THE COPYKAT

1.     “PEPE THE FROG” TO GO TO TRIAL

A Californian federal judge has, on a complaint filed by Matt Furie, proceeded to direct the case of Copyright infringement of “Pepe the Frog”, allegedly against Alex Jones, owner of InfoWars, to go for trial. The complete order can be found here. The core issue involved was regarding the poster released by InfoWars wherein Pepe the Frog has been depicted with President Trump, Milo Yiannopoulos and Alex Jones himself, showing a certain element of a political right- based comment. There were various issues which were dealt by the judge, while giving the summary judgment.

Firstly, the question of access was ruled upon wherein the judge denied the defendant’s claim that the plaintiff had access to a previous work called El Sapo Pepe, which basically was a similar expression as that of Pepe the Frog, hence raising a claim against originality as per the Feist threshold. The court looked into the jurisprudence surrounding access and relying on the case of N.Coast Indus v. Jason Maxwell, went on to decipher that “the defendant must show that the plaintiff had access to the prior work and that the work is substantially similar to that of the prior work.” A mere inference cannot be drawn upon concluding a finding of access from the statement that the plaintiff was interested in “Cartoon Characters” and hence must have come across El Sapo Pepe which is an Argentine cartoon character. Further, citing Nimmer on Copyright, the court went on to clarify that mere presence on the internet is not conclusive to prove access. Hence defendant’s claim of lack of originality based on access was denied in the summary judgment.

Secondly, a claim of invalid registration made by the defendants was categorically denied by the judge, stating that the burden to eliminate the presumption of validity of copyright was not adequately discharged. No adequate evidence was produced showing that the plaintiff intentionally provided wrong information to the Copyright office, or if certain information was provided to the Copyright office, such registration would have been denied.

Thirdly, the question of abandonment and relinquishment of copyright due to certain public statements made by the Plaintiff was under contention. Here, the judge, without resolving the issue, concluded that contrary statements were made by each parties and it should be upon the jury at trial to determine questions of fact like whether an average audience would perceive a statement like “Pepe the frog is let free by me” to be sarcastic or not. Hence this issue remains unresolved for the Jury. Further only one instance, wherein categorically a statement of relinquishment of Copyright was made in clear speech, was acknowledged by the court wherein abandonment was ruled upon in summary judgment, however the court refused to travel that path here.

Fourthly, on the question of an implied license to use the work, the court resumed excavating the jurisprudence surrounding implied licenses and went on to conclude that for an implied license to be present, the elements of contract law an offer and acceptance need to be fulfilled. Here public statements as those made by the plaintiff was ruled not to imply an offer up for grabs and hence this claim was dismissed.

Fifth, on the question of “De-Minimis” use, the court left open the question of whether the average audience would recognize appropriation, to be determined by the jury at trial as contrary evidence and claims were presented by the parties.

Similarly, as a sixth issue, the question of fair use was brought in which again was directed by the judge to be decided by the jury as the evidence produced could not yield any direct conclusive answer on this claim due to the question of credibility.

One important issue which arises herein is the protection of political speech as a first amendment right over Copyright rights, and under the fair use doctrine. As reported by The Hollywood Reporter, the court touched upon this and said:

“Stepping back from the factors, the argument at the hearing by counsel for Defendants was, essentially, that controversial defendants should not have their defence of fair use decided by the jury; i.e., there must be some sort of First Amendment overlay on copyright law to protect political speech. By analogy, counsel was arguing for the creation for copyright law of something like New York Times Co. v. Sullivan for the law of defamation. That simply is not the law as this Court understands it.”

Herein, it seems important to discuss the case of Keep Thomson v. Citizen for Gallen Com., wherein the Federal District court of New Hampshire, clearly went on to rule that the exclusive right of the copyright holder must be weighed in sufficiently against the public interest of dissemination of information affecting universal concern. Here, a 15 second sample of song used in a political advertisement campaign by the plaintiff was used again for the purpose of a political message to be conveyed by the defendant wherein the plaintiff candidate was criticized. This was held to come under the ambit of transformative use due to free speech implications of restraining the dissemination of such essential political comments. Hence, the court went on to find a clear case of fair use.  

In line with this rationale, it would be interesting to see how the jury proceeds on the question of Fair Use when brought at trial.

2.     POLAND COMPLAINS AGAINST ADOPTION OF EU COPYRIGHT DIRECTIVE AMENDMENTS ON THE GROUND OF “PREVENTIVE CENSORSHIP”

As has been reported by multiple media houses like Reuters, Silicon UK and The Verge, Poland has brought in an action in the CJEU, against the implementation of the Copyright Reforms in the EU specifically with relation to Article 13 and 17 of the Directive on the ground of it being a “disproportionate measure that fuels censorship and threatens Freedom of Expression”, quoting Prime Minister Matesz Morawiecki. The deputy Foreign Minister Konrad Szymanski has also reportedly stated that such a system may result in adopting regulations analogous to “preventive censorship” which is forbidden in the Polish Constitution and other EU based treaty, hence raising the question of harmony of legislation.

In earlier posts, we have discussed the wide-ranging implications of these provisions, and this take of censorship is another interesting wat to look at the debate. The major features of the amendments which are debated and controversial are its implications on tech companies like Google who will have to pay news publishers a certain amount of fee to link their content on its platform. Also, social media platforms like YouTube and Facebook will have to bring in filters to avoid circulation of Copyright infringing materials of any sort, without any capability of determination of fair use by themselves. The directive has officially been approved by the EU Council and is due to go into force by 7th June 2019, wherein member states have been given a mandate of 2 years to harmonize the provisions with domestic laws. The question of content scanning is still being debated as to how the technology is efficiently going to avoid censorship and content which comes under the ambit of fair use- and hence is non-infringing.

On the other hand:

3.     CANADA COMES UP WITH A NEW DIGITAL COPYRIGHT REGIME

Post the Copyright Modernization Act 2012, certain digital accommodations were included in the Canadian Copyright regime wherein a review every 5 years was proposed. After a long and thorough process of evidence gathering and review, a report which makes 22 artist friendly recommendations has been submitted by the House Heritage Committee, as reported by the Financial Post. In an upheaval for performers rights, section 2 of the Copyright Statute providing for the definition of sound recordings, has been proposed to be amended to uphold public performance rights in these and the remunerations thereof for use in televisions and films. Further, very importantly as a part of an education- based reform and to evolve the availability of Canadian resources and perspectives elsewhere and attract publishers, the report has recommended keeping fair dealing out as an exception when a work is used commercially in an educational institution. Further a pro-active governmental role in spreading copyright and remuneration awareness along with a specific focus on curbing piracy, has been advocated for by the report, making it significant. These recommendations have been well received by the Canadian record industry and have also focused on reducing the ambit of fair dealing without obtaining a license, hence strengthening the Copyright regime in Canada. Further, a review of the safe harbor provisions, in accordance with EU updates and also a recommendation to implement the extension of Copyright term from 50 years to 70 years found its relevant place in the report. Even though this seems to be more of a result of lobbying on part of the creators and artists in the business, this is a highly imperative measure which has timely been undertaken to ensure that artists receive a fair remuneration for their works and a sustainable living, incentivizing more creative content.

4.     PIRATES OF THE CARRIBEAN AND THE TEST OF SUBSTANTIAL SIMILARITY

The United States District Court for the Central District of California went on to rule that Walt Disney’s “Pirates of the Caribbean” had not lifted copyrighted elements from the screenplay of the same name. The court held that expression-based elements of the screenplay were not copied but rather the central theme to the concept of “Cursed Pirates” was the only purported similarity, which has been ruled to be an idea and a basic plot premise deeming it a non-copyrightable idea. Further, a dark mood involving pirate battles and sea monsters is central to any pirate drama and copyrighting the same would be granting excessive monopoly on generic plot-based elements. The Idea-Expression dichotomy was reinstated by the court. Applying the extrinsic test of similarity to adjudicate whether there was a case of infringement, the court took into account the jurisprudential principle that the extrinsic test compares “articulable similarities between the plot, themes, dialogue, mood, setting, sequence of characters etc. and does not compare the basic plot ideas but the actual concrete elements making the narrative flow and relationships between major characters,” citing the case of Funky Films. The court also noted that Familiar stick scenes and themes that are staples of literature are not original enough to be protected and scenes-a-faire elements that flow necessarily or naturally from a basic plot premise cannot sustain the test of originality for being protectable and to bring in an action of infringement.

Firstly, a contention to apply the inverse ratio rule, wherein a lower degree of substantial similarity is required to be proven if higher access is proved, was rejected by the court as non-applicable to cases involving unlawful appropriation and applicable only where copying has been alleged.

Secondly, the court rejected similarity on grounds of insufficient articulable similarities between protectable elements. It firstly ruled that the facts that inclusion of pirates who are skull faced or skeletal is not a copyrightable element. Thereon, use of treasure maps, ghost pirates, undead, dark fog, ghosts and sea monsters, were ruled as unprotectable elements due to them being familiar stock elements. Further, the court went into a closer inspection of the storylines i.e. the sequence of events and narrative flows to come to a conclusion that these movies and the screenplay portrayed very different stories. Even upon analyzing characters, the court held that features like cockiness, bravery and drunkenness along with facial hair are generic and not protectable characteristic elements. Along these, a claim of substantial similarity of characters was rejected under the extrinsic test. Similarly, the Theme, Dialogue, Mood and Setting was also held to be unprotectable and hence not fulfilling the extrinsic test of substantial similarity.

Accordingly, a claim of infringement was rejected. The entire ruling can be found here.

As reported by Bloomberg, the court proceeded with the ruling appreciating the fact that the plaintiffs had at most demonstrated random similarities which scattered throughout the plaintiff’s works and were not substantial enough for a claim of infringement to subsist.

5.     COPYRIGHT INFRINGEMENT SUIT AGAINST JAY-Z OVER A SAMPLE USED 20 YEARS AGO

A multi-million dollar law suit has been brought against JAY- Z and Timbaland by soul musician Ernie Hines. The songs in contention are the 1998 song by Jay Z called- “Paper Chase” and the 1970 song of Hines called “Help Me”. Hines who is an 81-year-old, has defended the delay in filing the suit on realistic grounds of him being old and hence having a lack of interest in rap music reducing the chances of him having been aware of the existence of such a song. No clearance for the sample taken was sought by either the artists or the record labels. Further it is alleged that the infringement was “willful” as the credits for “Paper Chase” clearly mention the sample from “Help me” Hence, a claim of at least $2 Million has been brought in before the US District Court in New York. This has been reported by Billboard. It is imperative here to discuss the Grand Upright Music v. Warner Bros. case, wherein the court categorically stated that there is no concept of implied license involved in sampling music and quoted the Seventh Commandment from the Old Testament stating “Thou shalt not steal”. To the court, sampling a copyrighted work without permission simply equated theft, and because the Defendant, as in the case here, had admitted to using the sample, he had committed an infringing act. Further, due to the concept of digital sampling coming in, a finding of Fragmented Literal similarity will be contended upon before the court against the De-Minimis test, wherein even a small degree of copying which may be insubstantial quantitatively but qualitatively important has been on occasions held to be substantial.

6.     JUSTIN BIEBER’S INSTAGRAM PHOTO BEING LITIGATED IN AN INFRINGEMENT CLAIM

As reported by Fashion Law, CBS is at the receiving end of another law suit wherein; a photographer Robert Barbara has reportedly alleged that the media giant infringed his copyright in Justin Bieber’s picture by displaying it in its list of Most Liked Instagram pictures without obtaining a license to do the same and for such dissemination. Allegedly consent is imperative and has not been obtained in the instant case. An interesting aspect involved in this case however is that a screenshot of the Instagram Post was not taken rather, the link was embedded in the article. This till date, has not been held to be infringement. However, in the recent case of Goldman v Breitbart News Network, it was held by US District Judge for the Southern District of New York, that:

“When the defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right; the fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result.”

This decision can go on to have a strong chilling effect on the use of the internet, and is the only precedent which gives such a ruling which goes against the established landmark precedent on Intermediary Liability given in the case of Perfect 10 v. Amazon wherein it was held that provision of the image constitutes dissemination and not mere embedding as the image is not stored or made a copy of. It is a transient period which comes under the defense of Fair Use. 

Just for the sake of thought, can a corollary be drawn between the Goldman judgment and the EU Copyright Directive amendments under debate?

7.     NASA MEDIA LIBRARY FREE!!!

In a huge development, NASA has made their entire collection of Images, Sounds and Video Games, publicly available on the internet-based platform. A collection of 140,000 photos and other resources like sound samples and videos has been made available for online viewing as well as download here. A huge step by the Space technology giant towards promoting the Open Access movement.

8.     MORAL RIGHTS IN A WORK OF ARCHITECTURE- NEW TAKE BY THE DELHI HIGH COURT

The major question in this suit was whether an architect, as a legal author of a building have a right to object to the modification or destruction of the work by the owner of the building.  This claim to moral rights was categorically rejected by the Delhi High Court ignoring the ruling in the landmark Amarnath Sehgal Case as irrelevant. It is a significant ruling with respect to the scope of Moral Rights in India and gives in a problematic overarching conclusion with respect to destruction of work, not being a considerable element for upholding moral rights. The case involved the Hall of Nations Building, which was widely hailed as the icon of modern Indian Architecture. This was demolished by the Indian Trade Promotion Organization to build another Convention cum Exhibition center.

The court categorically rejected the plaintiff’s claim that his rights under Section 57 of the Indian Copyright Act were abrogated. The major and convincing ground for this ruling was the argument that land rights are human right equivalents and as a constitutional right, always triumph over statutory rights like Moral rights under Section 57. The right of the defendant to freely deal with his own property cannot b curbed. As far as the conclusion is concerned, it is completely sound, however the problematic part can be found under Para. 24 and 25 of the judgment. The court herein has significantly narrowed down the scope of Moral Rights and gone on to contrast with the rationale given in the Amarnath Sehgal case. By restricting the meaning of distortion and mutilation to making the work look, appear distorted which harms the reputation of the author, the court has completely ignored the realist implications of complete destruction and removal of artistic work as well. The court states:

“…failure to display a work is not infringement of rights conferred by Section 57, in recognition/acceptance of, that what cannot be viewed, seen, heard or felt, cannot be imperfect and cannot affect the honour or reputation of the author. There is a difference between work itself and one of the embodiments of the work. While distorting or mutilation or modification of one of the embodiments of the work renders the work imperfect, prejudicing the honour or reputation of the author, destruction of the work in its entirety i.e. making it disappear, cannot be, prejudicial to the honour or reputation of the author. No imperfections can be found in what cannot be seen, heard or felt. In the case of a performance, there can be derogatory treatment thereof only if it is played in public or communicated to the public. However, if there is no performance at all, there can be no derogation thereof.”

The issue with such an overarching ruling is the narrowing down of the concept of moral rights. It has been ignored by the court that destruction and complete removal is the extreme form of mutilation and it definitely prejudices his honor and reputation by reducing his “Corpus of Work” i.e. work profile by and for which he is known, as the work does not exist anymore. The physical destruction or loss of intellectual property has a far-reaching social consequence as the knowledge associated with it has also been lost. Hence reduction of corpus definitely reduces the integrity and is prejudicial to the interest and honor and reputation of the author.  Restricting the concept of honor and reputation merely to libel by statements like “I like or dislike only a structure which I see. What I don’t see I don’t judge.”, ignores the fact that the creation of the architecture or work of art at a particular point of time is a fact in history and is known to people. Further, if it is removed, it will definitely be a forefront of discussion as to why it was removed leading to presumptions which are definitely prejudicial to such honor and reputation of the artist. Hence, the best way of reading this judgment will be to restrict its applicability to works of architecture fixed on a land owned by someone else and the vacation done specifically by such landowner, in application of his land rights. This ruling cannot be applied universally for all works of art, as good law.

This CopyKat by Akshat Agrawal

THE COPYKAT

After our very last post, more on dance steps! Former "Fresh Prince of Bel-Air" star Alfonso Ribeiro has been involved in a lawsuit with Take-Two Interactive, publisher of the video game "NBA 2K," and the publisher of "Fortnite" over avatars in the games being able to do the dance that his character popularised on the hugely popular '90s sitcom ' the 'Carlton Dance'. But now that action has taken a knock back as details of a letter from Saskia Florence at the US Copyright Office to Ribeiro's attorney, David Hecht surfaced as part of federal court documents in California. In the correspondence, Florence wrote that the moves are "a simple dance routine." adding "as such, it is not registrable as a choreographic work".  

The EU Commission has removed a rather odd blog post that attacked internet campaigners, admitting its language was not appropriate and that it could be interpreted as offensive. The post was positioned as a response to the various battles around the EU's planned copyright directive, which introduces a series of reforms, and pointed to the aggressive and polarising lobbying from the tech sector. The post was titled ‘The Copyright Directive: How the mob was told to save the dragon and slay the knight’ and the controversial text included the opinion (that seems related to Brexit) that “We know from recent elections and referendums that simple memorable slogans – however untrue or unobtainable – can go a long way to winning over hearts, minds and voters. Never let the truth get in the way of a catchy slogan”. The post went further in its criticism of the tech sectors efforts to  mislead the public by employing dubious campaigning tactics saying  “It appears as if the largest search and video platforms in the world are afraid of regulation – despite having overwhelming dominance on the internet. Furthermore, there is ample evidence that ‘big technology’ has even ‘created’ grassroots campaigns against the copyright directive in order to make it look and sound as if the EU is acting against the ‘will of the people'”. A statement in place of the post now reads: “This article published by the Commission services was intended to reply to concerns, but also to misinterpretations that often surround the copyright directive proposal. We acknowledge that its language and title were not appropriate and we apologise for the fact that it has been seen as offending”. In related news, representatives of European Union governments have endorsed the compromise reached with the EU Parliament on the overhaul of the bloc's copyright rules, the Romanian presidency of the EU said in a statement on Twitter.

And with that  final draft of the European Copyright Directive now being considered, a number of organisations representing independent record labels and music publishers, songwriters and their collecting societies published a letter calling on the EU Council and European Parliament to vote through the copyright reforms. Independent label's group IMPALA and the Independent Music Publishers International Forum led the call for support for the Directive to now be adopted along with support from the European Composer And Songwriter Alliance, and collecting society groups CISAC and GESAC, with the letter saying "We, the undersigned organisations, representing authors, composers, writers, journalists, photographers and others working in all artistic fields, news agencies, book, press and music publishers, audiovisual and independent music producers, call on the Council Of The European Union and the European Parliament to adopt the Directive On Copyright In The Digital Single Market".

Perhaps in preparation for EU reforms,YouTube has announced changes to it's 'strikes' system as it applies to content flagged for violating the company’s Community Guidelines. Starting February 25th, the first time a creator’s content is flagged, they will get a one-time warning and their flagged content will be removed. Prior to this change, there was no warning, and a first strike would result in a 90-day freeze on live streaming. A second strike would result in a two-week freeze on video uploads.  A YouTube spokesperson told Gizmodo that the strike policies for Community Guidelines and copyright are entirely separate, and that YouTube employees don’t get directly involved copyright disputes. The spokesperson said that if YouTube receives a DMCA takedown notice, they must legally comply with that request and remove the content. Community Guidelines violations—like harmful, hateful, violent content, and spam—are reviewed and decided upon by members of the YouTube team, according to the spokesperson.

The Copyright Royalty Board in the US has published the new mechanical royalty rates that will apply for the use of music in America. The new rates were first published a year ago and include a top line 44% increase in the revenue share rate being paid by the streaming services, which will rise from 10.5% to 15.1%. After a further period of consultation with submissions from both music owners and music users a ‘final determination’ has now followed - although participating parties still have one more chance to appeal. Benjamin Semel who represents the National Music Publishers Association commented: “The final determination that became effective today is even stronger than the initial determination, as the judges clarified an important definition during the rehearing motion phase, providing additional protection against streaming services using product bundling to exclude revenues from the royalty pool”. NMPA President & CEO David Israelite said that digital music companies would ‘declare war on songwriters’ should they appeal the 44% streaming royalty rise decided by the Copyright Royalty Board adding  “Apple has announced it will not appeal. The others won’t say. We will know soon whether some digital companies want to be partners or want to attack the songwriters who make their businesses possible. Stay Tuned.”

US Radio lobbyists and a bipartisan coalition of lawmakers in Washington DC are backing the Local Radio Freedom Act, which would limit the royalties radio stations have to pay for the use of recordings. Similar bills failed in 2017 and 2015 and of course the rapidly passed Music Modernization Act did much to update the law on music use in the USA. Now 124 congress members and five senators have signed on as initial co-sponsors. The bills argue that radio stations "provide free publicity and promotion to the recording industry and performers," so they should not be obliged to pay "any new performance fee, tax, royalty, or other charge." If such fees were imposed, the bill's proponents argue, it would cause "severe economic hardship." Or perhaps just reduce profits for broadcasters.

And finally, in Trinidad & Tobago, Police have arrested seven people in Port of Spain for copyright infringement..The seven vendors were targeted during an exercise which saw officers of the Port of Spain Division, the Municipal Police, and officials from Awesome Copyright interview CD vendors in Independence Square and Charlotte Street. Various CDs and sound equipment were seized with the arrests made pursuant tof Section 41 of the Trinidad and Tobago Copyright Act. The offence carries a jail term of up to ten years and/or a fine of up to $250,000.

BREAKING: Agreement on DSM Directive reached in trilogue

Over on the IPKat, Eleonora reports that at last, after several weeks, several discussions, and after France and Germany achieved a compromise on some key provisions in the draft Directive on copyright in the Digital Single Market an agreement has been reached between the European Parliament and Council negotiators on the content of this new piece of legislation.

The text is not yet available, but according to a press release from the European Parliament:

Tech giants to share revenue with artists and journalists: The deal aims at enhancing rights holders’ chances, notably musicians, performers and script authors, as well as news publishers, to negotiate better remuneration deals for the use of their works featured on internet platforms.

Locking in freedom of expression: Sharing snippets of news articles will not engage the rights of the media house which produced the shared article. The deal however also contains provisions to avoid news aggregators abusing this allowance. The ‘snippet’ can therefore continue to appear in a Google News newsfeeds, for example, or when an article is shared on Facebook, provided it is “very short”. Uploading protected works for purposes of quotation, criticism, review, caricature, parody or pastiche has been protected, ensuring that memes and Gifs will continue to be available and shareable on online platforms.

Many online platforms will not be affected: The text also specifies that uploading works to online encyclopaedias in a non-commercial way, such as Wikipedia, or open source software platforms, such as GitHub, will automatically be excluded. Start-up platforms will be subject to lighter obligations than more established ones.

Stronger negotiating rights for authors and performers: Authors and performers will be able to claim additional remuneration from the distributor exploiting their rights when the remuneration originally agreed is disproportionately low compared to the benefits derived by the distributor.

How this directive changes the status quo: Currently, internet companies have little incentive to sign fair licensing agreements with rights holders, because they are not considered liable for the content that their users upload. They are only obliged to remove infringing content when a rights holder asks them to do so. However, this is cumbersome for rights holders and does not guarantee them a fair revenue. Making internet companies liable will enhance rights holders’ chances (notably musicians, performers and script authors, as well as news publishers and journalists) to secure fair licensing agreements, thereby obtaining fairer remuneration for the use of their works exploited digitally.

Next steps: The deal must now be approved by Council representatives and the EP plenary.

Dr. Harald Heker, CEO of German music collection society GEMA, said:  “We welcome the agreement reached today between the EU institutions regarding copyright. Thanks to the Directive, online platforms will finally have to pay authors a fair remuneration for the usage of their works" adding "The draft of the Directive that we now have in front of us imposes a higher level of responsibility onto the online platforms and strengthens the position of creators as well as internet users at the same time.

Andrus Ansip European Commission Vice-President for the Digital Single Market wrote in a tweet that the outcome is a “major achievement for Europe”

https://euobserver.com/science/144165

https://www.iq-mag.net/2019/02/final-article-13-text-approved-eu-negotiators/

https://www.musicbusinessworldwide.com/final-article-13-text-approved-as-european-copyright-directive-talks-conclude/

https://www.billboard.com/articles/business/8498315/european-union-approves-deal-over-controversial-copyright-directive

https://www.publicknowledge.org/press-release/public-knowledge-strongly-opposes-announced-agreement-on-eu-copyright-directive

New Zealand Copyright Act under review

The 1709 Blog is delighted to host the following contribution by 1709 Blog friend Ken Moon (AJ Park Law, Auckland) concerning the ongoing review of the New Zealand Copyright Act. 

Here’s what Ken writes:

Introduction

The New Zealand Copyright Act 1994 is now under review. The review got underway in earnest with the November release of a 126-page Issues Paper by the Ministry of Business, Innovation & Employment (MBIE). This review is of the whole of the Act, although internet issues are pre-eminent.

The MBIE Issues Paper identifies potential issues upon which it seeks submissions from interested parties. MBIE appreciates that the Act may already adequately address some issues it has identified and is happy to receive submissions arguing for no change.

Adherence to international copyright treaties
Over the years, New Zealand has not been good at amending its copyright legislation to ratify international copyright treaties or conventions. However, as is noted in the Issues Paper, under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), New Zealand is obliged to make amendments to incorporate many of the provisions in the IP Chapter of the TPP and this process is already underway. Some of these require implementation of terms of the 1996 WIPO Performers and Phonograms Treaty (WPPT) which addressed internet issues, particularly for performers who had previously been side-lined. However, there are other provisions of the WPPT which will need to be addressed in the comprehensive review, such as performer remuneration for broadcasts and communications of their recordings.

Some of the Identified Issues
Fair use and exceptions to copyright infringement
Currently, the Act ensures certain listed non-commercial activities are not infringements of copyright, including those categorised as ‘fair dealing’. The Act also makes specific exceptions for the education industry and libraries. This is the traditional British approach.

But should a broader US fair use defence be adopted in place of fair dealing? Naturally social media advocates favour this. However, fair use is somewhat subjective and reduces the certainty of legal opinions on what is infringement and what is not.

As to the adequacy of the existing statutory exceptions to infringement, it is time to look at whether the reproduction of parts of a work for the purposes of satire should be excepted. Also, should exceptions for public playing of works and format-shifting be more extensive? On the other hand, is the current exception for reproducing artistic works on public display, such as sculptures, unnecessarily broad. An example being applying an image of a sculpture to t-shirts without obtaining a licence from the sculptor and paying royalties.

Internet-related issues

• Should a website link to infringing content stored on another website constitute copyright infringement as under EU law? 
• MBIE questions whether content streaming should be treated the same as broadcasting under the existing right to communicate. But many will argue that the particular transmission technology is irrelevant from a creator’s point of view. 
• New Zealand is the only country that has ‘communication works’ specified as a work in which copyright subsists. This makes broadcasts and internet streams to the public copyright works in themselves, in addition to any copyright in the content. Thus, retransmission may constitute infringement. This was the most far-sighted of all the 2008 ‘internet amendments’ made to the Act. However, MBIE believes this is problematic because it is hard to know who might constitute the ‘public’. Strangely, MBIE does not see this as a problem with the communication right. 
• User-generated content on social media platforms, even if it is supposedly merely ‘inspired’ by existing content, can amount to copyright infringement if it reproduces a substantial part of that content. Should this be the case or should there be exceptions? 
• Currently, section 43A of the Act provides an exemption from infringement for transient reproduction of a work if it is an integral part of the technological process for communicating the work. This has application to streaming technology, but has been interpreted by a New Zealand court in a more restrictive manner than has been the case in the UK. Clarification seems called for even if all that is done is inserting a definition of ‘transient’. 

Software-related issues

• The Act does not allow for a copyright owner to renounce their copyright. Some software developers (and users) have wished for this instead of retaining copyright and adopting licensing schemes of the open source or creative commons types. Should renunciation of copyright be provided for? 
• The Act currently already provides specific exceptions to infringement for computer programs such as: 
• decompilation of a program in order to write an interoperable program 
• copying or adapting a program to allow for continued use and for correcting errors 
• studying the functioning of the program to determine the ideas that underlie it while loading, displaying, running, transmitting, or storing the program. 

These were radical enough when introduced in the 2008 amendments, but MBIE is asking if there should be further exceptions to program infringement.

Enforcement of copyright

• MBIE asks whether a voluntary register be made available, as in Canada, to simplify identification of copyright owners. But it is questionable whether there have been injustices in past New Zealand copyright cases to justify the costs of running such a register of ownership. 
• Currently legal action for copyright infringement can only be taken by copyright owners or their exclusive licensees. Should non-exclusive licensees be able to sue?
• Should the Act provide a remedy for groundless threats of copyright infringement as is the case for patents? 

Relationship between copyright and registered design protection
In New Zealand the Copyright Act protects three-dimensional copying of functional products via the copyright which subsists in the design drawings of the product – as used to be the case under UK law. MBIE raises the old question of whether the potential overlap between copyright protection for product design and protection by the Designs Act should be permitted. The fear of New Zealand protection providing greater protection for foreign designers compared to what New Zealand designers may receive in some other countries emerges. Of course, New Zealand designers are accorded unregistered design rights in European Union countries, even if not in the USA.

Due date for submissions to be made
Submissions on the Issues Paper can be made to MBIE until 5.00pm on 5 April 2019. An online portal can be used for this. Submissions will be published, although confidentiality can be claimed for some content.”

The COPYKAT delves into the Oracle for a glimpse of the true part of copyright

Oracle and Google Dispute Over the Use of API’s is Not Over Yet

The dispute between Oracle and Google over Google’s use of copyrighted Java application programming interfaces (APIs) to design the Android operating system has reached another stage. The case which was initially filed in 2010 and included patent infringement claim, has generated a lot of attention in the technology industry [as reported previously here] as it deals with the question whether the use of Java programming language can be considered as fair use and it may have a significant chilling effect on software developers.

Following the jury trial in 2016, which found that the use of APIs by Google was acceptable, last week the US Court of Appeals for the Federal Circuit in Washington DC has reversed their ruling and decided to send the case back for trial in San Francisco in order to determine the amount of damages. The main issue that was considered by the court was whether Google’s use of copyrighted material was transformative, in order to qualify for the fair use defence. Google argued that it took selected parts of the API code and created its own interpretation for the purpose of creating new functionality. In the view of the appellate court, Google’s actions cannot be considered as transformative as “the copying is verbatim, or an identical function and purpose, and there are no changes to the expressive content or message”. Additionally, the fact that there is a mere change in the format  “(e.g., from desktop and laptop computers to smartphones and tablets) is insufficient as a matter of law to qualify as a transformative use”. Nonetheless, the court has not dismissed the possibility of using a fair use defence where the case involves copying of the computer code. As estimated in 2016 by IP research company Ocean Tomo, Oracle was seeking $9 billion in damages and profits from Google for selling allegedly infringing product. At the same time Google has made over $42 billion in revenues from advertising on Android. With the trial on the issue of costs in the Ninth Circuit, this is the space to watch.

A Google spokesperson commented on the judgment that “[t]his type of ruling will make apps and online services more expensive for users” and said that it is considering next steps in the case. Electronic Frontier Foundation (EFF) believes that this case “should never have reached this stage” as the works should not be eligible for the copyright. As observed by Corynne McSherry, legal director for the EFF, this decision will have a great implication for small software firms and brings legal uncertainty for large number of software developers. In effect, the uncertainty can result in reduced rate of innovation.

The EU Commission Publishes Notice to Stakeholders on the Effects of Brexit in the Field of Copyright

The EU Commission has published a document outlining the effects of Brexit in the field of copyright. Subject to any transnational agreement between the United Kingdom and the European Union, as of withdrawal date, i.e. 30 March 2019 00:00 (CET), the EU rules in the field of copyright “will no longer apply for the United Kingdom”. Unless the parties to the negotiations will not agree otherwise, the relationship between them will be governed by the multilateral, international treaties, such as the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT), the WIPO Performances and Phonograms Treaty (WPPT) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Accordingly, the principles of ‘most favoured nation’ and ‘national treatment’ under TRIPS agreement will apply.

The paper notes that that under the obligations of the multilateral treaties and with no “counterpart in the international conventions”, the level of protection will differ in relation to certain rights and where applicable “exceptions or limitations to those rights as that set out today in the EU copyright acquis”. On of examples is Directive 93/83/EEC, which allows broadcasters to clear the copyright only in the Member State where the signal is introduced. Following Brexit, the UK broadcasters will no longer benefit from this mechanism when providing cross-border transmissions and will be obliged to clear the rights in each of the Member States where the transmission occurs. Similarly, broadcasters in the EU providing cross-border satellite broadcaster services to the UK customers will have to secure the rights of the relevant rightholders. Additionally, after the Brexit date the EU collective management rights organisations will no longer be obliged to represent collective management rights organisations based in the UK for multi-territorial licensing. Orphan works which have been recognised in the UK will no longer be recognised in the EU under Directive 2012/28/EU. Persons from the UK will not be able to obtain accessible format copies from authorised entities in the EU under Directive (EU) 2017/1564 which allows on certain permitted uses of certain works for the benefit of persons who are blind, visually impaired or otherwise print-disabled. UK nationals will no longer be entitled “to maintain or obtain a sui generis database right in respect of databases in the EU” and correspondingly EU Member States nationals will not be able to obtain such right for the databases in the UK. The withdrawal of the UK from the EU will also affect the effect of Regulation (EU) 2017/1128 (entered into force on 1 April 2018) for UK nationals who will not be able to benefit from their digital content subscriptions when travelling to the EU.

UK Government Releases New Strategy Plan for Tackling Copyright Infringement Online 

Countries are taking more and more steps  to tackle piracy online - where a number of internet users distribute massive file-sharing infrastructure or share pirated live sports streams.

Last week has seen the publication of ‘Industrial Strategy’ plan in the UK which outlines strategy on how the Government and the creative industries can work together to protect rights of copyright holders. As observed in the document “online piracy continues to be a serious inhibitor to growth in the creative industries. Technologies like stream ripping and illicit streaming devices enable illegitimate access to content without rewarding its creators”. Such situation creates a growing concern for right holders about how their works are exploited online. In order to tackle the problem, the Government plans to host a series of roundtables with rightholders, social media companies and online marketplaces with the aim of brokering voluntary anti-piracy agreements. The measures to be introduced, one of which includes upload filters, “could include proactive steps to detect and remove illegal content, improving the effectiveness of notice and takedown arrangements, reducing incentives for illegal sites to engage in infringement online and reducing the burdens on rights holders in relation to protecting their content”. If such measures will fail to produce the desired outcome by 31 December 2017, the Government will consider further legislative actions in order to strengthen the UK copyright framework. At the same time, the UK Government is planning to address the problem of the so-called ‘value gap’ [read here] in both the UK and in Europe and is planning to make an additional £2 million available to support ‘Get it Right’ campaign. The aim of the action is to “educate consumers on the dangers of copyright infringement and direct them towards legitimate sources of creative content online”. The Government hopes that its action will help to build on the “UK’s position as a global leader and strengthen its advantage as a creative nation by increasing the number of opportunities and jobs in the creative industries across the country, improving their productivity, and enabling (…) to greatly expand our trading ambitions abroad”.

Australian Rightholders Want to Force Search Engines to De-list Pirate Sites

Similarly, Australian Government aims to tackle the problem of copyright infringement online and in February it has announced a review of its pirate site-blocking laws. The Department of Communications asked for feedback on how effective is the mechanism that was introduced in the Copyright Amendment (Online infringement) Act 2015. So far there were several responses from rightholders, which mainly came from the entertainment industry with the aim to expand the scope of the protection. As reported by Torrentfreak, one of the most ‘aggressive submissions’ arrived from the movie group Village Roadshow and TV provider Foxtel. Both entities were successful in having a number of websites blocked by local ISPs in Australia and now they would like to expand the law that would require online service platforms to block the websites with infringing content. As written by Graham Burke, Village Roadshow co-chief, “with all major pirate sites blocked in Australia, the front door of the department store is shut. However, pirates, facilitated by Google and other search engines, are circumventing Australian Laws and Courts and opening a huge back door”. In his view search engines and online platforms should be required to take reasonable steps in order to stop facilitating searches that lead to pirate sites. With an increasing number of links to illegal content appearing on online platforms, the rightholders want to include them in the scope of the legislation. Foxtel also observed a need to improve tackling live streaming, basing its observations on the framework of injunctions obtained in the UK last year by the Premier League and UEFA, which enable to block websites with pirated live sports streams. In their view similar framework should be available in the Courts of Australia.

Owner of Sharebeast.com Sentenced for Illegally Distributing Copyrighted Materials

In the US, Artur Sargsyan, owner of the  Sharebeast.com, Newjams.net and Albumjams.com, has been sentenced for the crime of criminal copyright infringement for private financial game. His website has contained an enormous file-sharing infrastructure consisting of around 1 billion copies of copyrighted musical works that were available for download. At the same time the websites contained pop-up advertisements, which allowed Sargsyan to make a significant profit from the number of visitors downloading works from his websites. US District Judge Timothy C Batten has sentenced Mr Sargsyan to five years imprisonment to be followed by three years of supervised release. Additionally, he will be required to pay restitution in the amount of $458,200 and forfeit $184,769. As observed by US Attorney Byung J Pak, “Sargsyan operated one of the most successful illegal music sharing websites on the Internet”. The case was investigated by the FBI and a number of warnings have been sent to Mr Sargsyan to stop violating the law by illegally hosting and sharing copyrighted works. David J LaValley, Special Agent in Charge of FBI Atlanta says that Mr Sargsyan’s sentence “sends a message that no matter how complex the operation, the FBI, its federal partners and law enforcement partners around the globe will go to every length to protect the property of hard working artists and the companies that produce their art”. The Recording Industry Association of America (RIAA) has estimated the total monetary loss to its member companies at $6.3 billion.

Judge has Rejected Motion to Dismiss Copyright Lawsuit Over LeBron James Tattoo

Can a tattoo be protected by copyright? That is the issue which is at stake in in a multi-million dollar lawsuit between Solid Oak Sketches (which claims to acquire rights from various tattoo artists linked with NBA superstars) and Take-Two, publisher of the NBA 2K video game [as we have previously reported here]. Until 2016, when the case was brought, there was no decision rendered that would declare that tattoo designs can be considered as copyrightable work. Take-two in response to the lawsuit has filed a motion to dismiss the action as according to them the use of tattoos “was too fleeting to be considered an infringement” and was displayed briefly. As contented by the Plaintiff, “if an NBA2K player selects Messrs. James, Martin and Bledsoe in a (…) game (…), or 'employs the broad range of the video game’s features to focus, angle the camera on, or make the subject tattoos more prominent,' 'the overall observability of the subject tattoos can be fairly significant”. The US District Court Judge Laura Taylor Swain having heard both parties was not ready to adjudicate on the issue quickly. Therefore, she denied the motion to dismiss lawsuit on the basis of de minimis use and ordered more fact-finding in order to resolve the matter at a later stage of the case. In relation to fair use defence, the defendant argued that with their motion being denied, Solid Oak will now be able “to use that decision to shakedown each of the publications and television programs in which those players have appeared”. Despite those arguments, because of the difficulties inherent in conducting a side-by-side comparison of the video game and the Tattoos,” the judge has refused to dismiss the case. Therefore, she decided to order gathering of further evidence in connection with “the fact-intensive question of the applicability of the fair use defense”. It will be interesting to watch the further developments in the case as it might set a precedent on whether tattoos can be protected by copyright and how such protection can affect its bearers and companies willing to creatively depict them. 

Gospel-shocker

In South Africa an almighty row is brewing over a rights scandal alleged to be the "biggest music rights scam in South African history". At the heart of the complaint is SAMRO, the Southern African Music Rights Organisation established by the South African Copyright Act: now the South African Minister of Arts and Culture Nathi Mthethwa has noted "with grave concern" the article published in City Press and News 24 Online News platforms on 1st April 2018 into what is “alleged to be the biggest music rights scam in South African history involving the legendary and multi-platinum selling gospel artist Hlengiwe Mhlaba. The report goes into worrying detail into the alleged theft over a period of years of royalties amounting to millions of rand due to the artist in question."

The Minister has given a directive to the legal unit of the Department of Arts and Culture to immediately initiate a process which will culminate in the appointment of a Commission that will be headed by a retired Judge. More here on the allegations made against SAMRO here https://city-press.news24.com/News/gospel-shocker-how-black-musicians-got-screwed-20180401 and the Chief Executive of SAMRO, Nothando Migogo, responds here  http://www.samro.org.za/news/articles/samro-ceo-response-media-reports

This update by Mateusz Rachubka