Thursday 5 April 2018

The COPYKAT delves into the Oracle for a glimpse of the true part of copyright

The dispute between Oracle and Google over Google’s use of copyrighted Java application programming interfaces (APIs) to design the Android operating system has reached another stage. The case which was initially filed in 2010 and included patent infringement claim, has generated a lot of attention in the technology industry [as reported previously here] as it deals with the question whether the use of Java programming language can be considered as fair use and it may have a significant chilling effect on software developers.

Following the jury trial in 2016, which found that the use of APIs by Google was acceptable, last week the US Court of Appeals for the Federal Circuit in Washington DC has reversed their ruling and decided to send the case back for trial in San Francisco in order to determine the amount of damages. The main issue that was considered by the court was whether Google’s use of copyrighted material was transformative, in order to qualify for the fair use defence. Google argued that it took selected parts of the API code and created its own interpretation for the purpose of creating new functionality. In the view of the appellate court, Google’s actions cannot be considered as transformative as “the copying is verbatim, or an identical function and purpose, and there are no changes to the expressive content or message”. Additionally, the fact that there is a mere change in the format  “(e.g., from desktop and laptop computers to smartphones and tablets) is insufficient as a matter of law to qualify as a transformative use”. Nonetheless, the court has not dismissed the possibility of using a fair use defence where the case involves copying of the computer code. As estimated in 2016 by IP research company Ocean Tomo, Oracle was seeking $9 billion in damages and profits from Google for selling allegedly infringing product. At the same time Google has made over $42 billion in revenues from advertising on Android. With the trial on the issue of costs in the Ninth Circuit, this is the space to watch.

A Google spokesperson commented on the judgment that “[t]his type of ruling will make apps and online services more expensive for users” and said that it is considering next steps in the case. Electronic Frontier Foundation (EFF) believes that this case “should never have reached this stage” as the works should not be eligible for the copyright. As observed by Corynne McSherry, legal director for the EFF, this decision will have a great implication for small software firms and brings legal uncertainty for large number of software developers. In effect, the uncertainty can result in reduced rate of innovation.

The EU Commission has published a document outlining the effects of Brexit in the field of copyright. Subject to any transnational agreement between the United Kingdom and the European Union, as of withdrawal date, i.e. 30 March 2019 00:00 (CET), the EU rules in the field of copyright “will no longer apply for the United Kingdom”. Unless the parties to the negotiations will not agree otherwise, the relationship between them will be governed by the multilateral, international treaties, such as the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT), the WIPO Performances and Phonograms Treaty (WPPT) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Accordingly, the principles of ‘most favoured nation’ and ‘national treatment’ under TRIPS agreement will apply.

The paper notes that that under the obligations of the multilateral treaties and with no “counterpart in the international conventions”, the level of protection will differ in relation to certain rights and where applicable “exceptions or limitations to those rights as that set out today in the EU copyright acquis”. On of examples is Directive 93/83/EEC, which allows broadcasters to clear the copyright only in the Member State where the signal is introduced. Following Brexit, the UK broadcasters will no longer benefit from this mechanism when providing cross-border transmissions and will be obliged to clear the rights in each of the Member States where the transmission occurs. Similarly, broadcasters in the EU providing cross-border satellite broadcaster services to the UK customers will have to secure the rights of the relevant rightholders. Additionally, after the Brexit date the EU collective management rights organisations will no longer be obliged to represent collective management rights organisations based in the UK for multi-territorial licensing. Orphan works which have been recognised in the UK will no longer be recognised in the EU under Directive 2012/28/EU. Persons from the UK will not be able to obtain accessible format copies from authorised entities in the EU under Directive (EU) 2017/1564 which allows on certain permitted uses of certain works for the benefit of persons who are blind, visually impaired or otherwise print-disabled. UK nationals will no longer be entitled “to maintain or obtain a sui generis database right in respect of databases in the EU” and correspondingly EU Member States nationals will not be able to obtain such right for the databases in the UK. The withdrawal of the UK from the EU will also affect the effect of Regulation (EU) 2017/1128 (entered into force on 1 April 2018) for UK nationals who will not be able to benefit from their digital content subscriptions when travelling to the EU.

Countries are taking more and more steps  to tackle piracy online - where a number of internet users distribute massive file-sharing infrastructure or share pirated live sports streams.

Last week has seen the publication of ‘Industrial Strategy’ plan in the UK which outlines strategy on how the Government and the creative industries can work together to protect rights of copyright holders. As observed in the document “online piracy continues to be a serious inhibitor to growth in the creative industries. Technologies like stream ripping and illicit streaming devices enable illegitimate access to content without rewarding its creators”. Such situation creates a growing concern for right holders about how their works are exploited online. In order to tackle the problem, the Government plans to host a series of roundtables with rightholders, social media companies and online marketplaces with the aim of brokering voluntary anti-piracy agreements. The measures to be introduced, one of which includes upload filters, “could include proactive steps to detect and remove illegal content, improving the effectiveness of notice and takedown arrangements, reducing incentives for illegal sites to engage in infringement online and reducing the burdens on rights holders in relation to protecting their content”. If such measures will fail to produce the desired outcome by 31 December 2017, the Government will consider further legislative actions in order to strengthen the UK copyright framework. At the same time, the UK Government is planning to address the problem of the so-called ‘value gap’ [read here] in both the UK and in Europe and is planning to make an additional £2 million available to support ‘Get it Right’ campaign. The aim of the action is to “educate consumers on the dangers of copyright infringement and direct them towards legitimate sources of creative content online”. The Government hopes that its action will help to build on the “UK’s position as a global leader and strengthen its advantage as a creative nation by increasing the number of opportunities and jobs in the creative industries across the country, improving their productivity, and enabling (…) to greatly expand our trading ambitions abroad”.

Similarly, Australian Government aims to tackle the problem of copyright infringement online and in February it has announced a review of its pirate site-blocking laws. The Department of Communications asked for feedback on how effective is the mechanism that was introduced in the Copyright Amendment (Online infringement) Act 2015. So far there were several responses from rightholders, which mainly came from the entertainment industry with the aim to expand the scope of the protection. As reported by Torrentfreak, one of the most ‘aggressive submissions’ arrived from the movie group Village Roadshow and TV provider Foxtel. Both entities were successful in having a number of websites blocked by local ISPs in Australia and now they would like to expand the law that would require online service platforms to block the websites with infringing content. As written by Graham Burke, Village Roadshow co-chief, “with all major pirate sites blocked in Australia, the front door of the department store is shut. However, pirates, facilitated by Google and other search engines, are circumventing Australian Laws and Courts and opening a huge back door”. In his view search engines and online platforms should be required to take reasonable steps in order to stop facilitating searches that lead to pirate sites. With an increasing number of links to illegal content appearing on online platforms, the rightholders want to include them in the scope of the legislation. Foxtel also observed a need to improve tackling live streaming, basing its observations on the framework of injunctions obtained in the UK last year by the Premier League and UEFA, which enable to block websites with pirated live sports streams. In their view similar framework should be available in the Courts of Australia.

In the US, Artur Sargsyan, owner of the and, has been sentenced for the crime of criminal copyright infringement for private financial game. His website has contained an enormous file-sharing infrastructure consisting of around 1 billion copies of copyrighted musical works that were available for download. At the same time the websites contained pop-up advertisements, which allowed Sargsyan to make a significant profit from the number of visitors downloading works from his websites. US District Judge Timothy C Batten has sentenced Mr Sargsyan to five years imprisonment to be followed by three years of supervised release. Additionally, he will be required to pay restitution in the amount of $458,200 and forfeit $184,769. As observed by US Attorney Byung J Pak, “Sargsyan operated one of the most successful illegal music sharing websites on the Internet”. The case was investigated by the FBI and a number of warnings have been sent to Mr Sargsyan to stop violating the law by illegally hosting and sharing copyrighted works. David J LaValley, Special Agent in Charge of FBI Atlanta says that Mr Sargsyan’s sentence “sends a message that no matter how complex the operation, the FBI, its federal partners and law enforcement partners around the globe will go to every length to protect the property of hard working artists and the companies that produce their art”. The Recording Industry Association of America (RIAA) has estimated the total monetary loss to its member companies at $6.3 billion.

Can a tattoo be protected by copyright? That is the issue which is at stake in in a multi-million dollar lawsuit between Solid Oak Sketches (which claims to acquire rights from various tattoo artists linked with NBA superstars) and Take-Two, publisher of the NBA 2K video game [as we have previously reported here]. Until 2016, when the case was brought, there was no decision rendered that would declare that tattoo designs can be considered as copyrightable work. Take-two in response to the lawsuit has filed a motion to dismiss the action as according to them the use of tattoos “was too fleeting to be considered an infringement” and was displayed briefly. As contented by the Plaintiff, “if an NBA2K player selects Messrs. James, Martin and Bledsoe in a (…) game (…), or 'employs the broad range of the video game’s features to focus, angle the camera on, or make the subject tattoos more prominent,' 'the overall observability of the subject tattoos can be fairly significant”. The US District Court Judge Laura Taylor Swain having heard both parties was not ready to adjudicate on the issue quickly. Therefore, she denied the motion to dismiss lawsuit on the basis of de minimis use and ordered more fact-finding in order to resolve the matter at a later stage of the case. In relation to fair use defence, the defendant argued that with their motion being denied, Solid Oak will now be able “to use that decision to shakedown each of the publications and television programs in which those players have appeared”. Despite those arguments, because of the difficulties inherent in conducting a side-by-side comparison of the video game and the Tattoos,” the judge has refused to dismiss the case. Therefore, she decided to order gathering of further evidence in connection with “the fact-intensive question of the applicability of the fair use defense”. It will be interesting to watch the further developments in the case as it might set a precedent on whether tattoos can be protected by copyright and how such protection can affect its bearers and companies willing to creatively depict them. 


In South Africa an almighty row is brewing over a rights scandal alleged to be the "biggest music rights scam in South African history". At the heart of the complaint is SAMRO, the Southern African Music Rights Organisation established by the South African Copyright Act: now the South African Minister of Arts and Culture Nathi Mthethwa has noted "with grave concern" the article published in City Press and News 24 Online News platforms on 1st April 2018 into what is “alleged to be the biggest music rights scam in South African history involving the legendary and multi-platinum selling gospel artist Hlengiwe Mhlaba. The report goes into worrying detail into the alleged theft over a period of years of royalties amounting to millions of rand due to the artist in question."

The Minister has given a directive to the legal unit of the Department of Arts and Culture to immediately initiate a process which will culminate in the appointment of a Commission that will be headed by a retired Judge. More here on the allegations made against SAMRO here and the Chief Executive of SAMRO, Nothando Migogo, responds here

This update by Mateusz Rachubka 

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