THE COPYKAT

1)    Record Labels in the United States claim Copyright Infringement against COX

In another US case on the question of liability of intermediaries such as Internet Service Providers and the ambit and threshold required to prove  Contributory/Secondary infringement, US Magistrate Judge, Judge F. Anderson has taken a stance on evidentiary presentations and has blocked the request of COX to not admit certain evidence presented by the Record Labels due to alleged non-credibility, as reported by Law 360. COX had gone on to argue certain issues with the credibility of the evidence, wherein they said that the record labels had not kept all the data related to the finding of infringement (worked by the Record Labels in collaboration with Anti- Piracy agencies – Mark monitor and Audible Magic) on record.

For a claim of such secondary liability to be conclusively established, firstly a user having performed primary infringement must be shown, after which, the burden shifts upon proving actual knowledge of the infringement with the intermediary, and a positive role in promoting the same. A safe harbor protection is available to the intermediaries, which do not conclusively pursue an actual knowledge of infringement. The main argument brought in by the record labels herein is that the ISP COX deliberately had shoddy systems for dealing with infringement and infringers on their networks and produced certain evidence on it, using the worked data, but not all of it. The Judge went on to hold that, whatever is the issue with the evidence, it needs to be brought before the jury, and cannot be blocked, due to such reasons. The court concluded (as reported by Complete Music Update) that the labels weren’t under any obligation to keep all the data which they and their partners had gathered, on record.

2)    Robert “Bobby” Prince sues Gearbox, its President as well as Valve for unauthorized exploitation of copyrighted music.

The original music for the video game Duke Nudem 3d was created and composed by music composer Robert Prince, but has seemingly been used without unauthorisation (without a license or a compensation) by Gearbox Software LLC., in its new game - Duke Nukem 3d World Tour. Further, these allegedly infringing copies were conveniently distributed by another defendant, “Valve Corporation”, which even ignored a takedown notice, hence denying a claim to safe harbor. Another interesting fact to note is that the allegedly infringing game includes text specifically giving accreditation to Mr. Prince for his music, but has not compensated or even contacted Prince to get a license in the use. In light of the same, Robert Prince has filed an infringement suit in the United States District Court Eastern District of Tennessee, Northern Division. The Petition can be found here.  The game is supposed to be released on October 11^th and It will be interesting to see, how this one plays out.

3)    CJEU clears the air over conflict between Design and Copyright Protection and the ambit of Copyright.

The CJEU, in the case of Cofomel (C-683/17) decided on the issue as to whether Copyright would subsist in the designs of G-Star Raw’s Jeans and T-Shirts. The question peculiarly concerned itself with whether member states had the freedom to choose the threshold which works of applied art, industrial designs and works of design are required to meet for Copyright Protection. The Court held that, even in the cases of functional products, the ambit required for it being a work is the same and that is “the author’s own intellectual creation”, that is one reflecting free and collective choices, which could give the non-functional aspect of the work, Copyright Protection. Most importantly, as reported by IAM Media, the judgement makes it clear that an analysis of artistic merit or aesthetic impression need not be done, as it is extremely subjective and non-precise, to conclude whether a work is copyrightable or not.

This makes it clear that the aesthetic aspects of useful articles can also be protected as Copyrightable, insofar as they fulfill the originality standard of “Author’s own intellectual creation”. Read more on this on the IPKAT.

4)    STAIRWAY TO HEAVEN back in court!!

The US Deptartment of Justice had recently released their Amicus Brief in favour of Led Zeppelin in the now infamous copyright suit, covered herein by the blog. In a latest update to this case, as reported by The Rolling Stone, the case started with a filing by Michael Skidmore, a trustee representing the estate of Randy Wolfe, and this accused Led Zeppelin of stealing the opening guitar riff from Spirits' 1968 instrumental track Taurus. The case is now back in court before an 11 judge bench in the 9^th Circuit US Court of Appeals. A request to make available the sound recording was made and a claim was brought in by the plaintiff attorney saying that if these were made available, Led Zeppelin would lose out on the case. However the court observed that if the law limited the claim to the 4 corners of the deposited sheet music, and the currentthinking is that the justices feel that on that basis there was no chance the plaintiff could establish an infringement. Led Zepplin's attorney Peter Anderson argued that “There is no similarity between these two songs, but they both combine a scale, little pairs of notes that are in different melody and an eighth note rhythm.” It will be interesting to see how the court proceeds this time, in light of the Justice Deptartmen's Amicus brief.

5)    GOOGLE undercuts new EU Copyright Law

Google has decided to not pay European Media Outlets to display and use their content on its search engine and Google News platform. It has decided that it will only portray content from those media groups that have allowed free usage of the content. The EU Copyright legislation was brought in to ensure that media companies could get adequate compensation for the display of their items on platforms of these tech giants, however google has played a trump card, mostly propagating free content higher access philosophy. Google’s vice president has announced that it is upon the Europe based news published to decide if it would allow Google to show “snippets” of content or thumbnail images, however there will be no compensation paid for the same. If they don’t allow, only a headline and a bare link to the content will appear in the results. This is a major blow to media organisations which hugely depend on Google for facilitating access and to reach out to more of online audiences. This move by Google has been criticised by the EU Copyright rapporteur, referncing the move as a 'digital dictatorial' practice, with an intention to create a monopoly. This move makes the situation even worse for the publishers. This move has taken place post French legislating this EU directive in its Domestic Law. In Germany, recently after the EU Directive was complied with, some publishers decided to allow Google to publish their content free of cost, due to a drop in traffic (as hreported by Politico). In light of this, it will be very interesting to see the implications of the same and how this practice affects the news industry in the future across Europe.

This update by Akshat Agrawal

THE CHRISTMAS COPYKAT

In Canada, the House of Commons has triggered a parliamentary review of Canada's Copyright Act, first passed in 1921, which will be conducted by the Standing Committee on Industry, Science and Technology. TorrentFreak comments that the music industry was quick to weigh in, congratulating government ministers and making it known that the so-called 'Value Gap'  - how the tech giants seem to be good at everything except removing infringing material, and why likes of Google don't seem keen to pay for what drives the likes of YouTube - be high on the agenda. The 2012 Act tackled a number of important issues, such as allowing time and format shifting, plus backup copies, fair dealing and caps on statutory damages for non-commercial scale infringement - and a review of copyright law every five years, a period that expired at the end of June 2017.

And talking of the Value Gap, YouTube has now just signed a second global, multi-year agreement with the Universal Music Group, amid mooted plans to expand its subscription businesses. Universal said the deal would provide its artists more flexibility and pay, and strengthen YouTube's commitment to managing music rights. YouTube reached a deal with the second of the three majors. Warner Music Group, in May. Bloomberg reports that the negotiations come in advance of YouTube's launch of a new paid music service that is expected to go live in March 2018. And not to be left behind, Facebook and Universal Music Group have signed an 'unprecedented global, multi-year agreement' under which UMG licenses both its recorded music and publishing catalogs for video and other social experiences across Facebook, Instagram and VR platform Oculus.

In good news for the recorded music sector, the US Copyright Royalty Board has determined that SiriusXM must pay 15.5 percent of it's revenue for the next five years (beginning in 2018 through to 2022, although the full determination has yet to be posted on the CRB's website while the participants scrutinize the document to make sure proprietary data is not publicly revealed. The rate represents a near 41 percent jump from the 11 percent the service is currently paying, although it's short of the 23 percent that SoundExchange was advocating for. But the Hollywood Reporter it's better than the static rate that SiriusXM was hoping for from the Court. However in a less palatable move, the Board has ruled that pre-existing subscription services (Music Choice and Muzak) will enjoy a reduced rate of 7.5 percent of revenue for the next five years. That is down from 8.5 percent of revenue in the current year that the two services are paying to the industry.

But the battle between the tech behemoths, and giants of the content industries, is in full spate.  Now the likes Google and Facebook are facing off against Hollywood studios and record labels over how to update the North American Free Trade Agreement to protect copyright in the digital age. Silicon Valley is pushing for exceptions to copyright rules for online platforms and Internet service providers it says are needed to keep content flowing on the web. Meanwhile, the U.S. government seems to be taking positions more favoured by companies such as Walt Disney Co. and Time Warner Inc., which are lobbying for stronger protections for copyright owners. The new (US led) proposals for NAFTA would limit allowances for online use of copyrighted material, a position seemingly less supportive of online platforms than existing U.S. law, in particular a watering down of fair-use exceptions and a re-evaluation of 'safe harbor'.  More on Bloomberg here

T Bone

Back to music: A group of 41 recording artists is urging the US Congress to sort out the somewhat odd (and now much litigated) position of pre-1972 sound recording copyrights in US federal law with the new "Compensating Legacy Artists for their Songs, Service & Important Contributions to Society Act"  - or (wait for it, and a a drum roll please)  the CLASSICS Act. The CLASSICS Act would rectify the obvious problems with relying on state level copyright law to establish a performing right for sound recordings,  and create the basis for a royalty to be levied from broadcasters to pay labels (and hopefully recording artistes) for pre-1972 works.  The 41 signatories including T Bone Burnett, Rosanne Cash, Kris Kristofferson, Bette Midler, Bonnie Raitt and Henry Rollins said  “Digital radio makes billions of dollars a year from airplay of music made before 1972. Yet, because of an ambiguity in state and federal copyright laws, artists and copyright owners who created that music receive nothing for the use of their work. The ‘CLASSICS Act’ would correct this inequity and finally ensure that musicians and vocalists who made those timeless songs finally get their due. We urge Congress to pass the CLASSICS Act and other pro-artist reforms quickly”.

The major national sports Leagues in Europe, including the English Premier League and Germany’s Bundesliga  have won a reprieve from the EU who have agreed to exclude them from the scope of a copyright reform that would help make content more easily available online. The entertainment and sports industries have been fiercely lobbying against the European Commission’s proposed reform of EU copyright law to make films and TV programmes more available across borders, arguing it would undermine the financing model of the whole sector. The Commission has said it is not seeking to force anyone to make content more available online, but merely to make it easier for broadcasters to obtain the necessary rights. EuroNews reports that EU member states have now to exclude all sports events, TV programmes co-produced by broadcasters and other third parties, as well as content licensed to a broadcaster by a third party.

The Electronic Frontier Foundation (EFF) has asked the Librarian of Congress to limit the legal barriers people face when they want to repair and modify software-enabled products, so that they, and not manufacturers, control the appliances, computers, toys, vehicles, and other products they own. In comments filed in Washington D.C. today, EFF continued its years-long fight to enable owners and creators to repair, modify, and enhance products, or use snippets of films or songs, free of onerous threats that doing so somehow infringes companies' copyrights. Software-enabled devices and Internet-connected products and appliances are ubiquitous in modern life, and people aren't infringing anyone's copyright when, for example, they choose to permanently disable the embedded, on-all-the-time camera or microphone in their kids' toys, or send their car to their favorite mechanic, rather than high-priced dealerships, to be repaired. “It’s absurd that a law intended to protect copyrighted works is misused instead to prevent people from taking apart or modifying the things they own, inhibit scientists and researches from investigating safety features or security enhancements, and block artists and educators from using snippets of film in noncommercial ways," said EFF Legal Director Corynne McSherry. "The exemption process is one highly flawed way of alleviating that burden."

Facebook has announced that it removed nearly 3 million posts, including videos, ads and other forms of content, from its services during the first half of 2017 following complaints of counterfeiting and copyright and trademark infringement. Aggregate data shows Facebook received about 377,400 complaints from January through June, with many referencing multiple posts. About 60 percent of the reports related to suspected copyright violations on Facebook.

The National Copyright Administration of China (NCAC) has announced that during the 2017 Sword Campaign 1,655 infringing websites were shut down, 274,800 infringing links were deleted and 314 enforcement cases were dealt with (of which 37 transferred for criminal investigation). The Sword Campaign is a flagship initiative led by NCAC in partnership with other Chinese government departments and enforcement agencies. Meanwhile, NCAC released a list of the top 16 copyright enforcement cases for 2017. The leading case on the list was enforcement against the piracy service Youyueyingchuang Technology Ltd. by Beijing Municipal Cultural Enforcement Division (CED). The resulting enforcement action removed the service and imposed a fine of RMB400,000 (approx. £45,000). More here and here (in Chinese).

The back-to-school Copycat!

The famous rapper Eminem vs. copyright infringement, Eminem-esque!

During an election campaign ad, the New Zealand’s ruling political party used a piece of library music called “Eminem-esque”, which sounded like the famous track “Lose Yourself”. It sounded so much alike that the rapper’s publishing company decided to sue the political party for copyright infringement!

Last year, the dispute went to court, and the political party said that this track was licenced by a production music company, which was called Beatbox. However, some emails were produced between the political party and some third parties, arguing if their track sounded too much like “Lose Yourself”. 

The Eminem company used these emails to argue it showed that they were aware of copyright infringement, even if they apparently had a lookalike licence!

We are still waiting for the judge’s conclusion on that case, but the battle promises to be interesting!

RIAA vs. Lyor Cohen

Let’s battle again!

The Recording Industry Association of America showed some 'badass' arguments last Friday against YouTube’s music chief, Lyor Cohen, while he was discussing the digital future of the music business.

YouTube is seen as the music industry’s enemy number one for a long time, with the copyright safe harbour that the platform is exploiting. According to the music industry, YouTube is exploiting this safe harbour to force music rights owners into much more preferential deals than those enjoyed by Spotify and Apple Music. In consequence, the music industry wants this safe harbour rewritten in order for YouTube to stop enjoying this protection. 

However, this safe harbour thing seems to be a distraction according to Cohen. He says that he wants to concentrate on a special mission, on how to direct some of YouTube’s revenues back to the music creators who drive its success. It surely is a wonderful goal, but it’s what he’s saying for a long time, with nothing done according to Cary Sherman, the trade group’s boss. “The numbers and YouTube’s actions tell a different story”, he said. 

He added: “Google's YouTube is the world's biggest on-demand music service, with more than 1.5 billion logged-in monthly users. But it exploits a 'safe harbour' in the law that was never intended for it, to avoid paying music creators fairly. This not only hurts musicians, it also jeopardises music's fragile recovery and gives YouTube an unfair competitive advantage that harms the digital marketplace and innovation. The safe harbour was intended to protect passive internet platforms with no knowledge of what its users are doing, not active music distributors like YouTube. As Lyor acknowledges in his blog, 'the majority of music...is coming from recommendations, rather than people searching for what they want to listen to'". In so, he’s saying that YouTube is not the passive internet platforms it wants us to believe. 

He also added “YouTube likes to talk a good game, but it won't even make public its subscriber figures", he argues. "And it continues to under report the number of music streams played on its service, let alone substantiate any of its many different claims about payments to music creators. In fact, every time they're challenged on this point, Google and YouTube simply change their claims yet again".

Finally, he said that “It's long past time that the safe harbours - enacted 20 years ago, in the days of dial-up internet, and before it was ever imagined that users could upload 400 hours of video to YouTube every minute - must be clarified to apply to passive and not active intermediaries”.

"To be clear”, he ended, "we believe safe harbours should be preserved - and Google/YouTube claims that we're trying to eliminate them is nothing but a red herring. But if safe harbours are to drive innovation and fair competition in today's digital environment, they must be applied as originally intended, not as they are exploited by YouTube for its own competitive advantage".

Nigeria’s stolen books!

Nigerian Copyright Commission decries increasing book piracy in the country. Over the five last years, the Commission has seized about 18 containers of pirated books, which worth millions of naira. Several arrests have also been made and convictions secured with the two-year jail term without option of fine. 

The Commission and the Nigeria Publishers Association are currently stressing the need for relevant stakeholders to co-operate with the commission and support its programs. The aim is to ensure that right owners and investors benefit maximally from their creative works. 

Famous YouTubers in a copyright lawsuit

Ethan and Hila Klein are behind the famous H3H3 YouTube channel. They have been sued by Matt Hosseinzadeh, a.k.a. Matt Hoss last year, after they posted a reaction video mocking him. Instead of focusing on the criticism per se, he alleged a copyright infringement by featuring clips of one of his videos in their criticism.

H3H3 argued for fair use in this case. And it appears that they won. A tweet from the official twitter of H3H3 announced that they have won the lawsuit against Matt Hoss, and are calling for a “Huge victory for fair use on YouTube”. 

After this tweet, they released a video explaining the decision. They said that, in the case, Judge Katherine B. Forrest ruled that the reaction video including clips of Matt Hoss could be counts as fair use. The video of H3H3 is clearly a constructive critical commentary of the video of Matt Hoss. In so, they are not making any copyright infringement. But she declares that the Court “is not ruling here that all “reaction videos” constitute faire use”. Indeed, if “reaction videos” abuse their fair rights, copyright infringement could be claim. However, it wasn’t the case here. 

You may see the video of H3H3 explaining the case here! https://www.youtube.com/watch?v=9eN0CIyF2ok 

And finally, remember Re-Digi? Well the long-running dispute between Capitol Records and tech firm ReDigi has reached the US's Second Circuit court of appeal. Can you re-sell digital music file without the copyright owner's permission - and can the first sale doctrine in the US apply to digital music files?  More here. 

This CopyKat from Lolita S.

Wikimedia, EDRI, and others call for EU Copyright Package to uphold DSM fundamental principles

This from Alberto Bellan writing on the IPKat

Wikimedia, EDRI, Application Developers Alliance, along with other associations advocating for digital rights and ONGs representing digital creators and platforms, addressed a letter [available here] to, among others, EU Commission's President Junker, Vice-President Ansip, and Commissioner Oettinger, urging the Copyright Package expected to be released on 15 September to uphold

"the fundamental principles of the Digital Single Market such as rights of citizens to freedom of information, access to knowledge and the limitation of intermediaries’ liability, which lie at the very foundations of the internet".

In the letter published on 9 September, the signatories request the EU Commission:

- Not to create a new ancillary right for publishers. After the tragic experiments in Spain and Germany, the signatories stress, that - you guys should have understood that distorting copyright to tax snippets produce "no positive outcomes but has harmed consumers, innovation and the internet at large" -- i.e., not only Google, but many other small companies and startup aggregating and indexing news on the internet and struggling to fill the gap between old media and digital revolution. In the same regard, the signatories also urge the Commission to publish the response to the public consultation on the role of publishers in the copyright value chain and on the 'panorama exception'. The signatories say that "many have pointed out that new ancillary rights for publishers were harmful".

- To maintain the E-Commerce Directive safe harbour, which "provides a balanced framework which ensures that the interests of right holders, citizens, consumers, and businesses can be vindicated in the online environment". As our very own Eleonora outlined on the Financial Times [freely available here -- 'The Financial Times! WOW!', says Merpel], getting rid of the no-general monitoring obligation "could ultimately result in the market for hosting services becoming increasingly difficult to access ... So much for creating a European YouTube."

"Scarier than terror!"

On the top of that, this Kat finds odd that the very same EU Commission that would be proposing an obligation upon platforms to "prevent the availability on their services" of infringing works, "including through the use of effective content identification technologies" [see the IPKat breaking scoop here], has being repeatedly stressing the necessity to maintain the safe harbour as it is and also to prevent Member States from adopting general monitoring obligations in other fields of the DSM reform. That is happening, e.g., with the General Data Protection Regulation [Recital 21] and with the Proposed AVMS Directive [Recitals 29, 30, and Articles 28a and 28b]. Fundamental rights such as freedom to conduct a business and freedom of information, safeguarded by the safe harbour, are duly considered within the balance of interests when it comes to protecting personal data and combatting hatred, incitement, child pornography, and terrorism. Why should not it be the same when it comes to copyright infringement -- apart from better lobbysts involved in the latter reform process, I mean?

-    Not to limit the Text and Data Mining exception to 'public interest research institutions' only, as it would "ultimately restrict, rather than unlock, use of TDM across sectors and would be more likely to drive such research and innovation out of Europe".

Whilst the leaked Draft Directive on Copyright in the DSM that the IPKat leaked here seems to go in a different direction, it would not be the first time that the consolidated version of the proposal features substantial changes as compared to previous leaks [e.g., that already happened with the above mentioned AVMS Directive]. Let's wait a couple of days and see.

Posted By Alberto Bellan to The IPKat on 9/13/2016 09:58:00 am

Also see  http://www.wsj.com/articles/eu-copyright-proposals-expected-to-help-music-industry-fight-piracy-1473786140

http://arstechnica.co.uk/tech-policy/2016/09/european-commissions-copyright-cover-up-will-finally-end-tomorrow/

When Shorthand Phrases May Only Serve to Confuse

Much has been written in recent days about the CJEU's decision in the so-called Safe Harbour case C362/14 involving personal data. To most IP fans, 'safe harbor' (especially the American spelling of it) means something completely different, namely the degree of immunity from litigation afforded to internet service providers of various types by section 512 to the US Copyright Act 1976 and Articles 12 to 15 of the EU eCommerce Directive 2000/31/EC. Neither of these pieces of legislation actually uses the term safe harbour (the EU Directive prefers the near simile 'mere conduit') yet we, laymen and lawyers alike, instantly recognise what it refers to. It is a shorthand way of referring to a set of circumstances and conditions which are intended to lead to a particular legal outcome. I was tempted to write 'certainty' but that would have been foolhardy.

We rely on such shorthand phrases to make day to day discourse easier, but this facility is easily undermined when the same phrase gains currency in an entirely different sphere, as with the data protection example already quoted. There are a number of other examples where this duality can cause confusion, such as 'public domain' and 'derivative work' to name but two of them. These words can lack any legal definition, and indeed are often used in place of legal concepts too complex to be defined in a single sentence, hence their value as shorthand tags.

Public Domain

Public domain is probably one of the most pernicious phrases of this type. Its more general meaning of something which is accessible by the public can lead to the mistaken belief that such information or work is therefore also freely available to be copied. The classic type of example is "I found it using Google, so it's OK to use this image as it's in the public domain". This situation is not helped by the fact that, in an IP context, the more legally correct 'not copyright protected' is something that anyone can say or write in connection with a work without any legal consequence even if it is untrue. The same situation is also not helped when legislation has had the retroactive effect of restoring copyright to works which were previously out of copyright, often in a less than transparent way. Hence the concept of the public domain in the context of copyright lacks certainty. Given that primary copyright infringement is a matter of strict liability, it is strange that making a false claim to copyright or a false claim that copyright no longer exists in a work, are not sanctioned per se, while falsely attributing a work to an author (section 84 CDPA) is one of the moral rights that copyright law does see fit to protect. Arguably false statements like the former  might be actionable under the tort of deceit but proving intent will rarely be easy, and in any case, the existence of a false statement to the effect that copyright no longer exists (or is waived to some degree by a false Creative Commons licence) will not be a defence against a claim of primary infringement.

Derivative Works

Derivative as a means of describing a work is equally problematic, but for different reasons. In this case there is a legal definition under US Copyright law (section 101) to cover a very wide range of subsidiary works derived from an underlying work: 

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. 

but in most other jurisdictions there is no such corresponding legal meaning yet the term is still used, often to mean much the same thing as in the USA, by those in the UK or EU, because it is readily understood that the word means something based on a pre-existing protected work. But nowhere in UK or EU copyright law will you find the term 'derivative'. It is true that in the 2010 Systrans case (T-19/07) the General Court of the CJEU, perhaps unwisely, used the word (10 times) with this meaning, albeit in the context of software (the Software Directive 2009/24 merely refers to "translation, adaptation, arrangement or any other alteration ..") thus giving the phrase slightly more legal weight than it had had previously. The UK's Copyright Designs and Patents Act provides nothing so sweeping as the US definition; the nearest equivalent being 'adaptation' (section 21) which only applies to a very limited list of specific examples, and only then for literary, musical and dramatic works. The lack of a statutory application to artistic works means that the courts have to decide this themselves, with varying results. Article 3 of the German Urheberrecht Gesetz also uses the word adaptation (Bearbeitungen) but in a wider context than UK law. The Berne Convention (Article 1) uses the term derivative works as a sub-heading but has a fairly ambiguous description ('other alterations') of what it encompasses. The EU Directives largely avoid any direct definition of copyright works, let alone derivatives or adaptations, leaving this to national legal frameworks.

Why does this lack of a universally-accepted definition of 'derivative work' matter? The main reason is that the worlds of derivative works, adaptations, fair use (especially the transformative use part) and fair dealing (parody/caricature/pastiche) all intersect. What's more there are different approaches to whether the relationship between the underlying work and derivative work, such as whether permission is required, that in turn can affect the question of originality in the derivative work. There is now a wide variation between how the courts in the USA, UK and other EU member states, along with the CJEU, interpret and apply the law in this area. As far as harmonised copyright law is concerned, the EU generally is still in the foothills of settled law on matters surrounding derivative works, whereas in the USA there exists a large body of caselaw around transformative use, albeit often with conflicting outcomes, such that universally speaking, the term 'derivative' work is far from precise and is heavily dependent on the jurisdictional context.

Conclusion

As the internet becomes ever more central to many infringement cases, this lack of uniformity between the key players is, to put it mildly, unhelpful. Of course this does not undermine the basic value of such shorthand terms such as public domain, derivative work, or safe harbo(u)r in everyday usage, but I suggest litigants-in-person, advocates and the courts themselves should eschew their use in formal settings where this leads to imprecision.

 photo credit: MiNe-5DII_103-2751UG via photopin (CC BY 2.0 license)

The CopyKat - choppy seas ahead for safe harbour and fair use?

In the USA, the MPAA and RIAA are backing a new copyright curriculum showing kids how to become "Ethical Digital Citizens." But perhaps tellingly, it was only  public pressure that meant the the curriculum was edited to include the fair use principle, and the more flexible copyright licences that systems such as Creative Commons provide. And it seems this is more fair use in the lesson plans than Hollywood wanted. A series of leaked emails seen by TorrentFreak ends with the MPAA’s Howard Gantman saying  “So the end result contains sections on fair use that are more extensive than we would use if we drafted the curriculum ourselves. But overall, the effort will hopefully lead to an active program within our schools to help get kids to understand what it means to behave ethically on the Internet”.

The Indepdent reports that The High Court in Ireland has told internet service provider UPC that it must introduce a three-strikes system to help combat online piracy.  UPC is Ireland’s second largest broadband provider with 360,000 customers. It means the net firm must start sending warning letters to suspected file-sharers with the threat of sanctions against those customers who ignore the warnings, and according to the ruling the record companies need only cover 20% of the costs associated with the scheme. Mr Justice Cregan said that there was "wholesale theft"  taking place on the UPC network. He said that the constitutional rights of "a whole class of persons are not just being infringed but are being destroyed".  The downloading of music for free is destroying the intellectual property rights of creative artists and should be a matter of great concern in any civilised society, he said.

Mike Weatherley MP

As the life of the current UK Parliament ends, Mike Weatherley MP who is stepping down as a Member of Parliament has published a final Discussion Paper on copyright. Safe harbour provisions and online service providers. The former Intellectual Porperty Advisor to the UK's Prime Minister has this time focussed on 'safe-harbour' provisions in EU law, adding to the ongping debate on copyright reform in the European Union. Commenting on his latest paper, Weatherley told reporters: "I felt that it was important to continue to highlight the issues that have grave consequences for our fantastic creative industries. The creative industries are huge contributors to our economy so it's vital, in order to protect them, that the regulations which were set out in 2000 are updated. The broad scope of the [2000 E-Commerce] Directive results in rights holders losing out to pirates on an industrial scale" and the Report concludes "It does appear to me that the scope of the E-Commerce Directive today is much broader than was envisaged at the time by those drafting it. I would urge the next UK Government to enter into a dialogue with the Digital Single Market team at the EU Commission with a view to considering whether the balance remains fit for purpose."

More on safe habour: In the US, BMG and Round Hill Music continue with their action agaisnt cable company Cox Communications over its alleged inaction in forwarding warning letters to suspected file-sharers. The music firms argued that by failing to act after being alerted to piracy on its networks, Cox should lose its safe harbour protections and be held liable for the copyright infringement of its customers. The claim says Cox failed to disconnect 200,000 repeat copyright infringers. The rightsholders are requesting detailed financial information to show that the company profits from its inaction. Meanwhile TorrentFreak reports that Cox is looking into the ownership of the 1,000 odd works for which they received seven million DMCA takedown notices, and the ISP also wants an expert opinion on the source code of the Rightscorp’s crawler that was used to spot the alleged infringements.

This from InfoJustice commenting on the Lisbon Council and Innovation Economics' The 2015 Intellectual Property and Economic Growth Index:  Measuring the Impact of Exceptions and Limitations in Copyright on Growth, Jobs and Prosperity.  The report by Benjamin Gibert examines limitations and exceptions to copyright in eight OECD countries, and then describes economic growth at the overall and industry level in those countries. The key findings: “countries that employ a broadly ‘flexible’ regime of exceptions in copyright” have higher rates of growth of their overall economy, information technology & service sectors, and even traditional media sectors.  Workers in these economies also fared better, enjoying higher wages overall, in the communications sector, and technology sector. Gibert further notes other positive aspects of more open systems of copyright limitations and exceptions, such as “the promotion o0f education, independent research, free speech, user-generated content and text and data mining.”  He argues that exceptions to copyright should not be viewed as being in conflict with stronger intellectual property protection.  Rather, “the evidence suggests that broad and flexible exceptions to copyright embedded within a strong intellectual property framework may be the best way to achieve both simultaneously.

MusicTank has published a white paper called 'Private Copying Of Music: A New Model For Artist Compensation', part of the think tank's new Future Thinking programme, which aims to put out thought-provoking papers written by postgraduate students on the University Of Westminster's Music Business Management course - with this paper written by Sam Rudy.
Music Tank say that with the European Parliament’s Private Copying report (17.02.14) highlighting that there is currently no other alternative approach to compensation systems for private copying that would ensure appropriate remuneration for rights holders, this paper addresses European Parliament’s call for further discussion to be conducted in order to update the mechanisms and make them more effective, with Sally Gross, MA MBM Course Director, University of Westminster, saying " Extensively researched, this paper positions a timely and convincing argument that a private copy levy, even in these days of streaming, should still make up a substantial part of music industry finance.”

In Australia: "The Abbott government has caved in to sustained pressure from the US media industry and introduced copyright laws into parliament that appear to have the sole purpose of stamping out the rebellion against delayed access to content and rip-off prices." With access to user's metadata now provided for under the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015, Communications Minister Malcolm Turnbull introduced the Copyright Amendment (Online Infringement) Bill 2015 into Parliament on 26 March - with the revisions being blamed by many on the US driven provisions of the Trans-Pacific Partnership trade agreement and provides a procedure for web blocking in the federal courts. Interesting comment on Technology Spectaor here.

In the UK,  the transitional provisions to implement  the repeal of section 52 of the Copyright, Designs and Patents Act 1988 (CDPA) have been published. The change means the period of copyright protection for an artistic work which has been industrially manufactured, will be extended from 25 years to the life of the author plus 70 years. The change has retrospective effect and industrially exploited designs whose copyright protection had expired under the 25 year rule will have copyright protection 'restored'.  Repeal of section 52 of the CDPA will take effect on 06 April 2020: Following the repeal, parties that are currently trading in copies will have an indefinite period to sell off their stock, and may freely deal with copies made prior to the change of the law without this being an infringement. Manufacture or importation of new unlicensed copies will however be unlawful as of 06 April 2020. A guidance will be issued. More from D Young & Co  here.

IBT reports that in recent court papers, lawyers for the Fox News network have argued that posting a third party photograph on a social media site without that person’s permission should not necessarily constitute copyright theft. Why? Because social media - in particular Facebook - is by its very definition “social.” When you "post something on Facebook, you invite other users to comment and critique it" andFox argue that this alone could satisfy the criteria for a fair use defense. Fox are a defendant in a lawsuit regarding the use of Thomas E Franklin’s iconic photograph of New York City firefighters raising the American flag over the rubble of the World Trade Center on Sept. 11, 2001, owned by North Jersey Media Group.

And again in the US, the Professional Photographers of America (PPA) is offering photographers the opportunity to learn more about copyright, and inform their local photo retailers what might constitute infringement. The goal is to reduce copyright infringement on photography nationwide during this April, which is Copyright Awareness Month with the PPA saying ""The most important point to get across to printing retailers is ‘when in doubt, never print or reproduce a professionally-created photograph without written consent from the photographe," 

A U.S. District Court judge has ruled in favor of a parody of the 1970s sitcom “Three’s Company” in a copyright infringement case. Loretta A. Preska, Chief United States District Court Judge for the Southern District of New York, ruled that ’3C,’ a play that parodies ‘Three’s Company,’ does not infringe on that copyrighted programme. Preska wrote in her ruling: “’3C’ is a fair use of ‘Three’s Company.’ The play is a highly transformative parody of the television series that, although it appropriates a substantial amount of ‘Three’s Company,’ is a drastic departure from the original. … Equating the two to each other as a thematic or stylistic matter is untenable". More here.

The National Football League and The Associated Press have defeated a lawsuit filed by freelance professional photographers who cover the NFL and challenged licensing agreements they said violated antitrust and copyright laws.
Southern District Judge Robert Sweet granted motions to dismiss by the NFL and AP, and handed a third defendant a win by granting a prior licensee, Getty Images, its motion to compel arbitration in Spinelli v. National Football League, 13 Civ. 7398.

And finally, the eight-year long battle over whether Jay Z sampled an Egyptian song and recording "Khosara, Khosara” in his hit single "Big Pimpin'” is heading to trial. Judge Christina Snyde has indicated she will dismiss the motion for summary judgment brought by Osama Ahmed Fahmy, heir to composer Baligh Hamdy, against the rapper and fellow defendants Timbaland,  Paramount Pictures, Warner Music, UMG and MTV. Fahmy had previously argued that the moral rights in the track had been were violated as the work had been “mutilated”, but the case is now focussing on whether the Jay Z and Timbaland actually had permission to use the recording as Fahmy now contends that the record company that licensed “Khosara Khosara” to Timbaland never had the right to license the song in the first place. Timbaland made a deal with EMI Arabia, which had a deal with the Egyptian record label Sout el Phan. Fahmy had licensed “Khosara Khosara” to Sout el Phan. He claims EMI Arabia’s license to the song expired in 2007 and that in all events, EMI would have needed his permission to sub-licence the track. Judge Snyder agreed that the terms of the licensing agreements presented triable issues. 

The CopyKat - a squealling pig and a horrified mouse head up this animal house

Pandora has won one of it's legal battles with the music industry, with a US court ruling in a summary judgement that American music publishers cannot withdraw from the streaming firm's existing deal with collecting society ASCAP and force the company to do direct deals. The ruling means that the big publishers will have to continue to licence Pandora via ASCAP until 2015, even though the digital firm had actually agreed direct deals with some of them while this litigation was going through the motions.

Oink, UK-based invite-only file-sharing community launched in 2004 and shut down in 2007 following a joint investigation by British and Dutch police, working in collaboration with UK and global record label trade bodies the BPI and IFPI, is returning as an apparently legal service at oink.cd and oink.me.uk.Users are asked to sign up to a mailing list "for updates and an invitation in due time" and are reminded to "never forget 23 Oct 2007", the date of the original site's shutdown. The shutdown resulted in four successful prosecutions of prolific users of the service for infringement, although founder Andy Ellis escaped conviction for conspiracy to defraud.

A Delhi court has dismissed a complaint against Bollywood filmmaker Madhur Bandarkar for allegedly stealing the plot and idea of his movie "Fashion" from a book without giving credit to its author.  Additional Chief Metropolitan Magistrate Lokesh Kumar Sharma dismissed the case against Bhandarkar, producer Ronnie Screwvala and writer Ajay Mongia after the complainant, actress turned author Seema Seth, repeatedly failed to appear before it to pursue her case. "Several opportunities have been given to her since last year" and having failed to submit her own script, the Judge found that she was "not interested in pursuing her case." 

In South Africa, commentators are musing that stricter rules on the use of exclusive news content may come into effect following a recent charge of plagiarism by  Moneyweb against Fin24, which is accused of rewriting seven Moneyweb stories, without fully acknowledging the source or indeed having permission: commentators also point to the fact that Moneyweb has its own unique financial comparisons,  tables or models which “similar to exclusive stories, are protected  under copyright law and can’t be copied without permission.”

The EFF have highlighted a new push by the content industries in the USA to establish extra-legal "voluntary agreements" with search engines, similar to the "Copyright Alert" surveillance machine already in place with some ISPs. The EFF point to both a Congressional hearing and a glossy new paper published yesterday by the Motion Picture Association of America (MPAA), which the EFF says both underscore a major push by the copyright lobby - saying "These sorts of agreements represent a troubling move towards enforcement regimes that have the speech-squashing capabilities of actual law, but not the corresponding due process or accountability". More here. 


A federal judge in New York has said that there is a 'triable issue' at the heart of the the claim brought by the major record labels against user-generated video website Vimeo, owned by Barry Diller's IAC, over claims that Vimeo  had knowledge or awareness of copyrighted music in some of the videos being shared. Vimeo, which is now one of the top 130 most trafficked websites, responded by asserting that it was free of liability thanks to the safe harboir provisions of the Digital Millennium Copyright Act. The claim centres on whether the company took enough preventative actions to avoid liability.  Judge Ronnie Abrams denied safe harbour defence for 55 of the 199 videos detailed in the suit, in particular the now very popular 'lip synch' videos. Reportedly, these 55 presented situations where Vimeo employee either knowingly uploaded videos that used copyrighted music themselves, or had documented interactions with users that did (comments, likes, etc.) and still failed to take the video down. In the 56-page ruling Judge Abrams called the site’s alleged knowledge of these incidents a “triable issue.”  Noting that the site had 12.3 million registered users uploading 43,000 new videos each day”n the judge also agreed that there were no triable issue in regards to pre-1972 music and granted the website summary judgment on that. matter, although reportedly said that as the DCMA does NOT apply to pre-1972 recordings, leaving Vimeo with an interesting challenge there.

Talking of UGC and safe harbour, This blogger had a recent and unexpected experience with You Tube when I discovered that there was a limit on the number of Copyright Infringement Notices that can be submitted to YouTube within a (unknown) time period - effectively limiting the number of legitimate takedowns a content owner can issue against illegitimate and infringing content on the Google owned platform: Now it's not often I do work like this and maybe I missed something, but this had to be done - and all that happened was a page popped up saying "Submission frequency limit exceeded  Please come back later to submit your next copyright complaint.". No when, not why - in fact no other information at all - just that. It seemed to be working again 30 minutes later BUT ......... if YouTube has self imposed arbitrary limits - does that mean it doesn't have an effective takedown system for legitimate claims - and if so - what does this mean for DCMA safe harbour protection?

Photo by Wally Gobetz (wallyg @ Flickr)

Patrick has already noted that the US sculptor Frank Gaylord has won his claim against the US Postal Service a for copyright infringement and has been awarded damages and interest of nearly $685,000. To remind you, the case involved the printing of stamps with an image of the soldiers sculpted for the Korean War Veterans Memorial in Washington, D.C. We also know that the Postal Service "respectfully disagrees" with the U.S. Court of Federal Claims' damages decision and that, together with the Department of Justice, it is considering whether to appeal. Having won at first instance when the Federal Court ruled in the Postal Service's favour, saying it's use of a photograph taken of the memorial during winter by a retired Marine fell under the doctrine of "fair use", the appellate court reversed this, directing the Court of Federal Claims to  "determine the proper amount of damages due Plaintiff Frank Gaylord" . Well how did they do this? Well the the Court of Federal Claims used a 10 percent "running royalty" to determine the fair market value of Gaylord's copyright, calculating that the Postal Service collected an estimated $5.4 million for stamps purchased by collectors, entitling Gaylord to $540,000. The balance of Gaylord's award came from royalties on merchandise sales and pre-judgment interest.

The Sunday Times featured an interesting article asking why The Walt Disney Company, never one to normally shy away from using its formidable array of legal weapons against anything that taints the Disney brand,  is ignoring a new black and white horror film, shot without permission on small digital cameras and mobile phones at Walt Disney World in Florida and Disneyland in California. Posters for Escape From Tomorrow feature Mickey Mouse's hand dripping with blood - 'brazenly provoking Disney's legal pitbulls'. The reason seems to be that The Mouse House is wary of giving the film any more publicity - which opens with the credit 'the following motion picture has NOT been approved for all audiences by the Walt Disney Company - despite potential copyright and trade mark infringements, and the lack of permission to film. 

You can see the trailer here.

The dispute over royalty payments between the BBC and Eos, the agency representing some Welsh language music composers and publishers, is going to the Copyright Tribunal. At an interim hearing in April, the Tribunal ordered the BBC to continue paying Eos £120,000 a year to access its members' repertoire of music. his sum was agreed by both parties in February. Eos wants the Tribunal to increase that amount to £1.5m a year - the BBC are suggesting an annual figure of £100,000. Eos was formed when its members became unhappy with royalty payments from PRS for Music, the UK's principal royalties collection agency.
Lauren LoPrete 

And more on songwriters ..... and royalties: According to research carried out by Victoria University of Wellington PhD student Sharma Taylor, despite the popularity of reggae music around the world, the economic return to Jamaica is very low, with most music rights being owned by foreign companies: Taylor’s research shows that many of the 57 singer/songwriters she interviewed didn’t fully appreciate the copyright they own. An interesting piece of research - more here.


And finally ..... it seems blogger Lauren LoPrete's two month old blog, This Charming Charlie,is under threat from Universal Music Publishing Group. The blog uses lyrics from the iconic British band The Smiths (published by UMPG) to re-word classic Charlie Brown cartoons. It seems no complaint has been raised by the Peanuts legal team and TechDirt reports that LoPrete has been offered legal support and now will fight on - you can see her legal team's response to UMPG on the blog - arguing fair use, transformative use, and pointing out that the use of the brief excerpts does no damage to UMPG's commercial position.