The CopyKat - eagles, trolls and honeypots

The provision in the Polish Copyright and Neighbouring Rights Act that gives the injured party an option to claim what are in effect punitive and triple damages based on a market rate licence fee multiplied times three has been held unconstitutional by the Polish Constitutional Tribunal.  The decision was made upon a request filed by UPC – one of largest digital cable television providers in Poland after UPC faced a court decision awarding punitive damages against UPC in favour of the Association of Polish Film Makers for rebroadcasting of TV programs without paying a license fee. More here .

What looks like an interesting looking book called It’s One for the Money: The Song Snatchers Who Carved Up a Century of Pop & Sparked a Musical Revolution by Clinton Heylin is out on Constable, its £20 and the  ISBN is 9781472111906. The Spectator describes it thus: "Clinton Heylin’s book is packed with examples ... of what strange things can happen when popular music and copyright law collide. Throughout the 20th century, he argues, songwriters happily borrowed, were influenced by or just nicked other songwriters’ ideas. (One of the book’s more unexpected snippets is that the Sex Pistols stole the introduction to ‘Pretty Vacant’ from Abba’s ‘SOS’.) But, because the serious money has always been in song publishing, this has not only created some great music. It’s also given record company types endless opportunities for unscrupulous profit."

Google has won a partial legal victory on over German performing rights society GEMA, which had sought to make the company's video-sharing service YouTube pay each time users streamed music videos by artists it represents. A Munich court rejected GEMA's demand that YouTube pay 0.375 euro cents ($0.004) per stream of certain videos. In its claim, GEMA had picked out a sample of 1,000 videos which it said would cost YouTube around 1.6 million euros. However the German regional court  ruled that Google's video-sharing website YouTube must prevent users from posting material that infringes copyright law once such a video has been brought to its attention. "However, if such a service provider has been made aware of a clear violation of the law, it must not only remove the content, but also must take precautions to avoid further infringements of copyrights," the court said in its ruling. GEMA may appeal the ruling. More here.

But not to assets ......

The MegaUpload case is back in the US courts after former MegaUpload executivess filed an appeal with the Fourth Circuit appellate court, arguing that the judge which originally considered the forfeiture requests which stripped them of assets  violated due process and denied Kim Dotcom and his fellow defendants their basic rights. The appeal also disputes the defining of the former MegaUpload executives as "fugitives", noting that while they are indeed fighting efforts to have them extradited to the US, they are doing so in accordance with the laws of the countries where they currently reside, which is New Zealand for Dotcom.

TorrentFreak reports that over the past months two of The Pirate Bay co-founders have been questioned by Swedish police, acting on behalf of the FBI. The officers were looking for information on Pirate Bay backups and logs as part of an investigation into the 'honeypot scheme' of the notorious Prenda copyright trolls - allegedly looking for evidence evidence that the so called copyright trolls Prenda Law uploaded their own torrents to The Pirate Bay, creating a honeypot for the people they later sued over pirated downloads. The crucial evidence to back up this allegation came from The Pirate Bay, who shared upload logs with TorrentFreak that tied a user account and uploads to Prenda and its boss John Steele. TorrentFreak says that the confirmation comes from Pirate Bay co-founders Peter Sunde and Fredrik Neij, who independently informed TF that they were questioned about Prenda during their stays in prison. More on Prenda here and here. 

A newly leaked TPP chapter "shows countries converging on anti-user copyright takedown rules". It seems the secret negotiations haven't all been US led and indeed some of the other potential signatories have resisted a carbon copy of the DMCA - mot least Canada which says it has a better takedown system, and the EFF say that notable improvem,ents include (i) the text now requires parties to provide penalties for knowingly false takedown notices (but also for false counter-notices) (ii) content that has been removed in response to a takedown notice must be restored if a valid counter-notice is received,  (iii) a failure of an intermediary to satisfy safe harbor conditions should not automatically make them liable for the user’s copyright infringement—it just means that they are no longer protected from being found liable in court and (iv) the limitations on liability that intermediaries enjoy may not be made conditional on their proactively monitoring uploads to their networks.

And finally - on Thursday (tomorrow), MEPs will make their opinions on copyright in Europe known – by voting on Pirate Party MEP Julia Reda’s review of the Information Society Directive. Its not binding - but may give Commissioner Gunther Oettinger, who is drawing up changes to copyright laws in Europe - some indication of where MEP's are on copyright reform -  on everything from geo-blocking to fair use to the Freedom of Panorama to 'Google' levies to the terms of copyrights to media pluralism. 

UPDATE: Eleonora has posted an update on the vote by the European Parliament which by 445 votes to 65 (with 32 abstentions), the Parliament adopted a non-binding resolution which assesses the implementation of the key aspects of this EU directive ahead of upcoming Commission plans to update the relevant legislative framework in the area of copyright. Eleonora's key headlines: Freedom of panorama not to be restricted - and a rejection of the German led proposal for EU-wide ancillary right over news content. More 
here http://ipkitten.blogspot.co.uk/2015/07/eu-parliament-rejects-restrictions-on.html - and the EFF have their own somewhat more opinionated comment here and the Register takes an in interesting stance here.

Assignment, rights in a recording and in an underlying work: a need for explanation

Peter Lawton, of London-based Cacophony Ltd write to ask for a bit of guidance. He says:

"I am a music publisher and have been trying to explain the difference between the copyright in the recording and the copyright in the underlying composition to a Polish company. They claim the law is different in Poland and when an artist signs a record contract they automatically assign the composition as well. They use the phrases "economic rights" and "derivative rights" (note: not defined and meaningless to me in this specific regard) to substantiate their claim.

I've been digging around to find something specific but reasonably intelligible to someone who's English is less than perfect (but an awful lot better than my Polish) which explains in either English or Polish -- with English translation so I can check it -- that the two rights are not the same and that EU legislation distinguishes between the two. I thought it would be easy to find but it seems not.

If anyone feels in the mood to give me bonus I also need to explain that covering a song does not mean the copyright in the composition is automatically acquired by the performer as well.

Responses, anyone?

DJs and collecting societies in Poland: time for dialogue?

We bloggers receive a good deal of correspondence from readers, most of which never gets on to the blog. However, every so often we receive something worthy of reflection and discussion.  Here we have a message from veteran Polish DJ and editor of the DJs Portal Yahu Pawul, which will resonate with many people whose experience of copyright is usually with its hard end, at which arbitrary rules appear to govern their regular routines, rules which they find hard to understand or appreciate.  Writes Yahu:

"I'm an "old" deejay pioneer of the Polish disco scene - I started 1970 and continue at 61 :-)) I do also some work as a publisher against Polish copyright law's persecution of Polish deejays.

They (the copyright organisations here) work in strange ways -- it looks like corruption etc. -- and send the Police into the discotheques and arrest deejays as pirates, thieves, etc., which I find totally wrong!

We are deejays of discotheques and we are persecuted a lot in Poland because of the sources of the music we play.

Deejay persecutions are totally wrong because, if we play music, then club owners have to pay royalties for precisely what are mentioned on our report lists - for artists, authors, producers. It does not matter what the source is for our mp3 / music / tracks, the same royalties have to be paid.

They call deejays who download music from any internet source pirates. This is upside down and totally wrong, because deejays do not sell this music but play public only that which creates a profit for all - and most of all for artists, producers and authors!

By the way, we in Poland need serious control of copyright organisations as to whether they do transfer 100% of the royalties they say they have the right to collect.

Is there any chance for cooperation with you against this wrong law in Poland as same as against those copyright organisations?"

It's not the way of the 1709 Blog to get involved in domestic law reform especially since, as a group of bloggers from different countries, with different professional or academic backgrounds and different perspectives, we can't easily reach consensus on a wide variety of issues.  However, what we can do is to offer people with different views and, in many cases, well-entrenched interests, a chance to debate and discuss their differences.  DJs don't share the anxiety that collecting societies have with regard to unauthorised or illicit downloads, and collecting societies don't often see a benefit to viewing, through the eyes of DJs, the little bit of world they both occupy. When both claim to benefit the interests of performers, composers and other rights owners, a little dialogue is in order.