The CopyKat - Big Brother IS watching YOU

The EFF tell us that Senators Grassley and Leahy, the Chairman and Ranking Member of the Committee on the Judiciary, have published a letter to the Copyright Office asking it to analyse the impact of copyright law on “software-enabled devices” (such as cars, phones, drones, appliances, and many more products with embedded computer systems). This issue is "crucial because technology and the law have evolved in a way that no one could have intended when Congress wrote the present copyright laws, and that evolution has restricted customers’ freedoms to repair, understand, and improve on the devices they buy". And the Library of Congress has just agreed with the fair use advocates who argued that vehicle owners are entitled to modify their cars, which often involves altering software. Car makers including General Motors and other vehicle manufacturers such as tractor maker Deere & Co had opposed the ruling. They said vehicle owners could visit authorised repair shops for changes they may need to undertake - much to the annoyance of drivers and farmers - and somewhat hypocritically it seems to the CopyKat - given the recent VW diesel emissions scandal. More here and from Wired here.

Talking of hypocrisy (or here perceived hypocrisy), according to Torrent Freak, a man called Josh Hadley who was attempting to sell T-shirts featuring the phrase “1984 is already here” has been contacted by the London based Estate of writer George Orwell, author of the dystopian nightmare "1984",  for infringing their copyright and right of publicity. Hadley has taken the T-shirts off the original website, but has said he plans to still sell them in his own online store. Big Brother is indeed watching us all. Calling the Estate's actions 'Orwellian', TorrentFreak says "Ironically, the estate itself has gained a reputation for exerting tight control of copyrights and trademarks, surveilling the Internet for possible offenses.". 

Beyonce by Denis O'Regan

Husband Jay Z may have garnered all the publicity in his 'Big Pimpin' win, but wife Beyonce was also victorious the same day in a case brought against her by Ahmad Javon Lane, who claimed that Beyonce's song "XO" infringed on his song "XOXO."  TechDirt tells us "Except, it didn't. Not by a long shot. While both songs have "XO" in the title, that appears to be about where the similarities end":  The Court, after listening to both songs and reviewing their lyrics "finds that no reasonable jury could find the lyrics of XO and XOXO substantially similar. Indeed, aside from the fact that both songs’ lyrics use the letters “X” and “O,” there is virtually nothing common to the two songs’ lyrics." A representative for Lane issued a statement to ET, saying that the singer "is disappointed with the judge's ruling and is considering fighting his case with an appeal." Interestingly and somewhat confusingly Judge Engelmayer also took the time to ascribe different moods to the tracks, writing, "The two songs also have a different feel -- an appreciative fan would term Lane's track seductive and personal, and Beyonce's track joyous and uplifting." But surely its about the lyrics being copied ..... not the 'feel' being copied? The copyKat felt strange memories of Blurred Lines rising ......

YouTube claims to have paid more than $2bn to music rights-holders in the past few years. The news broke in a comment given by the service as it announced a global licensing agreement with Kobalt-owned collection society AMRA. Music Business Worldwide have done an interesting comparison with two other leading streaming platforms - Spotify and Vevo - saying the figure for YouTube works out very roughly, at $50m being paid by YouTube to music rightsholders a month. But based on recent figures, Spotify’s payouts to rights-holders would have been  $142m per month and in a very rough (and now slightly outdated) monthly payment from Vevo to music rightsholders of $12.5m. Which rightsholders were paid is another very interesting question. YouTube has asked video content rightsholders (here we presume record labels) to sign a new licensing deal, covering both YouTube Red and its traditional ad-supported version of the platform. This contract stipulates, amongst other things, that rights-holders will receive 55% of net revenues from video and display advertising.

After sending thousands of settlement demands to alleged pirates since last summer, a law firm in Finland, Hedman Partners,  is making good on its threats to sue. After initially being asked to pay between 600 and 3000 euros per offence, those targeted by the lawfirm now face demands of up to 10,000 euros plus court costs. Hedman Partners acts on behalf of a number of film, adult content and TV companies and has, perhaps unsurprisingly but perhaps unfairly, been labelled a 'copyright troll'. 

In our last CopyKat we noted that Aerosmith lead singer Steven Tyler had become the third musician to hit Republican presidential candidate Donald Trump with a cease-and-desist letter for his use of music on the campaign trail. joining R.E.M. bassist Mike Mills and Neil Young, who both asked Trump to stop using their music. The Republicans have a long history of using songs they fit their political agenda without permission, and Law Street provide a useful analysis of both the annoyed musicians and the legal context here. 

Over 50 websites have been blocked by internet service providers in Portugal as a result of a voluntary agreement reached between government, the entertainment industry and the net sector's trade body, the Association Of Telecommunication Operators. In the Ukraine, legislation is being planned to introduce web-blocking laws alongside new financial penalties for companies who do not comply with anti-piracy efforts. 

CISAC, the global umbrella for collection societies has announced full year figures for 2014 from collections for songs - music, lyrics and compositions: collections were up 2.8% on 2013 - a 5% increase had exchange rates not changed - to 7.9 billion euros. Songs account for 87% of collected monies, and that income was up 2.4% year-on-year. Mechanical rights income, primarily from the sale of CDs and downloads, was down 9% year-on-year, but performing rights revenues were up 3.8% (streams are usually classified as exploiting both mechanical and performing rights). Societies in Europe accounted for 61.3% of collected revenue, while North America accounted for nearly 17%. The five BRICS emerging markets accounted for 5% of the monies collected.

Portugal approves proposal to expand scope of private copying levy

Our friend Tito Rendas has emailed us with the following news from Portugal:

"The Portuguese Council of Ministers has recently approved a proposal to amend Portugal's Private Copying Law. The proposal updates the list of reproduction equipment, devices and media on which the levy is charged. The fee has been charged on CDs, DVDs and cassettes since 1998. If the Parliament passes the proposed amendment, MP3 players, external hard drives, memory cards and the like will be subject to the fee as well.

As you would expect, the proposal has been generating a great deal of controversy: on one side, the electronics sector threatens to pass the cost of the levy on to consumers; on the other side, the collecting societies claim that the proposed levy amounts are negligible.

Along with this amendment, the Portuguese Government approved a Strategic Plan to Fight the Infringement of Copyright and Related Rights. What is known so far is that the Government plans to launch awareness (brainwashing?) campaigns in schools and to create a special police unit for online copyright infringement. No plans to introduce a graduated response system have been announced, though".

Thanks so much Tito -- and thanks for sending us a link to the Portuguese government's official announcement of this proposal.

Portuguese pub ruling: no need for licence for extra speakers

From our friend Pedro Malaquias comes news of a Portuguese Supreme Court of Justice decision which, in brief established that the transmission of broadcasts containing protected works in cafés and pubs was not a “communication to the public". Pedro writes:

Portuguese Conspiracy? Not
quite: this pub's in London 

"This decision (Supreme Court of Justice Ruling no. 15/2013, File no. 124/11.9GAPVL.G1 -A.S1, 3rd Section) is dated 13 November 2013, but was only published on 16 December 2013. Importantly, it is an “Acórdão de Fixação de Jurisprudência” (a decision aimed at resolving conflicting decisions of the appeal courts by establishing the interpretation of the Supreme Court.  This decision does not bind lower courts, but the likelihood of lower courts deciding against it in the future is reduced and require extensive substantiations. Decisions that run contrary to such a ruling will always be appealed to the Supreme Court of Justice, which may simply apply its previous decision.

Background

The case is a criminal one. It started on 6 March 2011, following a police inspection of a cafe/pub, in which there were 10 customers. In this place, a television music channel transmission was being reproduced through a TV set connected to three speakers spread through the premises. Since the owner of the establishment had not obtained an authorisation from the collection societies to broadcast protected works, the equipment was seized and criminal proceedings were brought against the owner of the premises.

No information is provided in relation to the first instance decision, but the appeal court (the Tribunal da Relação de Guimarães) decided that this behaviour was not punishable, as the use of speakers did not constitute a retransmission of the signal and therefore did not require the copyright holders’ authorisation.

As this decision directly contradicted another one issued by the same court, the Public Attorney filed an appeal against it (no other appeal had been filed). In this decision it was stated that, if the owner of the establishment had not connected any speakers to the TV set, no criminal offence existed.

The Supreme Court ruling

The Supreme Court of Justice opened by stating that the question in issue is simply that of ascertaining if the connection of speakers to a television, with the objective of spreading/ amplifying its output in public premises, requires an authorisation, in the absence of which the person responsible for the act commits the criminal offence of usurpation, under Article 195(1) of the Author’s Right and Related Rights Code (unless otherwise stated, all provisions cited here are from this Code).

Following some references to the exclusive rights held by an author under the Code (with references to 11bis of the Berne Convention), the Court asked if the listening to or watching of television channels in cafés, restaurants, bars, and other establishments open to the general public determines the need for their owners to obtain an authorisation from the authors of the transmitted works.

In order to decide this question, the court stated that a distinction must be drawn between reception and communication: “reception is the capture by appropriate devices of sound and image signals broadcast by a transmitter. The reception is the terminus of the transmission process and that alone solely justifies it: transmissions are made (broadcast) to the receiver”. The broadcast requires author’s authorisation. But once such authorisation has been granted, the reception is free, that is, the receiver can organise it at its will. What is essential is that it is maintained within the scope of reception.

According to the court, this was different from a work being reused, which occurs when the transmission adds, modifies, or innovates the work. Only in those cases would the author be entitled to a new remuneration. Examples are provided:

- That will usually be the case when the reception is converted itself into a show, organized in public places, around sporting or musical events, whether or not with paid admissions, but publicized, possibly with a special decoration or arrangement of space, all with the view to capture a wider audience, at least wider than the one usually present at the establishment. In this case, the mere reception plan would be abandoned to enter into the plan of creating a show, although one based on the reception of a television show. There is an organisation and a “scenario” that change the normal reception of the show. In this case, we are already under a communication to the public.

- The same solution shall be accepted when dealing with a multiplied reception, as occurs in hotels, in which the reception is communicated to the bedrooms and common areas, which results, further to an exponential amplification of the broadcast signal, in an extra service provided by the hotel to its guests, capable of attracting customers, and, as a result, profits, and, therefore, susceptible of being considered a reuse of the work, entitling the author to a remuneration.

However, that is not the case when the signals are simply received in cafes or pubs, which are open to the public, without an entry fee, in which the reception of television shows will not constitute a particular appeal. Connecting speakers to improve the sound quality or volume throughout the premises does not result in a different legal solution, as long as it does not result in a recreation of the transmitted show.

Based on the above, it was decided that connection to a television set of devices for the amplification of sound, broadcast by a TV channel, in commercial premises, does not constitute a new use of the broadcast work. As a result, its use does not require permission from its author and, therefore, it shall not be capable of resulting in criminal offence provided for in Articles 149, 195 and 197 of the Code.

No mention is made in the entire decision of any EU directives. The only reference to EU case law is made in relation to hotels, in a footnote reference to Case C‑162/10 Phonographic Performance (Ireland) Limited v Ireland; no reference is made to FAPL v QC Leisure.

SPA – Sociedade Portuguesa de Autores –  Portugual's most relevant author’s collecting society, is far from happy with this result, having released public statements in the past few days claiming that this decision goes against both Portuguese and EU law. As a result, it stated that it will keep on collecting royalties in these cases and will make every available political and judicial effort to overturn this decision and to make the Portuguese state liable for it.

According to a 3 January SPA statement, CISAC, STEF (Iceland), TONO (Norway), SABAM (Belgium), SUISA (Swiss), AEPI (Greece), ARTISJUS (Hungry), PRS (UK), ZAIKS (Poland), TEOSTO (Finland), AKM (Austria) and IMRO (Ireland) have expressed support for SPA’s position"

Thanks so much, Pedro!