Sunday, 30 December 2018

2018 - THE COPYRIGHT YEAR

2018 was another busy busy year in the world of copyright, and a continuing global 'theme' was the ongoing battle between 'big tech' and 'big content', with the likes of Google and YouTube continuing to lobby extensively against planned reforms, bringing onboard (some) of the creative community - whilst the  'big content' (including film companies, music companies, the games sector and television) rolled out other creators - and finally seemed to be making headway with legislators, notably in Europe and Australia, where politicians began to actively talk about the 'value gap' and question the extent of safe harbour protection. Indeed safe harbour was the focus of endless debate, and the reforms in Europe were perhaps the most talked about and the most fiercely debated, but moves to prod copyright into the digital age were also taking place in Japan, South Africa, Australia and New Zealand to name but a few, and China went one step further, bringing in three 'internet courts' fit for intellectual property law in the digital age with the availability of blockchain technology to protect rights. It is easy to underestimate the lobbying power (and financial resources) of the big tech companies, but as the year went on the content side began to adapt their arguments and win over politicians, consumers and regulators - but it's all far far from over and we expect 2019 to be just as exciting. In other news, and as the UK argued and fretted and pondered what 'Brexit' really meant, the USA updated its approach to music licensing and music copyrights, the "Blurred Lines" case provided endless comment about what is and isn't copying when it comes to inspiration for compositions, in a case muddied by claims that what was really being copied was the vibe in the 2013 pop song which was just too similar to an earlier Marvin Gaye classic, and Led Zeppelin faced a claim that their "Stairway To Heaven" was a rip off of an earlier song, or maybe an earlier sound recording. Cheese hit the news, transformative art was all the rage (or prompting rage), that monkey selfie case finally reached the end of the line, Canadian musician and now photographer Bryan Adams pointed out some of the realities of what lobbying in the 'name of' creators, authors and artists actually means (and often it is certainly not for the benefit those very creators), and a case that the recorded music sector seemingly 'lost' ended up looking like a big win!

In January, two US Congressmen launched a proposed new statute that had the support of both music copyright owners and music users, in an effort to overhaul of the mechanical royalties system in the US. Doug Collins and Hakeem Jeffries said that their Music Modernization Act would "bring music licensing its first meaningful update in almost 20 years". The Bill was to be an overhaul of the compulsory licence system that governs mechanical licences in the US, with Collins and Jeffries saying: "Under the Music Modernization Act, the digital services would fund a Mechanical Licensing Collective, and, in turn, be granted blanket mechanical licenses for interactive streaming or digital downloads of musical works". It was going to be an Act that grew and developed as the year went on. We welcomed our two new and marvellous 1709 interns, Kelsey Farish and Mateusz Rachubka, both of whom had an exceptional year with us, as their respective careers went from strength to strength. The French Conseil d'Etat ordered the State to pay French Internet Access Provider Bouygues Telecom the sum of €26,100 as compensation for costs it had met under so-called 2009 graduated response system overseen by HADOPI, under which a series of warnings are issued by HADOPI  to infringers using peer-to-peer networks to unlawfully share protected content.  Upon the "third strike", sanctions may be taken. The law mandated that ISPs would collect certain identifying data on their subscribers and turn over same to the public authority (which then issued the warnings) and that the ISPs could then seek reimbursement for the specific costs incurred in carrying out such tasks.  Back in the USA, the music industry (mostly) supported two more new pieces of legislation, the CLASSICS Act, which was aimed at rectifying the much discussed pre-1972 quirk in American copyright law that excludes  earlier sound recordings, and the AMP Act, which would introduce a new right for record producers and sound engineers, and reform to the way satellite radio royalties are calculated, and provide a general performing right for sound recording copyright to rectify another odd position in US copyrights law. In Singapore, Fox and the Premier League joined telcos Singtel and StarHub in a private case against two Android set-top box sellers for allegedly ‘wilfully infringing’ copyright. The actions against Singapore distributor Synnex Trading and retailer An-Nahl was brought under Section 136 (3A) of the Copyright Act. And finally in January, the owners of 'Grumpy Cat' successfully took action against the unlicensed use of Grumpy Cat’s image on iced coffee products branded as ‘Grumppucions’ for ‘blatantly infringing’ their copyrights and trademarks by selling other types of coffee and T-shirts with the cat’s image. Following the long-lasting dispute against Grenade Beverage, the California federal court awarded the cat’s owner the sum of $710,001 for the copyright and trade mark infringement. In a brief comment, the attorney representing Grumpy Cat Limited stated that “Grumpy Cat feels vindicated and feels the jury reached a just verdict”.

February opened with a very important decision from the 4th Circuit Court of Appeals which reversed a $25 million verdict against the US Internet Service Provider Cox Communications in what might have been seen as a defeat for record label BMG, which had sought to hold Cox liable for copyright infringement for its subscribers who were sharing pirated files online. But a detailed look at the judgment saw many argue that the decision was actually a win in the battle against piracy. The 4th Circuit took a long hard look at how and why Cox would be protected by US "safe harbor" provisions and the Court ruled against Cox on a key point: The DMCA provides a degree of protection to ISPS and other platforms that respond expeditiously to takedown requests. But one of the requirements is that the ISP and other intermediaries to have "adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of subscribers … who are repeat infringers." The appellate court said that as it stood, Cox wasn't entitled to rely on safe harbor because it did very little (if anything) even when told about repeat offenders, re-affirming the jury decision that sided with BMG and awarded $25 million against Cox when they found the broadband carrier liable for piracy by its subscribers, even if over turning that decision. February was also the month when the anthem of the US Civil Rights Movement “We Shall Overcome” was freed into the public domain in a victory for the We Shall Overcome Foundation, an organisation that wanted to make a documentary about the song. The change was sparked by a decision by a federal judge in New York who ruled that the key verse in the song was not protected under copyright for lack of originality. With a February trial date set, copyright owner Ludlow Music opted to enter into a settlement, releasing the copyright in both the melody and lyrics. 

In March, new research showed that music and football right holders had brought the most cases to London's High Court in the preceding year. The rise in the number of claims was the result of rightholders fighting illegal streaming on the internet. The most frequent Claimant was PPL (Phonographic Performance Limited (the recorded music CMO) which had brought 88 cases to the High Court. The second most active claimant was Football Association bringing 36 cases. Among the top 10 claimants filing the copyright cases are also Sky and BT with 12 and 11 cases respectively.  Elsewhere,the depiction of two dolphins crossing underwater was found to be an "idea that is first found in nature," and so could not be the subject of copyright protection according to a decision from the U.S. Court of Appeals, Ninth Circuit in Folkens v Wyland. That claim was brought by Peter A. Folkens, a successful  wildlife artist, but the courts failed to find protection for his illustration of two dolphins crossing each other underwater, with the appellate court upholding the trial judge's decision that a later adaptation did not infringe as the illustration was of a pose in a natural position and thus incapable of protection under copyright law, with the Ninth Circuit explaining that despite the similar positioning of the dolphins, a pose is not ordinarily copyrightable unless combined with something else. In particular, “a collection of unprotectable elements - pose, attitude, gesture, muscle structure, facial expression, coat, and texture - may earn 'thin copyright' protection that extends to situations where many parts of the work are present in another work.” In a very big case that had divided the music industry, music experts, musicologists and indeed legal commentators, the US Court of Appeals for the Ninth Circuit upheld the 2015 jury verdict which found that Robin Thicke and Pharrell Williams' 2013 hit 'Blurred Lines' had infringed on the copyright in Marvin Gaye's 1977 song 'Got To Give It Up'. The decision had attracted widespread criticism and comment, not least as many commentators felt that the jury made their decision by comparing the 'sound' or vibe of the songs, rather than the actual song itself. The appellate panel's  decision was a split decision, 2-1, with a scathing dissent from US Circuit Judge Jacqueline Nguyen who was openly critical of the majority, and said that the Marvin Gaye Estate had been able to “accomplish what no one has before by acquiring copyright to a musical style.” The decision meant that Thicke and Williams remained liable for $5.3m in damages and ongoing royalties to the Marvin Gaye Estate from future revenues earned from 'Blurred Lines'. Many (if not everyone) expected a further appeal, either to an 'en banc' hearing of the appellate court, or to the US Supreme Court ...... but would Thicke and Williams want to go that far? Fair dealing for educational purposes became a political hot potato in Japan after the Japanese Society for Rights of Authors, Composers and Publishers (JASRAC) said it would take legal action to force educational institutions pay for copyright uses, with JASRAC saying that “when teachers play a song on the piano in front of their students without permission, they are committing a copyright violation.” And finally in March and still on fair dealing, in Australia, some 50 years after the passage of the Copyright Act 1968, the Government said it was now seeking commentary from the public in respect of how Australian copyright law could be modernised and updated. In a consultation paper the Government highlighted three areas of the Copyright Act which might benefit from modernisation: flexible exceptions, contracting out of exceptions, and access to orphan works.

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 Agnolettodecision 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.

May: As April ended with World IP Day and World Books and Copyright Days, May began with May the Fourth, which is of course Star Wars Day, and news that the most famous litigating ape in the world had finally had his day. Who is this simian star?  None other than Naruto, the Black Macaque monkey at the heart of the infamous ‘monkey selfie’ case. Despite the case itself having been settled, the Ninth Circuit Court of Appeals held that the monkey, which was named as the plaintiff, lacked the statutory standing to bring an action for copyright action under the US Copyright Act. Neither was it possible for animal rights organisation PETA to validly assert ‘next friend’ status that would allow it to represent the monkey “both (1) because PETA has failed to allege any facts to establish the required significant relationship between a next friend and a real party in interest and (2) because an animal cannot be represented, under our laws, by a next friend". Why is China now so interested in copyright? Well, the National Copyright Administration of China revealed that China's internet copyright industry grew by over 27% in 2017 and has reached a value of over 636 billion yuan (US$100 billion). The biggest contributors were and are online news portals and online games which accounted for 73% of the total market value. Online news and information market grew by 40%, and online gaming increased by 32% and had reached 235.5 billion yuan. Live streaming and short videos have seen the most rapid growth, achieving a number of 422 million live streaming users. And the controversy surrounding the Copyright Society of Nigeria (COSON) reached epic proportions, as power struggles between the organisation and the Nigerian Copyright Commission (NCC) rumbled on.  Following a General Meeting of COSON in December 2017, a petition was sent to the Governing Board requesting an investigation into certain decisions made at the meeting. The Commission then issued directives to COSON Management, saying that the those decisions should not be implemented. COSON Management failed to comply, and subsequently had its license revoked. Speaking to The Nation on the subject, Nigerian artist Paul Play Dairo said "as a concerned Nigerian musician, I believe that I have the right to protect my intellectual property, I have the right to choose the collecting society that I want to join.” In reply, COSON has called directly upon Nigeria’s President, Muhammadu Buhari, to immediately relieve Afam Ezekude of his position as the Director General of the NCC.


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 ShelterThe 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.” 

And who was winning the battle for Copyright Directive reform? Well as July began, next blood went to the techies! MEPs in Strasbourg failed (by a small majority) to move the legislative process forwards, stalling the next step which was for the European Union Council, Commission and Parliament to negotiate a final text for passage into law. The vote was close, with 278 in favour, 318 against and 31 abstentions, but rejected the earlier Legal Committee decision to approve the draft law, which would now be sent back to the Parliament for further discussion. So more lobbying, more big names and more fun as internet giants such as Google and Facebook, and free speech advocates and some consumer groups, with the backing of celebrities such as Stephen Fry and Tim Berners-Lee, took on the big content companies (and the small ones too!) who rolled out Sir Paul McCartney and James Blunt in a star studded carousel. But at that stage the cultural and creative sectors, and rights owners were a little disappointed and Anders Lassen, president of the European Grouping of Societies of Authors and Composers (who backed the rule changes) said the vote was a “missed opportunity”. Whilst most eyes were focused on that vote, the Regional Court of Hamburg ruled in favour of German Collecting Society GEMA against the UseNeXT platform. According to GEMA, UseNeXT (together with its owner Aviteo) was liable  for the infringements users who shared unlicensed music and movie content through the Usenet platform. The Court was of the opinion that under German law internet platforms may be liable where their business model promotes the uploading and distribution of infringing copyrighted material. The Court also considered that Aviteo would be liable for the infringement in this case on the basis that it provides tools allow users to find illegal music and movie files. Although at that stage the decision was not binding and was subject to appeal, Dr Tobias Holzmüller of GEMA said that the case was a great success for the songwriters and publishers and created “an important precedent for claims for damages in the field of internet piracy” and that online platforms “cannot hide behind legal principles.”  But next up in Germany ...... the German Federal Court of Justice (Bundesgerichtshof) ruled in a case involving an illegal download of a game ‘Dead Zombie’ and decided that under the new German Telemedia Act, internet providers are not liable for copyright infringement via file sharing conducted by third parties on their network.  Clarity and German precision - errrrrrm - NO! Over in the USA, the three major recorded music companies launched a new legal action against US internet service provider Cox Communications for copyright infringement. The move followed that earlier 2014 action from BMG, and again would ficus on what was said to be Cox's poor and ineffective approach to dealing with customers who used Cox's services to infringe their copyrights. Cox, the privately owned subsidiary of Cox Enterprises, is a major player in the US and provides digital cable television, and telecommunications services with more than 4 million subscribers and reliance on the 'safe harbor' defence in US law was critical. Elsewhere in July, the Ninth Circuit appeals court in the US declined to overturn its controversial split decision in ‘Blurred Lines’ with a motion for the case to be re-heard 'en banc' rejected by the court. We now had to wait and see if Pharrell Williams and Robin Thicke would choose to take the controversy on to the US Supreme Court. Also over the pond, that 'stamp' case was decided - really on the basis of a monumental cock up by the United States Postal Service who for three years until 2014 used an image of the Statue of Liberty for its Forever Stamp series that was not actually of the famous statue that towers over New York Harbor designed by French sculptor Frédéric Auguste Bartholdi in 1886, but was actually Robert S. Davidson's replica Statue of Liberty. Davidson sued for, and won nearly $3.5 (£2.6) million in royalties, plus interest. The USPS was made aware of the goof in 2013, but went on to print another 1.13 billion stamps with the replica’s image (!!!). All in all, the Postal Service made some $70 million in revenue from sales of this Lady Liberty stamp - so actually the damages look rather reasonable in context! The summer was by now in full swing in the Northern hemisphere, but it was not that long ago back in February where the case concerning the NFL player Tom Brady saw the US Federal Court in New York rule that it is possible to infringe copyright by a simple act of embedding a tweet on a website. Judge Katherine Forrest said that her decision was 'high impact' - but the 2nd Circuit Court of Appeals seemed to disagree and denied an immediate appeal in the case. In South Africa, a new hybrid’ exception to copyright based on fair use was on the table - one which contained "both a set of modern specific exceptions for various purposes”, as well as an open general exception “that can be used to assess any use not specifically authorized”. The new Bill aimed for  the exceptions to be open to all works, uses and users. The provision was also said to be helpful for users by the addition of clarifications which reflected global trends in interpretation. Many scholars in South Africa gave their support, saying the proposal fitted well with the current digital environment and that the new provisions should become a model which would be adopted by other countries wishing to modernise their copyright laws. And finally, and staying on the same continent, Kenya joined the growing list of African nations where music collection societies have come under the spotlight - for all the wrong reason. The Kenyan High Court ordered the Music Copyright Society of Kenya (MCSK) to account for the money it has collected as royalties and licence fees since January 1st 2017 The order came on the back of evidence that payments from the MSK to songwriters had been decreasing for several years. The Kenya Copyright Board (KECOBO), the government organisation tasked with enforcing copyright in Kenya, had established a minimum standard of 70% of revenue to be given back to artists. However, MCSK’s disbursement rates to musicians had fallen to 58.9% of collected revenue. Although MCSK was once Kenya’s largest royalty-collecting body, KECOBO revoked its licence in February 2017 when MCSK failed to provide audited financial statements. The move came amidst allegations from local artistes over embezzlement of their royalties by MSCK. Justices RN Sitati, DS Majanja and TW Cherere gave the MSCK thirty days to comply with the court's order. The power struggles between the Copyright Society of Nigeria (COSON) and the Nigerian Copyright Commission continued. 


On to August! In what was its first copyright judgment of 2018 and the last before the summer break, the Court of Justice of the European Union (CJEU) ruled, contrary to the Opinion of AG Sanchéz-Bordona, that the unauthorized re-posting of a copyright work would be an act of communication to the public within Article 3(1) of the InfoSoc DirectiveRenckhoff, C-161/17 concerned copyright litigation that a photographer brought in Germany against a school over the use, by one of the pupils, of copyright-protected material without authorisation. The case made its way up the German Federal Court of Justice, which decided to stay the proceedings and refer this question to the CJEU: 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 a making available of that work to the public  within the meaning of Article 3(1) of [Directive 2001/29] if the work is first  copied onto a server and is uploaded from there to that person’s own website? The court found that the reposting of protected content freely available on a third-party website is a new act of communication to the public and no analogy with linking to lawful and freely accessible content in a Svensson sense could be drawn. Why? well holding otherwise would mean that a copyright owner would lose any control over their work once this has been made available online the first time. This would basically amount to an undue exhaustion of the right of communication to the public, contrary to Article 3(3) of the InfoSoc Directive, and would also be in breach of the principle that economic rights are preventive in nature  The fact that a work has been initially published online and made available with no restrictions would be irrelevant: holding otherwise would be akin to imposing formalities to the enjoyment and exercise of copyright, and so this would go against the prohibition in Article 5(2) of the Berne Convention. Ludlow Music picked up a legal costs bill of $352,000 after conceding earlier in the year that the We Shall Overcome was now 'public domain' in America. Judge Denise Cote has said that Ludlow should cover the opposing side’s legal fees - despite the fact that Ludlow’s defence wasn’t “objectively unreasonable”. And there was more from the USA: The Music Modernization Act, which was accelerating rapidly into law having quickly passed through both Houses unanimously in April, and then through the Senate Judiciary Committee, looked to be in some trouble after an objection by collection society SESAC and the Harry Fox Agency over how the planned  new music  licensing organisation would work. SESAC owners Blackstone persuaded Senator Rafael E. “Ted” Cruz (R-Texas) to halt the bill’s progress in the full Senate, and things looked tricky until a compromise clarified that the new organization would only administer one particular kind of license - the blanket license - and Harry Fox and other organisations would still be able to control individually negotiated licenses.  A US court ruled that the plot of Oscar-winning fantasy film The Shape of Water was not copied from a 1969 play. Judge Percy Anderson dismissed the legal action that claimed Guillermo del Toro's film copied the story of Let Me Hear You Whisper by Paul Zindel. The late playwright's son had sued del Toro, the Fox Searchlight studio and others (Zindel v. Fox Searchlight Pictures, Inc. et al, case number 2:18-cv-01435) claiming the two works were "in many ways identical". In his ruling  the judge said they only shared "a basic premise". Del Toro's film, which won four Academy Awards including best picture, told the story of a mute cleaner who falls in love with an amphibious creature. David Zindel's suit claimed the film bore a number of similarities to his father's play, in which a cleaning lady goes to work in a laboratory where experiments are carried out on dolphins. Judge Anderson accepted that the plots were similar but ruled that the central concept was "too general to be protected". Eleonora posted a very interesting blog on another theme that has been picked up on a number of times on the 1709 Blog - the creation of 'works' by AI - artificial intelligence. If androids dream of electric sheep - can they paint an original piciure of a lamb? Or compose original music? As an author?  Referring back to the Naruto 'Monkey Selfie' case, Eleonora focussed on work Edmond de Belamy which was created by an algorithm. Does that mean that Edmond de Belamy cannot be protected by copyright? It's all here Can a Work of Art Created by AI be Protected by Copyright? And finally, the International Intellectual Property Alliance (IIPA) argued that South Africa’s attempts to reform its 1978 copyright legislation could “place South Africa out of compliance with the AGOA eligibility criteria regarding intellectual property” (and therefor lose trade benefits). Speaking before the US Trade Representative panel, IIPA explained that many provisions of the new Bill lacked clarity, created unnecessary burdens on rights holders, and/or fell short of needed reforms. "Unfortunately, South Africa’s proposed copyright amendments are inconsistent with a healthy, sustainable and fair digital marketplace for creators, both domestic and foreign, and run afoul of the AGOA eligibility criteria to provide adequate and effective protection and enforcement of intellectual property.” TechDirt took aim at IIPA, arguing instead that “those drafting the text seem to have listened to the calls for intelligent fair use rights fit for the digital world. TechDirt had predicted that the fair use proposal will come under heavy attack from big industry players and their lobbyists - including the IIPA."

A chilly start to September for Electrolux with the the Review Board of the United States Copyright Office affirming their denial of registration of the “Frigidaire Stylized Logo”. The Frigidaire logo consists of the word Frigidaire in blue capital letters. Only the “A” differs from the usual way to write the letter A, as it is drawn as a triangle filled with a smaller red triangle. But the FRIGIDΔIRE logo is not original enough to be protected by copyright (and fails as a trade word mark too as it has become a generic word simply meaning refrigerator to the US public). Electrolux will have to rely on logo marks going forwards as The Board found that the stylized “A” is a mere “trivial variation on a letter” and is thus not copyrightable, as it does not “possess more than a de minimis quantum of creativity”, quoting Feist. And MEPs voted to pass amended versions of Articles 11 and 13 of the European Copyright Directive in the European Parliament. The final vote was 438 in favour and 226 against. The  Directive would now (finally!) go to trilogue with the European Union Council, Commission and Parliament to negotiate a final text for passage into law but the Directive will still faces a final vote - but remember, even after that it will need to be implemented by individual EU member states, who could very well vary significantly in how they choose to interpret the Directive’s text. However, Robert Ashcroft, Chief Executive of PRS for Music, said: "The European Parliament today took a bold step forward to ensure a functioning and sustainable digital single market for creative content. "  Julia Reda of the Pirate Party described the outcome of the vote as “catastrophic.”  Attempts to update copyright law in the United States inched ever closer on the news that the all singing all dancing and now expanded Music Modernization Act (in effect three bills in one) went to Congress. and the Senate majority leader Mitch McConnell brought it to a vote on 18 September, where it passed unanimously.



We began October with the news that South African photographer Graeme Williams was considering legal action after he discovered that a 'whited-out' version of one of his famous photographs had been exhibited during the Johannesburg Art Fair by the Goodman Gallery.  The picture was based on the iconic shot of a group of children taunting white policemen a few weeks after the release from prison of Nelson Mandela, kicking up their legs in a playful adaptation of the toyi-toyi, the South African liberation movement march.  And where did this new image come from? Well from Hank Willis Thomas, an appropriation artist who uses images from advertising campaigns or civil rights protests which are then 'transformed - in this case the original 1991 colour picture was transformed into a black and white version - without asking for permission. Thomas defended his actions, saying the photographer took the picture without any authorisation from the people depicted, and that the new artwork will  challenge the strict defines  of copyright law. Remembering the ongoing debate sparked by Cariou v Prince, was this latest instance of transformation enough to constitute 'fair use' or 'fair dealing, or was this plagiarism?  In the US of A, Marie told us that the Second Circuit had reached a decision in another case about photography, and this one concerning American Football, Spinelli v. National Football League, a 2013 complaint by seven sports photographers against Associated Press (AP) and the National Football League (NFL) which claimed that AP had granted the NFL a royalty-free license of their images without their permission. In a 2012 agreement the snappers had granted AP a “perpetual, irrevocable transferable worldwide right and license to reproduce, edit, translate the caption of, prepare derivative works of, publicly perform, publicly display, load into computer memory, cache, store and otherwise use“ their works along with the right to "transfer or sublicense these rights to other entities" and earned royalties for the use of their photos - but did the grant of rights far enough extend to allow AP to grant royalty-free licenses to the NFL? The Second Circuit found the contract was “ambiguous” and recognised that it could be interpreted as limiting the ways AP could sublicense the Plaintiffs’ photographs to third parties. The court remanded the case to the lower court. In Canada, another call for reform, and this from rock star (turned photographer !) Bryan Adams who wanted to change just ONE word in the Canadian Copyright Act so authors can reclaim their copyrights after 25 years, even when they have been assigned away to third parties, with Adams arguing that many artists sign away their copyright as young entrants to an industry which can and will exploit them, and they are not in a position to push back against the record companies and music publishers who provide them with their first contracts. So the change in Canada? A  new right of reversion 25 years after assignment - rather than 25 years after the death of the author. One word! In the UK Ben reported that the UK's Department for Business, Energy & Industrial Strategy had published it's long awaited paper which offered guidance on what might happen with copyright if (when) the UK leaves the European Union with a 'no deal' Brexit outcome (an increasingly likely scenario). The CopyKat told us that the American Chemical Society and Elsevier were again suing the academic 'networking site' ResearchGate in an another attempt to block the website from posting copyrighted research papers. President Donald Trump signed the Music Modernization Act into US law and the President welcomed various artists to the White House for a signing ceremony, including Kid Rock, Kanye West, Beach Boys singer Mike Love and country singer Craig Morgan. On this Blog, Akshat Agrawal asked would the same outcome possible in India, arguing in favour of a retrospective application of the 2012 amendment to s39 of the Indian Copyright Act, and asked would this development be desirable in other jurisdictions, in particular with regard to the Indian context? In a case referred from the German Federal Court (BGH), AG Szpunar advised the CJEU to rule that copyright cannot subsist in military report in an important fundamental rights case (the 'Afghanistan Papers' case, Funke Medien NRW GmbH v Federal Republic of Germany, C-469/17) which asked whether copyright protection can be trumped by the need to safeguard freedom of the press and freedom of information, and whether fundamental rights may be directly invoked to prevent enforcement of copyright. Back to transformative art, with Marie posting an excellent piece titled "Is Richard Prince in a Jam?" with an update on the two cases (currently) faced by the appropriation artist,  Eric McNatt v. Richard Prince et al., (1:16-cv-08896) and Graham v. Prince et al., (1:15-cv-10160) and Prince's ongoing justification for his 'art'. The CJEU backed the opinion of Advocate General Maciej Szpunar in a German case that pitted a defendant (Michael Strotzer) who claimed he could not be liable for online infringement because he and his parents used the same internet connection, and the need to balance the (here) conflicting rights of a right to family life against the right of a copyright owner to protect their rights. The conclusion?  The court have upheld the AG's opinion that  "The right to respect for family life, recognised in Article seven of the Charter Of Fundamental Rights of the EU, cannot be interpreted in such a way as to deprive right holders of any real possibility of protecting their right to IP". And finally, planned copyright  law reforms in South Africa, the USA, Japan and Europe all faced criticism with headlines that included "Shambolic Copyright Amendment Bill will favour Google and its ilk" and "What's Next For Europe's Internet Censorship Plan?" and with the American Law Institute's 'Restatement of Copyright Law' facing a claim that the authors were "notoriously anti-creator copyleft irritators". 

November is upon us! And Ben opened with the big tasty decision from the CJEU which rejected a controversial attempt to use copyright law to protect the distinct taste of a food product, in this case a Dutch cheese. The court explained that taste is too subjective to allow a work to be uniquely identified, even using science, and so taste cannot be protected, concurring with the Advocate General's opinion that an artistic work must be capable of being seen and heard. It was the first time the court had been asked to decide whether copyright applies to taste as an artistic work and one which is not defined by the InfoSec Directive, holding that that the taste of a food product is not eligible for copyright protection and the taste of a food product cannot be classified as a ‘work’. In  C-310/17 Levola Hengelo BV v Smilde Foods BV the Court made it clear that in order to be protected by copyright under the Directive, the taste of a food product must be capable of being classified as a ‘work’ within the meaning of the Directive. Classification as a ‘work’ requires (a) that the subject matter concerned is an original intellectual creation and(b) there must be an ‘expression’ of that original intellectual creation. Elsewhere, six of the eleven “Trans Pacific Partnership" member states ratified the Trans Pacific Partnership 11 Agreement.  The agreement will go into effect on December 30th 2018. The amendment of Japan's copyright law will be effective on the same day, and the statutory term will be extended to life + 70 years from January 2019, including for those creators whose copyrights would have expired on December 31, even though the United States government has withdrawn from the TPP agreement (at least for now). What is interesting is how the "war extension" in copyright law might (or might not) be accommodated. An attempt by the NFL to re-open the Spinelli litigation was rejected by the US Court of Appeals for the Second Circuit which refused to re-hear the case 'en banc', and New Zealand's Minister of Commerce and Consumer Affairs, Hon Kris Faafoi, released an issues paper marking the first stage of public consultation on changes to the Copyright Act 1994, saying all Kiwis should consider taking part. “Copyright affects all New Zealanders. We create copyright works when we take a photograph, record a video, or write an email, and we use copyright works by watching a sports broadcast, streaming a movie, listening to music, or reading a book” said the minister. News broke that a group of Satanists, who had sued Netflix and Warner Bros for $50 million (£38 million) in a copyright row over the TV drama series Sabrina, had "amicably" settled the lawsuit. The Satanic Temple claimed the entertainment giants had copied its depiction of goat-headed deity Baphomet in "The Chilling Adventures Of Sabrina". The only publicly released terms were that "The unique elements of the Satanic Temple's Baphomet statue have been acknowledged in the credits of episodes which have already been filmed." And finally, Lyor Cohen became the latest YouTube executive to take aim at the planned reforms to EU Copyright Law, and in particular Article 13. An ex-record label man himself, Cohen is now YouTube’s global head of music and he posted a warning about the new Copyright Directive saying “Let me be clear: we understand and support the intent of Article 13. We need effective ways for copyright holders to protect their content” adding “But we believe that the current proposal will create severe unintended consequences for the whole industry. We still have a couple of weeks to work together towards a better final version of the law. The music industry should really pay attention to these unintended consequences - the system that largely contributes to their success is at risk of major change in the European Union”, opining that "Remixes and covers, tutorials, fan tributes, parodies" were all at risk, and that "these are such powerful promotional tools for the industry".

December began with the news that the Board of CISAC (the International Confederation of Societies of Authors and Composers) has decided to implement its sanctions process against SGAE, which could result in the Spanish collection society’s expulsion. SGAE (Sociedad General de Autores y Editores) has been repeatedly in the news since June 2017, when police raided its offices in search of documentation relating to an alleged scam dubbed ‘the Wheel’ (‘la Rueda’), in which a small number of SGAE members and TV executives allegedly conspired to create “low-quality music” – often reworked versions of songs in the public domain – to be broadcast on late-night TV, generating performance royalties collected by SGAE. Google revealed it had received 3.8 billion URL take-down requests in 2018, with three organisations from the music sector topping the list (The UK's BPI, APDIF Mexico and APDIF Brasil).  As Christmas approached, the ‘Blurred Lines’ song-theft saga finally came an end after the deadline passed for Pharrell Williams and Robin Thicke to take the case to US Supreme Court, with the Marvin Gaye estate now entitled to receive 50% of any future royalties generated by the song. And whilst the MMA will make important changes going forwards in the USA, Techcrunch was one of many online publications reporting that Spotify has settled the $1.6 billion lawsuit filed by music publisher Wixen Music Publishing in December 2017. The publisher, which represented artists including  Tom Petty, Stevie Nicks and Neil Young, alleged copyright infringement, saying that Spotify had used its catalogue without a proper license and had not obtained either a direct or a compulsory mechanical license. The financial terms of the settlement were not disclosed but Spotify and Wixen issued a joint statement saying “The conclusion of that litigation is a part of a broader business partnership between the parties, which fairly and reasonably resolves the legal claims asserted by Wixen Music Publishing relating to past licensing of Wixen’s catalog and establishes a mutually-advantageous relationship for the future.”  At the same time the United States Copyright Office formally kicked off the process to establish the MMA’s Mechanical Licensing Collective (MLC) by putting out a request for information to help inform its choice for designating both the members of the MLC and Digital Licensee Coordinator (DLC). The US Court of Appeals for the Second Circuit reached its decision in Capitol Records, LLC v. ReDigi Inc., No. 16-2321, confirming that online music service ReDigi infringed Capitol Records' copyrights by allowing users to resell legally purchased iTunes MP3 files with a decision that drove a stake through the heart of the business of re-marketing 'second hand' digital filesThe ever busy AG Szpunar issued his opinion for the European Union's Court Of Justice in the long running legal battle between Kraftwerk and rapper Moses Pelham. concluding that using a two second sample of a sound recording without permission does indeed constitute copyright infringement saying  "Artists must be particularly aware of the limits and restrictions that life imposes on creative freedom where they concern the rights and fundamental freedoms of others, in particular their right to property, including intellectual property. In such cases, the balancing of different rights and interests is a particularly complex exercise and there is rarely a 'one size fits all' solution". Next, it's back to the planned reforms to EU Copyright law and in particular that pesky Article 13 which if implemented as it stands would mean user upload platforms might be liable for infringements by their users in a change to safe harbour provisions. In response to 'tech' lobbying,  a consortium of companies and trade groups speaking for the copyright industries published an open letter expressing concerns about any Article 13 compromise saying "As we reach the very final stages of this process, and negotiators seek to finalise a compromise text, we urge you to remember that the overall aim of the original European Commission proposal was to correct the distortion of the digital market place caused by user-upload content services, which enable users to upload content onto their sites and then profit from the availability of creative content without returning fair revenues to rightsholders, who create and invest in such content" and that only the reforms to safe harbour restrictions outlined in existing drafts of the directive will "meaningfully address" this issue. In the US, America's Computer and Communications Industry Association had the reverse approach when responding to a call for submissions by the US Trade Representative on the latest round of talks about a possible trade agreement between the US and the EU, criticising Article 13 saying "The proposed copyright directive disrupts settled law protecting [internet] intermediaries by weakening established protections ... and by imposing an unworkable filtering mandate on hosting providers that would require automated 'notice-and-stay-down' for a wide variety of copyrighted works. If adopted, the directive would dramatically weaken these long-standing liability protections which suggests that most modern service providers may be ineligible for its protections". To end the year: works first published in the USA in 1923 including "The Great American Novel" by William Carlos Williams, Cecil B. DeMille’s original version of "The 10 Commandments" and one of Agatha Christie’s Hercule Poirot novels will fall into the public domain; Beijing’s newly established internet court dismissed the ByteDance-backed Douyin’s copyright lawsuit against Baidu, a dispute that marked the first time a Chinese court has recognized short videos under the country’s copyright laws and accepted blockchain evidenceNew Zealand's Supreme Court agreed to hear the final MegaUpload extradition appeal by Kim Dotcom and the other former big wigs at the one-time file-transfer platform who face extradition to the US to face charges of criminal copyright infringement. And finally (phew) the fall out from the Cox case continued with a magistrate judge in the US advising that  internet service provider Grande Communications should be denied safe habour protection in its legal battle with the Recording Industry Association Of America, noting that simply having  a policy  to deal with repeat infringers was not enough, it had to be effective, and that here the ISP "affirmatively decided in 2010 that it would not enforce the policy at all, and that it would not terminate any customer's account regardless of how many notices of infringement that customer accumulated".

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'.
You can catch up with Eleonora's excellent and well observed 2018 Copyright Awards on the IPKat here - and some are mentioned above (thank goodness!!). 

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 

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! 




1 comment:

Annica Ryngbeck said...

Another aspect of 2018 (not covered by this exposé) has been screenwriters and directors, their representative organisations and supporters, call on EU decision-makers to include fair and proportionate remuneration (for the exploitation of their works) as a part of the proposed Copyright Directive. Read more on SAA's website: www.saa-authors.eu/en/tags/17-copyright#.XC4hv1X0kdU