The COPYKAT: "Faceswap" for the Statue of Liberty, trade wars, and embezzlement

It's been an exciting few weeks for copyright around the world. This CopyKat takes a look at three "David vs Goliath" disputes, in which parties (respectively) include the US Government, Fifa and an 8 year-old boy, and one of Africa's largest telecoms companies. Also in the news: YouTube rolls out its anticipated Copyright Match tool, copyright collecting societies in Kenya continue to struggle with accountability, and China launches an IPR awareness campaign.


Lady Liberty "faceswap" will cost the United States Postal Service $3.5M

Between 2011 and 2014, the United States Postal Service (USPS) used an image of the Statue of Liberty for its Forever Stamp series (a type of First Class postage stamp). Unfortunately for the USPS, the image they chose was not actually of the famous statue that towers over New York Harbor designed by French sculptor Frédéric Auguste Bartholdi in 1886. Instead, the image they chose was actually Robert S. Davidson's replica Statue of Liberty which looks over the New York-New York Hotel & Casino in Las Vegas. Davidson sued for – and won – nearly $3.5 (£2.6) million in royalties, plus interest.

As reported by Artsy, an eagle eyed stamp collector identified the mix-up in 2011. The USPS was made aware of the goof in 2013, but went on to print another 1.13 billion stamps with the replica’s image. For context, the judgement cited that the USPS made some $70 million in revenue resulting from sales of this Lady Liberty stamp alone.

The statues in NYC (left) and Las Vegas (right).

The Post Office purchased the photo used on the stamp from the image service Getty for $1,500 (£1,140). However, the license only covered the rights to Getty's photograph of the statue — and not the statue itself. The USPS neglected to seek permission from Davidson, likely because they simply assumed what it was using was in the public domain.

In its defense, the USPS asserted that the statue is a replica and accordingly, contains no truly original work. If true, this would render Davidson’s copyright claim invalid, and the government would owe nothing for its use of the replica statue’s image.

Davidson was therefore tasked with proving that his copyright in the statue was valid, which under US law requires only a showing of “some minimal degree of creativity” and that it was his own “independent creation” of those original elements.

By way of reminder, the focus is on the expression of an original idea and not the idea itself (Oracle Am., Inc. v. Google Inc., 2014). As such, Davidson’s statue did not need to be wholly original, but rather a “new and original expression” of some previous work or idea – namely, the famous Bartholdi statue.

Davidson argued in his lawsuit that he wasn't trying to create a replica of the original, but rather to craft a fresher, more feminine version. As was later quoted in the ruling, he “envisioned his mother-in-law as inspiration ... and viewed her picture every night during the construction of the face of the statue."

The Court examined photographs and was satisfied that Davidson “succeeded in making the statue his own creation, particularly the face.  A comparison of the two faces unmistakably shows that they are different.” Ultimately, the Court agreed that Davidson’s statue “evokes a softer and more feminine appeal.  The eyes are different, the jaw line is less massive and the whole face is more rounded. “

The USPS’s defense that the stamp fell under the fair use exemption was rejected by the Court. As the USPS printed “billions of copies and selling them to the public as part of a business enterprise … so overwhelmingly favors a finding of infringement that no fair use can be found.”


In case you’re wondering how the USPS – which is a US government agency – can be successfully sued for copyright infringement, 28 U.S.C. § 1498(b) waives sovereign immunity for claims of copyright infringement against the federal government “for the recovery of his reasonable and entire compensation as damages for such infringement.”


YouTube's "Copyright Match" offers enhanced screening technology (for a selected few)

As the CopyKat mentioned last month, YouTube has been beta testing a feature called Copyright Match, designed to find re-uploads of content on other channels. The tool will point content uploaders (creators) to instances where their work has been stolen, and allow them to request that YouTube delete the guilty party’s video on the grounds of copyright infringement. Last week, YouTube channels with more than 100,000 subscribers received access to the new tool.

When a creator uploads a video to the Copyright Match tool for review, other video uploads on different channels will then be scanned to detect similar content has been uploaded. Fabio Magagna, the product manager for the Copyright Match Tool, explained on the YouTube Creators blog that “when there is a match, it will appear in the ‘matches’ tab in the tool and you can decide what to do next”.

Although YouTube already offers an automated copyright-flagging system called Content ID, Copyright Match is different because it’s designed especially for YouTube creators who have problems with unauthorized re-uploads.

By YouTube’s own admission, the Copyright Match is “a powerful feature,” which will be monitored closely in its early stages. Magagna noted that the software will continue to expand over the coming months, “with the long-term goal of making it available to every creator in the YouTube Partner program.” The company insists that takedown requests will be reviewed to make sure they comply with YouTube’s copyright policies.

The introduction of Copyright Match comes at a time of intense debate surrounding user-uploaded content on social media platforms such as YouTube. In particular, The European Parliament recently voted to reject a new copyright directive.  At the heart of controversy for many was Article 13, a section of the proposed directive that focuses on the use of copyrighted material uploaded by users.

And yes, in case you’re wondering: new YouTube video reviews of Copyright Match are already available to watch.


Fifa takes down celebratory World Cup dance video: is this a step too far?

The World Cup is the largest single sporting event on Earth, with nearly half the world’s population tuning in. With England’s (somewhat surprisingly!) good run up to the Semi-Finals, fans of the Three Lions were especially eager to show their support.

When England’s captain Harry Kane scored a goal against Tunisia, a mother filmed her 7-year old boy celebrating the moment. She subsequently posted the short 5-second clip of him dancing in the living room on Twitter. However, FIFA - Football's ruling body - ordered the clip removed from Twitter. FIFA claimed the clip infringed their copyright, as viewers could see blurred football action from the family's TV in the background.

Speaking to the Mirror, Kathryn Conn explained that her son “is a massive Spurs fan and he absolutely worships Harry Kane so he started dancing around in the living room. All you can see on the TV in the background is a really blurry replay of the goal. It's hardly visible."

England captain Harry Kane won the Golden Boot for most goals scored in the tournament.

According to Conn’s tweet on the subject, the copyright notice from Twitter was brought under the US Digital Millennium Copyright Act. Several sources including iNews report that Fifa issued a letter stating: “On behalf of Fifa, we hereby assert that your making available and/or promoting of the protected content on your platform is not authorised by Fifa, its agent nor the law and that your activities in this regard serve as a serious infringement of Fifa’s exclusive rights.”

By way of background, Fifa reports on its finances page that around 95% of its revenues come from the sale of television broadcasting, marketing, and licensing rights related to the FIFA World Cup.
From the 2014 World Cup in Brazil, Fifa hauled in $4.8 billion in revenue, which turned a $2.6 billion profit for the association (which is then re-invested into development projects). Compared to ticket sales earned $527 million, Fifa’s broadcast revenue topped $2.43 billion, while sponsorship fees brought in $1.6 billion.

To date, Fifa’s intellectual property portfolio contains 14,000 trade mark registrations, about 300 registered designs, and 150 copyright registrations covering 157 jurisdictions overall. As is made clear in its 30-plus pages of official guidance on brand protection, Fifa has millions of reasons to be protective of its intellectual property.

Fifa engages in active surveillance and brand protection, which includes court proceedings to halt an infringing situation and seek financial compensation for any damages suffered. However, sharing official content belonging to FIFA by fans without any commercial benefit is expressly permitted, as per the branding guidance. Curious by nature, this CopyKat’s therefore wonders why an account with barely 200 followers was singled out in this instance.

Did Safaricom steal Songa app from former employee?

Web developer Evans Gikunda has sued Radio Africa and Safaricom, accusing them of infringing his copyright when they launched a mobile app, Songa by Safaricom several weeks ago. Safaricom is a leading mobile network operator in Kenya, and its Songa music app enables subscribers “to get their local and international songs in one place and keep them consistently entertained and updated.”

Gikunda claims that he created the music app between 2012 and 2016. In 2013, while working as a developer at Radio Africa, the Chief Executive at Radio Africa Patrick Quarcoo “persuaded Gikunda to partner with him to ensure that the product gets to market” (IPKenya). According to Gikunda, Quarcoo proposed that that once Radio Africa’s Board of Directors sanctioned its participation in his app, they would share out the ownership of the app. The ownership was proposed at Radio Africa – 40%; Gikunda- 30%; Quarcoo- 20%; and the remaining 10% to a strategic partner.

In 2016 Gikunda left Radio Africa (under less than favourable circumstances) and says that after his resignation, Quarcoo sold the app to Safaricom without consulting him. Gikunda had not been “involved in the process at any stage, and neither has he benefited from it; despite the claims he created the platform” (innova8tiv). As with most intellectual property disputes arising between (former) employees and their bosses, establishing the ownership of the copyright subsisting in the Songa app lies at the heart of this matter. Gikunda is asking the High Court to compel Safaricom and Radio Africa to reveal how much money they have made from ‘Songa by Safaricom’ and is seeking damages.

To be successful in his claim, Gikunda will need to establish that he created his app outside the scope of his employment with Radio Africa, and that the app currently used by Safaricom is a reproduction or adaptation of his original app. To complicate matters, Gikunda’s app has been known under a variety of other names, including ‘NakedGroove’, ‘The Platform’, ‘The Music Platform’ and ‘RAMP’ – the latter being an abbreviation of either ‘Radio Africa Music Player’. Additionally, neither Gikunda nor Radio Africa obtained copyright registration, which further confuses the evidence.

This calls into question whether or not Gikunda made the program as part of his employment with Radio Africa (see also the work-for-hire doctrine), as well as the enforceability of moral rights for digital works. To achieve an injunction against the companies, which Gikunda is also seeking, he will need to prove that damages alone are an insufficient remedy.

Copyright woes continue for Kenyan collecting societies

Kenya's High Court

Elsewhere in Kenya, the complicated saga of the copyright collecting societies continues. Most recently, the High Court (pictured) ordered the Music Copyright Society of Kenya (MCSK) to account for the money it has collected as royalties and licence fees since January 1st 2017. Justices RN Sitati, DS Majanja and TW Cherere have given the MSCK thirty days to comply with the order (The Star).

In 2015, it was noted that MCSK's disbursement of royalties to artists has been decreasing for several years. The Kenya Copyright Board (KECOBO), the government organisation tasked with enforcing copyright in Kenya, established a minimum standard of 70% of revenue to be given back to artists. However, MCSK’s disbursement rates to musicians has fallen to 58.9% of collected revenue. Although MCSK was once Kenya’s largest royalty-collecting body, KECOBO revoked its licence in February of 2017 when MCSK failed to provide audited financial statements. The move came amidst allegations from local artistes over embezzlement of their royalties by MSCK.

As the CopyKat discovered back in May, Kenya is not the only African country to be experiencing problems with copyright collecting societies: power struggles with the Copyright Society of Nigeria (COSON) and the Nigerian Copyright Commission continue. 

Copyright awareness comes to China 

China has launched a four-month campaign to protect the intellectual property rights: you can visit the campaign website here. First announced in September, the campaign is seen by many as an attempt to alleviate major concerns among foreign investors, including those in the United States. 

China’s lack of strong intellectual property rights protection measures “frequently draw complaints from foreign investors and have been a long-standing focus of attention at annual talks with the US and Europe” (South China Morning Post). The Trump administration has officially launched a probe into alleged Chinese intellectual property theft which, amongst other things, led the United States to impose punitive tariffs on Chinese products. 

The campaign, which will last for at least four months, has been jointly launched by the National Copyright Administration of China (NCAC), the Cyberspace Administration, the Ministry of Industry and Information Technology and the Ministry of Public Security.

It will target key areas including unauthorized republication of news and plagiarism on social media, unauthorized broadcasting of copyrighted content on short video sharing apps, and copyright violations by setting up overseas servers. The campaign will also push service providers to enhance their internal supervision systems (China Daily).

Chairman Mao Memorial Hall in Beijing

In 2012, an article on Forbes argued that “IP protection will always be an uphill struggle in China and for companies doing business there,” as individual rights – including intellectual property rights – may be in some instances at odds with traditional Chinese society. 

A more recent Reuters article from April of this year explained that while Chinese IP protection laws are comparable to U.S. and European legal standards, the weakness lies in implementation, with high levels of bureaucracy. In particular, “court decisions applying on a provincial level rather than nationally, and judges often having different interpretations of the laws.”

In China, many consider that “even the education system works against an embrace of IP protection,” and until IP infringement is seen as an immediate threat to economic success, “few will really care.” Will a potential trade war be the impetus China needs to close the gap?

The CopyKat gets digital in the lion's den

Facebook Moves to Make Content Easier to Control and Monetise

Facebook is promising to make it easier for content owners to police the social platform for unauthorised and pirated videos — and then either monitor or block them, or potentially make money from them.

A year and a half ago, Facebook launched Rights Manager to let media companies and other copyright holders identify unauthorised video sharing based on reference files. But using the system has largely been a manual process, unless rights owners developed hooks from their own automated systems into the Rights Manager’s API.

Now, Facebook is directly integrating Rights Manager with services from three third-party providers — Zefr, Friend MTS, and MarkMonitor — to provide new options to automate such tasks. Facebook says the partners will be activated over the coming months.

Ukip Causes Premier League Clash With Choice Of New Logo

Ukip’s attempt to rebrand itself for the post-Brexit era experienced an early hiccup last week after a new party logo bearing a lion’s head prompted reports the Premier League was investigating whether it was too similar to its emblem.

The logo replaces the longstanding yellow and purple pound symbol, and was chosen by party members at Ukip’s annual conference in Torquay. 

Its unveiling brought immediate comparisons with the Premier League’s logo, which also depicts a lion’s head. The two lions are featured above left and the logos right.

The league said it had no immediate comment, but it is understood its internal legal team was aware of the issue and was looking into any potential breach of copyright (or even a trade mark action with the mark on the right a registered Premier League mark)

European Commission Backs Takedown-And-Stay-Down For Combating Piracy Online

The European Commission yesterday published new guidelines for how internet companies should deal with illegal content that is uploaded to their networks, in a bid to encourage net firms to be more consistent and proactive in blocking illegal files, which includes content that incites violence or terrorism, as well as copyright infringing material.

Copyright owners will be pleased that that the European Commission has including piracy in its review of how the net sector deals with illegal content, and will now watch what progress – if any – is made. Meanwhile within the tech sector, there are mixed opinions.

The Computer And Communications Industry Association – repping many web giants – said that it “has advocated for a long time for the introduction of well-thought-out notice and action guidelines, and [these guidelines are] a welcome initiative for a more aligned approach on the removal of infringing content across the European Union”.

Others say that – while the EC does talk about the need to balance the speedy takedown of illegal content with ensuring free speech rights are protected – the guidelines don’t do enough to protect freedom of expression online.

Pepsi Can’t Dodge Copyright Claims Over Super Bowl Ad

A federal judge refused to dismiss a copyright lawsuit over Pepsi’s time-travelling 2016 Super Bowl advert, allowing an advertising firm’s case to proceed to discovery.

U.S. District Judge Kenneth Karas in the Southern District of New York ruled Tuesday that the soda behemoth must face part of a copyright case brought by a Connecticut advertising agency that accused PepsiCo Inc. of stealing its concept for a high-profile Super Bowl halftime commercial.

Betty Inc. alleges Pepsi’s 2016 Super Bowl commercial titled “All Kinds/Living Jukebox” lifted its concept for a “human jukebox” scenario, in which music genres and fashions change “with the ability to transport the viewer to imagine a scene consistent with a created joyous feeling.”

The video begins in the mode of early Motown and R&B set to the Contours’ “Do You Love Me,” then jumps into the high-energy 1980s vibe of Madonna’s “Express Yourself,” ending with a modern pop take on Pepsi’s familiar “Joy of Cola” jingle. The commercial stars soul singer and actress Janelle Monae.

Betty claimed Pepsi stiffed it on the agreed-upon $5,000 compensation for the concept. It could end up a lot more expensive now!

Germany's Top Court Says Google Isn't Breaking Copyright By Showing Thumbnails Of Unauthorized Photos.

The Bundesgerichtshof has been considering a case that dates all the way back to 2009. The US adult website Perfect 10, which had already proved an enthusiastic litigant in the US, sued AOL Germany for showing thumbnails of pictures of its models.

Specifically, people had taken images from behind Perfect 10's paywall and unlawfully published them elsewhere online. It was from those sites that Google, whose image-search engine was powering AOL's services, took the thumbnails that it then presented to users.

As the case wended its way through the courts, Perfect 10 maintained that it was owed damages for copyright infringement. Last week, though, the Bundesgerichtshof disagreed.

Germany's highest civil and criminal court said, under German and EU law, Google's tool was not infringing copyright by reproducing the thumbnails of Perfect 10's models.

A key precedent here was the case of GS Media vs Sanoma, in which the Court of Justice of the European Union last year ruled that it is possible to infringe copyright by posting links to copyright-infringing material.

This CopyKat by Matthew Lingard (Walker Morris LLP)

Artistes call for major reforms of take down policies and the 'largely useless' DMCA

Some 400 recording artists, songwriters and groups including the Recording Industry Association of America (RIAA) are calling on Congress to reform existing US copyright law saying that the Digital Millenium Copyright Act (DMCA) is obsolete, dysfunctional and harmful,  and calling for stronger measures against the ongoing piracy troubles they face. The DCMA was signed into law by President Bill Clinton in 1998 and aimed to ready copyright law for the digital age. Christina Aguilera, Katy Perry, Steve Tyler, Lionel Richie and Garth Brooks are just some of music’s biggest names want to make it harder to pirate music online. The musicians are asking lawmakers to make “drastic reforms” to the Act.

"Artists spanning a variety of genres and generations are submitting comments to the federal government’s U.S. Copyright Office .... demanding reforms to the antiquated DMCA which forces creators to police the entire Internet for instances of theft, placing an undue burden on these artists and unfairly favoring technology companies and rogue pirate sites," says a statement issued by the Recording Industry Association of America: Recording artistes including deadmau5, Tony Bennett, Pearl Jam and Bette Midler have filed petitions to the U.S. Copyright Office detailing their struggles with the “antiquated policies” and demanding reform to better “protect the future of the music industry, recording artists and songwriters,” according to a statement from the RIAA.

The filings include three letters — one from music managers, one from creators, and one from artists and songwriters — that ”detail how the out-dated DMCA and its faulty notice-and-takedown system allows some tech companies such as Google, YouTube, Tumblr, just to name a few, to build multi-billion dollar businesses off their content without compensation and drag down the value of their hard work into fractional digital pennies",

In September 2015 Cary Sherman, the chairman and CEO of the Recording Industry Association of America, has some choice words about the current state of US copyright law. He said that the provisions of the Act were 'largely useless' to combat music piracy and  that under the Digital Millennium Copyright Act, rightsholders had to play a game of whack-a-mole with Internet companies to get them to remove infringing content. But that "never-ending game" has allowed piracy to run amok and has cheapened the legal demand for music. Sure, many Internet companies remove links under the DMCA's "notice-and-takedown" regime. But the DMCA grants these companies, such as Google, a so-called "safe harbor"—meaning companies only have to remove infringing content upon notice from rightsholders.

Across the pond over the Easter weekend, the UK’s BPI issued its 200 millionth take down request to Google – every one, it says, targeting a searchable link which infringed on an owned copyright. As a result, BPI CEO Geoff Taylor publicly called on Google to change its infringement policy to ‘notice and stay down’; effectively ensuring that any infringing link removed from Google’s search results doesn’t then creep its way back online.

Google responded by telling MBW that it had already tweaked its algorithm to demote infringing sites, and that it had actually reviewed more than 80m links to pirated content in the past month alone. Google then added  “Search is not the primary problem – all traffic from major search engines accounts for less than 16% of traffic to sites like The Pirate Bay” prompting a clearly frustrated BPI to respond “It is disappointing that Google continues to downplay the role its search engine plays in guiding millions of consumers to illegal sites" and the BPI (and other music rights-holders) clearly now want the UK Government to take further action against Google if it continues to refuse to take more steps to help with their search takedown headache.

And an interesting take on the DMCA - and Google's lobbying - on The Register here:

"Copyright owners (it's hard to believe today) were once enormously powerful, while internet companies were fledglings. The balance struck allowed the ordinary Joe to remove material from intermediaries without having to consult a lawyer; a one-click, five-minute procedure.

Back then, there were no content ID robots to help automate the business of identifying material, and the burden of checking every envelope and package passing through the postal system would have been so onerous, nobody would have ever wanted to start a better post office.

But power has shifted radically over 20 years. The power now lies with the vast Silicon Valley plantation owners, who have aggregated wealth by ensuring you don't have any control over your own digital goods.


It's not surprising that this super-elite don't want to hand anything resembling "ownership" back to us. Their fortunes have come from monetizing an individual's work – amateur and professional – and selling ads against it. Whether it's Instagram "monetizing" your photos, or Google "monetizing" music on YouTube, it's a business that has worked at scale, and with the minimum of effort and engagement from Google or Facebook."

And ..... "Google's strategy more closely resembles that vintage "business model": the protection racket."

- http://m.theregister.co.uk/2016/04/02/googlefunded_dmca_study/

And see

http://www.billboard.com/articles/business/7318658/music-industry-stars-congress-reform-copyright-act

http://arstechnica.co.uk/tech-policy/2015/09/riaa-chief-says-dmca-is-largely-useless-to-combat-music-piracy/

The CopyKat

A U.S. District Court judge has again looked at a case brought by three publishers against Georgia State University's e-reserve and ruled that, in 41 of 48 cases, no copyright infringement took place. The 220 page ruling applies the four-part fair-use test that the Eleventh Circuit Court of Appeal directed Judge Evans to use to each on each of the 48 cases - and in particular to look at (i) the purpose and character of the use — which will favour fair use when that purpose is non-profit and educational, and (iv) the potential impact of the use on the market for or value of the original. But the case is seen by copyright experts as a complicated decision that won't be of much help to universities in determining fair use. Excellent comment by Kevin Smith JD on the Duke Universities Library blog here. 

In China the National Anti-pornography and Anti-illegal Publications Office, the National Copyright Administrative of China (NCAC) and several other government ministries have announced a special enforcement campaign against small photocopying shops that operate on and around university campuses. Many copy shops are suspected of illegally reprinting textbooks and other written works. The campaign – given the operation name “Autumn Wind” – will run from February to September and cover 40 cities. More here (in Chinese).

Also in China the UK's ever useful IPO China IP newsletter tells us that Deputy Chief Judge of the Supreme People’s Court Tao Kaiyuan has called for the establishment of one single, specialist IP appeals court to hear cases from across the country. Currently appeals are heard in provincial-level High People’s Courts. And Shanghai Vice-Mayor Zhao Wen  has again called for the unification of patents, designs, trade marks and copyright into one Ministry-level department.

Three American copyright scholars have released a study into the impact of copyright takedowns on free expression in America: Notice and Takedown in Everyday Practice, by Jennifer Urban (UC Berkeley), Joe Karaganis (Columbia), and Brianna L. Schofiel (UC Berkeley) uses detailed surveys and interviews and a random sample from over 100,000,000 takedown notices to analyze the proportion of fraudulent, malformed or otherwise incorrect acts of censorship undertaken in copyright's name, using the Digital Millennium Copyright Act's takedown procedure. The findings suggest that whether notice and takedown “works” is highly dependent on who is using it and how it is practiced, though all respondents agreed that the Section 512 safe harbors remain fundamental to the online ecosystem. Perhaps surprisingly in light of large-scale online infringement, a large portion of OSPs still receive relatively few notices and process them by hand. For some major players, however, the scale of online infringement has led to automated, “bot”-based systems that leave little room for human review or discretion, and in a few cases notice and takedown has been abandoned in favor of techniques such as content filtering. The second and third studies revealed surprisingly high percentages of notices of questionable validity, with mistakes made by both "bots" and humans. TechDirts take is somewhat evident from the headline DMCA's Notice And Takedown Procedure Is A Total Mess, And It's Mainly Because Of Bogus Automated Takedowns. 

Canadian-based Cirque du Soleil is suing American pop superstar Justin Timberlake, alleging that his hit song "Don't Hold the Wall" illegally borrows from one of the troupe's original musical compositions. A 10-page complaint filed in New York alleges that Timberlake illegally used parts of the song "Steel Dream," taken from Cirque du Soleil's 1997 album "Quidam." More here.

TorrentFreak reports that anti-piracy outfit Rightscorp says that it's working on a new method to "extract cash settlements from suspected Internet pirates". The company says new technology will lock users' browsers and prevent Internet access until they pay a fine. To encourage ISPs to play along, TorrentFreak rather sarcastically points out that Rightscorp says the system could help to limit liability for copyright infringement.

Sweden’s supreme Court has held Wikimedia  guilty of violating copyright laws by providing free access to its database of photographs of artwork - without the artists’ consent. Wikimedia, part of the not-for-profit foundation which oversees Wikipedia, had a database of royalty-free photographs that could be used by the public, for educational purposes or the tourism industry. The Visual Copyright Society in Sweden (BUS), which represents painters, photographers, illustrators and designers among others, too legal action against Wikimedia Sweden for making photographs of their artwork displayed in public places available in its database, without their consent. The photographs were actually portraits of works of art. Whilst the court acknowledged that members of the public were permitted to photograph artwork on display in public spaces, it was “an entirely different matter” to make the photographs available in a database for free and unlimited use: “Such a database can be assumed to have a commercial value that is not insignificant. The court finds that the artists are entitled to that value” and said "It is not relevant whether or not Wikimedia has a commercial aim.”  Damages will be set at a later date. More on the Local here. Image of 'Poundland Jubilee Flag Maker' (2012) by Banksy by Duncan Hull. 

And finally, and again from TorrentFreak - an interesting look at the activities of a London company called Hatton and Berkeley - whose website you can see here and which features a picture of Robert Croucher (Hatton & Berkeley, described as "Managing Director of Hatton & Berkeley, Pro-Copyright advocate, Executive Producer and Film Financier") with  Patrick Achache, "the talented young tech entrepreneur who turned his hand to developing software that tackles digital piracy for the film and TV industries". The UK's Intellectual Property Office has now issued guidance on how copyright trolls operate and how people should handle them.  More here.

Russian court orders VK to implement effective technology to block illegal uploads

Russian social network vKontakte (VK) has been ordered by a Russian court to use effective technology to prevent copyright infringement of the recordings of two record companies.

The IFPI say that the ruling, handed down in the Saint Petersburg & Leningradsky Region Arbitration Court on Monday, is a significant judgment which, when implemented, should improve the environment for developing a thriving licensed music business in Russia. The IFPI is the organisation that represents the global recording industry.  It was supported by the Russian National Federation of the Music Industry (NFMI).

Universal Music and Warner Music had brought copyright infringement cases against VK in April 2014.  The judge issued an oral decision on 28th September, and the full judgments will be handed down in due course.

The court granted the record companies’ request to require VK to use effective technology to prevent the upload of their sound recordings to its service, meaning that VK must remove the record companies’ recordings and prevent them from being uploaded again in the future. The claimaints said 98% of their sound trecordings featuring in the Top 40 UK chart from the past seven years are available on VK's unauthorised music service, and  whilst VK did have a take down procedure, VK's filtering  technology, which was meant to prevent unauthorised uploads, was inadequate and ineffective. The claimants presented expert evidence that VK must be fully aware of the scale of the infringement, not least as VK advertised the availability of infringing tracks through its charts of the 'most downloaded' tracks and its recommendation service to individual users.

VKontakte and Sony Music Russia agreed a confidential global settlement in July 2015.

IFPI Chief Executive Officer Frances Moore welcomed the judgment saying: “This is a very important and positive decision for the Russian music market and for music creators in Russia.   VK’s infringing music service has been a huge obstacle to the development of a licensed business in Russia, making available hundreds of thousands of copyright infringing tracks to more than 70 million daily users. Now, the Russian court has ordered VK to use technology to stop infringements.  This is good news for rights holders in Russia.  We now look to VK to implement the court’s decision and stop these ongoing infringements.”

vKontakte spokesperson Georgy Lobushkin told Billboard: “We are glad that the court supported our position and has declined to impose fines on VK. The court has also ordered that we make our ‘music copyright DMCA technology’ more effective, and we are constantly working on that”. he also criticised the IFPI for commenting “on the judgement in the most advantageous way for themselves” before the final ruling had even been published.


Record companies file legal proceedings against vKontakte for deliberately facilitating piracy on a large scale

VK's press release on the final court decision can be found here: VKontakte Cleared in Dispute with Warner and Universal

Romney and Obama: it's just not fair

A very quick post to relay some news that is making waves over the pond where copyright has reached presidential levels.

As part of his presidential campaign Mitt Romney recently released an advert on YouTube including a clip of President Obama singing one line of Al Green's "Let's Stay Together". The Obama clip is 9 seconds long. You can watch a longer version here.

This use of Al Green's work prompted BMG to issue a takedown notice causing YouTube to remove the advert from its site. Of course the political ramifications of the decision can be argued at great length, and commentators have used the takedown as evidence of all sorts of allegiances, however the fundamental question is whether using 9 seconds of a song in a political campaign constitutes fair use.

The short answer: there is no definition of the meaning of "fair" in the US and there is no single threshold above which use becomes unfair. Instead the courts look at a number of  factors including the amount of the work used, as well as the purpose of the use. In this instance it seems that YouTube was right to remove the content as following Henley v. DeVore, 733 F.Supp.2d 1144 (C.D. Cal. 2010) use by a political campaign of a song protected by copyright is not fair.

What would happen if Cameron employed similar tactics? The mind boggles…

What the Gamato ...! EPOE complaint leads to takedown

From Greek IP practitioner Nikos Prentoulis comes the news that last week, following the filing of a criminal complaint by the EPOE (Society for the Protection of Audiovisual Works - a collective rights management society), the Electronic Crime Unit of the Greek police took down the most famous Greek site for illegal music and movie downloads -- gamato.info. [Explanation by Nikos: "gamato" means very cool, but it stems from the greek word gamo, rendered in the English language by a four-letter expletive much favoured by TV chefs and footballers]. The police raided premises in four Greek cities, including Athens and Thessaloniki, and arrested six people, as moderators and/or "VIP" members of the site. Criminal procedure has been initiated against five more people, two of whom are said to be living abroad.

According to the news (here in English; here in Greek), Gamato essentially provided torrents for P2P file sharing and apparently had more than 850,000 to 900,000 member-users. There was also a good deal of protest against the takedown of the site, including creation of a relevant Facebook group.