The 'Catch Up' COPYKAT

After a week in Groningen in Holland at the EuroSonic music conference and festival. it's time for a quick catch up before our two new interns, Mateusz Rachubka and Kelsey Farish take over. And since you were asking - the buzzwords at ESNS 2018 were 'bots' and 'blockchain' ! As for the word of copyright, and still mostly in the world of music - here goes!

There has been a LOT of chat about the fact that even with the 1998 twenty year extension to the copyright term in the USA, copyrights will (again) begin to enter the public domain with works from 1923 in the public domain next year, and Mickey Mouse cartoons entering the public domain starting in 2024, with Steamboat Willie. Will Disney lead another charge to extend the the term - AGAIN? Ars Technica's Timothy B Lee has polled lobbyists for the record and movie industries and so far there seems to be no will to push for any legislative pushes this year, and EFF's Daniel Nazer suggests that the studios know that there would be a big pushback now - "the days of copyright being a wonky, obscure issue that fronts the families of dead artists as human shields for policies that let big companies lock up more and more of our shared culture are over."

Still in the US, the music industry has (mostly) come together to support a raft of new legislation. First of all there is the CLASSICS Act, which is aimed at rectifying the much discussed pre-1972 quirk in American copyright law that excludes the earlier sound recordings from the performance right and therefor royalties from airplay (litigation by the Turtles, pictured left, has kept us busy on this blog).  US music trade bodies, lobbying groups and collecting societies representing record labels, music publishers, artists, songwriters, record producers and artist managers have also  backed the AMP Act, which would introduce a new right for record producers and sound engineers, and reform to the way satellite radio royalties are calculated, and provide a general performing right  for sound recording copyright to rectify another odd position in US copyrights law where AM/FM radio stations do not royalties (at all) to artists and labels for the airplay of sound recordings (they do play for the use of the 'song'). And the music industry is (mostly) behind the recently unveiled Music Modernization Act, which would cover the anomalies in America’s mechanical rights that (as CMU says) "has resulted in songwriters going unpaid and streaming services getting sued, including that mega-bucks $1.6 billion lawsuit filed by Wixen last month."  More here. 

Facebook has signed another multi-year licensing deal with a major music company -Sony/ATV Music Publishing.The news comes just two weeks after Universal Music Group announced that it had signed an agreement with the social media giant, which draws more than 2 billion users every month to its platform. Sony ATV’s multi-territory, multi-year deal covers a catalogue of more than 3 million songs, including those by Taylor Swift, Ed Sheeran, Drake, The Chainsmokers, Sam Smith, Sia and Kanye West. On top of this, Facebook them announced it had signed three more significant music licensing agreements,  this time with SESAC’s HFA/Rumblefish platform, Kobalt Music Publishing and Irving Azoff’s Global Music Rights. SESAC says that its new Facebook agreement, a standardised deal in which indie publishers can choose to opt in, will provide ‘streamline music licensing and administration for the independent publishing market’.

Lana Del Rey by Bea Gibson

Are Radiohead suing Lana Del Rey over an alleged copy of their iconic song 'Creep'? Lana Del Rey recently tweeted: “it’s true about the lawsuit. Although I know my song wasn’t inspired by ‘Creep’, Radiohead feel it was and want 100% of the publishing. I offered up to 40 over the last few months but they will only accept 100. Their lawyers have been relentless, so we will deal with it in court”.” Whilst many took this to mean a lawsuit had been filed by Radiohead’s lawyers, that isn’t quite the full picture. The spokes person for Warner/ Chappell states that: “As Radiohead’s music publisher, it’s true that we’ve been in discussions since August of last year with Lana Del Rey’s representatives. It’s clear that the verses of ‘Get Free’ use musical elements found in the verses of ‘Creep’ and we’ve requested that this be acknowledged in favour of all writers of ‘Creep’. To set the record straight, no lawsuit has been issued and Radiohead have not said they ‘will only accept 100%’ of the publishing of ‘Get Free'”.

Four of Britain’s biggest karaoke firms "face ruin" after being sued for infringing copyright in the US. It seems that "they must cough up hundreds of millions in damages after failing to pay royalties on versions of hits by acts including The Beatles and Oasis." £527 million in damages to be precise. UK firms SBI Global, Mr Entertainer, Zoom Entertainments and Music Factory re-create hits without the vocals and sell them on. But while they paid royalties on sales in the UK and Europe they did not have permission to sell in the US, a US court has ruled. More here. 

Fox and the Premier League have joined telcos Singtel and StarHub in a private case against two Android set-top box sellers in Singapore for allegedly ‘wilfully infringing’ copyright. The actions against Singapore distributor Synnex Trading and retailer An-Nahl, along with their respective directors Jia Xiaofeng and Abdul Nagib Abdul Aziz, have been brought under Section 136 (3A) of the Copyright Act. In a joint statement, Starhub, SingTel, Fox Networks Group and the FAPL said the broadcasting industry would continue to take "concerted and decisive action" against content piracy through public education as well as via legal channels to uphold intellectual property rights saying “The alarming proliferation of piracy and illicit streaming devices that are used to view copyright-protected content hurts both consumers and producers. Piracy makes it untenable for producers to keep on creating content for the public's enjoyment and Singapore cannot effectively encourage innovation when intellectual property rights are constantly trampled on”.

THE COPYKAT

Copyright - Where are we now? What is on the Horizon?

At the start of this year this CopyKat looks to bring together various pieces of news that demonstrate; the current challenges facing copyright, a look to how those challenges are being addressed and finally new challenges that could be on the horizon. Here goes!

Musician’s White Noise YouTube Video Hit With Copyright Complaints

When people upload original content to YouTube, there should be no problem with getting paid for that content, should it attract enough interest from the public.

Those who upload infringing content get a much less easy ride, with their uploads getting flagged for abuse, potentially putting their accounts at risk.

That’s what’s happened to Australia-based music technologist Sebastian Tomczak, who uploaded a completely non-infringing work to YouTube and now faces five separate copyright complaints.

Has Copyright Become a New Weapon Against Online Media?

Following on from the above, we can see further evidence here of how the video reporting tools within YouTube are being abused.

YouTube’s copyright rules are being abused by the Azerbaijan government in an attempt to censor content from the global video-sharing site according to one of the country’s few independent news services.

The Meydan TV network says four of its video reports, which highlighted allegations of official corruption, were removed on the grounds that they infringed YouTube’s copyright rules. And under the Google-owned giant’s terms, this brought the channel close to being taken off the site altogether.

YouTube is one of the few remaining mediums Meydan TV has for reaching audiences in Azerbaijan. The government blocked its website last year, and it has also jailed the network’s journalists.

Though both the RFE and Meydan TV videos have been restored, Milli is concerned that the threat to his network’s content remains. At the moment, he says YouTube is “failing badly” in policing its own rules.

IPO explains impact of EU portability regulation on copyright holders

The UK's Intellectual Property Office (IPO) has outlined the impact new EU rules affecting online content services could have on copyright holders in a new consultation paper published ahead of the new rules taking effect.

The IPO's explained (24-page / 4.72MB PDF) that rights holders will lose an element of control over how their material is accessed once they have entered licensing agreements with providers of online content services with paid subscribers.

Under the new rules, which come into force on 1 April this year, online content service providers must ensure that they make their service available to paid subscribers "in the same manner as in the member state of residence" when those subscribers are "present in a member state other than the member state of residence for a limited period of time".

U.S. Copyright Office requires electronic registration

By taking necessary steps, online service providers (OSP) can avoid legal litigation. The U.S. Copyright Office has instituted a new electronic registration system, where online service providers can protect themselves from copyright infringement lawsuits.

Companies that have an online presence can unknowingly be liable for intellectual properties, such as poetry, novels, songs and movies, that are posted on their websites by users or any third party. The Digital Millennium Copyright Act (DMCA) offers a “safe harbor” protection.

“The Digital Millennium Copyright Act provides OSPs an opportunity to remain innocent middlemen in a dispute between copyright holders and any user who posts infringing content, provided the OSP meets certain criteria,” said John Saint Amour, a supervisor at the U.S. Copyright Office.

Starting on January 1st, all OSPs are responsible for users’ posts, whether they post original content or copyright infringing content on their website, unless they electronically register with the U.S. Copyright Office.

No Level of Copyright Enforcement Will Ever Be Enough For Big Media

When swapping files over the Internet first began downloading of material wasn’t a particularly widespread activity. A reasonable amount of content was available, but it was relatively inaccessible. Then peer-to-peer came along and it sparked a revolution.

From the beginning, copyright holders felt that the law would answer their problems, whether that was by suing Napster, Kazaa, or even end users. Some industry players genuinely believed this strategy was just a few steps away from achieving its goals. Just a little bit more pressure and all would be under control.

Then, when the landmark MGM Studios v. Grokster decision was handed down in the studios’ favor during 2005, the excitement online was palpable. As copyright holders rejoiced in this body blow for the pirating masses, file-sharing communities literally shook under the weight of the ruling. For a day, maybe two: On an almost continual basis rightsholders are calling for tougher anti-piracy measures on top of more restrictive and punitive copyright law. It's undoubtedly a threat to current Internet freedoms as we know them. But really, is anyone truly surprised that entertainment companies still hate their content being shared for free? TorrentFreak has some strong opinions on this!

Copyrights from the 1920s will start expiring next year if Congress doesn’t act.

Admittedly this article does seem to directly contradict the above. However it demonstrates the entirely divided approach that seems to be prevalent when considering the future of copyright and how we manage our creative material.

On January 1, 2019,  books, films, and songs published in 1923 will fall out of copyright protection - something that hasn't happened in 40 years. At least, that's what will happen if Congress doesn't retrospectively change copyright law to prevent it - as Congress has done two previous times.

Until the 1970s, copyright terms only lasted for 56 years. But Congress retroactively extended the term of older works to 75 years in 1976. Then on October 27, 1998—just weeks before works from 1923 were scheduled to fall into the public domain—President Bill Clinton signed legislation retroactively extending the term of older works to 95 years, locking up works published in 1923 or later for another 20 years.

Will Congress do the same thing again this year? To our surprise, there seemed to be universal agreement that another copyright extension was unlikely to be on the agenda this year.

How AI and copyright would work

Though this has been an identified issue in the past, recent developments in this field are leading people to think again regarding our approach to copyright and AI.

Self-aware robots, androids or call-them-what-you-will have been part of science fiction almost from its beginnings. Recently in science reality, there’s been early, speculative discussion about “creative” works generated by these types of machines, and how copyright would apply.

It’s easy — and tempting! — to get wrapped around the axle when it comes to the prospects for artificial intelligence (AI) programs and their creation of original works. When works created by self-running software applications become more common, the result is both more possibilities and more challenges to existing copyright law. But let’s take a step back and consider what we know already, and then move on to what may soon be coming.

Kodak uses blockchain for photo copyright protection

Finally, where would any 2018 online blog post be without mentioning Blockchain at least once!

Former photo pioneer Kodak is turning to blockchain technology as part of an initiative to help photographers control their image rights.

The firm said the launch of ‘KODAKCoin’, in collaboration UK tech firm WENN Digital would help photographers receive payment for licensing their work immediately in cryptocurrency form.

KODAKCoin will use blockchain technology that settles transactions using computer algorithms, used by bitcoin and other virtual currencies.

Jan Denecke. WENN Digital chief executive , said: “It is critical photographers know their work and their income is handled securely and with trust, which is exactly what we did with KODAKCoin.

CopyKat Fights

To round this CopyKat off, below are three copyright disputes that have made recent headlines. Maybe not the most auspicious start to the year for these individuals….

Lana Del Rey sued by Radiohead over plagiarism claims - Lana Del Rey has confirmed that she is being sued by Radiohead over similarities between the final track on her current album ‘Lust For Life’ – which is called ‘Get Free’ – and the band’s 1992 hit ‘Creep’. There has been a recent update on this story which you can see here - is there actually a lawsuit?

BBC insists "no breach of copyright" over use of Brigadier's grandfather in Doctor Who special - Andy Frankham-Allen, creative director of Brigadier Lethbridge-Stewart creator Mervyn Haisman's estate, has now downplayed any row with the BBC,  and also explained how the Brigadier's daughter Kate Stewart (Jemma Redgrave) was approved for Doctor Who - and the Radio Times reports that any dispute over his grandson (Captain Archibald Hamish Lethbridge-Stewart, played by Mark Gatiss) who was in the recent Doctor Who Christmas special Twice Upon a Time had been settled with a "amicable, and non-financial, solution to the issue".

Ed Sheeran-Penned Song for Tim McGraw Is Target of Copyright Lawsuit - Two  Australians are asserting that Ed's "The Rest of Our Life" is the result of blatant copying and say it's hardly a coincidence that the musician who performed their own work is in a relationship with a Sony executive tasked with marketing the defendants' song. Gosh!!!!

This CopyKat by Matthew Lingard

Ps: As my time as an intern at 1709 comes to an end, I would like to thank the entire 1709 team for their insight and for giving me this opportunity. I would further like to wish the entire team and all of our readers a happy and prosperous 2018.

Term Extension - the UK moves forward

Sir Cliff - timeless

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

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

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

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

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

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

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

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

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

Remember remember the 1st of November - Term Extension ignites

The term of protection for sound recordings and performers' rights in the United Kingdom will be extended as of the 1st of November, to bring UK law into line with Europe, and implement Directive 2011/77/EU.

The Directive to extend the term of protection for performers and sound recordings to 70 years was adopted on the 12th September 2011. The aim of the Directive is to bring performers’ protection more in line with that already given to authors – 70 years after their death - and the Copyright and Duration of Rights in Performances Regulations 2013 will extend copyright term for sound recordings and performers' rights in sound recordings from 50 to 70 years. The extension of the term of protection will apply only to those sound recordings that are in copyright on 1 November 2013. The Regulations do not have the effect of bringing back into copyright those sound recordings whose copyright has expired.

Additional measures in the Directive, which will be implemented by the Regulations, include some of the issues raised earlier by the Music Managers Forum amongst others, when answering the question raised in the Gower's Review, which asked what "alternative arrangements" could accompany any extension of term. 

- that record producers set aside 20% of all revenues from the sales of sound recordings for a fund for session artists who will share equally in any revenues from both physical and digital sales (although as one of our readers noted - it will be interesting to see who administers this fund ...... and at what cost);

- that if a record label is not commercially releasing a track that is over 50 years old, then the performers can request that the rights in the performance revert to them - a 'use it or lose it' provision;

-a 'clean slate' provision that prevents the producer from deducting advance payments from royalties after 50 years;

- alignment of the term of protection for the music and lyrics in a musical composition. The Directive provides that where the music and lyrics in such a musical composition are written specifically for each other, the term of copyright in each shall last until 70 years following 
the death of the last surviving of both (or all) of the creators.

The IPO has published a User's Guide to the Directive  and more here. 

Sherlock Holmes and the Case of the Copyright Expiration Date

This post comes from a very welcome source, being a guest post by our friend and former 1709 Blog team member Miri Frankel (now Associate General Counsel, Aegis Media Americas):

The Case of the Copyright Expiration Date 

In February Leslie Klinger, a Los Angeles attorney, filed a lawsuit against the estate of Sir Arthur Conan Doyle -- the creator and author of a series of fictional works featuring legendary investigator and crime-solver Sherlock Holmes.  According to the Complaint, filed in a federal court in Illinois (the location of the estate’s US licensing agent), Mr Klinger is the author of numerous books and articles relating to the “Canon of Sherlock Holmes, a phrase that refers to the four (4) novels and fifty-six (56) stories by Sir Arthur Conan Doyle featuring the fictional character of Sherlock Holmes and other related characters and story elements”.  Mr Klinger’s Complaint raises copyright law questions that could easily be the subject of a Sherlock Holmes caper.  

US copyright law, applied to the works of Sir Conan Doyle, creates a scenario whereby most of the works have entered the public domain, while only ten stories that were published after January 1, 1923 remain under copyright protection until 2023, at the latest.  For years, the Conan Doyle Estate has demanded and collected licensing fees from authors who created works drawing from or based on the Sherlock Holmes character or other elements from the world of Sherlock Holmes.  According to this March 6 article in the New York Times, Mr Klinger himself paid a licensing fee to the Conan Doyle Estate in connection with a 2011 publication (the Complaint asserts that his then-publisher, Random House, agreed to pay the licensing fee despite his objection).  

But Mr Klinger’s view, and the view of other, sympathetic authors who have created new stories based on elements from the public domain works of Sir Conan Doyle, is that these licensing fees are not necessary, and the Conan Doyle Estate should not be allowed to threaten them with lawsuits to extract licensing fees.  The Complaint asserts that only new, original elements first published in the stories that remain under copyright protection are still protectable; copyright no longer protects, however, any elements that had already been published in earlier Sherlock Holmes works, so all such elements are now in the public domain.  

For its part, the Conan Doyle Estate claims that all elements of the Canon of Sherlock Holmes remain protected by copyright because, “Holmes is a unified literary character that wasn’t completely developed until the author laid down his pen.”  In other words, the character of Sherlock Holmes and all related copyright elements remain protected until 2023, the date upon which the final story published by Sir Conan Doyle enters the public domain.  

Can copyright of all works in a series legitimately be extended until the natural expiration of the copyright term for the final work in the series?  The answer to this question could have a broad impact on the status of copyrights held by authors who create series of works over many years.  I’m not aware of any prior precedental judgments that accept such an outcome, but if any readers know of other cases on this point, please let us know in the comments to this post.   

Some questions in copyright
law are not so elementary,
are they Watson? 

To some extent, trade marks derived from elements of such works could help protect the rights holder’s interests in the works.  Indeed, the Conan Doyle Estate also asserts trade mark rights in the word mark Sherlock Holmes and the silhouette image of a pipe-smoking Sherlock.  Klinger reportedly intends to challenge the validity and enforceability of the estate’s purported trade mark rights in connection with demanding licensing fees (though he has not done so in the current copyright-related Complaint).  A Katpost in 2010 generated quite a debate on the validity in the UK of a trade mark that arises from a copyright work that falls into the public domain.  Perhaps this question will soon be asked and answered under US law.    

On the other hand, even if the estate’s copyrights are found to have expired, it still retains its reputation as a foremost expert on all things Sherlock Holmes.  Being an authorized licensee of a respected and prominent stakeholder, such as the Conan Doyle Estate, often comes with favorable benefits, including marketing and advertising support from the licensor and, in the case of the Conan Doyle Estate, permission to use the estate’s official licensee seal on book covers or product packaging.  This notion holds equally true in uses that may be considered fair use; though fair use is permitted under copyright law, in some situations it still may be worth the cost of a licence fee to secure authorization, if possible and appropriate, from the rights holder of the underlying elements.  The ROI on the licence benefits may exceed the cost of the licence fee – and prevent costly litigation.     

Klinger Complaint available here
10 Famous Fiction Books in the Public Domain here