Court. And Lolita asked the question 'is the taste of a Dutch cheese protected by copyright?' Surely not ..... well maybe .... as a case about cheese seemed to have slipped through the net and said the taste of the cheese (or specifically “Heks’nkaas”, a Dutch cheese) could be a protected creation under author rights, but more importantly asked the CJEU (a) whether EU Law allows copyright protection of taste? and (b) if so, what requirements must be met in order to determine subsistence of copyright protection?
|Jimi Hendrix by Gered Mankowitz|
July, and the French courts blazed with more copyright news with another case about the importance of originality in French copyright, this time deciding that a retail stores’ layouts was original enough to be protected by copyright. The court of first instance, the Tribunal de Grande Instance de Lille, had already ruled in favour of the plaintiffs, an Italian cosmetics store, who had claimed that its stores’ layout was original and protected by the French droit d’auteur.The Douai Court of Appeals also ruled in favour of the Italian company against the defendants, a French cosmetics and accessory company, and recognised that French copyright protects interior design such as “the rhythm of colour and the layout of a store chain” and explained that “[w]hen this protection is contested in defence, the originality of a work must be explained by the person who claims to be the author, that is the only person able to identify the elements expressing his personality…. [and that] the exploitation of a work by a moral entity under its name shall presume that this moral entity [owns the copyright].” 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 asked "Should robot artists be given copyright protection?".
Still in July and speaking of that monkey, freelance photographer David Slater, who facilitated the now infamous 'monkey selfie' taken by black macaque Naruto said he was in a dire financial situation as the appellate proceedings regarding the selfie continued in the United States courts. More photography: snapper Donald Graham, who had filed a copyright infringement suit against the notorious 'appropriation artist' Richard Prince in 2016 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, had some good news. Prince, who of course has that controversial but helpful judgment in Cariou v Prince behind his art, claimed his appropriation was fair use. U.S. District Judge Sidney H. Stein from the Southern District of New York allowed the case to go forward and denied Prince’s motion to dismiss the case. And the CJEU issued its much-awaited judgment in Stichting Brein v Ziggo BV and XS4All Internet BV, C-610/15 (The Pirate Bay case) and 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 would be liable for copyright infringement.
August began with Marie-Andree asking "Is Reconstructing a Work to Preserve It Copyright Infringement?" in an update which looked at the law suit that followed the reconstruction of artist Cady Noland's "Log Cabin" sculpture, a life size artwork created in the nineties. Art collector Wilhelm Schurmann bought the work and loaned it to a museum which exhibited it outside for ten years. Over time the work deteriorated, and in 2010 an art conservator recommended the work should be reconstructed it entirely with new materials and new logs. The complaint alleges that Cady Noland was not informed of this decision, but instead learned in 2014 that the work had deteriorated, had been reconstructed, and the decayed material thrown away - and she said her moral rights were violated. Noland also disowned the 'new' work. Is there a claim? A federal judge ordered the dispute over the "Lady Liberty" stamp to go to trial. The United States Postal Service mistakenly produced a 2010 stamp that was based on a replica of the Statue of Liberty created by artist Robert S Davidson rather than the original. And a New York judge dismissed a lawsuit brought the estate of promoter Sid Bernstein, who staged the Beatles’ legendary 1965 show at Shea Stadium. The Estate had argued that band’s Apple Corps had infringed on the copyright of Sid Bernstein Presents by including footage from the concert in Ron Howard's documentary film Eight Days a Week - the Touring Years which was released in September 2016 - but the Judge noted that contract signed in 1965 “reserves no rights whatsoever for Bernstein in any filming or recording of the concert. And finally in August, the case between Solid Oak Sketches against Take-2 Software, the maker of the NBA 2K video game which claims that the latter's reproduction of several tattoos worn by famous basketball players was copyright infringement rumbled on. The defendants argued fair use, the use was de minimis - and that the law suit would "seek to hinder the ability to depict people as they appear in real life”.
|That monkey selfie|
October - already! The Bundesgerichtshof had been considering a case that dated all the way back to 2009 and finally decided that Google had not infringed the US adult website Perfect 10 by linking to illegally uploaded thumbnail with its image-search engine. Perfect 10 maintained that it was owed damages for copyright infringement. The Bundesgerichtshof disagreed. Under German and EU law, Google's tool was not infringing copyright by reproducing the thumbnails of Perfect 10's models. Alibaba.com, the massive Chinese e-commerce company was been hit with a US class action lawsuit claiming that its network of e-commerce websites is home to rampant copyright infringement of visual artwork.The lawsuit has been brought at the instigation of professional Indiana artist Michel Keck who was seeking to certify a class of copyright holders who have seen their work copied and sold on Alibaba’s network of websites without their permission. And it seemed web blocking was now on the cards for copyright owners in the US after Magistrate Judge John Anderson in the District Court for the Eastern District of Virginia recommended a ruling in favour of the American Chemical Society in their action against Sci-Hub (sometimes dubbed the “Pirate Bay of science”) whom the ACS accused of copyright infringement for making available online copies of the former’s academic papers without licence. In the UK the copyright (or perceived lack thereof) in TV formats was revisited in Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd  EWHC 2600 (Ch). Here the court held that a TV format can be potentially protected by copyright, although in the specific case the action failed: but copyright protection will not subsist unless "as a minimum (i) there are a number of clearly identified features which, taken together, distinguish the show in question from others of a similar type; and (ii) that those distinguishing features are connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form.”
And we are here. The final month of the year! At the beginning of December the EFF published a critique of the USA's CASE Act of 2017, explaining that CASE would have several unwanted consequences, and the most negative of these was (is) the fact that the Copyright Office will become a Copyright Court as the Act would set up a “Copyright Claims Board” within the Copyright Office, staffed by three judges empowered to hear copyright complaints from all over the country. The major national sports leagues in Europe, including the English Premier League and Germany’s Bundesliga, won a reprieve from the EU who agreed to exclude them from the scope of a copyright reform that would help make content more easily available online in the EU. The World Intellectual Property Organisation said it was going to take a long hard look at the of limitations and exceptions to copyright, and provide draft action plans, one each for libraries, archives, museums, educational research institutions, and persons with other disabilities than sight impairment. As we said in our opening, a theme that has been bubbling around for a few years (and not unrelated to a famous monkey's claim for a copyright) was explored in Eleonora's examination of artificial intelligence - and copyright: As AI machines become increasingly autonomous, can they be regarded as 'authors' in a copyright sense and, if so, can the works they create be eligible for copyright protection? If the answer was again in the affirmative, who would own the copyright in such works? In China, Lego A/S, Europe’s biggest toymaker, said it won its first copyright court case after the China Shantou Intermediate People’s Cour ruled that products under the name Bela, sold by two Chinese companies, infringed upon Lego’s copyrights. And another recurring theme in 2017, the battle between the tech giants and the content sector bubbled over again when Google and members of Australia's technology sector urged the government to reconsider excluding them from changes to safe harbour rules, while the content sector has applauded the decision to not extend the copyright provisions to digital businesses. In Canada, the House of Commons triggered a parliamentary review of Canada's Copyright Act, first passed in 1921. TorrentFreak commented that the music industry was quick to weigh in, congratulating government ministers and making it known that the so-called 'Value Gap' and how the tech giants seem to be good at everything except removing infringing material, and why likes of Google don't seem keen to pay for what drives the likes of YouTube should be high on the agenda. And the battle between the tech behemoths, and giants of the content industries, was in full spate in the US where the likes Google and Facebook are now facing off against Hollywood studios and major record labels over how to update the North American Free Trade Agreement to protect copyright in the digital age. Silicon Valley is pushing for exceptions to copyright rules for online platforms and Internet service providers it says are needed to keep content flowing on the web. Meanwhile, the U.S. government seems to be taking positions more favoured by companies such as Walt Disney and Time Warner who are lobbying for stronger protections for copyright owners. The new (US led) proposals for NAFTA would limit allowances for online use of copyrighted material, a position seemingly less supportive of online platforms than existing US law, in particular a watering down of fair-use exceptions and a re-evaluation of 'safe harbor'. There was an uodate on our opeming story with IPRS re-registering as a copyright society and finally, would the mess surrounding pre-1972 sound recordings in the US be sorted? Maybe! A group of 41 recording artists urged the US Congress to sort out the mess with the new "Compensating Legacy Artists for their Songs, Service & Important Contributions to Society Act" - or (wait for it, and a a drum roll please) the CLASSICS Act.
Miim visits Mars and paints the most stunning Marscape every seen. A real masterpiece. If Miim dreams of electric sheep - surely she is the author of this stunning work? AI and copyright - no need to short circuit this debate - it's the wild wild Westworld out there. And more here and here and here and here.
Sadly we have lost some important creative talent this year. In music, Tom Petty, Chris Cornell, Joni Sledge, Fats Domino, Glen Campbell, Gord Downie, Chuck Berry, Al Jarreau, Johnny Hallyday, Gregg Allman, composer Vladimir Shainsky, and trance DJ and producer Robert Miles were just some of those who passed. Film, TV and theatre lost a wealth of talent including the actors Sir John Hurt, Erin Moran, Frank Vincent, Sir Roger Moore, Danielle Darrieux, Robert Hardy, Kritika Chaudhary, Rosemary Leach, Aracy Cardoso, Reema Lagoo, Hiromi Tsuru and Partha Mukhopadhyay, comedian and actor Jerry Lewis, along with the film directors Jonathan Demme and George A. Romero. And we said farewell to Paddington Bear author Michael Bond, sitcom writing icon Alan Simpson, Japanese playwright Akira Hayasakathe, children's author and artist Dick Bruna, Inspector Morse creator Colin Dexter, and the cartoonist Leo Baxendale. So all we can do is wish you a happy and healthy 2017 and that you all 'live long and prosper'.
The EFF's Time to Rethink Copyright Safe Harbors? 2017 in Review https://www.eff.org/deeplinks/2017/12/time-rethink-copyright-safe-harbors-2017-review
And from Motherboard: 2018 Is the Last Year of America's Public Domain Drought
As ever - readers will have their own views on what should (or perhaps should not) be included in the copyright year. The CopyKat writes from a UK/US, music industry and common law perspective: So please let us know if you think something important is missing - comment is free on the 1709 blog, but please be polite and thoughtful!