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.

EU copyright reforms - some responses

EU copyright reforms to strip likes of YouTube of legal protection. Video-hosting websites would have to shoulder more responsibility for rooting out infringements. Financial Times.

Why Europe's New Copyright Proposals Are Bad News for the Internet. The proposals aren’t just bad for Google, but for everyone. There’s a lot to like about the copyright proposals that the European Commission unveiled Wednesday—easier access to video across the EU’s internal borders, more copyright exceptions for researchers, and more access to books for blind people. However, two elements in particular could be disastrous if carried out as proposed. One would make it more difficult for small news publications to be able to challenge legacy media giants, and the other would threaten the existence of user-generated content platforms. Fortune. 

Film, TV Industry Sounds Red Alert Over New E.U. Copyright Proposals. Trade body FIAPF warns measures will lead to ‘reduced investment’ and reduced consumer choice Europe and Hollywood industries are expressing their alarm at a proposed overhaul of European copyright law that they fear will further erode the territorial licensing system their businesses count on for revenue. Variety.

EU digital copyright reform proposals slammed as regressive. The European Commission’s proposals to reform the region’s copyright rules, published in draft form today, have been criticized by tech companies and digital rights groups as regressive and a missed opportunity to modernize hopelessly outdated rules. The Open Rights Group accused the EC of ignoring EU citizens responses to an earlier consultation on the reform, and trying to bring in regressive rules that will force private companies to police the Internet. TechCrunch. 

The EU tried to craft a sane 21st century copyright and failed miserably. The European Commission's "Copyright Modernisation" effort has wrapped up, and it's terrible. All of the promising proposals mooted for a better, saner copyright for the 21st century that would protect and benefit individual creators have been thrown out, and in their place, the EC has settled on systems that will allow giant corporations more control over culture and conversation, with sweeping surveillance and censorship powers. BoingBoing. 

EU Executive Proposes New Copyright, Communications Laws. Backers say new rules are needed to bring regulatory frameworks up to speed with the internet age. Wall Street Journal. 

Copyright shift would put Europe ahead in ‘future of research’ data mining. Horizon.

YouTube ordered to pay more for music by Europe. Video sites such as YouTube will be forced to pay more to musicians and record companies under plans to reform European copyright laws. The draft directive will also require publishers and producers to tell performers or authors what profits their works have generated. More than 1,000 artists, including Lady Gaga and Coldplay, signed a letter earlier this year calling on the Commission to take steps to address the "value gap". It said sites such as YouTube were "unfairly siphoning value away from the music community and its artists and songwriters".  BBC.

European copyright: there's a better way. You can find Google's response here  from Caroline Atkinson, Vice President, Global Policy.

EU copyright at Fordham: a report (part II)

Having highlighted the position of the Commission as to EU copyright harmonisation (here), an assessment of the last twenty years of harmonisation was provided - inter alia - by Prof Bernt Hugenholtz of the University of Amsterdam.

First, he divided the harmonisation process into three phases, these being (1) 1991-2000, when core copyright directives were issued; (2) 2002-2008, when Member States transposed such directives into national laws; (3) 2009-, in which the CJEU has been playing a pivotal role in interpreting such directives. 

Bernt Hugenholtz

Overall, copyright harmonisation has had positive effects, in that approximating the laws of EU Member States has enhanced legal certainty, favoured the emergence of common principles, as well as the establishment of EU external competence in this field. The negative effects of copyright harmonisation can be held to be the following: (1) slow response to technological development; (2) harmonisation has always moved upwards (see databases); and (3) the overall process has been fairly intransparent, thus favoring lobbying (see the case of term extension(s)).

As to the future of EU copyright, Prof Hugenholtz indicated that lawmaking at the EU level has the potential to become increasingly difficult, due to the following aspects: (1) ever growing number of Member States; (2) increasingly central role of the European Parliament; (3) ongoing discussions as to social legitimacy of copyright; (4) lack of normative constitutional mandate in primary EU law to legislate in the area of copyright. 

This said, the alternatives on the table are substantially two: do nothing or unify copyright at the EU level.

Trevor Cook

Speaking of copyright reforms, Trevor Cook of Bird&Bird LLP offered an enlightening insight into copyright's exceptions and limitations and dealt with the heated topic concerning whether something like US fair use should be pursued in Europe too. This, claimed Trevor, would be inconsistent with the InfoSoc Directive and it is not sure that it would be desirable to introduce in the first place. This is beacuse of the unpredictable outcome of fair use defences in the US. In any case, exceptions and limitations may be extended and updated at the EU level, even lacking an initiative of EU legislative. Reliance on fundamental rights has increased, both before national courts and the CJEU. The latter is because of the new status of the Charter of Fundamental Rights following the Lisbon Reform Treaty (as very recent examples, see the decisions in Scarlet and Netlog). This view was upheld also by Mr Justice Peter Charleton of the High Court of Ireland, Dublin.

Graham Smith

An analysis of recent CJEU decisions was offered in the presentations by Graham Smith of Bird&Bird LLP and Professor Lionel Bently of the University of Cambridge.

Graham has offered a thoughtful overview of aggregating and related cases in the EU.

Lionel Bently

Prof Bently, who has called the harmonising effects of CJEU case law 'harmonisation by stealth' (see earlier 1709 Blog post here), has highlighted how CJEU activism is likely to cast ambiguities on the scope and meaning of EU copyright. This may result in Member States asking the Commission to be more active in the future, so to prevent contradictory and ambigous outcomes. Despite this, harmonisation via CJEU case law has had positive effects too, as it has touched upon aspects which could have not been harmonised with legislation alone. Above all, the outcomes of CJEU decisions are legitimate, though it is doubtful in the first place whether the Court was legitimated to act in lieu of EU legislative. In addition to this, doubts persist as to whether the harmonising effects of CJEU judgments are consistent with national legislation. Finally, the effects of these decisions have contributed to transitional uncertainty in the laws of some Member Stares, notably the UK.

In conclusion, from the presentations offered at Fordham, EU copyright is in need of amelioration. At the moment, there are no ambitious EU legislative initiatives. In any case, these are regarded cautiously and are deemed to require careful consideration before being undertaken. So, at the end of the day, it is not clear whether CJEU activism is the result of unavoidable gaps in legislative instruments or whether, instead, harmonisation via CJEU case law has been made necessary to supply lack of legislative initiative tout court. The best guideline for future action at the EU level? Directly from the LEGO store at the Rockfeller Center:

EU copyright at Fordham: a report (part I)

This blogger has just come back from New York, where she attended the 20th Fordham IP Conference, a symposium held every year, when leading academics, representatives of the judiciary and industry alike gather together at the Upper West Side premises of the Fordham Law School to discuss the most recent trends in the über-cool world of IP.

As far as copyright is concerned, this year particular attention was devoted to the current state of affairs in the EU, with specific sessions covering an entire afternoon of the two-day conference.

A blue print

As is well known, a lot is going on at the moment in EU copyright. Taking account of the activism of the Court of Justice of the European Union (CJEU), which has resulted in the de facto harmonisation of important aspects of EU copyright, and considering both the political (see the Commission's agenda as set out in its 2011 blueprint) and academic (see the 2010 Wittem Project) efforts to engage in a thorough discussion as to the future of this area of the law, it is undeniable that copyright is THE must-have debate this season.

The Wittem Castle,
The Netherlands

Starting with views from the Commission, Head of Unit - Copyright, DG Internal Market & Services Maria Martin-Prat first recalled that in the 1990-2000s copyright harmonisation occurred whenever this was necessary to ensure the proper functioning of the internal market. This objective is and remains at the centre of attention when it comes to legislative initiatives.

At the moment, said Martin-Prat, the priority of the Commission is to facilitate licensing across the EU. Interestingly enough, this implies facing the issue of territoriality. In any case, the establishment of EU-wide licensing system is not going to affect the territoriality of Member States' copyright laws. This is because territorial rights do not necessarily imply territorial licensing, explained the Head of Unit.

Maria Martin-Prat

This said, the Commission's efforts are directed at tackling five areas of copyright. These include improving the functioning of collective licensing and management and, possibly, setting out an extended collective licensing system; favoring mass digitisation of works and facilitating the use of out-of-commerce works, along with orphan works.

As to the issue of whether we need more harmonisation (read: do we need a EU-wide copyright law?), Martin-Prat thought it correct to say that the CJEU has been very active lately (in the last year only, twelve decisions were published and nine references are still pending). However, she found that the concepts harmonised by the CJEU (such as 'originality', 'work', etc) would have never been defined at the level of EU directives alone, so the CJEU has just been filling out gaps which could not but be left out of EU legislation. When she heard this, this blogger was a bit concerned about the implications of such a view. First, it is questionable whether this has been actually the case (see the case of 'originality', which was actually defined, but in relation to limited and specific subject matter, such as computer programs, databases and photographs).  Secondly, such a view implies that CJEU interventions can (ought to) be pretty pervasive as regards the copyright laws of EU Member States.

A EU copyright code, held Martin-Prat, may be a good idea, but this is not going to happen any time soon, as more urgent issues need to be addressed first. These concern private copying; rights of (online) reproduction, licensing and making available; and copyright limitations and exceptions.

As announced in the 2011 blueprint, the review of the InfoSoc Directive has just been started and, in any case, no legislative initiatives will be taken till next year (to say the least?).