THE COPYKAT

A Grand Theft Auto V 'cheat maker' has been ordered to pay $150,000 in copyright damages: Rockstar Games' parent company Take-Two Interactive has won a default judgment against the developer of the GTA V cheat maker "Elusive". The Florida-based defendant has been ordered to pay the defendant company $150,000 - the maximum that could be awarded as copyright infringement damages. Take-Two Interactive Software, the company behind ‘Grand Theft Auto V’ (GTA V) has filed several lawsuits in the US and abroad, targeting alleged cheat software. It was last August the company filed a case against Jhonny Perez, accusing him of copyright infringement by creating and distributing a cheating tool. Elusive could be used to cheat and allegedly interfere with other game players. With the defendant apparently ignoring offers of a setlement, Take-Two filed for a default judgment. Take Two say that the software represents both direct and contributory copyright infringement. “Take-Two has been irreparably harmed by Mr. Perez’s infringing conduct and will continue to be harmed unless enjoined” US District Court Judge Kevin Castel wrote, adding “Mr. Perez’s Elusive program creates new features and elements in Grand Theft Auto which can be used to harm legitimate players, causing Take-Two to lose control over its carefully balanced plan for how its video game is designed to be played,” he writes. In addition, the Judge noted that the cheat discouraged users from future purchases and gameplay and that the unlimited currency cheat undermined Take-Two’s pricing and sales of legitimate virtual currency and found the cheat maker guilty of both wilful direct and wilful contributory copyright infringement, as well as breaching Take-Two’s user agreement. The Court ordered Perez to may the maximumstatutory damages of $150,000 and an additional $66,868 in attorney’s fees. 

The US Olympic Committee  (USOC) is being sued copyright infringement. Kevin Downs, a professional photographer, has filed his lawsuit against against the USOC in the U.S. District Court for the District of Colorado, alleging that a photo he captured at an outside table tennis match in New York City has been used without his permission. The photo, attached to Downs’ Complaint as an exhibit, was previously registered by Downs with the U.S. Copyright Office. Downs complains that the USOC ran an article on the TeamUSA.org website featuring the copyrighted photo without Downs’ consentbut with a credit that reads, “Daily News/Kevin C. Downs.” Does that give USOC the right to republish the image: it is a sign of good faith? But what is the right to good faith in the US? Whilst Downs may have missed out on a potential licensing fee in this case, the image does not seem to be so important for the purpose of the article that it was a necessary element that the publisher benefited from to any great extent. Downs’ photograph was a public work that was used as part of an article that disseminated facts and information to benefit the public. The article was informing the public that the streets in Midtown New York City were car-free in order to provide for outdoor festivities, including ping pong. The picture demonstrates the performance of ping pong on the streets. While Downs may have a perfectly viable copyright on his photograph, it does not necessarily mean he has the best case against the USOC in this instance - does it?

 A Las Vegas artist has accused pop star Ariana Grande of using imagery from his paintings, without his permission, in the singer's "God is a Woman" music video. The artist, Vladimir Kush, filed a federal lawsuit forcopyright infringement in Nevada. In the lawsuit, Kush asserts Grande's imagery in her music video was "nearly identical" to his paintings and the minor differences Grande has made "does not change the viewers' impression." The scene in Grande's music video that Kush has claimed copyright for depicts the singer as a candle wick while a bright flame surrounds her. Light from the candle flame radiates out against a blue, cloudy sky. The scene appears a little over a minute into the music video. Both of Kush's paintings, "The Candle" and "The Candle 2," portray a woman's silhouette as the wick of a large candle. Kush obtained copyright for the paintings in 1999 and 2000 and according to the lawsuit. "While there are many ways to depict a woman dancing in the wick of a candle – even with a heavenly background – Defendants clearly copied Mr. Kush’s expression of this idea," the lawsuit said. Kush's attorneys said in the lawsuit the video director and production team for "God is a Woman" have faced at least two previous copyright infringement lawsuits from other artists. The lawsuit has asked that Grande remove the video from the Internet. Kush was also seeking damages and attorney's fees.

A 70-year-old UDS man accused of downloading the Hitman movie through torrent not only denied the charges but he then took legal action to fight back. Perhaps unsurprisingly, the plaintiffs dropped the case, and the court dismissed it, BUT the court promised to re-evaluate the way it handles such cases. Whilst the defendant and his lawyer were disheartened with the dismissal, is there still a chance to push things further?

Kodak is in the photography news - but for all the wrong reasons: Kodak launched an on-demand photography service called Kodakit back in January 2017 that aims to connect photographers to brands looking for photography. But there’s something all photographers need to know about this “Uber of photography,” as it’s been called: it demands that the snapper signs over the “entire copyright” to the photos they shoot. - they even need permission to use them for their own portfolios!

Wild Wild Country directors Chapman and Maclain Way, Duplass Brothers Productions, and Netflix have been sued by the Osho International Foundation, a group that promotes the teachings of the documentary’s subject, controversial Indian guru Bhagwan Shree Rajneesh (aka Osho). Osho International claims a number of their copyrighted videos were used without permission. Filmmaker Michael Hilow, another plaintiff in the lawsuit, says footage from his 1993 documentary Rajneeshpuram an Experiment to Provoke God was also used without his permission. Osho is described in the complaint as a Swiss company that publishes, licenses and archives the work of Bhagwan Shree Rajneesh, the controversial guru at the centre of the Netflix series. Hilow directed a 1993 documentary Rajneeshpuram an Experiment to Provoke God. It seems scenes from that film, along with three works controlled by Osho International, are shown in Wild Wild Country and it is alleged that the first episode alone contains 88 separate "instances of appropriation," totaling more than 12 minutes. Wild Wild Country tells tells the story of a controversial guru who builds a utopian city in the Oregon desert, it causes a massive conflict with local ranchers. Osho International and Hilow are asking the court to grant an injunction barring Netflix from further infringing their copyrights and are seeking damages and disgorgement of the streamer's profits. It is asking the court to grant an injunction “permanently restraining and enjoining [Netflix], their officers, agents [sic] employees, and attorneys, and all those persons or entities in active concert or participation with them, or any of them, from further infringing” the foundation’s copyrighted works.” The company is seeking damages and disgorgement of Netflix’s profits. Its suit is just the latest alleged charge of copyright infringement to hit the streaming service in recent months.

Has a UK company copyrighted Kenya’s national anthem? A YouTuber has reignited discussion on the Kenya national anthem’s ownership rights after revealing how a UK based company has claimed copyright. De Wolfe has published an orchestral arrangement of Kenya’s national anthem that it states was created in 1990. Kenya Copyright Board (Kecobo) has responded, explaining  that Kenya’s national anthem had copyright that lasted for 50 years. This lapsed in 2013. Further, the Copyright Act has not been amended clarify the right to juse the work -  but that the use of such works IS subject to authorization as required under the National Flags, Emblems and Names Act. “Kecobo is at the moment studying the terms and conditions in YouTube platform with a view of requesting for a take-down of all content offending the National Anthem by the said Company and others as well,” the board added.

“Agreementreached on copyright" ! Europeans will finally have modern copyright rules fit for digital age with real benefits for everyone: guaranteed rights for users, fair remuneration for creators, clarity of rules for platforms” EU digital chief Andrus Ansip has said in a tweet - although not everyone agrees! 

Under the planned new rules, Google and other online platforms may well have to engage with rights holders to use their work online, and Google's YouTube and Facebook’s Instagram and other sharing platforms will be required to install upload filters to prevent users from uploading copyrighted materials.Google, which has lobbied intensively against the planned legislation has said it may pull Google News from operating in Europe, but said it would study the text before deciding on its next steps. “Copyright reform needs to benefit everyone - including European creators and consumers, small publishers and platforms ... The details will matter,” the company said in a tweet. Spain and Germany had in recent years tried to force Google to pay publishers for taking snippets of their news articles, but that backfired after Google News pulled out from Spain and traffic of German publisher Axel Springer plunged after it sought to block the search engine. EU lawmaker Axel Voss said it was time internet giants pay their dues to rights holders: “This deal is an important step toward correcting a situation which has allowed a few companies to earn huge sums of money without properly remunerating the thousands of creatives and journalists whose work they depend on,” he said. However, MEP Julia Reda from the Pirate Party again voiced concerns, saying that algorithms in upload filters cannot tell the difference between copyright infringements and legal parodies. “Requiring platforms to use upload filters would not just lead to more frequent blocking of legal uploads, it would also make life difficult for smaller platforms that cannot afford filtering software,” she said. Online platforms in existence for less than three years and with less than 10 million euros in revenue and fewer than 5 million monthly users are exempted from installing upload filter. Nonprofit bodies, online encyclopedias such as Wikipedia, and open source software platforms such as GitHub will be able to use potentially valuable data for research and educational purposes without being subjected to the copyright rules. “It will become much harder for users to share their own, non-commercial music, video or photo creations online. This reform is not based on the reality of how people use the internet,” its deputy director general, Ursula Pachl, said. The agreement needs approval from the European Parliament and EU countries before it can become law. The European Parliament's legal affairs committee has voted through the final draft of the European Copyright Directive, with sixteen votes in favour and nine against. The JURI committee was expected to  back the final draft of the copyright reforms, which now face a vote the full Parliament - and whilst this is expected to be a formality, it is still not guaranteed to pass the draft Directive.

With many thanks to  Akshat Agrawal for all of his work on this CopyKat

Rights owners call for a halt to EU Copyright reforms - but the creative sector disagrees

Rights holders from across the European Union, including the recorded music sector, music publishing, television and sport have called for a halt to the planned reforms to copyright laws saying that recent revisions to the draft legislation mean that  "regrettably under these circumstances we would rather have no directive at all rather than a bad directive".  But this view ha been challenged by the actual creators of music who are taking a very different view to the corporate owners of copyrights - they still see big benefits from the Copyright Directive.

The planned legislation was first approved by the European Parliament in September 2018 but has undergone numerous revisions and amendments since then and latest draft text makes what rights holders regard as significant concessions to tech companies. The revisions came as compromises - but  after continuous lobbying from the tech sector, in particular Google and YouTube. Last month music rights organisations admitted that the recently proposed versions of the Copyright Directive “[do] not meet the original objective of Article 13” – namely “correct[ing] the distortion of the digital market place caused by User Upload Content (UUC) services”. Record label trade organisations IMPALA and IFPI were specifically opposed to the latest draft text of the copyright directive, as proposed by the European Council.

The most recent amendments are the result of a compromise between France and Germany.

Under the agreement, Article 13 applies to all for-profit online sharing platforms, compelling services to take “effective and proportionate” action to combat the sharing of copyrighted works. The amendment would still oblige all services to install upload filters, but would except those fitting all three following criteria:

- The service has been publicly available within the EU for fewer than three years

- The service has an annual turnover below €10 million

- The service has fewer than five million unique monthly visitors

In response to the 'corporate' rights owners new move, a number of UK organisations representing artists, songwriters and managers have urged EU decision makers to continue working on the Directive. The Council Of Music Makers - that brings together BASCA, FAC, MMF, MPG and the MU - called on negotiators "to proceed with the copyright directive", adding that "we speak with one voice with all the creator-led organisations across Europe and around the world in supporting the copyright directive".

Really? Maybe the record labels (in particular) have begun to take note of  Articles 14 through to Article 16 which will seek to provide artists and songwriters with more transparency, a contract adjustment mechanism and a dispute resolution system and ever - dare we say - equitable remuneration. And a business might not want to support that.  Hmmmmm! So more money from YouTube - that's all good - but passing some of that  on to recording artistes and songwriters - not so good!

Well the message in the open letter from the 'business' side reads as follows:

We are writing as a group of rightsholders representing the music, audio-visual, broadcasting and sports industries, regarding the direction of travel for the Directive on Copyright in the Digital Single Market.

The key aims of the original draft Directive were to create a level playing field in the online Digital Single Market and strengthen the ability of European rightsholders to create and invest in new and diverse content across Europe.

Despite our constant commitment in the last two years to finding a viable solution, and having proposed many positive alternatives, the text – as currently drafted and on the table – no longer meets these objectives, not only in respect of any one article, but as a whole. As rightsholders we are not able to support it or the impact it will have on the European creative sector.

We appreciate the efforts made by several parties to attempt to achieve a good compromise in the long negotiations of recent months. Nevertheless, the outcome of these negotiations in several of the Council discussions has been to produce a text which contains elements which fundamentally go against copyright principles enshrined in EU and international copyright law.

Far from levelling the playing field, the proposed approach would cause serious harm by not only failing to meet its objectives, but actually risking leaving European producers, distributors and creators worse off.

Regrettably, under these conditions we would rather have no Directive at all than a bad Directive. We therefore call on negotiators to not proceed on the basis of the latest proposals from the Council.

Yours sincerely, the undersigned.

ACT – Association of Commercial Television in Europe*
AKTV – Czech Association of Commercial Television
DFL – German Football League
ICMP – The Global Voice of Music Publishing
IFPI – Representing the Recording Industry Worldwide
IMPALA – Independent Music Companies Association
La Liga – The Spanish Football League
Mediapro – Independent Production Company
The Premier League – The English Football League
Związek Pracodawców Prywatnych Mediów – Polish Union of Private Media Employers, Lewiatan

A different approach can be found in the open letter from GESAC, primarily representing music creators - songwriters and author's collection societies -  in the areas of musical, audiovisual, visual arts, and literary and dramatic works. This is the first time the 'music industry' has split - and moved away from one unified voice - although IMPALA qualified it's support in later communications. The 'creatives' say this: 

As the negotiations on the copyright directive enter their final and very critical stage, GESAC, which represents more than one million creators from all sectors through its 32 members from across the EU and EEA, would like to express its strong support for this directive which is essential for the future of creators.

The directive as a whole - and in particular the provisions in article thirteen - creates the long sought after level playing field for creative content in the online market.

It also addresses the major unfairness caused by the enormous 'transfer of value' that favours free-riding tech giants, while it also incentivises European creation, innovation, and investment. The current text is a compromise that goes into the right direction, although further improvements still need to be achieved. You will find enclosed GESAC's priorities and suggestions on the text in this respect.

Without this directive, creators will be entirely deprived of any means to get a fair remuneration in the online environment: the market will be entirely driven by the commercial interests of free-riding tech giants. This would be a fundamental failure for European policy-making and the functioning of our democracy, as it can only be interpreted as an endorsement of the unfair and manipulative practices of tech giants that refuse any rules or oversight.

It is now time to adopt a mandate at [the EU Council meeting] on February 8th and an agreement on the directive in trilogue early next week to send the right message to European citizens: the EU delivers for its people and its values!

We trust your thorough political judgment and sense of fairness will prevail to finalise the last step of this process and remain at your disposal for any complementary clarifications.

the open letter from CMM, the UK's Council of Music Makers, says this:

The UK Council Of Music Makers - comprising BASCA, FAC, MMF, MPG and the MU - call on negotiators to proceed with the copyright directive.

We are the voice of UK songwriters, music producers, performing artists, musicians and music managers. We speak on behalf of thousands of makers of the music this 'industry' represents. We speak with one voice with all the creator-led organisations across Europe and around the world in supporting the copyright directive.

While the current text could be improved and still includes some problematic provisions, it is a compromise. At every step of this process the creative community has sought compromise and been open to dialogue.

Most creators and artists in the UK struggle to make a living from music. Without this directive, creators will be entirely deprived of any means to get a fair remuneration in the online environment: the market will be entirely driven by the commercial interests of free-riding tech giants. This would be a fundamental failure for European policy-making and the functioning of our democracy, as it can only be interpreted as an endorsement of the unfair and manipulative practices of some tech giants that refuse any responsibility.

We make the music that people want to listen to and buy. It is our intellectual property and our rights and we need the copyright directive to put in place reasonable and fair safeguards.

It is hugely disappointing to see the music labels and publishers disregard the interests of their creators and artists in this way. They are trying to overturn years of collaborative work at the eleventh hour by killing the copyright directive. Like YouTube, they have lobbied negotiators hard without consulting or informing the creative community. Heavy-handed tactics of heavyweight businesses.

It is sad to see labels and publishers turn on their creators and artists in this way. They are trying to halt the directive not only because of the latest wording of article thirteen but because they want to avoid the improvements to transparency and fairness that articles fourteen to sixteen bring. We are saddened that the short-term commercial interests of these companies can be put before modernisation of copyright legislation that will benefit the whole industry.

The labels and publishers have shown an unsettling disrespect for the talent that they have the privilege of representing, raising serious questions about their suitability to be the custodians of copyright. We have worked in tandem with UK Music and colleagues across the industry to find compromise and solutions that enable legislation to pass. This directive will affect future generations of creators and performers whose interests need protecting beyond the interests of current models.

We have been engaged and willing to negotiate, and we remain engaged and progressing in good faith, with both tech and industry. We have not given up on this important legislation.

We call on UK government and UK Music to support the adoption of the copyright directive.

Akshat will be updating in future CopyKat posts!

https://www.iq-mag.net/2019/02/music-organisations-reject-eu-copyright-directive/#.XF3Vq1z7SUl https://www.billboard.com/articles/business/8497198/europe-rights-holders-eu-scrap-copyright-directive-current-form

THE COPYKAT backs Schrödinger's cat

Some strong words in a letter from Lord Michael Grade on YouTube's position on Article 13 and EU copyright law reform in the Financial Times, with a touch of Brexit to spice it all up. Noting that creativity is something Britain does particularly well at, "and, with the uncertainties of Brexit ahead, is of greater importance as a growing sector of our economy" Lord Grade comments, adding "After years of scrutiny the European Commission, Council and Parliament have concluded YouTube must take some responsibility for the content it publishes. The platform remains in denial, abetted by those who join in its scaremongering" and "The EU is at a crucial stage of considering measures that will end this injustice. The present, and the future is online. Rules need to apply. Netflix pays for its content, why shouldn’t YouTube? If you want to run a TV channel or a music service, then you need to pay for the content you use — content other people have financed. Reform will end this freeloading and level the playing field, which has to be good news for consumers too."

If you want to know what YouTube and Google think - there is a Google sponsored piece on politco.eu here titled "EU’s copyright directive and its unintended consequences" written by 'YouTube for Creators".  Others from the tech world working up are fury (or perhaps 'in denial' or even  'scaremongering' ?) are Gizmodo "Tech Giants Wake Up to EU Copyright Plan That Threatens to Nuke the Web" and BoingBoing which goes with "Poland rejects the EU's copyright censorship plans, calls it #ACTA2" whilst Twitch has sent a letter to the Twitch creators' community

The Australian Government has also rejected loud appeals from the tech community and the tech giants who argue that proposed reforms to copyright law will diminish the internet's primary role as a communications tool and allow corporate interests to 'censor' the internet to the detriment of the common citizen, with TechDirt saying the new system would be 'begging for abuse'. What's all the fus about? Updating its copyright law from one which provides for site-blocking of infringing sites with judicial oversight to one which does website site-blocking of infringing sites, and mirror-blocking without judicial oversight, search results blocking, and expands the definition of the types of sites to be blocked from those with the primary "purpose" of infringement to those with the primary "effect" of infringement: The Australian Parliament passed the new law to beef up web-blocking rules as part of the The Copyright Amendment (Online Infringement) Act 2018 which was passed by the House Of Representatives last month and now by the Senate. The Federal Senate’s Environment and Communications Legislation Committee commented  “The Committee is of the view that the amendments proposed by the bill are likely to improve the operation of the injunctive scheme in section 115A [of the Act], and represent a measured and proportionate response to concerns identified by stakeholders in relation to the operation of that scheme” and “In this respect, the committee also notes that the majority of submissions received by the committee supported the bill and recommended that it be passed unamended.” Welcoming the passing of the amendments, Australia's Minister For Communications, Mitch Fifield said "The government has zero tolerance for online piracy. It is theft and damaging to our creative economy and local creators. We are committed to protecting Australia's creative industries and the world-class content we produce every year. The passage of our legislation today sends a strong message to online pirates that Australia does not tolerate online theft".

Banksy may have pulled off the art world's 'stunt' of the decade at Sotheby's in October when one of his paintings, which had just sold for £1.4 million in October, self shredded as soon as the hammer went down, but now his own YouTube post on the prank have also been 'shredded' - this time it seems by French media giant Canal+ who have successfully argued that the footage of the stunt is theirs, and asked YouTube to remove the original, which it did: "Video unavailable This video contains content from Canal Plus, who has blocked it on copyright grounds,” a message now reads instead.

CMU Daily reports that the estate of late Pantera guitarist ‘Dimebag’ Darrell Abbott has fought off a copyright infringement lawsuit over the sale of replicas of his signature guitar, which features a distinctive lightning bolt design (known as the 'Dean From Hell'). The  US judge in the case has told designer Buddy ‘Blaze’ Webster, who created the artwork in the 1980s, that the time period for him to bring his case to court had now (long) passed. Webster had said that the delay was due to stalled negotiations with Dean Guitars and that he had waited to file his case out of respect for the musician’s mourning family, as well as personal issues of his own. Whilst the judge said that some of these reasons were “admirable”, they did not warrant allowing the delayed case to proceed.

The British artist Anish Kapoor released a statement declaring “victory over the NRA,” in reference to his months-long battle with the National Rifle Association over the organisation’s unauthorised use of an image of his bean-shaped reflective sculpture Cloud Gate (2006) in Chicago’s Millennium Park. Kapoor’s said the NRA has complied with his demands to remove the image from what he called its “abhorrent video” The Violence of Lies, which attacks the mainstream media with inflammatory rhetoric as images (including one of Cloud Gate) flash across the screen. “Their bullying and intimidation [have] not succeeded,” Kapoor’s statement reads. “This is a victory not just in defence of the copyright of my work, but it is also a declaration that we stand with those who oppose gun violence in America and elsewhere.” More on Art News here.

Core copyright industries have contributed more than $1.3 trillion to US gross domestic product (GDP) in 2017, and accounted for 6.85% of the US economy. They employed nearly 5.7 million workers in 2017, accounting for 3.85% of the entire US workforce, or 4.54% of total private employment in the United States, according to the International Intellectual Property Alliance (IIPA)’s “Copyright Industries in the U.S. Economy: The 2018 Report - which is available but only for subscribers to IP-Watch. More details here. 

And finally, an entertaining article on rabble.ca titled "The Schrödinger's cat of copyright: What's an 'orphan work'?" written from a Canadian perspective, and well worth a read. 

EFF calls for reforms - to the reforms !

As the CopyKat reported earlier this week, the technology sectors are continuing their assault on planned reforms to EU Copyright law, and now the Electronic Frontiers Foundation has joined the likes of Google, YouTube and Facebook in criticising the planned copyright law reforms. In a letter the EFF say has been sent to everyone involved in the upcoming "Trilogues", the meetings held between representatives from European national governments, the European Commission, and the European Parliament, Cory Doctorow argues that the reforms contained in Articles 11 and 13 of the Copyright Directive are "ill considered and have no place in the Directive", concluding that instead of effecting some "piecemeal fixes to the most glaring problems", the Trilogue takes a simpler approach, and removes them from the Directive altogether. 

Having previously opined that the vote in the European Parliament that passed the draft Directive "brought the EU much closer to a system of universal mass censorship and surveillance, in the name of defending copyright" and that Articles 13 and 11 would create "upload filters" and the “link tax”, the EFF's views are perhaps unsurprising - you can make of the points raised as you will, as the letter is set out in full is below:

The Electronic Frontier Foundation is the leading nonprofit organization defending civil liberties in the digital world. Founded in 1990, EFF champions user privacy, free expression, and innovation through impact litigation, policy analysis, grassroots activism, and technology development. We work to ensure that rights and freedoms are enhanced and protected as our use of technology grows. We are supported by over 37,000 donating members around the world, including around three thousand within the European Union.

We believe that Articles 11 and 13 are ill-considered and should not be EU law, but even stipulating that systems like the ones contemplated by Articles 11 and 13 are desirable, the proposed text of the articles in both the Parliament and Council texts contain significant deficiencies that will subvert their stated purpose while endangering the fundamental human rights of Europeans to free expression, due process, and privacy.

It is our hope that the detailed enumeration of these flaws, below, will cause you to reconsider Articles 11 and 13's inclusion in the Directive altogether, but even in the unfortunate event that Articles 11 and 13 appear in the final language that is presented to the Plenary, we hope that you will take steps to mitigate these risks, which will substantially affect the transposition of the Directive in member states, and its resilience to challenges in the European courts .

Article 13: False copyright claims proliferate in the absence of clear evidentiary standards or consequences for inaccurate claims.

Based on EFF’s decades-long experience with notice-and-takedown regimes in the United States, and private copyright filters such as YouTube's ContentID, we know that the low evidentiary standards required for copyright complaints, coupled with the lack of consequences for false copyright claims, are a form of moral hazard that results in illegitimate acts of censorship from both knowing and inadvertent false copyright claims.

For example, rightsholders with access to YouTube's ContentID system systematically overclaim copyrights that they do not own. For instance, the workflow of news broadcasters will often include the automatic upload of each night's newscast to copyright filters without any human oversight, despite the fact that newscasts often include audiovisual materials whose copyrights do not belong to the broadcaster – public domain footage, material used under a limitation or exception to copyright, or material that is licensed from third parties. This carelessness has predictable consequences: others — including bona fide rightsholders — who are entitled to upload the materials claimed by the newscasters are blocked by YouTube and have a copyright strike recorded against them by the system, and can face removal of all of their materials. To pick one example, NASA's own Mars lander footage was broadcast by newscasters who carelessly claimed copyright on the video by dint of having included NASA's livestream in their newscasts which were then added to the ContentID database of copyrighted works. When NASA itself subsequently tried to upload its footage, YouTube blocked the upload and recorded a strike against NASA.

In other instances, rightsholders neglect the limitations and exceptions to copyright when seeking to remove content. For example, Universal Music Group insisted on removing a video uploaded by one of our clients, Stephanie Lenz, which featured incidental audio of a Prince song in the background. Even during the YouTube appeals process, UMG refused to acknowledge that Ms. Lenz’s incidental inclusion of the music was fair use – though this analysis was eventually confirmed by a US federal judge. Lenz's case took more than ten years to adjudicate, largely due to Universal's intransigence, and elements of the case still linger in the courts.

Finally, the low evidentiary standards for takedown and the lack of penalties for abuse have given rise to utterly predictable abuses. False copyright claims have been used to suppress whistleblower memos detailing flaws in election security, evidence of police brutality, and disputes over scientific publication.

Article 13 contemplates that platforms will create systems to allow for thousands of copyright claims at once, by all comers, without penalty for errors or false claims. This is a recipe for mischief and must be addressed.

Article 13 Recommendations

To limit abuse, Article 13 must, at a minimum, require strong proof of identity from those who seek to add works to an online service provider's database of claimed copyrighted works and make ongoing access to Article 13's liability regime contingent on maintaining a clean record regarding false copyright claims.

Rightsholders who wish to make copyright claims to online service providers should have to meet a high identification bar that establishes who they are and where they or their agent for service can be reached. This information should be available to people whose works are removed so that they can seek legal redress if they believe they have been wronged.

In the event that rightsholders repeatedly make false copyright claims, online service providers should be permitted to strike them off of their list of trusted claimants, such that these rightsholders must fall back to seeking court orders – with their higher evidentiary standard – to effect removal of materials.

This would require that online service providers be immunised from Article 13's liability regime for claims from struck off claimants. A rightsholder who abuses the system should not expect to be able to invoke it later to have their rights policed. This striking-off should pierce the veil of third parties deputised to effect takedowns on behalf of rightsholders ("rights enforcement companies"), with both the third party and the rightsholder on whose behalf they act being excluded from Article 13's privileges in the event that they are found to repeatedly abuse the system. Otherwise, bad actors ("copyright trolls") could hop from one rights enforcement company to another, using them as shields for repeated acts of bad-faith censorship.

Online service providers should be able to pre-emptively strike off a rightsholder who has been found to be abusive of Article 13 by another provider.

Statistics about Article 13 takedowns should be a matter of public record: who claimed which copyrights, who was found to have falsely claimed copyright, and how many times each copyright claim was used to remove a work.


Article 11: Links are not defined with sufficient granularity, and should contain harmonised limitations and exceptions.

The existing Article 11 language does not define when quotation amounts to a use that must be licensed, though proponents have argued that quoting more than a single word requires a license.

The final text must resolve that ambiguity by carving out a clear safe-harbor for users, and ensure that there’s a consistent set of Europe-wide exceptions and limitations to news media’s new pseudo-copyright that ensure they don’t overreach with their power.

Additionally, the text should safeguard against dominant players (Google, Facebook, the news giants) creating licensing agreements that exclude everyone else.

News sites should be permitted to opt out of requiring a license for inbound links (so that other services could confidently link to them without fear of being sued), but these opt-outs must be all-or-nothing, applying to all services, so that the law doesn’t add to Google or Facebook's market power by allowing them to negotiate an exclusive exemption from the link tax, while smaller competitors are saddled with license fees.

As part of the current negotiations, the text must be clarified to establish a clear definition of "noncommercial, personal linking," clarifying whether making links in a personal capacity from a for-profit blogging or social media platform requires a license, and establishing that (for example) a personal blog with ads or affiliate links to recoup hosting costs is "noncommercial."

In closing, we would like to reiterate that the flaws enumerated above are merely those elements of Articles 11 and 13 that are incoherent or not fit for purpose. At root, however, Articles 11 and 13 are bad ideas that have no place in the Directive. Instead of effecting some piecemeal fixes to the most glaring problems in these Articles, the Trilogue take a simpler approach, and cut them from the Directive altogether.

Thank you,

Cory Doctorow
Special Consultant to the Electronic Frontier Foundation

https://www.eff.org/deeplinks/2018/10/whats-next-europes-internet-censorship-plan-0

Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market  COM(2016)593

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52016PC0593

http://the1709blog.blogspot.com/2018/06/whats-all-fuss-about-eu-copyright.html

THE COPYKAT goes back to school

Cartoonist sues Infowars over Political Pepe Poster

The illustrator behind Pepe the Frog, one of the internet’s most popular meme characters, is suing Infowars for copyright infringement.

Matt Furie first illustrated Pepe the Frog, a "blissfully stoned" and "peaceful frog-dude" in 2005. According to the website Know Your Meme, Pepe became associated with the “Feels Good Man” reaction. By 2015 however, the 4chan and Reddit communities perpetuated a connection of Pepe to Donald Trump, with the latter even re-tweeting an image of Pepe as himself.

Several news outlets have explored how fringe groups connected with the American "alt-right" movement have attempted to adopt Pepe, mixing him with various images of hate (see the Daily Beast’s How Pepe the Frog Became a Nazi Trump Supporter and Alt-Right Symbol). Unsurprisingly, Furie has vowed to “aggressively enforce his intellectual property rights” to prevent the unauthorised use of Pepe, as previously discussed by IPKat and the 1709 Blog.  

In this latest complaint, Furie alleges that the American conspiracy theorist website Infowars has misused the Pepe character in merchandise, and in particular, in a "Make America Great Again" poster. In the poster, Pepe appears alongside President Donald Trump, and various other individuals associated with the President and/or with white nationalist views. Infowars claims these are “the heroes of the 2016 anti-establishment revolution,” and notes that “the establishment wants this [poster] taken down.”

Furie's lawsuit notes that damages alone are insufficient compensation for the alleged copyright infringement. He is therefore also seeking a permanent injunction to prohibit Infowars from using Pepe the Frog, or any derivative work based on Pepe.

This is not the first time Infowars has been caught out for copyright infringement. As reported by Buzzfeed in November 2017, InfoWars has copied more than 1,000 articles produced by Russian state-sponsored broadcaster RT without permission.

Chicago landmark featured in controversial political advert without sculptor’s permission

Continuing with the theme of American politics, the artist who created the iconic Cloud Gate in Chicago is “disgusted” that the National Rifle Association (NRA) has featured his sculpture in a recent advertisement.

Nicknamed "the Bean," Cloud Gate is a three-storey high mirrored oblong in central Chicago, created by Indian-born British artist Anish Kapoor. In their video entitled “The Clenched Fist of Truth”, the NRA flashes footage of the sculpture without Kapoor’s consent. In an open letter, Kapoor writes:

Cloud Gate reflects the space around it, the city of Chicago. [...] In the NRA’s vile and dishonest video, Cloud Gate appears as part of a montage of iconic buildings that purport to represent ‘Liberal America’ [...] The NRA in it’s nationalist rhetoric uses Cloud Gate to suggest that these ideas constitute a ‘foreign object’ in our midst. The NRA’s video gives voice to xenophobic anxiety, and a further call to ‘arm’ the population against a fictional enemy. [...] The NRA’s nightmarish, intolerant, divisive vision perverts everything that Cloud Gate – and America – stands for.

Although members of the public are welcome to take and share photographs of Cloud Gate, Kapoor owns the copyright to commercial images of the sculpture, and did not give the NRA permission to use it for their campaign. It is worth noting that the NRA may have chosen to feature a Chicago landmark as a reference to one of Chicago’s most famous former residents, Barack Obama.

However, “much to his shame,” Kapoor has decided to forego legal action against the NRA for its use of Cloud Gate. He explained that after considering his legal options, he was “not prepared for the financial and emotional cost of a protracted fight against the extremely aggressive [and] legalistic” NRA. This story comes at a time of heightened debate surrounding gun control in the United States, after a recent mass shooting in a Florida school left 17 dead.

Fair dealing exemption for Canadian classrooms

Federal Members of the Canadian Parliament have begun a mandated review of the Copyright Act, which is expected to carry on throughout 2018. One issue MPs are examining is the application of “fair dealing” exemption to classroom uses of copyright-protected materials.

In 2012, the Canadian government changed the Copyright Act to include “education” as a stated purpose in the fair dealing exemption. Doing so permits teachers and students to use copyright-protected materials for educational purposes, without having to obtain copyright permission or pay copyright royalties.

The Copyright Consortium of the Council of Ministers of Education, Canada (CMEC), has recently released the Education Ministers' Policy Statement on Fair Dealing. As Zach Churchill, Minister of Education and Early Childhood Development for Nova Scotia and Chair of the CMEC Copyright Consortium explained,  "It's important that copyright law balances the necessary protection of artists and writers works with the ability of teachers and students to use short excerpts from copyright-protected materials in their school work."

Fair dealing does not allow teachers to make unlimited use of any copyright-protected work without permission or payment. Rather, the fair dealing exemption only permits the use of “short excerpts” for educational purposes.

However, the Writers’ Union of Canada says poorly defined changes to the Copyright Act prompted many Canadian schools “to adopt radically expanded copying practices, abandoning the established licensing structure that saw writers and publishers compensated for the use of their work.”

The CMEC statement concludes by asserting that the current Copyright Act works to support Canadian students, without harming the publishing industry.

Copyright fees hit the wrong note with Japanese music schools

Fair dealing for educational purposes is also a hot political story in Japan. The Japanese Society for Rights of Authors, Composers and Publishers (JASRAC) is Japan’s largest copyright management agency. As reported by the Japan Times last year, JASRAC says that “when teachers play a song on the piano in front of their students without permission, they are committing a copyright violation.”

JASRAC announced that private music schools will be required to pay copyright fees, as the use of music to teach piano or other instruments infringes on the “right of performance” under Article 22 of the Japan’s Copyright Law. Kenzo Ohashi, a managing director at JASRAC, explained that music schools must pay copyright fees, because the schools cannot benefit from the exception for performances that are not for profit. JASRAC seeks to collect 2.5 per cent of all annual fees charged by the music schools.

Critics of the move include the Yamaha Music Foundation, which teaches nearly 400,000 students across more than 3,300 schools. Together with about 350 music school operators and other music businesses, they filed a lawsuit in Tokyo District Court against JASRAC, to argue that copyright fees should not be payable when using music for educational purposes.

In December 2017, the group of music-schools and instrument-makers asked the Agency for Cultural Affairs to suspend copyright fee collection until their ongoing lawsuit with JASRAC concludes. However, the collection of fees is supported by the Agency for Cultural Affairs. In a recommendation published on Monday, Ryohei Miyata of the Agency for Cultural Affairs issued a ruling in support of JASRAC collecting such fees. In response to this, JASRAC announced that collection of copyright fees will be started from the music class from April 1.

Calls to reform Australian fair dealing provisions

The Australians are also looking at Copyright law reform and modernisation in respect of fair dealing.

50 years after the passage of the Copyright Act 1968, the Government is now seeking commentary from the public in respect of how Australian copyright law can be modernised and updated. In a consultation paper (PDF) published earlier this month,  the Government highlights three areas of the Copyright Act which may benefit from modernisation: flexible exceptions, contracting out of exceptions, and access to orphan works.

While American “fair use” doctrine is rather flexible by comparison, the key difference between “fair use” and the Australian principle of “fair dealing” is that Australia’s laws set out defined categories of acceptable uses in statute. By way of illustration, Lifehacker explains that in the United States, the fair use doctrine made it permissible to use a VCR to record television at home in 1984. Doing so In Australia however was not legal until parliament created a specific exception in 2006, by which time VCRs were already obsolete.

The current fair dealing regime in Australia allows access to copyright content for criticism or review, parody or satire, reporting news, research or study, giving professional advice, and disability access. The government is now considering adding several new provisions, including those for the purposes of quotation, non-commercial private use, incidental or technical use, data mining and library use, and certain educational uses.

Amongst other questions, the consultation asks the public to what extent they would support the introduction of fair dealing exceptions, and what factors should be considered in determining fairness. Responses to the consultation may lead Australian lawmakers to consider a more adaptable approach to copyright law which is more in line with recent technological advances. The Australian Law Reform Commission has already proposed arguments in favour of adopting fair use.

The Department invites submissions by email, post, or website before 5.00 pm on Monday 4 June 2018.

Bollywood star calls copyright laws “rubbish”

Amitabh Bachchan is generally considered one of the greatest and most influential actors in Indian cinema. In addition to being a world-famous actor, director and producer himself, Bachchan is also the son of a famous Hindu poet and literary scholar, Harivansh Rai Srivastava (known by his pen name of Bachchan) .

Bachchan's work has been used in Movies and music multiple times, including in films "Silsila" and "Agneepath," both starring his son Amitabh. Indian newspaper FirstPost notes that Amitabh also often recites lines from his father's poetry at public functions and on TV shows.

In a recent blog entry, 75 year-old Amitabh voiced strong opposition to the prospect that his father’s works may come into the public domain, writing: “I oppose, disagree, lament, dispute, be in variance of, in vehement loud screams of voice”. The post continues in a rather upset, rambling tone. In particular, he expressed that he did not want his father’s works to be available “for the entire Universe to tread, scratch, mutilate, use in commercial consideration on their own creative discretion.”

Under India’s Copyrights Act 1957, original literary works enjoy copyright protection for a 60-year period which begins from the year following the death of the author. Bachchan passed away in 2003.

For Berne convention signatories, copyright must exist until a minimum of 50 years after the author's death (Berne Convention, Article 7). A number of jurisdictions, including the European Union and the United States, have chosen longer terms of 70 years after the author's death. India’s length is 60 years, but many countries have even shorter terms - some even at 25 years.

Nevertheless, Amitabh writes that his father’s writings are Amitabh’s alone, because “that is my inherited right .. it shall prevail .. ” He continues, “My inheritance be mine.. not another’s after the passing of its stipulated time in years .. 60 .. I am genetically my father’s son .. he be willed to me of all that be in asset of his .. his writings be his .. his heir be me .. his writings be mine .. MINE ! I shall not and will not allow its dilution to general public .."

Amitabh calls copyright law “rubbish” and asks, “how can individual property become public property?” It is somewhat disappointing to see that a man famous for his work in the dramatic arts is seemingly unable to appreciate the benefit of works entering the public domain. Maybe he should have skimmed through the 1709 Blog before sharing his own post...

Is Taylor Swift getting a copycat Reputation?

Taylor Swift’s latest music video, Delicate, has been criticised for its suspicious similarities to a 2016 Kenzo perfume advert directed by Spike Jonze.

In the Kenzo advert, we see a young woman portrayed by actress and dancer Margaret Qualley at a posh black tie event in a hotel. Looking beautiful in an evening dress but nevertheless seemingly uncomfortable and bored, she quietly slips out of the ballroom to pensively roam the hallways of the hotel alone. What made the advert so memorable was that Qualley suddenly starts a wild and garish dance to an upbeat song. W Magazine lauded the advert as “one of the best perfume commercials of all time,” and the Guardian called it “one of the most engaging ads” of the year.

Earlier this month, Taylor Swift released the video for Delicate, the latest single off of her sixth studio album, Reputation. The video follows Swift as she walks through a glamourous hotel, increasingly fatigued with the attention of the press and her adoring fans. She manages to escape through the corridors and, under the premise of being invisible, performs a bizarre dance routine through the hallways.

In addition to the plot - in which a bored young woman has a crazy dance party in a fancy hotel - the videos share a colour scheme, choreography, and camera angles. Although Taylor’s dress is blue and Qualley’s is green, both are deep jewel tones and cut a similar, sleeveless silhouette. Twitter users were quick to point out that even the facial expressions of the two women appeared to mirror each other.

The Kenzo advert was a viral success because, as AdWeek explained, “the exuberantly choreographed video was less about technical innovation than about how it changes the way women are portrayed in marketing.” Fans of Swift may therefore be somewhat unnerved that the international pop star, known for being a creative, self-made woman (see Taylor Swift: from saccharine songstress to fearless feminist) has chosen in this instance to be so heavily inspired by another artist’s originality.

Despite claims that Swift’s video is a “blatant rip off”, a Kenzo representative told Dazed that they will not be making a comment on the matter. Although a lawsuit or formal complaint is unlikely, the controversy is already being heard out in the court of public opinion. Taylor Swift’s representation are yet to respond to the criticism.

Upcoming Events

The Humboldt Institute for Internet and Society in Berlin is hosting a workshop series to discuss the most urgent issues around music and copyright law in the digital society. The next workshop is “Deconstructing Intellectual Property Protection for Music” on 19 April - it’s been confirmed that at least one IPKat will be there! For more information visit the workshop website here.

The University of Cyprus is hosting a conference entitled "Pluralism or universalism in international copyright law" from 31 May through 1 June 2018. For more information visit the conference website here.

This CopyKat by Kelsey Farish