UK Copyright if there’s no Brexit deal

The UK's Department for Business, Energy& Industrial Strategy has now published it's long awaited paper which offers guidance on what will happen with copyright if the UK leaves the European Union with 'no deal' outcome - an increasingly likely scenario (although the paper paints a more positive picture!).

The key points?

- The UK and other EU member states are already party to the main international treaties on copyright and related rights. Under the rules of these treaties, countries provide copyright protection for works originating in or made by nationals of other countries. These rules underpin the copyright legislation in all member states of the EU and do not depend on the UK’s membership of the EU.

There is also a body of EU law on copyright and related rights that goes beyond the provisions of the international treaties, including several cross-border copyright mechanisms. These mechanisms are unique to the EU and provide reciprocal protections and benefits between EU member states. They include:

• Sui generis database rights. Under the Database Directive (Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, extended to the EEA in paragraph 9a, Annex XVII of EEA Agreement), nationals, residents, and businesses of EEA member states are eligible for database rights in all EEA member states. These rights are unique to the EEA and do not arise in relation to databases created or owned by non-EEA citizens, residents, or businesses.
• Portability of online content service. The Portability Regulation (Regulation (EU) 2017/1128 of the European Parliament and of the Council of 14 June 2017 on cross-border portability of online content services in the internal market) allows consumers to access their online content services when they are temporarily in an EU member state other than their home state.
• Country-of-origin principle for copyright clearance in satellite broadcasting. The Satellite and Cable Directive (Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, extended to the EEA in paragraph 8, Annex XVII of the EEA Agreement) simplifies the clearance of rights for cross-border satellite broadcasting. Under the Directive, a satellite broadcaster can broadcast a work protected by copyright into any EEA member state after having cleared the copyright requirements for the member state in which the broadcast originates. Wider country-of-origin issues in relation to broadcasting are covered in Broadcasting and video on demand if there’s no Brexit deal.
• Orphan works (works without documented owners) copyright exception. The Orphan Works Directive (Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works, extended to the EEA in paragraph 10, Annex XVII of the EEA Agreement) allows cultural heritage institutions established in the EEA to digitise orphan works in their collection and make them available online across the EEA without the permission of the right holder.
• Collective management of copyright. The Collective Rights Management Directive (Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market, extended to the EEA in paragraph 11, Annex XVII of the EEA Agreement) places obligations on EEA Collective Management Organisations – bodies that manage the licensing of copyright works on behalf of right holders. Among these is a requirement that EEA Collective Management Organisations that offer multi-territorial licensing of online rights of musical works must represent on request the catalogues of EEA Collective Management Organisations that do not offer such licences.
• Cross-border transfer of accessible format copies of copyright works. The Marrakesh Directive (Directive (EU) 2017/1564 of the European Parliament and of the Council of 13 September 2017 on certain permitted uses of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled and amending Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society) and Regulation (Regulation (EU) 2017/1563 of the European Parliament and of the Council of 13 September 2017 on the cross-border exchange between the Union and third countries of accessible format copies of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled) implement the Marrakesh Treaty (the Marrakesh VIP Treaty, previously the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled) in EU law and allow the cross-border transfer of accessible format copies of copyright works between EU member states and with other countries that have ratified the Treaty.

The Portability and Marrakesh Regulations take effect directly in the UK. The remainder of the cross-border mechanisms have been or will be implemented in UK legislation.

After March 2019 if there’s no deal

The UK’s continued membership of the main international treaties on copyright will ensure that the scope of protection for copyright works in the UK and for UK works abroad will remain largely unchanged.

The EU cross-border copyright mechanisms extend only to member states of the EU or EEA. On exit, the UK will be treated by the EU and EEA as a third country and the reciprocal element of these mechanisms will cease to apply to the UK.

The EU Directives and Regulations on copyright and related rights will be preserved in UK law as retained EU law under the powers in the EU Withdrawal Act 2018. The government will make adjustments under the powers of the Act to ensure the retained law can operate effectively.

Implications

In respect of the cross-border mechanisms, in a ‘no deal’ scenario for:

• Sui generis database rights. There will be no obligation for EEA states to provide database rights to UK nationals, residents, and businesses. UK owners of UK database rights may find that their rights are unenforceable in the EEA.
• Portability of online content service. The Portability Regulation will cease to apply to UK nationals when they travel to the EU. This means online content service providers will not be required or able to offer cross-border access to UK consumers under the EU Regulation. UK consumers may see restrictions to their online content services when they temporarily visit the EU.
• Country-of-origin principle for copyright clearance in satellite broadcasting. UK-based satellite broadcasters that currently rely on the country-of-origin copyright clearance rule when broadcasting into the EEA may need to clear copyright in each member state to which they broadcast.
• Orphan works copyright exception. UK-based Cultural Heritage Institutions that make works available online in the EEA under the exception may be infringing copyright.
• Collective management of copyright. UK Collective Management Organisations will not be able to mandate EEA Collective Management Organisations to provide multi-territorial licensing of the online rights in their musical works.
• Cross-border transfer of accessible format copies of copyright works. The UK intends to ratify the Marrakesh Treaty after exit but ratification will not have taken place before 29 March 2019. Between exit and the point of ratification, businesses, organisations or individuals transferring accessible format copies between the EU and UK may not be able to rely on the EU Regulation.

The above is taken from https://www.gov.uk/government/publications/copyright-if-theres-no-brexit-deal/copyright-if-theres-no-brexit-deal. There is a FACT SHEET from the UK;s Intellectual Property Office  IP and BREXIT: The fact - Facts on the future of intellectual property laws following the decision that the UK will leave the EU. This can be found here https://www.gov.uk/government/news/ip-and-brexit-the-facts and as well as copyright extends to trade marks, patents and other rights.

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

Oracle and Google Dispute Over the Use of API’s is Not Over Yet

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 Publishes Notice to Stakeholders on the Effects of Brexit in the Field of Copyright

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.

UK Government Releases New Strategy Plan for Tackling Copyright Infringement Online 

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”.

Australian Rightholders Want to Force Search Engines to De-list Pirate Sites

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.

Owner of Sharebeast.com Sentenced for Illegally Distributing Copyrighted Materials

In the US, Artur Sargsyan, owner of the  Sharebeast.com, Newjams.net and Albumjams.com, 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.

Judge has Rejected Motion to Dismiss Copyright Lawsuit Over LeBron James Tattoo

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. 

Gospel-shocker

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 https://city-press.news24.com/News/gospel-shocker-how-black-musicians-got-screwed-20180401 and the Chief Executive of SAMRO, Nothando Migogo, responds here  http://www.samro.org.za/news/articles/samro-ceo-response-media-reports

This update by Mateusz Rachubka 

THE COPYKAT

Copyright - Where are we now? What is on the Horizon?

At the start of this year this CopyKat looks to bring together various pieces of news that demonstrate; the current challenges facing copyright, a look to how those challenges are being addressed and finally new challenges that could be on the horizon. Here goes!

Musician’s White Noise YouTube Video Hit With Copyright Complaints

When people upload original content to YouTube, there should be no problem with getting paid for that content, should it attract enough interest from the public.

Those who upload infringing content get a much less easy ride, with their uploads getting flagged for abuse, potentially putting their accounts at risk.

That’s what’s happened to Australia-based music technologist Sebastian Tomczak, who uploaded a completely non-infringing work to YouTube and now faces five separate copyright complaints.

Has Copyright Become a New Weapon Against Online Media?

Following on from the above, we can see further evidence here of how the video reporting tools within YouTube are being abused.

YouTube’s copyright rules are being abused by the Azerbaijan government in an attempt to censor content from the global video-sharing site according to one of the country’s few independent news services.

The Meydan TV network says four of its video reports, which highlighted allegations of official corruption, were removed on the grounds that they infringed YouTube’s copyright rules. And under the Google-owned giant’s terms, this brought the channel close to being taken off the site altogether.

YouTube is one of the few remaining mediums Meydan TV has for reaching audiences in Azerbaijan. The government blocked its website last year, and it has also jailed the network’s journalists.

Though both the RFE and Meydan TV videos have been restored, Milli is concerned that the threat to his network’s content remains. At the moment, he says YouTube is “failing badly” in policing its own rules.

IPO explains impact of EU portability regulation on copyright holders

The UK's Intellectual Property Office (IPO) has outlined the impact new EU rules affecting online content services could have on copyright holders in a new consultation paper published ahead of the new rules taking effect.

The IPO's explained (24-page / 4.72MB PDF) that rights holders will lose an element of control over how their material is accessed once they have entered licensing agreements with providers of online content services with paid subscribers.

Under the new rules, which come into force on 1 April this year, online content service providers must ensure that they make their service available to paid subscribers "in the same manner as in the member state of residence" when those subscribers are "present in a member state other than the member state of residence for a limited period of time".

U.S. Copyright Office requires electronic registration

By taking necessary steps, online service providers (OSP) can avoid legal litigation. The U.S. Copyright Office has instituted a new electronic registration system, where online service providers can protect themselves from copyright infringement lawsuits.

Companies that have an online presence can unknowingly be liable for intellectual properties, such as poetry, novels, songs and movies, that are posted on their websites by users or any third party. The Digital Millennium Copyright Act (DMCA) offers a “safe harbor” protection.

“The Digital Millennium Copyright Act provides OSPs an opportunity to remain innocent middlemen in a dispute between copyright holders and any user who posts infringing content, provided the OSP meets certain criteria,” said John Saint Amour, a supervisor at the U.S. Copyright Office.

Starting on January 1st, all OSPs are responsible for users’ posts, whether they post original content or copyright infringing content on their website, unless they electronically register with the U.S. Copyright Office.

No Level of Copyright Enforcement Will Ever Be Enough For Big Media

When swapping files over the Internet first began downloading of material wasn’t a particularly widespread activity. A reasonable amount of content was available, but it was relatively inaccessible. Then peer-to-peer came along and it sparked a revolution.

From the beginning, copyright holders felt that the law would answer their problems, whether that was by suing Napster, Kazaa, or even end users. Some industry players genuinely believed this strategy was just a few steps away from achieving its goals. Just a little bit more pressure and all would be under control.

Then, when the landmark MGM Studios v. Grokster decision was handed down in the studios’ favor during 2005, the excitement online was palpable. As copyright holders rejoiced in this body blow for the pirating masses, file-sharing communities literally shook under the weight of the ruling. For a day, maybe two: On an almost continual basis rightsholders are calling for tougher anti-piracy measures on top of more restrictive and punitive copyright law. It's undoubtedly a threat to current Internet freedoms as we know them. But really, is anyone truly surprised that entertainment companies still hate their content being shared for free? TorrentFreak has some strong opinions on this!

Copyrights from the 1920s will start expiring next year if Congress doesn’t act.

Admittedly this article does seem to directly contradict the above. However it demonstrates the entirely divided approach that seems to be prevalent when considering the future of copyright and how we manage our creative material.

On January 1, 2019,  books, films, and songs published in 1923 will fall out of copyright protection - something that hasn't happened in 40 years. At least, that's what will happen if Congress doesn't retrospectively change copyright law to prevent it - as Congress has done two previous times.

Until the 1970s, copyright terms only lasted for 56 years. But Congress retroactively extended the term of older works to 75 years in 1976. Then on October 27, 1998—just weeks before works from 1923 were scheduled to fall into the public domain—President Bill Clinton signed legislation retroactively extending the term of older works to 95 years, locking up works published in 1923 or later for another 20 years.

Will Congress do the same thing again this year? To our surprise, there seemed to be universal agreement that another copyright extension was unlikely to be on the agenda this year.

How AI and copyright would work

Though this has been an identified issue in the past, recent developments in this field are leading people to think again regarding our approach to copyright and AI.

Self-aware robots, androids or call-them-what-you-will have been part of science fiction almost from its beginnings. Recently in science reality, there’s been early, speculative discussion about “creative” works generated by these types of machines, and how copyright would apply.

It’s easy — and tempting! — to get wrapped around the axle when it comes to the prospects for artificial intelligence (AI) programs and their creation of original works. When works created by self-running software applications become more common, the result is both more possibilities and more challenges to existing copyright law. But let’s take a step back and consider what we know already, and then move on to what may soon be coming.

Kodak uses blockchain for photo copyright protection

Finally, where would any 2018 online blog post be without mentioning Blockchain at least once!

Former photo pioneer Kodak is turning to blockchain technology as part of an initiative to help photographers control their image rights.

The firm said the launch of ‘KODAKCoin’, in collaboration UK tech firm WENN Digital would help photographers receive payment for licensing their work immediately in cryptocurrency form.

KODAKCoin will use blockchain technology that settles transactions using computer algorithms, used by bitcoin and other virtual currencies.

Jan Denecke. WENN Digital chief executive , said: “It is critical photographers know their work and their income is handled securely and with trust, which is exactly what we did with KODAKCoin.

CopyKat Fights

To round this CopyKat off, below are three copyright disputes that have made recent headlines. Maybe not the most auspicious start to the year for these individuals….

Lana Del Rey sued by Radiohead over plagiarism claims - Lana Del Rey has confirmed that she is being sued by Radiohead over similarities between the final track on her current album ‘Lust For Life’ – which is called ‘Get Free’ – and the band’s 1992 hit ‘Creep’. There has been a recent update on this story which you can see here - is there actually a lawsuit?

BBC insists "no breach of copyright" over use of Brigadier's grandfather in Doctor Who special - Andy Frankham-Allen, creative director of Brigadier Lethbridge-Stewart creator Mervyn Haisman's estate, has now downplayed any row with the BBC,  and also explained how the Brigadier's daughter Kate Stewart (Jemma Redgrave) was approved for Doctor Who - and the Radio Times reports that any dispute over his grandson (Captain Archibald Hamish Lethbridge-Stewart, played by Mark Gatiss) who was in the recent Doctor Who Christmas special Twice Upon a Time had been settled with a "amicable, and non-financial, solution to the issue".

Ed Sheeran-Penned Song for Tim McGraw Is Target of Copyright Lawsuit - Two  Australians are asserting that Ed's "The Rest of Our Life" is the result of blatant copying and say it's hardly a coincidence that the musician who performed their own work is in a relationship with a Sony executive tasked with marketing the defendants' song. Gosh!!!!

This CopyKat by Matthew Lingard

Ps: As my time as an intern at 1709 comes to an end, I would like to thank the entire 1709 team for their insight and for giving me this opportunity. I would further like to wish the entire team and all of our readers a happy and prosperous 2018.

What future for UK copyright after Brexit? A report on IPKat-BLACA panel discussion

Posted by Eleonora Rosati to the IPKat 

On 19 October last IPKat and the British Literary and Artistic Copyright Association (BLACA) partnered once again and organised a panel discussion on the implications that the departure of the UK from the EU (aka 'Brexit) will have on UK copyright law.

Moderated by myself, the panel featured Sir Richard Arnold (High Court Judge, Chancery Division), Nicholas Saunders (Barrister, Brick Court Chambers), Ros Lynch (Copyright and IP Enforcement Director, IPO), Ian Moss (Director Public Affairs, BPI), Tom Ohta (Senior IP lawyer, BT), and Estelle Derclaye (Professor of IP Law, University of Nottingham). 

Asked what EU development has had the biggest impact - for better or worse - on UK copyright, Sir Richard highlighted at the outset how a number of developments would have occurred independently from UK membership of the EU. These include the changes mandated by the WIPO Copyright Treaties, TRIPS, the Marrakesh Treaty and the Beijing Treaty. However, there have been also legislative interventions prompted by EU membership, including the introduction into UK law of the resale royalty right (droit de suite). 

In all this, however, the learned judge noted that what has had a systemic impact has been in particular the jurisprudence of the Court of Justice of the European Union (CJEU), which has touched upon basic concepts such as originality (which Prof Derclaye said to require more than just sufficient skill, labour or effort, as per the traditional UK approach) and has resulted in UK courts embedding - as is apparent from the SAS case - the idea/expression dichotomy into UK law. Also Mr Saunders stressed the relevance of CJEU jurisprudence, and discussed the case of the right of communication to the public, which so far has been subject to nearly 20 references for a preliminary ruling.

I asked Sir Richard whether he thought that CJEU case law also mandates an open-ended approach to copyright subject-matter. Sir Richard and the other panellists noted that it is not sure that EU law - or rather CJEU interpretation of it - requires to adopt this approach and possibly (but not necessarily) further clarity might be provided when the CJEU decides Levola Hengelo, C-310/17, ie the cheese case [see here].

The discussion then moved to the policy initiatives that UK Government might need to take in the copyright area. Ms Lynch highlighted how, compared to other areas of IP, copyright is not particularly problematic. However, some adjustments would be required, eg with regard to the database right, and the country of origin principle.

When asked about the perspective of UK creative industries, Mr Moss noted how there are some pressing issues to address, including with regard to live performances. Uncertainties over immigration rules post-Brexit, as well as potential visa requirements for UK musicians and performers travelling abroad and EU nationals coming to the UK, should be addressed as soon as possible in order to avoid having to cancel shows that - for 2019 - have already started being arranged and booked. With regard to copyright rules, Mr Moss noted that certain aspects of the proposal for a directive on copyright in the Digital Single Market should be transposed into UK law, even in a scenario of hard Brexit.

Turning to the issue of enforcement, Mr Ohta noted that UK courts have developed a solid jurisprudence on jurisdiction over intermediary injunctions. The discussion then moved to the issue of responsibility for implementation costs of injunctions granted against intermediaries. It will be crucial to see what the UK Supreme Court decides in Cartier next year.

The audience engaged with questions and comments, and was particularly interested in the relevance of CJEU case law post-Brexit. According to s6 of the European Union (Withdrawal) Bill [see here for the progress of the Bill], "[a] court or tribunal— (a) [shall not be] bound by any principles laid down, or any decisions made, on or after exit day by the European Court, and (b) cannot refer any matter to the European Court on or after exit day." However, "A court or tribunal need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate to do so." What that will mean remains unclear.

As a final wrap-up question, I asked the panellists to indicate one area of copyright that they would like to see changed after Brexit, should the UK have the power to do so. Sir Richard noted that, although he was not indicating any specific preference, the UK might have a discussion around the re-introduction of s52 of the Copyright, Designs and Patents Act (CDPA) [which the UK repealed as a consequence of the CJEU Flos decision]. Prof Derclaye, Mr Ohta and Mr Saunders indicated case law on communication to the public as being in need of some rethinking, with Mr Saunders also adding the introduction of a new private copying exception [s28B CDPA was repealed shortly after it was introduced, on grounds that Government had failed to provide appropriate evidence as to why there was no need of a fair compensation requirement]. Mr Moss said there is no particular need to reform UK copyright law, although greater cooperation from intermediaries would be good. Considering how busy the UK IPO is already with other IP rights, Ms Lynch concluded by saying that she wishes that no immediate changes are necessary. 

The CopyKat: A possible point for legal divergence of the UK and EU in light of Brexit? (and much more)

This post was written by Tibbie McIntyre.

Much is spoken of the music ‘value gap’.

It stems from a limitation of liability for hosting providers which host third party content (in the US this is known as ‘safe harbor’). (European legislation can be viewed here, American here.) Essentially, when hosting providers are notified by rights holders of infringing content on their sites, they are required to take down the infringing content. But before such notifications are issued the hosting providers are not liable for the infringing actions of third parties.

YouTube is one of these hosting providers, benefiting from the limitation of liability. It is legally obliged to take down infringing content upon notification from the rights holder.

Meantime, let’s take a look at the music played on YouTube. In 2015, it was estimated that YouTube is responsible for 40% of consumption yet constitutes only 4% of the revenue. Some within the music industry feel that this glaring discrepancy in the numbers is thanks to YouTube’s limited liability. YouTube benefits from a position of strength compared to other streaming firms because in YouTube’s case, the music is already posted online. Spotify et al. must licence and then play.

What does this have to do with Brexit?

Draft Article 13 of the draft Directive on copyright in the digital single market (and Recital 39) is aimed at addressing this value gap by requiring hosting providers to “take appropriate and proportionate measures to ensure the functioning of agreements concluded with rightholders and to prevent the availability on their services of works or other subject-matter not covered by such agreements, including through the use of effective content identification technologies". This basically means that providers – such as YouTube – need to get licenced and implement filtering technologies.

Image in Public Domain

This move has been praised by a group of prominent US musicians, who have lobbied the US government to take similar steps.

It seems positive that the EU is trailblazing in this light.

BUT ….

As pointed out on the IPKat here, Article 13 cannot be implemented without also reforming Article 3 of the InfoSoc Directive and Articles 14 and 15 of the Ecommerce Directive. No one is quite sure yet how this issue will be resolved.

Brexit potentially comes in to play here. No one knows what will happen eventually, but there is always the possibility that the UK government might happen upon this issue and decide to tackle it – it has already been raised by one minister in relation to the Digital Economy Bill 2016-17.

If the UK government presses this issue (with a growing music industry there is no reason why it shouldn’t), the results could be very interesting indeed.

Dancing baby case

The ten year old saga (the baby in the video above should almost be a teenager by now) is rolling on, with the Supreme Court signalling its potential willingness to take the case further. The court has asked the US Solicitor General for his opinion on the matter, suggesting it might proceed with the case.

The district court opinion can be found here, the appeal at the 9^th Circuit can be found here and this issue. The case has also been commented on this blog previously here, and over at the IPKat here and here.

The case centres around whether rightsholders should consider whether a fair use defence applies to content posted online before take-down notices are issued.

Cases where the Solicitor General is asked to offer an opinion are accepted for review more often by the Court. This writer hopes that the justices will look at this case, as it could have a massive impact on how we conduct our lives online.

Follow the yellow brick road

The death knell rang this month for a decade long litigation saga in relation to merchandise relating to The Wizard of Oz, Gone with the Wind and the cat and mouse duo, Tom and Jerry. The 8^th Circuit Court of Appeals again reviewed the dispute, affirming both the $2.57 million judgment and permanent injunction in favour of studio giant Warner Bros.

As background, the defendants (X One X Productions, A.V.E.L.A., Inc., Art-Nostalgia.com, Inc., and Leo Valencia, collectively known as “AVELA”) obtained restored versions of advertising posters and lobby cards for Gone with the Wind, The Wizard of Oz and Tom and Jerry. Images of the famous characters from these films included Dorothy, Scarecrow, Tin Man and the Cowardly Lion from the Wizard of Oz, Scarlett O’Hara and Rhett Butler from Gone with the Wind and the cat and mouse duo Tom and Jerry.

AVELA extracted images from the restored advertising posters and lobby cards and licenced the images they extracted for use on a range of consumer products, including t-shirts, action figures, lunch boxes and playing cards.

The litigation saga began in 2006 when Warner promptly filed suit against the defendant, arguing copyright and trade mark infringement claims under the Copyright Act, Lanham Act and Missouri state law.

An interesting point is that the images on the advertising posters and lobby cards were generated before the films were completed and copyrighted. They were not duly registered in compliance with the copyright notice requirements of the 1909 Copyright Act, 17 U.S.C. §§1 et seq.. The Tom and Jerry images were also never registered, therefore not meeting the legislative requirements of that time period to give copyright notice.  (N.B. some of the images in question had been registered, however protection had not been timeously renewed). This fascinating issue – which was dealt with previously in this long-running saga – on drawing the boundaries between copyrighted works and the public domain in this case can be explored more fully here, here and here.

In the judgement handed down earlier this month, a range of issues were dealt with, including the award of statutory damages (with the appeallate judge finding the $2.57 million against AVELA isn’t disproportionate to the offense)

Importantly, AVELA’s attempt to invoke Dastar failed. Dastar is a Supreme Court judgement handed down in 2003 that holds that trade marks cannot act as a surrogate form of protection of works once copyright has expired.

A telling excerpt from page 10 of the judgement comments on how Dastar does not apply:

“Warner’s asserted trademarks in the characters from the films and cartoons do not run afoul of Dastar. The district court found and AVELA did not dispute that Warner holds registered trademarks in iconic phrases and names from the films and has used the character images for trademark purposes on a host of consumer goods for many years. Images of the film actors in character and signature phrases from the films are not communications, concepts, or ideas that the consumer goods embody as Dastar defines these terms. Products marketed under AVELA’s licenses employ iconic film characters’ pictures to associate the products with Warner’s films, not to copy the film itself. Accordingly, these are trademark claims, not disguised copyright claims, and Dastar does not bar them.”

“The clothes on the hanger do nothing; the clothes on the woman do everything,” – Justice Stephen G. Breyer

This remark was expounded at the Supreme Court earlier this month during a hearing in relation to Star Athletica L.L.C v Varsity Brands, Inc., et al.. The District Court stage can be read here, and the Circuit Appeals stage can be read here. This case has been and will be watched by many across the fashion industry.

The issue at stake in this case is whether designs on cheerleaders’ uniforms can be subject to copyright protection. All parties agree that two-dimensional designs may be copyrighted but the cut and shape of three-dimensional garments may not.

Designs that are utilitarian in nature do not attract copyright protection. Star, the smaller rival of Varsity and the defendant in the original proceedings, contends that the types of designs found on cheerleading outfits – stripes and chevrons etc. – are utilitarian in that they are essential to the function of a cheerleading outfit. This utilitarian function apparently – according to Star – is to “cause the cheerleader to be perceived as slimmer and more curvy than they actually are.”

The sportswear Colossus, Varsity, argued that many, many design variants are available in relation to cheerleading uniforms, yet this clothing still clearly remains for the purposes of cheerleading. In fact, “You can have a white cheerleading uniform worn by a cheerleader with the team name and team logo on it,”

A ruling in this case is expected by June 2017. It will surely be a landmark case for the fashion industry.