In April , the Australian Government asked for feedback on how effective its pirate site-blocking mechanisms were, introduced in the Copyright Amendment (Online infringement) Act in 2015. Rightholders responded, and said they wanted more - with a number saying that they would now like to expand the law that would require online service platforms to block the websites with infringing content. Foxtel also observed a need to improve actions against infringing live streams, 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 Sharebeast.com, Newjams.net and Albumjams.com, was sentenced for criminal copyright infringement for private financial gain. 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 sentenced Mr Sargsyan to five years imprisonment, followed by three years of supervised release and he was required to pay restitution in the amount of $458,200 and forfeit $184,769. In South Africa, an almighty row was brewing. At the heart of the complaint was the actions of SAMRO, the Southern African Music Rights Organisation established by the South African Copyright Act, with the South African Minister of Arts and Culture Nathi Mthethwa noting "with grave concern" 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 and the alleged theft (over a period of years) of royalties amounting to millions of rand. In Italy, the District Court of Milan (Tribunale di Milano) addressed an interesting question in Boeri v Agnoletto, decision No 1568/2018, and that was this: to what extent can an architectural project be modified without the express consent of the architect without such modifications being an infringement of their moral right of integrity? The legislative wording in sections 20(1) and 20(2) of the Italian Copyright Act could be interpreted in (at least) two ways, whilst providing that "irrespective of economic rights and even after their transfer, the author of a work has the right to object to any deformation, mutilation or any other modifications, as well as any other act to the detriment of the work, that may be prejudicial to their honour or reputation" but that “in works of architecture the author cannot object to any modifications that were necessary in the course of their realization. Similarly, they shall not object to any further modifications that were necessary to be made on a work that has been already realized.” Here the architect claimed that both modifications made to his social housing project ‘Casa Bosco’ and the transformation of the project into a for-profit enterprise had infringed his moral right - but he failed on both counts. And finally, Does the inclusion of a work which is freely accessible to all internet users on a third-party website with the consent of the copyright holder — on a person’s own publicly accessible website constitute an act of communication to the public within Article 3(1) of the InfoSoc Directive if the work is first copied onto a server and is uploaded from there to that person’s own website? This is the question that the Court of Justice of the European Union (CJEU) had been asked to address in Land Nordrhein-Westfalen v Renckhoff, C-161/17. And Advocate General (AG) Campos Sánchez-Bordona delivered his Opinion and answered in the negative. But what would the CJEU think? All would be revealed in August.
It might be June, but everyone had been busy trying to understand how the implementation of GDPR would role out (seemingly to prevent anyone in the EU from obtaining access to free and very useful US content it seems - ah regulators - they never learn). The Coreper (Council's permanent representatives’ committee) agreed its position on a draft Directive on Copyright in the Digital Single Market (the DSM Directive). As we had been told, the main objective of the Directive is to modernise the copyright framework and adapt it to the digital age - but after many battles a compromise text was proposed, but one that would create a new right for press publishers for the online protection of their press publications, which addressed the value gap between rightsholders and online platforms, encouraged collaboration between online content sharing services and rightsholders and looked to create exceptions to copyright on text and data mining. So would the compromise quieten the critics? NO! No-one seemed to be happy, and unsurprisingly up popped MEP Julia Reda (Pirate Party, Germany), who noted that the reform might require paying money (the now infamous Article 11 "link tax") by “merely linking to a news site” and that concerns were "being woefully ignored”. Reda went further and pointed out at the provision which will “make platforms directly liable for copyright infringement unless they can show they’ve done everything in their power to stop this by, for example, deploying upload filters" (the even more infamous Article 13) would "be particularly harmful to small and mid-size companies making it nearly impossible for many of them to function in the EU." The ‘Save your internet’ campaign said it believed that adoption of Article 13 would “impose widespread censorship” and Centrum Cyfrowe added that the “ongoing reform could be a chance to make life easier, work more productive and fun - well - more fun! Instead, the reform misses the right perspective on the future”. Interestingly and also in June, the Commercial Court in Vienna (Handelsgericht) ruled that YouTube was not a neutral host and that it must prevent third parties from uploading infringing content. The preliminary decision of the Court related to a suit filed in 2014 by Austrian commercial TV channel Puls4 against YouTube, after Puls4 content was uploaded to the platform. YouTube argued that it provided a technical service and therefore fell under the scope of the ‘Safe Harbour’ exemption under the EU’s E-Commerce Act, but the Handelsgericht disagreed saying that YouTube’s active role in “sorting, filtering and linking” content on its platform, “in particular by creating tables of contents according to predefined categories” helped determine the surfing behaviour of its users. So not neutral at all. Speaking to German newspaper Der Standard, Puls4’s CEO Markus Breitenecker explained that if YouTube “leaves its neutral intermediary position and assumes an active role, which could provide it with a knowledge of or control over certain data, it cannot rely on the liability privilege in this respect. And that is exactly what has happened in this case.” Bethesda Softworks announced it was suing Warner Bros. and Fallout Shelter co-developer Behaviour Interactive over the recently released Westworld. Bethesda Softworks alleges that not only is the mobile game based on the HBO TV series it was a “blatant rip-off” of Fallout Shelter, but that it also uses the same code as Fallout Shelter. The lawsuit, filed on 21 June in Maryland District Court, is a civil action for breach of contract, copyright infringement, unfair competition, and misappropriation of trade secrets. Finally and its back to those EU reforms and as the lobbying intensified, actual creators of music from across Europe called on MEPs to protect Europe’s status as a global hub for culture saying that the tech giants must pay fairly for content hosted on their platforms. Robert Ashcroft, Chief Executive of PRS for Music, said: “After three years of debate, one of the most controversial pieces of legislation ever to come before the European Parliament is about to go to the vote. This is about copyright and specifically about the rights of creators versus those of the Internet giants; it is about the way the Internet functions as a fair and efficient marketplace. It is a debate we must win if we want to secure our creative community into the next decade.” It was for the MEPs to address the balance: “Creators and news publishers must adapt to the world of the internet as it works today” rapporteur Axel Vossn MEP said in a European Parliament Committee on Legal Affairs news release. “The Committee position aims to ensure that widely recognised and observed copyright principles apply to the online world, too.”
Sadly we have lost some important creative talent this year. In music, Arethra Franklin, Pete Shelly (the Buzzcocks), Avicii, Hugh Masekela, Dolores O'Riordan (the Cranberries), Yvonne Staples, Arun Bhaduri, Jabulani "HHP" Tsambo and 'Fast' Eddie Clark (Motorhead) were just some of those who passed. Film, TV and theatre lost a wealth of talent including the actors Sondra Locke, Geetha Salam, Yuriko Hoshi, Burt Reynolds, Peter Wyngarde, Reg E. Cathey, Yukiji Asaoka, John Mahoney, Penny Marshall, Eli Ajaz and Margot Kidder, along with the film directors Bernardo Bertolucci, Milos Forman, Augusto Fernandes and Nicolas Roeg. We lost “Star Wars” producer Gary Kurtz, writer and producer Steven Bochco, chef and TV presenter Anthony Bourdain, master magician Ricky Jay, composer Galt McDermot, the Marvel comic book legend Stan Lee, claymation artist Will Vinton, the graphic artist Bill Gold, Atari co-founder Ted Dabney, writer Robin Leach, fashion designer Kate Spade, screenwriter William Goldman, "Star Trek" writer Harlan Ellison, animator Stephen Hillenburg and playwright Neil Simon.
So all we can do is wish you a happy and healthy 2019, and that you 'live long and prosper'.
The EFF also has a number of reviews of 2018, which you can find here and here and if the GDPR is your 'thang' then also here.
Forbes looks forwards to 2019 here