The CopyKat - prowling

In the wake of the jury’s verdict in the "Blurred Lines case", Marvin Gaye’s children have filed a new motion to list three record labels and rapper TI as responsible parties in the case – and thus also hold them accountable for the already decided copyright infringement by Robin Thicke and Pharrell Williams. Gaye’s three children Nona, Frankie, and Marvin III, have also written and published an open letter, clarifying their motivations behind taking the copyright case to court on their father’s behalf. In the original trial, the jury exonerated TI and the recorded music labels and distributors Universal Music, Interscope Records and Williams’s Star Trak Entertainment of infringement. A second motions seeks to halt the sale and reproduction of Blurred Lines until both parties reach an agreement on how the Gayes “may share in the copyright and all future proceeds of Blurred Lines, as is their right”. More here.

Rapper and producer RZA says there should be a limit on how much an artist can recover if their songs are sampled without consent. Speaking at SXSW, the Wu-Tang Clan co-founder said that while artists who inspire should be paid, there should be a limit to how much they can demand, especially if the money isn't actually going to the artist: “Art is something that’s made to inspire the future," he said during his stay in Austin, according to the Daily Beast. "If you utilize somebody’s artistic expression blatantly, to [the point] where it’s an identifiable thing, then there should be some sort of compensation to the person who inspires you.” Arguing the sampling itself is creative and an art form, the Shaolin producer, known for crafting unexpected beats from esoteric samples, called for a 50% cap for retroactive payments of sampled material saying "There should be a cut off. Fifty percent is the most” commenting "The Greeks could come sue everybody because one generation teaches the other” and “When you hear an A chord to the D to the E, there are over one million songs with that same progression. And each one of their songs is identified as their own. The point being that art will continue to inspire the next generation, and we will find duplication” before going on to reveal "“I’ve been in situations where I’ve sampled something and the original copyright holder took 90 percent .... That means they ignored all the programming, drumming, keyboard playing I played on top of it, they ignored every lyric, every hook, everything that we built to make it a song. And we wound up selling more copies than the sample[d] version—but yet they took 90 percent of the song.”

And Grammy winner John Legend is also concerned that the Blurred Lines verdict could set a worying precedent for artists creating music inspired by others. The Grammy winner told the Associated Press he understands why people say Pharrell Williams and Robin Thicke's 2013 hit sounds like Marvin Gaye's Got To Give It Up from 1977, adding: 'I said that when I first heard it, too.' But he said he doesn't agree with the jury that determined the performers actually copied elements of Marvin's work but said  "There's a lot of music out there, and there's a lot of things that feel like other things that are influenced by other things" adding "And you don't want to get into that thing where all of us are suing each other all the time because this and that song feels like another song.'"

More copyright, more "Quality Works"? Not quite but maybe, says a study of Italian opera before 1900. As Italy had a wide variety of copyright law provisions until  the late 1860s when Italy itself was finally unified, Stanford economists Petra Moser and Michela Giorcelli compared the varying degrees of copyright protection to the output of operas, compiling a database of more than 2,598 Italian operas written between 1770 and 1900 - and then looked at the longevity of each opera right up to how many recordings of any opera were available in 2014 on Amazon. Vox explains "Copyright laws seem to have created significantly more operas that also had staying power and were of higher quality" and details:  "States with copyrights ended up producing 2.68 additional operas per year, a 121 percent increase over states without copyrights. Historically popular operas (as measured by the 1978 publication, the Annales of Opera 1597-1940) grew by 47 percent, and durable operas [those available on Amazon in 2014] grew by 80 percent.”

Is copyright a human right? Well, the United Nations Special Rapporteur in the field of cultural rights, Farida Shaheed, has presented the first of two consecutive studies, “Copyright Policy and the Right to Science and Culture,” at the 28th Session of the Human Rights Council in Geneva. Shaheed addressed copyright law and policy issues, examining how they may run counter to human rights. The second part of her report will be submitted to the UN General Assembly later this year addressing the connection between the right to science and culture and patent policy. More by Pauline Lee on the excellent Washington College of Law website here.

And finally, The Verge tells us that after pressure from campaigners, SpaceX has published a first batch of more than 100 photos on Flickr under a Creative Commons license. The decision gives the public the ability to download and remix the images freely (as long as they're attributed properly) and has been welcomed as a success for both space fans and copyright advocates. Unlike images of space published by NASA, SpaceX's photos do have some rights reserved, meaning they can't be used for commercial purposes. SpaceX "designs, manufactures and launches advanced rockets and spacecraft. The company was founded in 2002 to revolutionize space technology, with the ultimate goal of enabling people to live on other planets."

"Are moral rights human rights?"

For a British moral rights
cause célèbre, click here

"Are moral rights human rights?" was the title of last week's joint meeting between the British Literary and Artistic Copyright Association (BLACA) and the IPKat weblog, which was kindly hosted in the London office of law firm Bird & Bird.  Sir Colin Birss was in the chair.  The PowerPoints of the two speakers are now available from the BLACA website, here.   The two presentations were made by Cyberleagle Graham Smith (an IP/IT partner, Bird & Bird) and the IPKat's Eleonora Rosati, who is also a major contributor to the 1709 Blog.

Although the title sounds quite narrow, the content of the event inevitably spilled over quite a bit from moral rights into the adjacent copyright field of economic rights, so the presentations are of wider interest than you might immediately imagine.

For a British human rightscause célèbre, click here

Apart from two thoroughly lively and entertaining presentations and the cut-and-thrust of the questions and answers which followed them, there was also the promise of more to come in terms of establishing the balance between the two doctrines.  In front of a roomful of credible witnesses, Sir Colin said -- in all apparent sincerity and with a perfectly straight face -- how very much he was looking forward to trying a copyright action in which a human rights defence was raised.  This blogger hopes that it will not be long before this wish is fulfilled.

"Are Moral Rights Human Rights?": forthcoming event

Blaca, the British Literary and Artistic Copyright Association, is running a special joint meeting with the IPKat on Wednesday 12 February to examine the question "Are moral rights human rights?" The two principal speakers are 1709 Blog and IPKat blogger Eleonora Rosati and Graham Smith (IP partner at the London office of Bird & Bird LLP and author of the Cyberleagle blog).

The meeting is to be hosted by Bird & Bird at its offices at 15 Fetter Lane, London. Admission will be from 5:00 o'clock, with the seminar beginning at 5:30 pm. The seminar will be followed by a drinks reception, kindly hosted by Bird & Bird. In the chair is Sir Colin Birss.

Admission is free but space is limited.  To register please email tom.blacatreasurer@gmail.com

Court of Appeal takes a punt on database rights

Time flies and the flow of significant copyright cases continues at a pace that makes it hard for even the best-organised of blogging teams to pick up each decision as it comes out, dedicate the depth of care and attention to it which it (and the blog's readership) merits, and then post a polished analysis.  This post on yesterday's 109-paragraph ruling of the Court of Appeal for England and Wales (Lord Justice Lloyd, Lord Justice Lewison and, giving judgment for the court, Sir Robin Jacob) in Football DataCo & Others v Stan James Plc & Others and Sportradar GmbH & Others,[2013] EWCA Civ 27. is therefore a good deal shorter than its content deserves.

The judgment reveals that the appeal covered two separate actions, heard together, on the subsistence and infringement of database right in data relating to football matches. The claims were brought by the English and Scottish Football Leagues and their licensees against Stan James plc, a betting company and Sportradar, an online sports data provider. All parties had appealed various findings by Mr Justice Floyd in his first instance decision of 8 May 2012, noted by the IPKat a day later here.

The proceedings concerned only joint liability aspects of each claim, and the Court of Appeal held as follows, at [106]:

"(a) There is a sui generis database right in FDC's Football Live database; 

(b) Both before and after defence UK punters [not the Oxford and Cambridge sort, but those who place bets] extract a substantial part of that database when they use the pop-up facility on the Stan James website [the reference to 'before and after defence' is to the fact that the defendants changed their practice after they filed their defence];

(c) Both Stan James and Sportradar are joint tortfeasors with the UK punters; and

(d) There are no defences of abus de droit or infringement of Article 10 of the ECHR."

In reaching these conclusions, however, the Court made a number of findings that have potential implications beyond the immediate subject matter of these actions. The judgment seems to provide that a website owner anywhere in the world who hosts a hyperlink that a UK user uses to access infringing content will be jointly liable with that user for the infringing acts. This finding has potentially enormous implications in the sphere of the internet.

The Court of Appeal has also found that a database which qualifies for protection under the database right regime may exist within a literary work which is protected by copyright, there being no conflict in the two rights subsisting simultaneously. As such it seems that literary works can be reclassified as databases by claimants. This may seem fanciful but, in doing so, a copyright owner can strengthen his hand in any dispute. The test for infringement of the sui generis database right is very different to that of regular copyright, since it's directed towards the protection of investment and not creativity. Additionally there are no "fair use" type defences available under the Database Directive. As such, for example, a news reporting agency may claim that database rights underpin its news report and, on that basis, seek to prevent republication by a rival.

WIPO's proposed exception for the blind and visually impaired stalls again

In a world where copyright's constant struggle to keep pace with technology is discussed daily, the more basic copyright issues are often overlooked. Since 2008, the World Intellectual Property Office (WIPO) has been discussing passing a treaty to give blind and visually impaired people easier access to published works. The concept is simple: translation of a copyright protected work into braille* requires the rightsholder's permission. However it seems fair to pass an exception that would give blind and visually impaired people easier access to those works. This blogger cannot find any estimate on what loss this would cause publishing houses, however one imagines that it would not be significant.

© Roland DG

Despite the fact that most will easily agree on the merits of such an exception, progress so far has been sluggish. Last week WIPO reached an agreement on a timeline for completing the treaty, (or instrument). Whilst this blogger can't disagree that WIPO is moving in the right direction, it seems to be doing so excruciatingly slowly. An inter-sessional meeting is to be held between 9 October and 19 November 2012. Then an extraordinary General Assembly to be held in December 2012 to decide whether the visually impaired issue is ready to move to a diplomatic conference in 2013.

The latest draft of the exception, SCCR/24/9, includes brackets around large portions of text that are yet to be agreed, and on top of that, WIPO still has not decided whether the visually impaired negotiations are intended to produce a treaty, recommendations or a declaration. Five years of negotiation for a declaration with no binding effect?

James Love, director of Knowledge Ecology International, has alleged that the EU and the US are blocking the treaty to protect their publishing industries, and that they have been pushing for softer guidelines or recommendations. This blogger completely understand why translation of a book into braille infringes copyright, in the same way that translation into any language infringes copyright. However when you consider that 90% of the world's blind and visually impaired people live in developing countries, where governments have not been able to acquire express permission from copyright holders to translate their works into braille, you have to wonder what loss the proposed exception would really cause EU and US publishers.

The statistics are fairly shocking: "only some 5% of published books are ever made accessible (in braille, audio, large print etc) in richer countries, and less than 1% in poorer ones." Contrast this with the United Nations Universal Declaration on Human Rights which says that:

Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 27 (i): Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

Of course the Declaration on Human Rights is not the answer to everything, and publishers and rightsholders are equally justified in relying on Article 27(ii), however Articles 19 and 27(i) highlight the importance of access to information for all.

Dan Pescod of the Royal National Institute of Blind People has said that the Spanish organisation Once has well over 100,000 [translated] books that it would like to send to Latin American countries, but which it can't because of copyright. He went on to say that libraries in five Latin American countries – Colombia, Nicaragua, Mexico, Uruguay and Chile – have fewer than 9,000 accessible books between them.

Copyright is a hot political issue, with both the EU and US giving it unprecedented attention. It is not surprising that this attention is directed where there is money to be made or lost: new technology, satellite broadcasting, social media and piracy. However it is disappointing that more progress was not made last week, particularly given that such a fundamental exception could have a huge impact both on the lives of individuals and on the development of economies in poorer countries.

The conclusions of last week's WIPO meeting are available here.

*For those who are interested, braille, despite being a language, is not capitalised.

Abode to go?

Thanks to my old friend Dan Bereskin (Bereskin & Parr, Toronto) I can bring you the following news, in the words of thierry (sic) Ehrmann himself:

"On 9 December 2009, the Abode of Chaos celebrated 10 years of combat for freedom of expression.

The Cassation Court's criminal chamber presiding over a second appeal has delivered an order dated 15 December 2009 for the destruction of the 3,123 works of art forming the corpus of the Demeure du Chaos created by the artist and sculptor thierry Ehrmann in 1999.

Founded by the conceptual act of thierry Ehrmann on 9 December 1999, the Abode of Chaos (per the NYT) is an œuvre au noir (nigredo) inspired by the alchemical chaos of the 21st Century, whose tragic and yet sumptuous embers were ignited on 11 September 2001.

After just 10 years - and more than 1200 press and TV articles in 72 countries around the world - the international art community today recognises the Abode of Chaos as a unique and "sacred" artistic factory. This free open-air museum with more than 3,123 works attracts more than 120,000 visitors each year.

Between February 2006 and June 2008, under its E.R.P. status (Etablissement Recevant du Public) status, the Abode of Chaos attracted 437,130 visitors of whom 21% came from outside France. The place also hosts a number of artists in residence.

Since 1999, the local authority of Saint-Romain-au-Mont-d'Or (where the Abode is located) has been pursuing a crusade of artistic negation against the Abode of Chaos and continues to call for "the restoration of the building to its original state" … which means effectively means the complete destruction of the Abode!

This historic case will now be submitted to the European Court of Human Rights in the framework of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The case law on this Article 10 has frequently ruled against France in the past.

The wording of the Cassation Court's rejection of our appeal clearly reflects its concern to uphold French building regulations, and their application by the Grenoble Appeal Court, as being coherent with the freedoms of expression guaranteed in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Backed by the artists' collective and the weight of 108,000 petition signatories, thierry Ehrmann is more than ever determined to pursue the vigorous battle to defend the rights of all people to freedom of expression by launching an appeal against this second order delivered by the Cassation Court - and against French legislation - before the European Court of Human Rights.

Thierry Ehrmann considers that this decision violates his freedom of expression and that this freedom cannot be uniquely subjected to Building Regulations since artistic expression has been a national and universal right since the beginning of time.

In the current context, the petition to save the Abode of Chaos from destruction is of paramount importance. It will allow this extraordinary legal dispute to be taken before the European Court of Human Rights.

In an era when France is desperately seeking solutions to its diminishing global artistic influence and seems unsure of where to steer its national cultural policy (particularly with respect to the principle of free entry to museums), the Abode of Chaos is a bold and original response".

Follow the news direct from the Abode of Chaos here, here and here".While issues relating to human rights and cultural vandalism are always appealing, I find myself as ever focusing on the question of copyright: to what extent, if any, could the Abode of Chaos claim any sort of copyright protection and what, in commercial and moral rights terms, might be the outer limits of its protection? Readers' comments are, as ever, welcome.

Free speech or taking the Mikko? ECHR to decide

Here, via EDRI, is a curious episode. Finnish activist Mikko Rauhala has lodged an application to the European Court of Human Rights, claiming that the Finnish state has infringed his right to freedom of expression. This application follows a long bout of litigation that began when Rauhala started a discussion board on the internet for people to talk about the DVD copy protection method Content Scrambling System (CSS). Why did he do this? He says his motivation was to criticize the implementation of the EU Copyright Directive, which came into force in Finland in 2006. According to the implementation of the directive [says the report on EDRI -- you won't find this explicitly in the Directive], "organized discussion" regarding circumventing technological protection measures, like the CSS, was prohibited. Since Rauhala's motivation was reputedly to demonstrate the non-beneficial nature of the directive, he himself reported his actions to the Finnish police, "thinking that the police would not investigate the issue or that the public prosecutor would not press charges".

Supported by the Finnish Anti-Piracy Association, the public prosecutor was soon in action. The Helsinki District Court decided in Rauhala's favour, holding that CSS was not a type of protection measure covered by the Directive and that the ban did not therefore apply. The district attorney appealed to the Helsinki Appellate Court, which found Rauhala guilty of illegally circumventing a technological protection measure (Directive, Art.6) and of providing an illegal service for the circumvention of protection measures. The Supreme Court of Finland agreed.

Now Rauhala's case is on its to the European Court of Human Rights, for a ruling on whether this decision compromises his freedom of expression. He maintains that the discussion he was administering was within the confines of that right as enshrined in the Finnish Constitution, but that this issue was not recognised.

Internet rights go on trial

Laws against illegal file-sharing are taking shape simultaneously on global, European and national levels. Fundamental rights – in particular the right to freedom of expression – are assuming a more prominent role in the debates in France, Europe…and maybe, one day, Digital Britain.


The European Convention on Human Rights

On 29 May the Council of Europe (not to be confused with the European Commission) adopted a declaration and resolution concerning human rights on the internet. A glittering cast of ministers were there – though Britain could only rustle up a ‘project manager’. The Council emphasized the European Convention on Human Rights, which it authored more than half a century ago, and the case law of the European Court of Human Rights. It stressed the relevance of human rights to the internet, the need to explore how rights are affected by its new modes of communication and the importance of co-operation between nations because ‘the very nature of the information society and, to an even greater extent, of the Internet, has significant cross-border implications. Article 10 of the European Convention on Human Rights [freedom of expression] is especially relevant in this respect given that the rights and freedoms protected therein are guaranteed “regardless of frontiers”.’


Droits Francais

On 10 June France’s Constitutional Council (Conseil constitutionnel) struck through parts of the HADOPI law against illegal file-sharing on the grounds of a conflict with fundamental human rights – a pre-Convention expression of them in the Déclaration des droits de l'Homme et du citoyen of 1789. Article 9 (presumption of innocence) was the basis for objecting to the idea that it should be up to those accused of illegal file-sharing to prove the infringement was the fraud of a third-party. Article 11 declares that the ‘free communication of ideas and opinions is one of the most precious rights of man’. It was the justification for saying that internet access should not be cut off except by a court – attacks on the right to communicate must be ‘necessary, appropriate and proportionate’.


EU Charter rights

Like the HADOPI law, the EU’s current reforms of telecoms legislation has been stumbling on the question of whether it is necessary that penalties for file-sharers should only be imposed by a court. The European Commission is against this requirement but the European Parliament voted for it by a landslide on 6 May. On 11 June the Commission determined to keep challenging the Parliament over this and proposed a new round of negotiations.

The European Parliament can be expected to argue that the French Conseil’s decision bolsters their position. The Commission, au contraire, wants to use the Conseil’s decision as a point in their favour, saying that it indicates that the protection of fundamental rights belongs at national level. This contrasts sharply with the desire of the Council of Europe to see greater co-operation between European countries on this issue.

Amendment 138 to the Framework Directive that the Commission is fighting states:

No restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened in which case the ruling may be subsequent

Article 11 of the Charter of Fundamental Rights being:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

So, only a court would be able to restrict the right to receive or impart information without interference. Amendment 138, it can be said, would give freedom of expression exceptional protection in this context because the guarantee of a prior judicial ruling is not subject to proportionality. The purpose of the Charter of Fundamental Rights is to bring the European Convention on Human Rights into EU law. Whereas the European Court of Human Rights balances rights and considers whether restrictions on rights are necessary and proportionate, Amendment 138 is unequivocal: there will be no restriction on freedom of expression on the internet without a prior judicial ruling, which leaves no room for proportionality. Or rather – it leaves the proportionate decision to a court.


Digital Britain

The phrases ‘human right’ or ‘freedom of expression’ don’t appear in the Digital Britain report. Hardly surprising for the country where sexual intercourse began in 1963 and freedom of expression in 1998. On 16 June, the same day that Digital Britain was published, the government also sneaked out a new consultation on legislation to address illicit P2P file-sharing. Human rights don’t feature here either though ‘consumer protection’ does. HADOPI is outlined: the Conseil ‘argued’ that current provisions did not comply with ‘French constitutional principles’. Gordon Brown wrote in The Times that ‘a fast internet connection is now seen by most of the public as an essential service, as indispensable as electricity, gas and water’. What is ‘seen by most of the public as an essential service’ isn’t quite a human right.

The Digital Britain proposals provide for an initial year trial period of sending out notifications to infringers and identifying serious offenders so that they can be sued by rights-holders. If that fails to reduce illegal file-sharing by 70%, then Ofcom will be able to require ISPs to apply an armoury of ‘technical measures’ such as blocking (site, IP, URL), protocol blocking, port blocking, bandwidth capping (capping the speed of a subscriber’s Internet connection and/or capping the volume of data traffic which a subscriber can access); bandwidth shaping (limiting the speed of a subscriber’s access to selected protocols/services and/or capping the volume of data to selected protocols/services); content identification and filtering – or a combination of all of the above. Which means, despite protestations to the contrary, a ‘three-strikes’ policy remains firmly on the UK legislative agenda.

Digital Britain and the file-sharing consultation propose that the ‘technical measures’ could be imposed by ISPs with no prior ruling by a judicial authority:

It also seems reasonable and appropriate that, should further obligations be imposed, consumers have access to a clear and transparent (and independent) appeals mechanism since such measures may be taken against them without the benefit of a judicial hearing. In those circumstances it may be appropriate for an enhanced consumer appeal process to be introduced along the lines of an ombudsman.

ISPs’ powers are circumscribed: Ofcom would have to be satisfied that the imposition of technical measures by ISPs is objectively justified and proportionate and either House of Parliament could anul the power to impose technical measures – ‘this should ensure that the power cannot be used frivolously’. But these fall short of prior judicial rulings in individual cases.

While the French have decided that a Haute Autorité isn’t good enough to cut off internet connections, the British are considering leaving the job to ISPs. ISPs, it is proposed, would set up a joint call centre – though there would have to be an independent appeals mechanism. On the one hand, we’d be saved judicial costs (what about a P2P Division?) but, on the other hand, ISPs – in my personal experience – make abundant administrative and technical errors and are hell to get through to (half a day being bounced round Indian call centres to no avail). How would outsourced human rights sound? ‘We are currently experiencing high call volumes. If you’re having problems with your broadband, first try rebooting your computer. If that fails, examine your conscience. If your conscience is clear, please hold the line while we try to connect you with an advisor, who will be able to help you with all technical and human rights problems.’


Digital Britain in Digital Europe

If Amendment 138 of the Telecoms Package is adopted, then there would be a potential conflict with EU law. On 17 June Lord Carter made a statement to the House of Lords reporting the 11 June EC Telecommunications Council meeting. EU Telecoms Commissioner Viviane Reding had, he said, expressed concern that refusing to adopt Amendment 138 would delay the Telecoms Package as a whole but the UK had objected, as Lord Carter explained: ‘The vast majority of member states said that they could not accept the EP amendment, some noting that it potentially interfered with national competencies. The UK noted that the amendment was unacceptable both in legal and policy terms, noting how it could constrain future decisions of the Government.’

The UK file-sharing consultation states that ISPs would follow a code and Ofcom would not approve any part of the code that imposes an obligation contravening UK or EU law. The consultation, however, is only consulting on a code for a system of notification and collecting infringement information, not the application of ‘technical measures’. ‘Technical measures’ are only pencilled in for implementation in 2012, so the UK government may be deliberately leaving this aspect of the legislation open until the Telecoms Package is put to bed.

However, even if Amendment 138 isn’t adopted, then trial by ISP may still fall foul of the European Court of Human Rights. Jan Kleijssen, director of standard setting at the Council of Europe, said (before the HADOPI law was gutted) that ‘experts at the Council expected in fact that the so-called French HADOPI law, which cuts internet access for three-time suspected IP rights infringers, eventually will arrive at the European Court of Human Rights’ (IpWatch). Furthermore, the Charter and Convention denounce ‘interference’ with free expression – why should that only apply to cutting off internet access? ‘Interference’ is a fair description of all the ‘technical measures’.

Is Digital Britain heading for three strikes? Strike 1: the decision of the French Conseil. Strike 2: Amendment 138. Strike 3: incompatibility with the Convention on Human Rights. You can cut the courts out of the laws but you can’t cut the laws out of the courts.