THE COPYKAT

Safe as houses?

A new children’s book “Silent Days, Silent Dreams,” is billed as a fictional biography about James Castle, a self-taught artist whose works can be found in museums, art galleries and private collections all over the world. Written for children, the book contains about 150 illustrations by award-winning writer and illustrator Allen Say - but are those illustrations going to cause problems? They might do as the James Castle Collection and Archive (which has the largest privately held collection of Castle’s works) is suing Say and his publisher for copyright infringement in Boise federal court, alleging that many of Say’s illustrations “are intended to evoke and imitate the artistic style of James Castle but some two dozen of the illustrations “are far more than a tribute” and are “similar if not virtually identical copies” of Castle’s work (see left). An injunction is being sought. 

What a difference a decade makes! China's "core network copyright industry" has seen rapid growth over the past ten years, according to a recent industry report. In 2016, the scale of the industry exceeded 500 billion yuan (about $76.5 billion U.S. dollars), maintaining a growth rate of over 30 percent a year, according to a report by the country's Network Copyright Industry Research Centre. In 2006, the volume of the industry was just 16 billion yuan, the report said. The report focuses on China's "network industry," described as network gaming and online content, including video and music. Researcher Tian Xiaojun said "With the continuous increase of copyright protection in China and the upgrade of domestic consumption, China's network copyright industry will have huge market potential and is expected to contribute more to the country's economy growth".

Mike Palmedo and Sean Flynn have released the initial results of research based on  the Program on Information Justice and Intellectual Property of the American University Washington College of Law's Copyright User Rights Database. This research tool maps changes to copyright limitations and exceptions and other “user rights” from 1970 through 2016 in 21 countries of different development levels around the World. Palmedo and Flynn intend to continue adding data from additional countries, but feel that the current data allows us to begin demonstrating how differences in copyright user rights are associated with certain outcomes for innovative firms and researchers. The first results are based on tests of copyright limitation openness and although all countries are trending toward more open user rights, there is a clear gap between wealthy and developing countries. The research shows that developing countries in the sample are now at the level of openness that existed in the wealthy countries 30 years ago. Few countries, and almost no developing countries, have sufficient user rights most needed to support the digital economy, including for transformative use or text and datamining. The authors say "To date, there has been very little empirical work exploring how the structure of copyright limitations and other user rights shape outcomes in industries that rely upon them. One reason for this lack of empirical research on the impact of copyright user rights has been the absence of a tool to measure the key independent variable – changes in copyright user rights over time among a broad set of countries. We hope other researchers will find the Copyright User Rights database to be a useful tool for further empirical research on copyright user rights". More here. 

Last week, Motherboard discovered that one of Google's machine learning algorithms was biased against certain racial and religious groups, as well as LGBT people. The Cloud Natural Language API analyzes paragraphs of text and then determines whether they have a positive or negative "sentiment." The algorithm rated statements like "I'm a homosexual," and "I'm a gay black woman," as negative. After the story ran, Google apologised. Now Motherboard are posing the conundrum: "Copyright Law Makes Artificial Intelligence Bias Worse - But it could be used to help fix the problem too" adding "Copyright law has historically exacerbated bias in artificially intelligent algorithms, but it also has the capability to vastly improve them. If companies knew they were protected legally, they would also be more likely to release the data their products were trained on, allowing academics and journalists to do their jobs."

Broadcaster ESPN have been forced to face a trial that alleges copyright infringement after a Mississippi federal judge denied the sports giant's motion for summary judgment. The dispute centers on two documentaries about the life of college football player Chucky Mullins, who was paralyzed during a 1989 game between University of Mississippi and Vanderbilt University while tackling Brad Gaines. Mullins died as a result of complications from his injuries in 1991. Charles Smith Jr. and his production company 38 Films us now suing ESPN and others for breach of contract, fraudulent misrepresentation and copyright infringement, among other claims. They say the 2014 ESPN documentary "It's Time: The Story of Brad Gaines and Chucky Mullins" used his footage without paying an orally agreed upon license fee or giving appropriate credit. Smith claims he understood the ESPN documentary to be about Gaines and he agreed in an oral contract to license footage from his film at a rate of $3,000 per minute used and Ginn gave Yamano their entire archive of digital files. Meanwhile, the defendants say their film is about Gaines, not Mullins, and that they didn't use any footage actually featured in Undefeated or owned by 38 Films.

And news of developments in the legal battle going between photographer Jon Tannen and the giant online media company CBS. After being sued by the photographer for infringing his photo copyrights, CBS has responded by filing its own copyright infringement lawsuit against the photographer… for sharing 59-year-old TV show still frames on social media. More here.  This is the second time the photographer has accused CBS Interactive's 247 Sports senior writer Alex Gleitman of misusing photos in his articles, initially tweeting "To Alex Gleitman. You're violating copyright law. Photo Jon Tannen" and "@Alex Gleitman You've used my photos illegally again. REMOVE THEM NOW. Never asked by permission. Your own logo.Are you stupid? @jtanne". Glietman responded by saying that he has been give the images by the player featured, and had subsequently added a credit. 

And talking of all things American Football and copyright, Eleonora Rosati has posed the question "Can a tweet containing an unlicensed photograph amount to a copyright infringement by the person who embeds such tweet on their own site?" on the IPKat. European readers will of course be familiar with the less than clear judgments in BestWater and subsequent case law, notably GS Media - and in Europe, linking can fall within the scope of the right of communication to the public within Article 3(1) of the InfoSoc Directive, although different considerations must be undertaken depending on the case at issue, including whether the link provider is aware of the unlicensed character of the content linked to and/or pursues a profit.  This very question is now being asked in the US, where a photographer working with Getty Images has raised issues of linking and copyright under US law: Justin Goldman, has sued a number of publishers over the unauthorised embedding, by their relevant publications, of a tweet containing an unlicensed image of American football quarterback Tom Brady that he had taken. Images from http://maxpixel.freegreatpicture.com/Sport-Quarterback-American-Football-Competition-67701/ 

Google is fighting on in the Equustek case, now in the US. Readers will remember that the Canadian Supreme Court in Google Inc v Equustek Solutions Inc, 2017 SCC 34 affirmed a decision from the Supreme Court in British Columbia and ordered Google to delist a tech company’s entire website worldwide. The web giant has now told a Californian court that that the ruling conflics with the freedom of expression rights contained within the First Amendment, and that the Canadian Supreme Court had no right meddling with the American constitution.  Google’s lawyer Margaret Caruso said “This is about whether a trial court in a foreign country can implement a law that is violative of the core values of this country … imagine if we got an order from North Korea that said we could not publish anything critical of Dear Leader. Imagine if Russia doesn’t like what people are saying about Putin. It would be very dangerous to deny relief in this instance”. Courthouse News says "Underscoring the bizarre nature of the proceedings, no attorneys for Equustek Solutions or the Canadian court system showed up, allowing Caruso to state her case to U.S. District Judge Edward Davila unopposed."

And finally, CMU Daily reports that "According to law firm RPC, the three leading claimants in the [UK's] High Court in the year up to 31 Mar 2017 were all in the business of copyright. And two of them music copyright." Leading the way with 106 cases to court was the UK's recorded music collecting society PPL, while its counterpart in music publishing, PRS, came in third with 27 cases. The Football Association is in second place having filed 39 cases, mainly seeking to protect its intellectual property rights against those illegally accessing or airing footage of football matches.

The Spanish hunt for websites providing hyperlinks

From our friend and Entresijos y Tesituras blogger Irene Palomino (@IriniPalomino) comes the following guest post on the current situation in Spain regarding internet-facilitated copyright infringement and linking sites:

The New Year brought the new Spanish IP regulation into force.

A significant and novel feature of the New Spanish legislation is its explicitly increased focus on copyright infringers in the online environment. The main target of the new legislation is the inclusion of websites that provide classified and ordered hyperlinks which give access to protected materials. This approach is entirely at odds with current Spanish jurisprudence – in particular the decision in Audiencia Nacional of Quedelibros v SGAE (decision here; discussed here, both in Spanish) which stated that it is against the law to treat these intermediaries as autonomous infringers without taking into account the status of the owner of the website who hosts the material.

Nevertheless, this new law suggests another version of things, regarding the operators of these websites as independent infringers. The legislature, far from restraining itself, considers not only websites hosting classified links to be infringers but also those which allow linking publications on their website. This means that all website owners must be extremely careful about what is going on in their forums and comments spots.

In order to enforce these new rules, the procedure for fining those potential infringers has been revised through a special governmental institution called La Comisión de la Propiedad Intelectual Sección Segunda (‘the Commission’, explained in Spanish here).

Reassuringly, in order to define what is considered an infringer, account is taken of the Spanish audience making use of those websites that provide suspicious hyperlinks and quantities of unauthorised protected work available via hyperlinks from those websites.

There is always a dark side and, in this case it deals with how the new procedure works.

In order to report an infraction, copyright holders must address a notification in the form of an email to the website in question, alleging a violation of his/her rights. Since an answer is not required in order to initiate proceeding, after three days we are entitled to begin the process. If an email address is not provided on the website, a simple petition addressed to the Commission will suffice and it will be announced in the Official State Gazette (Boletín Oficial del Estado).

As a first step, the Commission will notify the website about the alleged infraction. Within the timeframe of a maximum of 48 hours, two options arise: on is to delete allegedly infringing materials and the other is to prove one’s innocence.

Paradoxically, if materials are deleted, websites might be subject to a civil action, given that this response can be equated with an implicit acceptance that one has infringed copyright.

Where website owners do not delete hyperlinks, the Commission can make use of heavier weapons: after obtaining a judicial authorization, the Commission holds two options. The first is to ask the electronic payment services and advertisement services to cease any relationship with the websites, which results in economic pressure. The second is to ask the ISPs to trace users as well as website owners in order to bring blocking injunctions against them. It is imperative that these petitions be justified by an effectiveness report, balancing the proportionality of the measures inquired. This reasoning is in line with UPC Telekabel jurisprudence. Nevertheless, it is still unclear how users of this procedure can assert their rights and how the courts can control these injunctions, since the prior judicial authorisation required is exclusively for formal purposes. Finally, fines range from €150,001 to €600,000 and, where the domain is not from the EU, access to it from within Spain may be blocked for a maximum of one year.

As if this was not enough, the infringer may be subject to further civil, administrative and penal action.

Curiously, it is the first time in the EU that we encounter this sort of specification concerning hyperlinks where the prosecution of this questionable practice is established by a special authority. This is a good moment to look back to the Svensson and BestWater CJEU decisions and observe how the Spanish have done their homework in order to clarify unknown factors arising from these EU decisions.

Finally, the new ruling also introduces a new Article into the Civil Procedure Code where, in preliminary trial research, a private party may require the ISPs to provide users’ identification in order to bring an action to protect intellectual property rights. This is a bit scary if one considers that this possibility leaves the window open to jeopardize users’ right to privacy. As we can well remember in the recent decision of the CJEU in Digital Rights Ireland, the Court ruled that rights of users must not be violated unless there existed a major reason to do so, such as a serious crime. One might say that this new civil procedure amendment could be used as a subterfuge to avoid the criminal procedure’s more rigorous conditions.

We will soon see how those websites behave and if they are efficiently blocked. I am eager to see the influence of this new law in other regulations.

Further reading:
El Pais, "Spain’s new intellectual property legislation: the key points", here