US Appellate Court majority rules that 'Blurred Lines' DID infringe Gaye classic

The US Court of Appeals for the Ninth Circuit has upheld the 2015 jury verdict which found that Robin Thicke and Pharrell Williams' 2013 hit 'Blurred Lines' infringed on the copyright in Marvin Gaye's 1977 song 'Got To Give It Up'. The decision had attracted widespread criticism and comment, not least as many commentators felt that the jury made their decision by comparing the 'sound' or vibe of the songs, rather than the actual song itself. The appellate panel's  decision was a split decision, 2-1, with a scathing dissent from US Circuit Judge Jacqueline Nguyen who is openly critical of the majority and said that the Marvin Gaye Estate had been able to “accomplish what no one has before: copyright a musical style.” The decision means that Thicke and Williams remain liable for $5.3m in damages and ongoing royalties to the Marvin Gaye Estate from future revenues earned from 'Blurred Lines'. 

The majority of the panel (Judge Milan D. Smith, Jr and Judge Mary H Murguia) held that “Got To Give It Up” was entitled to broad copyright protection because musical compositions are not confined to a narrow range of expression. That said, the panel accepted, without deciding, the merits of the district court’s ruling that the scope of the defendants’ copyright was limited, under the Copyright Act of 1909, to the sheet music deposited with the Copyright Office, and did not extend to sound recordings.

The panel held that the district court’s order denying summary judgment was not reviewable after a full trial on the merits. The panel held that the district court did not err in denying a new trial. The district court properly instructed the jury that there is no scienter requirement for copyright infringement and that it must find both access and substantial similarity. The district court did not erroneously instruct the jury to consider unprotectable elements of “Got To Give It Up.” The district court did not abuse its discretion in admitting expert testimony. In addition, the verdict was not against the clear weight of the evidence because there was
not an absolute absence of evidence of extrinsic and intrinsic similarity between the two songs. The panel held that the district court’s award of actual damages and infringers’ profits and its running royalty were proper.

Reversing in part, the panel held that the district court erred in overturning the jury’s general verdict in favor of certain parties because the defendants waived any challenge to the consistency of the jury’s general verdicts. In addition, there was no duty to reconcile the verdicts. The district court erred in finding one party secondarily liable for vicarious infringement. To that end rapper  Clifford "TI" Harris and Interscope Records were not liable for any infringement holding: 

 "Harris and the Interscope parties contend that the district court erred in overturning the jury's general verdicts finding in their favour. We agree. First, the Gayes waived any challenge to the consistency of the jury's general verdicts. Second, even had the Gayes preserved their challenge, neither Federal Rule of Civil Procedure 50(b) nor our decisions in Westinghouse and El-Hakem v. BJY Inc, conferred authority on the district court to upset the jury's verdicts in this case. Third, as to Harris specifically, the district court erred for the additional reason that no evidence showed Harris was vicariously liable".

The panel held that the district court did not abuse its discretion in denying the defendants’ motion for attorneys’ fees under § 505 of the Copyright Act or in apportioning costs among the parties.

The majority of the appeals court also disagreed the proposition that the two tracks "differed in melody, harmony, and rhythm". In dissent Judge Nguyen said that the ruling "strikes a devastating blow to future musicians and composers everywhere”.

It will be Judge Nguyen's dissent which will no doubt attract the most attention. In her strongly worded opinion she says “ 'Blurred Lines’ and ‘Got to Give It Up’ are not objectively similar” and that the two songs "differ in melody, harmony, and rhythm. Yet by refusing to compare the two works, the majority establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.”

"While juries are entitled to rely on properly supported expert opinion in determining substantial similarity, experts must be able to articulate facts upon which their conclusions—and thus the jury’s findings—logically rely. Here, the Gayes’ expert, musicologist Judith Finell, cherrypicked brief snippets to opine that a “constellation” of individually unprotectable elements in both pieces of music made them substantially similar. That might be reasonable
if the two constellations bore any resemblance. But Big and Little Dipper they are not. The only similarity between these “constellations” is that they’re both compositions of stars.

The case certainly brings up questions of how expert evidence should be viewed by the court: Again and at the end of her opinion Judge Nguyen is critical of the role of the musicologists in this case saying "Admittedly, it can be very challenging for judges untrained in music to parse two pieces of sheet music for extrinsic similarity. But however difficult this exercise, we cannot simply defer to the conclusions of experts about the ultimate finding of substantial similarity. While experts are invaluable in identifying and explaining elements that appear in both works, judges must still decide whether, as a matter of law, these elements collectively support a finding of substantial similarity. Here, they don’t, and the verdict should be vacated. 

Noting that "In assessing the similarity of two pieces of music, it’s important to keep in mind “the limited number of notes and chords available to composers and the resulting fact that
common themes frequently reappear in various compositions, especially in popular music.”
and that "Not all expression is protectable. Originality, the “sine qua non of copyright,” accommodates authors’ need to build on the works of others by requiring copyrightable expression to be “independently created by the author” and have “at least some minimal degree of creativity and that "If an author uses commonplace elements that are
firmly rooted in the genre’s tradition, the expression is unoriginal and thus uncopyrightable" Judge Nguyen adds: "The Gayes, no doubt, are pleased by this outcome. They shouldn’t be. They own copyrights in many musical works, each of which (including “Got to Give It Up”) now potentially infringes the copyright of any famous song that preceded it  ... That is the consequence of the majority’s uncritical deference to music experts."

Judges Smith and Murguia in the majority countered with :"Our decision hinges on settled procedural principles and the limited nature of our appellate review, dictated by the particular posture of this case and controlling copyright law. Far from heralding the end of musical creativity as we know it, our decision, even construed broadly, reads more accurately as a cautionary tale for future trial counsel wishing to maximise their odds of success". They are forthright on Judge Nguyen's dissent:  "The dissent's position violates every controlling procedural rule involved in this case" and they say "The dissent improperly tries, after a full jury trial has concluded, to act as judge, jury and executioner" and "Our decision does not grant license to copyright a musical style or 'groove'" and they add "Nor does it upset the balance Congress struck between the freedom of artistic expression, on the one hand, and copyright protection of the fruits of that expression, on the other hand".

The central issues raised in the case are far from settled - and up next there is the Led Zeppelin 'Stairway To Heaven' appeal which is pending before the Ninth Circuit in a claim brought on behalf of late Spirit songwriter Randy Wolfe's estate that says that the heavy rock classic copies the riff found on Spirit's instrumental "Taurus".

https://www.musicbusinessworldwide.com/blurred-lines-did-infringe-on-marvin-gaye-song-rules-appeals-court/

Williams v Gaye No. 15-56880 D.C. No. 2:13-cv-06004-JAK-AG

https://www.tennessean.com/story/money/2018/03/21/blurred-lines-marvin-gaye-lawsuit-robin-thicke-pharrell-williams-richard-busch/446518002/

https://www.independent.ie/world-news/blurred-lines-copyright-verdict-upheld-by-appeals-court-36731433.html

https://www.rollingstone.com/music/news/appeal-filed-in-led-zeppelin-stairway-to-heaven-trial-w472692 and http://www.musiclawupdates.com/?p=5821 

Blurred Lines: The difference between inspiration and appropriation By Ben Challis (September 2015) here  http://www.wipo.int/wipo_magazine/en/2015/05/article_0008.html

UPDATE: A very useful article on Billboard here  https://www.billboard.com/articles/news/8257580/blurred-lines-appeal-pharrell-robin-thicke-marvin-gaye-legal-analysis which also discuss the possible approaches to an appeal by Thicke and Williams - an en banc review by the 9th Circuit, or an appeal to the Supreme Court?

and see https://abovethelaw.com/2018/03/blurred-lines-can-you-copy-a-music-genre/

And https://www.rollingstone.com/music/features/music-copyright-after-blurred-lines-experts-speak-out-w518206


UPDATE 13.04.18

An appeal for the 9th Circuit to hear the case 'en banc' has been filed in behalf of Williams and Thicke  https://www.hollywoodreporter.com/thr-esq/pharrell-williams-robin-thicke-want-shot-at-blurred-lines-appeal-1102116   The petition for the rehearing argues that this case conflicts with the court's prior copyright decisions and presents exceptionally important issues and "If a copyright holder can now get to a jury simply by proffering an expert to opine that a song's elements are substantially similar to an accused song, without any objective comparison by the court, no musical work is safe from the prospect of copyright liability."

Music Modernization Act launched in the US

COPYRIGHT: Two US Congressmen have launched a proposed new statute that has the support of both music owners and music users in an effort to overhaul of the mechanical royalties system in the US. Doug Collins and Hakeem Jeffries say that the Music Modernization Act would "bring music licensing its first meaningful update in almost 20 years".

With no collecting society offering a blanket licence covering the so called 'mechanical rights' in songs, music users must identify the owners of every song they copy, and make sure those owners receive the licensing paperwork and fixed royalty rate set out in American copyright law. Its not easy - the streaming platforms, which concurrently exploit both the performing right and mechanical right elements of the song copyright. Last May, Spotify came to a proposed $43 million settlement to resolve a class action from songwriters led by David Lowery and Melissa Ferrick. The plaintiffs in that case had alleged that Spotify hasn't adequately paid mechanical licenses for song compositions. In July, Spotify was hit with two lawsuits, including one from Bob Gaudio, a songwriter and founding member of the group Frankie Valli and the Four Seasons. Now Spotify has been hit with a $1.6 Billion copyright lawsuit from Wixen Music, publisher of songs by Tom Petty and Neil Young amongst others, which amongst other claims argues that the Lowery/Ferrick settlement was far too low. Apple Music has faced similar claims. 

The proposed legislation will be an overhaul of the compulsory licence system that governs mechanicals in the US, with Collins and Jeffries saying: "Under the Music Modernization Act, the digital services would fund a Mechanical Licensing Collective, and, in turn, be granted blanket mechanical licenses for interactive streaming or digital downloads of musical works". Although paid for by the digital services, the new collecting society would be run by music publishers and (self-published) songwriters. The law would also: change the way the statutory boards and courts that regulate US collective licensing are organised; the way judges are selected to consider the royalty rates would be changed; and the criteria employed when setting rates would be altered to reflect market realities.

With Wixen's claim against Spotify alleging that Spotify outsourced its work to a third party, licensing and royalty services provider the Harry Fox Agency, which was "ill-equipped to obtain all the necessary mechanical licenses", surely this proposed legislation is much needed? Some say yes, some say maybe!

The Digital Media Association (which includes Apple, Spotify, YouTube, Pandora, Amazon, Napster and Microsoft as members) is backing the proposals, as are the US music publishing and songwriter community. David Israelite for the National Music Publishers Association said "The Music Modernization Act brings the laws that govern songwriters into the modern age. This legislation will lead to improved rates for songwriters and will streamline digital music companies' ability to license music. While there is still more to do to free songwriters from oppressive government regulation, this is a major step forward". The NMPA also put its name to a joint statement alongside collecting societies BMI and ASCAP, plus Songwriters Of North America and Nashville Songwriters Association International. Together they declared that the Music Modernization Act represents "months of collaboration and compromise between the songwriting and tech industries". However the National Association of Broadcasters (NAB) said it has serious concerns about unrelated provisions in the bill that may unjustifiably increase costs for many music licensees, including local radio and TV broadcasters, who otherwise receive no benefit from the legislation” the organisation said in its statement adding “NAB looks forward to working with the bill sponsors and impacted parties to resolve our outstanding concerns” and  the Songwriters Guild of America said that while the proposed legislation has many good points, it also has a “number of serious problems” that will need to be addressed before SGA and thousands of its members can support the bill. 

Other proposed music sector focussed legislation in the US includes moves to ensure AM/FM radio stations to pay royalties to artists and labels as well as songwriters and publishers (the Fair Play Fair Pay Act), and moves to sort out the pre-1972 'quirk' in US copyright law (the CLASSICS Act), and the Transparency In Music Licensing & Ownership Act proposed by Congressman Jim Sensenbrenner earlier this year. That proposal also seeks to overcome some of the issues around digital licensing and the problems caused by the lack of a workable publicly accessible database detailing accessible music rights ownership information.

An interesting take on how this may have influenced Wixen Music's recent filing of it's $1.6 billion lawsuit against Spotify (and how this might impact on Spotify's planned IPO) here
https://www.npr.org/sections/therecord/2018/01/03/575368674/sweeping-new-music-law-expedites-a-1-6-billion-lawsuit-against-spotify and here  https://musicindustryblog.wordpress.com/tag/spotify-law-suit/

https://www.billboard.com/articles/business/8078543/music-modernization-act-house-of-representatives-licensing-reform

https://www.billboard.com/biz/articles/news/legal-and-management/8085840/spotify-hit-with-16-billion-copyright-lawsuit-over

http://musiclawupdates.blogspot.co.uk/2017/12/apple-music-in-hot-water-over-unpaid.html

http://www.theweek.co.uk/90715/spotify-hit-with-billion-dollar-copyright-lawsuit

THE COPYKAT

Safe as houses?

A new children’s book “Silent Days, Silent Dreams,” is billed as a fictional biography about James Castle, a self-taught artist whose works can be found in museums, art galleries and private collections all over the world. Written for children, the book contains about 150 illustrations by award-winning writer and illustrator Allen Say - but are those illustrations going to cause problems? They might do as the James Castle Collection and Archive (which has the largest privately held collection of Castle’s works) is suing Say and his publisher for copyright infringement in Boise federal court, alleging that many of Say’s illustrations “are intended to evoke and imitate the artistic style of James Castle but some two dozen of the illustrations “are far more than a tribute” and are “similar if not virtually identical copies” of Castle’s work (see left). An injunction is being sought. 

What a difference a decade makes! China's "core network copyright industry" has seen rapid growth over the past ten years, according to a recent industry report. In 2016, the scale of the industry exceeded 500 billion yuan (about $76.5 billion U.S. dollars), maintaining a growth rate of over 30 percent a year, according to a report by the country's Network Copyright Industry Research Centre. In 2006, the volume of the industry was just 16 billion yuan, the report said. The report focuses on China's "network industry," described as network gaming and online content, including video and music. Researcher Tian Xiaojun said "With the continuous increase of copyright protection in China and the upgrade of domestic consumption, China's network copyright industry will have huge market potential and is expected to contribute more to the country's economy growth".

Mike Palmedo and Sean Flynn have released the initial results of research based on  the Program on Information Justice and Intellectual Property of the American University Washington College of Law's Copyright User Rights Database. This research tool maps changes to copyright limitations and exceptions and other “user rights” from 1970 through 2016 in 21 countries of different development levels around the World. Palmedo and Flynn intend to continue adding data from additional countries, but feel that the current data allows us to begin demonstrating how differences in copyright user rights are associated with certain outcomes for innovative firms and researchers. The first results are based on tests of copyright limitation openness and although all countries are trending toward more open user rights, there is a clear gap between wealthy and developing countries. The research shows that developing countries in the sample are now at the level of openness that existed in the wealthy countries 30 years ago. Few countries, and almost no developing countries, have sufficient user rights most needed to support the digital economy, including for transformative use or text and datamining. The authors say "To date, there has been very little empirical work exploring how the structure of copyright limitations and other user rights shape outcomes in industries that rely upon them. One reason for this lack of empirical research on the impact of copyright user rights has been the absence of a tool to measure the key independent variable – changes in copyright user rights over time among a broad set of countries. We hope other researchers will find the Copyright User Rights database to be a useful tool for further empirical research on copyright user rights". More here. 

Last week, Motherboard discovered that one of Google's machine learning algorithms was biased against certain racial and religious groups, as well as LGBT people. The Cloud Natural Language API analyzes paragraphs of text and then determines whether they have a positive or negative "sentiment." The algorithm rated statements like "I'm a homosexual," and "I'm a gay black woman," as negative. After the story ran, Google apologised. Now Motherboard are posing the conundrum: "Copyright Law Makes Artificial Intelligence Bias Worse - But it could be used to help fix the problem too" adding "Copyright law has historically exacerbated bias in artificially intelligent algorithms, but it also has the capability to vastly improve them. If companies knew they were protected legally, they would also be more likely to release the data their products were trained on, allowing academics and journalists to do their jobs."

Broadcaster ESPN have been forced to face a trial that alleges copyright infringement after a Mississippi federal judge denied the sports giant's motion for summary judgment. The dispute centers on two documentaries about the life of college football player Chucky Mullins, who was paralyzed during a 1989 game between University of Mississippi and Vanderbilt University while tackling Brad Gaines. Mullins died as a result of complications from his injuries in 1991. Charles Smith Jr. and his production company 38 Films us now suing ESPN and others for breach of contract, fraudulent misrepresentation and copyright infringement, among other claims. They say the 2014 ESPN documentary "It's Time: The Story of Brad Gaines and Chucky Mullins" used his footage without paying an orally agreed upon license fee or giving appropriate credit. Smith claims he understood the ESPN documentary to be about Gaines and he agreed in an oral contract to license footage from his film at a rate of $3,000 per minute used and Ginn gave Yamano their entire archive of digital files. Meanwhile, the defendants say their film is about Gaines, not Mullins, and that they didn't use any footage actually featured in Undefeated or owned by 38 Films.

And news of developments in the legal battle going between photographer Jon Tannen and the giant online media company CBS. After being sued by the photographer for infringing his photo copyrights, CBS has responded by filing its own copyright infringement lawsuit against the photographer… for sharing 59-year-old TV show still frames on social media. More here.  This is the second time the photographer has accused CBS Interactive's 247 Sports senior writer Alex Gleitman of misusing photos in his articles, initially tweeting "To Alex Gleitman. You're violating copyright law. Photo Jon Tannen" and "@Alex Gleitman You've used my photos illegally again. REMOVE THEM NOW. Never asked by permission. Your own logo.Are you stupid? @jtanne". Glietman responded by saying that he has been give the images by the player featured, and had subsequently added a credit. 

And talking of all things American Football and copyright, Eleonora Rosati has posed the question "Can a tweet containing an unlicensed photograph amount to a copyright infringement by the person who embeds such tweet on their own site?" on the IPKat. European readers will of course be familiar with the less than clear judgments in BestWater and subsequent case law, notably GS Media - and in Europe, linking can fall within the scope of the right of communication to the public within Article 3(1) of the InfoSoc Directive, although different considerations must be undertaken depending on the case at issue, including whether the link provider is aware of the unlicensed character of the content linked to and/or pursues a profit.  This very question is now being asked in the US, where a photographer working with Getty Images has raised issues of linking and copyright under US law: Justin Goldman, has sued a number of publishers over the unauthorised embedding, by their relevant publications, of a tweet containing an unlicensed image of American football quarterback Tom Brady that he had taken. Images from http://maxpixel.freegreatpicture.com/Sport-Quarterback-American-Football-Competition-67701/ 

Google is fighting on in the Equustek case, now in the US. Readers will remember that the Canadian Supreme Court in Google Inc v Equustek Solutions Inc, 2017 SCC 34 affirmed a decision from the Supreme Court in British Columbia and ordered Google to delist a tech company’s entire website worldwide. The web giant has now told a Californian court that that the ruling conflics with the freedom of expression rights contained within the First Amendment, and that the Canadian Supreme Court had no right meddling with the American constitution.  Google’s lawyer Margaret Caruso said “This is about whether a trial court in a foreign country can implement a law that is violative of the core values of this country … imagine if we got an order from North Korea that said we could not publish anything critical of Dear Leader. Imagine if Russia doesn’t like what people are saying about Putin. It would be very dangerous to deny relief in this instance”. Courthouse News says "Underscoring the bizarre nature of the proceedings, no attorneys for Equustek Solutions or the Canadian court system showed up, allowing Caruso to state her case to U.S. District Judge Edward Davila unopposed."

And finally, CMU Daily reports that "According to law firm RPC, the three leading claimants in the [UK's] High Court in the year up to 31 Mar 2017 were all in the business of copyright. And two of them music copyright." Leading the way with 106 cases to court was the UK's recorded music collecting society PPL, while its counterpart in music publishing, PRS, came in third with 27 cases. The Football Association is in second place having filed 39 cases, mainly seeking to protect its intellectual property rights against those illegally accessing or airing footage of football matches.

The CopyKat - Part Deux

It's not often we report on the Pagan community, but the Wild Hunt tells us of concerns about Pagans violating copyright protections of Pagan books which have "resurfaced in a big way, with thousands of volumes being uploaded by the owner of one popular Facebook group". Authors and publisher’s agents who knew that no such permission had been granted have tried to get the files removed, and after several days those attempts appear to have been successful, to the disappointment of some group members. More here.

Rogers Communications wants the Supreme Court of Canada to reconsider a copyright ruling on pirated content that internet policy experts say could raise prices for law-abiding consumer. The Financial Post reports that the Toronto-based communications giant has filed for leave to appeal a Federal Court decision that stipulated internet service providers must turn over subscribers’ identities for free if copyright holders suspect them of copyright infringement. the Federal Court ruled internet providers could not recoup their costs because the fee could potentially make it too expensive for copyright holders to go after illegal downloaders. Instead, it suggested internet providers pass the costs along to all consumers – even those that do not infringe.

The Premier League in the United Kingdom is very very big business, with a large of the revenues provided by the commercial deal for match TV rights struck with Sky TV and BT.  and the FAPL will go to great lengths to protect those rights. With the start of the new Premier League season, the fight against illegal IPTV streams has stepped up, with ISPs being told to block streams of copyright content in real time - and this seems to have worked, with substantial disruption for viewers hoping to catch matches using these Kodi or web-based streams over the first weekend of the new season. TorrentFreak reports that several streams went dark within minutes of matches starting, leaving providers of the illegal streams to scramble to find new domains to host their content. With the recent closures of piracy-facilitating Kodi add-ons, it's looking like the days of being able to easily stream 'free' premium sports content might be coming to a close, although there are always people willing to use VPNs to evade the blocking abilities of the UK's ISPs. UPDATE - the Mirror says that 3 million watched the much hyped Mayweather / McGregor fight on at least 239 illegal streams. 
 
US President Donald Trump has instructed his trade envoy to examine China’s policies and practices concerning US intellectual property, a promise he made during the 2016 election campaign. The presidential memorandum signed tat the White House directs US Trade Representative Robert Lighthizer to “examine China’s policies, practices and actions” when it comes to transfer of US technology and “theft of American intellectual property” and use “all options” to protect US interests with Trump saying “We’re taking firm steps to make sure we protect the intellectual property of American companies and very importantly, of American workers” and “The theft of intellectual property by foreign countries costs our nation millions of jobs and billions and billions of dollars each and every year.”

The dispute between the major record companies and mixtape sharing app Spinrilla continues, with the former’s request for access to the latter’s source code high on the defendant’s current list of specific gripes. Interesting - the defs say this "The source code is the crown jewel of any software-based business, including Spinrilla. Even worse, plaintiffs want an ‘executable’ version of Spinrilla’s source code, which would literally enable them to replicate Spinrilla’s entire website. Any plaintiff could, in hours, delete all references to ‘Spinrilla’, add its own brand and launch Spinrilla’s exact website”.  More on CMU here. 

Songwriter groups in the USA and elsewhere have hit out at the Recording Industry Association Of America (RIAA) over its submission to an official review of the moral rights of creators in the US. The songwriter organisations, including BASCA in the UK, say that the major record companies in the US are pursuing an anti-songwriter agenda on this point, while concurrently relying on vocal support from the songwriting community when it comes to lobbying for safe harbour reform. Both the Motion Pictures Association of America (MPAA) and the RIAA are against the introduction of statutory moral rights for artists. They believe that the current system works well and they fear that it’s impractical and expensive to credit all creators for their contributions. Stark hypocrisy from the record labels in the US? Or too big a task to manage? BASCA say "even though the US signed up to the Berne Convention in 1989 it chooses NOT to recognise moral rights, saying they are confusing.  There really isn’t anything confusing about crediting the original creator of a song folks!!  So understandably the writer organisations in the US get very excised, rightly so, about this ongoing scenario.  The US Copyright Office this year conducted another study into the issue with some very strong statements from creators and submissions by writer organisations in support of the US finally recognising moral rights.  However the RIAA in its wisdom decided to continue to reject this position .... Thus writers from across the US, Canada, the UK and Europe – organisations representing many tens of thousands of songwriters and composers of all genres – have come together in an unprecedented alliance to explain to the RIAA why this is wrong and damaging to the very people whose works the music industry is built on."

Cross party support to make US radio 'pay to play'

A bipartisan group of legislators led by Representatives Jerry Nadler and Marsha Blackburn have reintroduced the Fair Play Fair Pay Act, a bill that would establish a public performance right for sound recordings on terrestrial radio, forcing stations to pay labels and artists for using their material, and correct the unusual position in the USA where there is no performance right for sound recordings on AM/FM stations (although there is for satellite and internet radio, and those royalties are collected by the collection society SoundExchange). 

If the bill passes, and is signed into law by President Trump, it would put webcasters like Pandora and iHeartRadio, which pay statutory royalties for their online radio platforms, on an equal footing with AM/FM radio, who would have to reimburse the owners of sound recordings for using their copyrights. 

Members of Congress say the bill will not be used to lower royalties that radio stations now pay to publishers and songwriters, which stations have always paid for the use of their songs. 

The legislators also say the bill will "make a clear statement that pre-1972 recordings have value and those who are profiting from them must pay appropriate royalties for their use," a reference to the ongoing web of litigation involving recordings made when copyright was still a matter of state law. As previously reported, sound recordings made after 1972 are covered under federal copyright law.

Representatives Nadler, Blackburn, Conyers, Issa, Deutch and Rooney issued  a joint statement saying: "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. Our laws should reward innovation, spur economic diversity and uphold the constitutional rights of creators. That is what the Fair Play Fair Pay Act sets out to accomplish: fixing a system that for too long has disadvantaged music creators and pitted technologies against each other by allowing certain services to get away with paying little or nothing to artists."

The National Association of Broadcasters (NAB), the radio industry's leading trade group, opposes the bill and president and CEO Gordon Smith said the bill "would impose a job-killing performance royalty on America's hometown radio stations,"  "NAB remains committed to working with Congress on balanced music licensing proposals that help grow the entire music ecosystem, promote innovation, and recognize the benefit of our free locally-focused platform to both artists and listeners."

http://www.billboard.com/articles/business/7744254/fair-play-fair-pay-bill-congress-radio-pay-artists

A second bill has now been introduced: The new PROMOTE Act is based on the premise that as the radio stations argue that basically airplay is free promotion for the acts and the labels, artists should have the right to decline the promotion and ask that their records not be played. More on CMU Daily.

http://www.completemusicupdate.com/article/second-bill-in-us-congress-seeks-to-address-radio-royalties-issue/

Image: Kmccoy

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."