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

This CopyKat by Tibbie McIntyre

The WS Society – Intellectual Property Conference – 20 April

You are warmly invited to attend the upcoming Intellectual Property Conference hosted by the WS Society. The event will take place on Thursday 20 April 2017, 9:00am – 1:00pm, at The Signet Library in Edinburgh.

The event promises to provide a wealth of information and discussion for IP practitioners, with panels covering;

-          The UK IP system post Brexit

-          Recent developments in IP contracts and licensing agreements

-          Brexit, PGIs and trade marks

-          IP in the Scottish FinTech sector – a case study

-          Panel session: the experiences of in-house counsel – what’s on their agenda?

-          Case law update – impact and implications

Speakers at the conference offer a wide range of expertise, including Stephen Rowan of the IPO, Ross Nicol of Maclay Murray & Spens, Mark Cruickshank of RBS and Anoop Joshi of Brodies. Gill Grassie will chair the conference.

The day should provide a valuable forum for IP practitioners to meet and discuss the impending impacts of Brexit on IP. For further information, please see the information page.

Seizure of over 10,000 pirated textbooks in Kenya

Pirated textbooks worth approximately Sh5.5 million were seized two weeks ago during a raid conducted by the Kenya Revenue Authority (“KRA”) and the Kenyan Ministry of Education.

The Kenya Publishers Association responded positively to the seizure, emphasising that pirates generate large incomes yet pay no taxes to the state. David Waweru, chairmen of the Kenya Publishers Association, stated that the pirated books “have poor binding and print quality. The text is illegible and unfriendly to the learners.” Examples of the poor quality pirated books can be viewed here. Waweru called for the facilitation of a new copyright bill which would enact stricter laws with heavier penalties for pirates.

“Digital Economy Bill criminal provisions are too broad” says experts

The Digital Economy Bill (“the Bill”) is currently making its way through the UK Parliament. The Bill deals with a variety of issues, including ticket touting, broadband provision and digital copyright. The digital copyright provisions are particularly controversial because a copyright infringer that causes any loss of money to a copyright holder will fall under the criminal liability provisions. Opponents of the current draft argue that the broad definitions in the criminal liability provision puts casual file-sharers at risk of prison-time. Additionally, the maximum prison term for copyright infringement is to be increased five-fold from two to ten years. TorrentFreak posits a nightmarish scenario for a young woman who downloads a single film after the passing of the Bill.

A group of experts sent a letter to the UK Government last week arguing that the criminal liability at Clause 35 of the Bill is too wide. (*N.B. the letter refers to clause 28 because it was published before the latest amendment of the Bill.) The letter argues that clause 35 is not compatible with the foreseeability and proportionality principles found in EU law and the European Convention on Human Rights (“ECHR”).

The foreseeability test

Per the letter sent to the government, the foreseeability test

“requires that the law needs to be sufficiently clear and precise in its terms to afford individuals an adequate indication of the circumstances where, and the conditions upon which, online copyright infringement may attach criminal liability i.e. specifically in particularly serious or commercial-scale online copyright infringement cases.”

The current drafting of the provision is broad enough to envision that an individual could potentially spend ten years in prison for sharing one file. The writers of the letter argue that “the Bill should explicitly state that criminal liability may attach only to commercial-scale or particularly serious copyright infringers.”

The proportionality test

It is argued in the letter that clause 35 does not adhere to the proportionality test found within EU law and the ECHR. Proportionality as it is applied to internet usage monitoring in investigating suspected infringers is used to bolster the argument that the provision in clause 35 is too broad to be proportionate. In the case of proportionality of internet usage monitoring, two factors are of importance;

1.       The depth and scale of the internet usage monitoring

2.       The scale of the infringement against which the monitoring is being carried out (commercial-scale would be justified, whereas it is more difficult to justify internet usage monitoring in small-scale infringement)

The issue with the current drafting in terms of adherence to the proportionality principle is that there is no differentiation between commercial-scale and small-scale infringement.

The solution

The solution, as proposed, would be to draft the provision so that ‘commercial-scale loss’ of income by copyright holders attracts criminal liability, rather than any loss. Additionally, ‘risk of loss’ should not attract criminal liability in infringement circumstances, and only ‘serious risk of causing commercial scale loss’ should attract criminal liability. This small amendment would lift the threshold for criminal liability to apply to those seeking to generate income from copyright infringement, rather than to encompass individuals engaging in non-commercial infringement.

The Bill is due to have its 3^rd reading in the House of Lords this Wednesday, 5^th April 2017. We await with anticipation as to whether this amendment will be made.

US Supreme Court NOT to hear case on whether safe harbour applies to pre-1972 music recordings

The US Supreme court has refused to hear the appeal filed by Capitol records relating to pre-1972 song recordings. The judgement handed down by the 2^nd Circuit on 16 June 2016 stands.

Background – safe harbour

Safe harbour is the qualified limitation of liability for hosting providers which host third party content, where users have uploaded copyrighted content (the law can be found here). It was introduced through the Digital Millennium Copyright Act (“DMCA”). Many in the music industry are opposed to the current formulation of the safe harbour principle, citing the ‘music value gap’ as a major loss of revenue (for more on this, please see here). Both the DMCA and the 1976 Copyright Act (which the DMCA amended) are federal laws because they emanate from Congress – the safe harbour principle is a creation of federal law. The 1971 Sound Recordings Amendment Act - an Act designed to protect against unauthorised duplication and piracy of sound recordings - is also a creation of federal law. The 1971 Sound Recordings Amendment Act came in to force in 1972.

At stake in this case was whether pre-1972 sound recordings are covered under the safe harbour rule, since pre-1972 sound recordings are protected under state law rather than federal law.

Capitol Records et al. argued that the safe harbour rule should not apply to pre-1972 song recordings, thereby inducing liability for Vimeo for the uploading of pre-1972 song recordings onto its platform.

The 2^nd circuit court found for Vimeo, stating that “we find no reason to doubt that § 512(c) [the safe harbour provision] … protects service providers from all liability for infringement of copyright, and not merely from liability under the federal statute.” This decision stands, and all infringement of copyright on Vimeo et al. by 3^rd party users is still covered by the safe harbour principle.

UK’s PRS for Music launches new online tool for live music performances

PRS for Music recently launched a new online tool designed to help rights holders manage royalty income from live performances.

The online tool allows users to upload set lists or programmes from performances whilst on the move with a phone or tablet. Over 1,000 set lists and programmes were reported to PRS in the first 24 hours of the launch, covering performances across 23 countries. The ease and convenience of the new tool is an essential factor in helping rights holders gain income from their copyrighted works. Members can report all live performances – including a small gig at a pub, DJing at a club, a classical concert or a sold-out stadium show.

PRS for Music members should log on to their online account and click ‘report your performance’ to access the new tool.                                                     

Reintroduction of Fair Play, Fair Pay Act in the US

A group of bipartisan legislators in the US have reintroduced a bill which is designed to put AM/FM radio into the same situation as webcasters – such as Pandora and iHeartRadio.  AM/FM radio stations pay nothing to perform music yet webcasters are required to pay statutory royalties for playing music on their online radio platforms.

A joint statement from the bipartisan group stated that "Our current music licensing laws are antiquated and unfair, which is why we need a system that ensures all radio services play by the same rules and all artists are fairly compensated."

A statement by Content Creators Coalition asserted that "for decades, artists have been forced to let their music generate billions of dollars of advertising profit to the corporate investors of radio companies while not being paid one cent for their art. It is past time for Congress to right this wrong."

Orphans: an appealing topic ...

A little while ago, the UK government issued a media release, "Orphan works licensing scheme appeal guidance", which explained that it had indeed published guidance on how to appeal to the Copyright Tribunal against a decision by the Intellectual Property Office to issue an orphan works licence under its new UK orphan works scheme. This guidance, contained in a 14-page pamphlet, is directed both towards applicants for an orphan works licences and for orphans themselves (and/or those who hold rights in their works).

The guidance also briefly considers appeals by rights-holders for orphan works used under EU Directive 2012/28 where the rights-holder and the user cannot agree the level of fair compensation.

Basic information and relevant links can be found on the GOV.UK site here.

There's also some useful information about appeals, which reads like this:

On what grounds can I appeal?

You can appeal on the grounds that the IPO has acted improperly or failed to meet its obligations under the regulations. It is not sufficient that you are unhappy with the IPO’s actions or decision; you must be able to explain why the IPO has acted improperly or failed to meet its obligations under the regulations [that should eliminate most grumbles at the threshold].

Examples of circumstances where the IPO could have acted improperly or failed to meet its obligations under the regulations would include (but are not limited to):

• failure by the IPO to fulfil its obligations to satisfy itself that a reasonable diligent search was carried out; or
• failure to put relevant details of the work on the register of orphan works; or
• failure to take into account what types of licence fees are paid for the similar use of equivalent non-orphan works, when setting the licence fee for the use of an orphan work.

What can I expect the IPO to do?

You can expect the IPO to abide by any findings the Tribunal may make [Well, yes, that is the very least that an appellant might expect in a civilised society that respects the rule of law -- but is that all? What about a bit of remorse, or compensation? Oh well, maybe not ...].

Not a secret: new wave of Regulations helps deregulate UK copyright from today

An excited media release has been received from the UK's Department of Business, Innovation and Skills.  It looks something like this.  There may be a reason why this news has been strictly embargoed and marked "not for publication or broadcast until 00.01 on Sunday 1st June 2014", but it's not apparent to this blogger.  So far as he can tell, all the information contained in it is already well known to the British copyright community and accessible to the public -- and there's nothing earthshaking or ground-breaking in the Minister's words, no shock announcement of free beer for all collective management societies or the long-overdue introduction of a statutory "bloggers' right" ...

STRICTLY EMBARGOED: NOT FOR PUBLICATION OR BROADCAST UNTIL 00.01 SUNDAY 1ST JUNE 2014

NEW EXCEPTIONS TO COPYRIGHT REFLECT DIGITAL AGE

Reforms to copyright law come into force today bringing estimated benefits of at least £250 million to the UK economy over the next 10 years [Not complaining, but that's a disappointingly low sum. Even Simon Cowell is valued at more than that.  You could buy a house, though ...].

The reforms will give a number of sectors a legal framework fit for the digital age, removing the burden of unnecessary regulations and helping the UK better preserve and use copyright material.

Changes from today include the removal of copyright barriers to Text and Data Mining ['data mining' is a tricky term, since it seems to mean different things to different people -- but it does sound good] for non-commercial research. This important analytic technique helps the UK’s scientific and academic community to deliver new advances in medicine, technology and research. Other essential changes will help organisations from charities to museums and archives both use and protect their own material.

Intellectual Property Minister Lord Younger said:

“These common sense reforms will update the UK’s copyright system for the digital age, and help to build and maintain public confidence and respect for copyright.

These changes bring an end to many instances where people carrying out minor, reasonable acts of copying could have found themselves on the wrong side of the law.

The text and data mining exception is a particularly important step forward for researchers in the UK and will ensure they have the tools that they need to maintain their competitive edge in an increasingly global marketplace.”

The exceptions coming into force today will bring a range of benefits to a wide range of groups:

Disabled people and disability groups can now make accessible copies of copyright material (e.g. music, film, books) when no commercial alternative exists.

Researchers will benefit from the introduction of the new text and data mining exception for non-commercial research, as well as the reforms to existing exceptions that will enable limited copying of all types of copyright works for non-commercial research and private study.

Schools, colleges and universities can now use copyright material on interactive whiteboards and in presentations, and as long as they have a licence, they will not need to worry about accidentally infringing copyright.

Libraries, archives and museums will now be better able to protect our cultural heritage and preserve their collections. The existing preservation exception has been expanded to cover all types of copyright work, and now applies to museums and galleries as well as libraries and archives. Removing the barriers to preservation will save cultural institutions up to £26m per year.

Public bodies can now publish online the material they hold for public inspection, reducing costs and administrative burden of having to issues paper copies or requiring people to come to their offices.

The Government is also committed to introducing exceptions for private copying and parody and quotation once they have been approved by Parliament.

For the record, the pieces of legislation in question (which have the potential to bring a good deal of benefit, much of it financially unquantifiable, to a lot of people) are

• The Copyright and Rights in Performances (Disability) Regulations 2014 
• The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014
• The Copyright (Public Administration) Regulations 2014 

Term Extension - the UK moves forward

Sir Cliff - timeless

Well, we blogged it was coming, and now the term of copyright protection for sound recordings in the UK runs for a marvellous 70 years, rather than the paltry 50 years that was previously the case. The move, which came into effect on November 1st and was dubbed "Cliff's Law" after the veteran hitmaker Sir Cliff Richard (who backed the campaign to extend the copyright period) has not been without its critics, many of who said the move would only benefit record labels: The European Directive (2011/77/EU) that implemented the change requested that each country introduce measures to ensure artists received some benefit from extra 20 years of copyright protection. The specifics of those benefits in the UK have been in development for most of the year, and the Intellectual Property Office has now announced the following initiatives

- A "session fund" paying many performers (such as session musicians) 20% of revenues from sales of their recordings.

- A "clean slate" provision, whereby a producer may not make deductions from payments to performers (such as advances of royalties) from publication of a recording.

- A "use it or lose it" clause - which allows performers and musicians to claim back their performance rights in sound recordings if they are not being commercially exploited.

What will be interesting will be the detail. Whilst the EU had said that the extended term would benefit record producers who would generate additional revenue from the sale of records in shops and on the internet allowing them to adapt to the rapidly changing business environment and help them maintain their investment levels in new talent, major record labels are extremely good at reducing artiste royalties to next to nothing, often by reducing revenues on which those royalties apply. To be frank, 20% of nothing is, well,  nothing. So the detail of how session players and featured artists get paid remains to be seen. If labels are required to "set up a fund into which they will have to pay 20% of their revenues earned during the extended period" then the key will be what those revenues actually are: 20% of gross revenues would be nice. 20% of net revenues will probably be next to nothing if labels are allowed to deduct costs and overheads.  Many heritage artistes already only receive a minute shares of revenues - which often look even more one-sided in the digital age where record label manufacturing, packaging and distribution costs are virtually zero:  prolonging that situation for 20 years won't help musicians and performers very much.

Confirming the new measures, IP Minister James Younger said "The new rules bring lasting benefits for our world class recording artists. These changes demonstrate the government's ongoing commitment to, and support for, our creative industries - who are worth billions to our economy. Artists who performed on sound recordings will benefit from this extension of copyright protection from 50 to 70 years. The changes should help ensure that musicians are rewarded for their creativity and hard work throughout their careers".

Meanwhile Jo Dipple of cross-industry trade body UK Music said: "UK Music welcomes today's announcement on extending the term of copyright for sound recordings. We are pleased that the government is implementing changes that acknowledge the importance of copyright to performers and record companies. This change will mean creators can rightfully continue to make a living from their intellectual property and works".

The extension will not be applied retrospectively, so tracks that have already fallen into the public domain, including the Beatles Love Me Do, remain outside of copyright protection.

https://www.gov.uk/government/news/musicians-benefit-from-extended-copyright-term-for-sound-recordings

Modernising copyright in the UK - a modern, robust and flexible framework?

It's the year end and so the 1709 bloggers seems destined to be flooded by new proposals and debate about copyright reform. Following on from Iona's report on EU moves, and the UK's Business Secretary's statement on IP (see here and here) comes the latest paper from HM Government titled "Modernising copyright - a modern, robust and flexible framework". Why you ask? Well  following the Hargreaves Review of Intellectual Property and Growth, and an extensive consultation process, the Government believes that the copyright framework can be improved "to make the UK a better place for consumers and for firms to innovate, in markets which are vital for future growth".

The Executive Summary says that the response ... has been developed with three principles in mind, these are:

1. The copyright framework must continue to incentivise creators of content and support them in protecting their rights from unlawful use;

2. Where possible barriers to competition and growth should be reduced;

3. There are areas of life where copyright should not interfere.

"After considering the responses to the consultation from a wide range of stakeholders and individuals the Government considers that permitting people to make wider use of copyright works, but with suitable safeguards for rights holders, can make those works more valuable for everyone.  The Government aims to find a balance between the interests of rights holders, creators, consumers and  users by introducing through Parliament a revised framework of boundaries for copyright and related rights in the digital age.

Legitimate users of copyright works, the vast silent majority who pay for works and value greatly the contribution that creators make to their lives, will gain important new rights to use those works.  It should make those works more valuable, and creators and rights owners stand to gain some of that value, particularly where they themselves are innovating.

The interests of creators and owners will continue to enjoy strong protection, including requirements for people to deal fairly with copyright works and robust action against those who acquire or make use of works unlawfully."

In particular the Government plans to modernise "fair dealing" for private copying (format shifting), in education, for quotations and news reporting, for parody, caricature and pastiche, for research and private study, for data analysis for non-commercial research, for access for people with disabilities, for archiving and preservation, and for public administration.

The Executive Summary adds "To ensure that permitted acts have the maximum positive impact, the Government wishes them to be clearly established and readily usable, and to deal effectively with current and emerging technologies.   It wants to shift some of the current uncertainty about whether something can be done lawfully into a question of whether a licence is needed or not." and "Consumers and users who purchase access to content should not have to pay again to store or make use of that content, if it is for their private, non-commercial use."

The Government will publish draft legislation for technical review in 2013. It intends to introduce the measures in the smallest possible number of statutory instruments to minimise disruption to stakeholders, make best use of Parliamentary time and ensure that the revised system is implemented in a clear and consistent manner. The intention is that measures will come into force in October 2013.

http://www.ipo.gov.uk/response-2011-copyright-final.pdf