The CopyKat - oh the excitement, just four days to World Intellectual Property Day !

New Zealand internet service providers who allow users to bypass geoblocks to access overseas digital content have been threatened with legal action by four of the country’s major media broadcasters. State broadcaster Television New Zealand (TVNZ) and pay-television operators Sky, Lightbox and MediaWorks, have confirmed they are preparing legal action against Call Plus and Bypass Network Services on the basis of breach of copyright. Both ISPs offer a “global mode” to their users which gives them access to content that is unavailable in their country, such as subscriptions to a US account of streaming service Netflix.

Now a bit of self publicity. Readers may know that the CopyKat (in his real life identity) edits Music Law Updates.  Now, whilst MLU will continue as a monthly 'journal' style online publication (as it has for the last decade and more), we now have a blog for those of you eager to get your paws on the latest legal news from the music industry. And where will you find that blog I hear you ask - well its all here! http://www.musiclawupdates.blogspot.co.uk/. For those interested, Music Law Updates covers interesting copyright updates in music and sound recordings, but also extends into the heady heights of Trade Marks, Contracts, Negligence and Personal Injury, Health & Safety, Licensing, Criminal Law and even Competition Law and Taxation on the odd occasion! But all in the context of the music industry.

Aereo - the TV streaming service which the US Supreme Court effectively closed down when it ruled the 'mini antennae' system it used infringed the copyright of broadcasters, will pay around $950,000 to settle copyright allegations made by CBS, FOX, and ABC - who had originally been looking for nearly $100 million.  Now in bankrupcy, Aereo still faces $7.5 million in claims from creditors, but only has $811,000 left to pay those bills. More here and  re Aereo Inc., 14-bk-13200, U.S. Bankruptcy Court, Southern District of New York (Manhattan).

Tucked away inside the 500-page Canadian budget unveiled in Ottawa was a single sentence that, whilst expected at some point as Canada comes t terms with the Trans Pacific Partnership agreement, has already promoted widespread comment. In a section about “celebrating our heritage,” the budget vows to update the Copyright Act “to protect sound recordings and performances for an additional 20 years,” raising the copyright term for musical works from 50 to 70 years "and potentially signalling further restrictions on works of art yet to be unveiled" according to critics who say that the extension is unwarranted and unjustified. Tamir Israel, staff lawyer at the Canadian Internet Policy & Public Interest Clinic at the University of Ottawa said “There is no proof at all the extended copyright term in any way increases incentives to create. On the other hand, Canadians are robbed of open access to works that should be entering the public domain.”

With its copyright soon expiring, the future of Adolf Hitler's Mein Kampf has been repeatedly in the news. Now Peter Longerich, professor of modern German history at Royal Holloway, University of London, who has published a new biography of Goebbels, is facing a claim from Goebbels' heirs because his book quotes from Goebbels' diaries. Cordula Schacht – a lawyer whose own father, Hjalmar Schacht, was Hitler’s minister of economics – is suing Random House Germany and its imprint Siedler, over Longerich's book Goebbels. With Germany's term of copyright for literary works being life of author plus 70 years, Hitler's minister of propaganda's work will also enter the public domain on the 1st January 2016. If this gets to court it may be an interesting case - not least looking at who actually owns any copyright in Goebbel's writings, but also at how far Professor Longerich is protected by exceptions to copyright in Germany, in the UK and possibly in the USA. Rainer Dresen, general counsel of Random House Germany, told the Guardian that an important principle was at stake. “We are convinced that no money should go to a war criminal,” he said.More on TechDirt here.

The Bookseller tells us that a global piracy ring has been found guilty in a US federal court of intentionally infringing copyright, sharing copies of books from up to 16,000 international publishers. The maximum damages allowed under US law - $37.5m – were awarded. The case of Elsevier Inc v Victor Kozlov and Pavel Kazutsin, which was brought to court as a joint action by the global publishing industry, concerned the defendants' websites Avaxhome and Avaxsearch, which illegally provided access to digital copies of millions of books, as well films, music, games and other copyrighted content.

And finally, Swedish prosecutors are preparing to argue their case in court as to why The Pirate Bay's flagship .se domains should be deactivated or put under government control, as copyright enforcers continue to try and make it harder for piracy platforms to operate.

World Intellectual Property Day. 26th April 2015. 

The CopyKat - last Christmas you ......

As Eleonora reports over on theIPKat, Google has announced that it will be permanently shutting down the Spanish version of Google News, effective from December 16, 2014. The shutdown comes in direct response toamendments to the Spanish intellectual property law (Ley De Propiedad Intellectual) imposing a compulsory fee for the use of snippets of text to link to news articles, by online news aggregators that provide a search service. Google says its news service makes no profit and so hasd decided to pull the service out of Spain.  Richard Gingras, Head of Google News, said "[t]his new legislation requires every Spanish publication to charge services like Google News for showing even the smallest snippet from their publications, whether they want to or not. As Google News itself makes no money (we do not show any advertising on the site) this new approach is simply not sustainable."

Finland has decided to ditch copyright levies on digital devices. Instead a special government fund will be set up to compensate artists for private copying of music and movies. Following a Parliamentary  vote, Finnish MEP Henna Virkkunen said the new system would be “fairer to consumers and better better for artists because they will get more compensation this way”. Even Veronique Desbrosses, general manager of GESAC, which represents authors’ rights, agreed that increased compensation for artists was a positive element, saying “private copying compensation is part of the ecosystem and is essential”.

Chief Judge
Alex Kozinski 

With the eleven person en banc Ninth Circuit panel set to begin to re-hear arguments in Garcia v. Google case today in Pasadena, a number of Silicon Valley technology companies are amongst those resisting Cindy Lee Garcia's quest to "scrub the internet of her 5-second appearance in the controversial trailer for Innocence of the Muslims". Those against actors gaining a recognised copyright in their performances include Netflix, and the remaining amici range from law professors to news organizations, public interest groups to the Screen Actors Guild-American Federation of Television and Radio Artists—the last being the lone brief endorsing Garcia's copyright position. But interestingly no other major content owners from the film, TV or recorded music sectors have joined the battle: yes they want Google to take down infringing items - but no - they don't want performers and recording artists having any rights that might restrict their own commercial objectives. Google, the California Broadcasters Association and the American Civil Liberties Union all "foresee dire consequences if a U.S. appeals court doesn’t overturn a first-of-its-kind ruling" given by Chief Judge Alex Kozinski that gave actress Cindy Lee Garcia a copyright interest in her performance. Small filmmakers have also weighed in, backing Google; Jack Lerner, an assistant clinical professor at UC-Irvine School of Law, helped write an amicus brief on behalf of the International Documentary Film Association, other independent film groups and filmmakers including Morgan Spurlock, whose "Supersize Me" was nominated for an Academy Award. The California Broadcasters Association said that if the February ruling stands, it will open the floodgates to demands by minor players in movies for the removal of their performances from the Internet. More here.


Torrentfreak now reports that the Motion Picture Association Of America is now looking to secure web-blocks in the U.S without requiring new U.S. legislation. It seems having originally investigated how it might resurrect the web-block elements of SOPA/PIPA in Congress without causing so much controversy (which seems to have been a fanciful hope!)  - the MPAA has now opted for seeing if it can find a way to secure web-blocks in the American courts under existing laws, without requiring new legislation to be passed.

For the past three Decembers, a new musical tradition has been quietly taking root in the recorded music sector, stemming from the 2012 revision to European Union copyright law providing that sound recordings would be protected for an extended 70 years (rather than 50). But attached to that extension was a crucial proviso: in order to qualify for the extra 20 years of protection, the recordings had to be released within the first 50 years after they were made. Now Bob Dylan is said to be releasing a nine-LP box set of unreleased material from 1964, to keep the recordings from entering the public domain. The Beach Boys, The Byrds and The Kinks  are also due to release material although a number of websites noted that Universal Music is running out of time if it wants to reboot the copyright in any unreleased Beatles recordings from 1964. This time last year the major and the band's Apple Corps released 'The Beatles Bootleg Recordings 1963' onto iTunes. 

The one-time pirate website FilesTube has been officially "un-blocked" in the UK after relaunching itself as a licensed video aggregator. UK internet service providers were ordered to block their users from accessing  the site by the High Court in an action brought by record industry trade body the BPI in October last year. A relaunched Filestube is now as an aggregator of only legitimate content. and according to Torrentfreak, FilesTube's Poland-based operators had anticipated having to go the English High Court to get their domains unblocked, but the BPI had been monitoring the situation and voluntarily requested the block be removed. Indeed the BPI's General Counsel Kiaron Whitehead told TorrentFreak: "We are pleased that the block has encouraged FilesTube to change its business model so that it no longer appears to infringe music rights. Accordingly, we have agreed to un-block the site, which the ISPs will implement over the next few weeks. We hope that other sites which are subject to blocking orders will follow suit and help to support the development of legal digital entertainment".

Following on from our last blog and from TorrentFreak comes the opinion: "The Pirate Bay was taken offline in a police raid in Sweden. It may only have been the front-end load balancer that got captured, but it was still a critical box for the overall setup, even if all the other servers are running in random, hidden locations. Sure, The Pirate Bay was old and venerable, and quite far from up to date with today’s expectations on a website. That tells you so much more, when you consider it was consistently in the top 50 websites globally: if such a… badly maintained site can get to such a ranking, how abysmal mustn’t the copyright industry be?

IPO consultation on Directive 2011/77

Enthusiastic musical response to IPO's consultation ...

As not all 1709 Blog readers and email subscribers also read the IPKat, we do not want that they remain unaware of the public consultation which the UK Intellectual Property Office (IPO) has just launched. This is aimed at gathering the views of relevant stakeholders (including musicians, record producers, lyricists and composers and representative organisations and individuals) on the draft regulations that will transpose Directive 2011/77/EU into UK law.

This directive was adopted in September 2011 and extended the term of protection for performers and sound recordings from 50 to 70 years (Jeremy's post here). The underlying idea was that performers' protection was to be brought in line with that already afforded to authors.

At the time of its adoption,  EU Commissioner Michel Barnier felt confident that

... which needs to be in writing though

"[the] decision to increase the term of protection for musicians' copyright from 50 to 70 years w[ould] make a real difference for performers ... With increasing life expectancy, the previous 50-year protection term was clearly insufficient. Despite the fact that their music and songs are still popular, today many performers are left without income when they are older. The increase to a 70-year term means performers can still receive remuneration when their music is played once they have retired. [This] agreement gives performers the recognition and reward they justly deserve for their creative contributions to society and stimulates creation for future generations of music fans".

While requiring the UK to extend the length of copyright term in sound recordings and performers' rights in sound recordings, the directive includes specific provisions for performers, and also provides for the harmonisation of the copyright term for co-written musical compositions with words.

The closing date for IPO's public consultation is 4 March 2013. Any comments should be sent, preferably using the appropriate response form, before the closing date to:

Nick Ashworth

Intellectual Property Office

Concept House
Cardiff Road

Newport

South Wales

NP10 8QQ

United Kingdom

Email Term Directive Consultation team
Fax: +44 (0) 1633 817777

Honey to the Bee

Money

Honey

In the famous song "Money Honey", written and composed by Jesse Stone, Elvis Presley laments different kinds of money troubles, from demanding landlords to stingy girlfriends and heartless gold diggers, culminating in the demand "I want money, honey!" Elvis Presley Enterprises, LLC, which holds the economic rights in Elvis's estate, shares that sentiment and has been trying to get at the honeypots of Elvis Presley's German record company, Arista Music.

On 23 November, Landgericht München I (Regional Court of Munich I - yes, for whatever reason Munich has two of those, but copyright enthusiasts need not bother with the second one) handed down its judgment in the case. The claim was struck out, but apparently for different reasons than the ones I suspected in my previous post on the matter (see here). According to the suitably entertaining press release (as always, the written judgment will be some time coming), entitled "I want Money, Honey!" and available here, the claimant mainly relied on two arguments:

Additional Remuneration due to Extended Term of Protection

First, the German term of protection for sound recordings (protected under a neighbouring right, not copyright) was extended in 1990 from 25 to 50 years after first publication. Accordingly, the term during which money could be made (and presumably used to buy, among other things, honey...) suddenly doubled. The claimant argued that nobody had seen this development coming in 1973 and that in hindsight the remuneration Elvis received was therefore much too low. The claimant also pointed out that the new provisions explicitly introduced a right to additional remuneration because of the extension of the term of protection.

This claim refers to § 137f (4) UrhG, a transitional provision I admittedly overlooked in my previous post. The provision reads:

"If prior to 1 July 1995 an exploitation right concerning the subject matter of a neighbouring right that continues to be protected under this Act has been granted or assigned to another, in the event of doubt such grant or assignment shall be deemed to cover the period by which the term of protection has been extended. ²The application of sentence 1 shall be subject to payment of equitable remuneration.

It seems like rather a good idea to invoke § 137f (4) UrhG, but the court disagreed. It held that the 1973 buy-out contract between Elvis and the record company was valid. The wording of the contract explicitly covered any claims for additional payments arising out of any extensions of the duration of protection. The claim for additional remuneration that was introduced at the same time as the term extension did not lead to a different result. According to the court, the claim for additional remuneration is not mandatory and unwaivable. Contractual agreements that derogate from the provision are possible, and the contract between Elvis and his record company was such a contract.

Fairness Compensation

Secondly, the claimant argued that since 2002 there has been a legal obligation to pay additional "fairness compensation" if the consideration the artist received is strikingly disproportionate to the profits made from exploiting the work or performance, and that the requirements were met in the case at hand. That claim was based on §§ 32a, 79 (2) UrhG (also see previous posts here and here).

According to the view of the court, however, the provision governing the effects of term extension (§ 137f (4) UrhG) is lex specialis to the general duty of those who exploit the work to remunerate the artist adequately (§§ 32a, 79 (2) UrhG). In other words, §§ 32a, 79 (2) UrhG are not applicable.

Comment

The court's solution as apparent from the press release is certainly elegant, but I think there is a chance the OLG (court of appeal) or the BGH (Federal Supreme Court) might see things differently. I am not entirely sure that the right to equitable remuneration pursuant to § 137f (4) UrhG really could be waived in advance. In my opinion, there are good arguments for both sides, though, so I wouldn't bet any money (or honey) on claimant's chances.

However, I have difficulty seeing § 137f (4) UrhG as lex specialis to §§ 32a, 79 (2) UrhG. In any event, the claim should in my view still fail for he reasons given in my previous post. I would also be interested in some judicial insight as to whether the claimant actually had legal standing in the § 137f (4) UrhG claim - i.e. whether like the § 32a UrhG right the right to equitable remuneration pursuant to § 137f (4) UrhG is incapable of being waived or transferred in advance - because in that case Elvis's daughter would be the right holder, and not Elvis Presley Enterprises, LLC.

The good news is that we may actually receive answers to any or all of these questions because counsel for claimant have already announced that they will appeal the judgment and take the case all the way to the BGH if necessary.


Honey Money here
Honey and the Money here
Honey to the Bee here
Pooh's Hunny Hunt here