Infringement stats in Azerbaijan: bad news, or good?

"Majority of Azerbaijan Press Violate Copyrights" is the title of a news item in the latest issue of PETOSEVIC News. For those who relish real evidence, here is some solid fact: some 30 percent of Azerbaijani news portals write their own news stories, while the remaining 70 percent just copy them. This information comes from Azerbaijani Copyright Agency Chairman Kamran Imanov, at the “Copyright in the Mass Media: Problems and Ways of Solution” roundtable held on 14 May.

One might think, from UNESCO's World Anti Piracy Observatory report on Azerbaijan, that the country has a nearly complete set of teeth with which to bite copyright infringement. After all, has there not been lots of capacity-building and plenty of training sessions for enforcement officials? But capacity-training and public sector perks are no use so far as most ordinary copyright owners, left to enforce their own rights privately, are concerned. Given that the lack of copyright enforcement in Azerbaijan has been strongly criticised by the International Intellectual Property Alliance (IIPA), the remarkable thing is not that 70 percent of Azerbaijani pressmen do infringe copyright but that 30 percent -- that's nearly one in three -- don't.

Parody: a new title

The web page says this book isn't published yet (it isn't officially out till August), but I spotted a copy on the table in the reception area of Oxford University Press's palatial headquarters in Jericho. The Oxford Book of Parodies, edited by John Gross, is sadly short of detailed analysis of the legislative and case law provisions governing parody as a defence to copyright infringement, private rights versus freedom of speech, transformative use and so forth, but it is rich in enjoyable examples of parody and great fun. Says the web-blurb:

"Parodies come in all shapes and sizes. There are broad parodies and subtle parodies, ingenious imitations and knockabout spoofs, scornful lampoons and affectionate pastiches. All these varieties, and many others, appear in this delightful new anthology compiled by master anthologist John Gross.

The classics of the genre are all here, but so are scores of lesser known but scarcely less brilliant works. At every stage there are surprises. Proust visits Chelsea, Yeats re-writes "Old King Cole," Harry Potter encounters Mick Jagger, a modernized Sermon on the Mount rubs shoulders with an obituary of Sherlock Holmes. The collection provides a hilarious running commentary on literary history, but it also looks beyond literature to include such things as ad parodies, political parodies, and even a scientific hoax.

The collection includes work by such accomplished parodists as Max Beerbohm, Robert Benchley, Bret Harte, H. L. Mencken, George Orwell, James Thurber, Peter Ustinov, and Evelyn Waugh. And the "victims" include Chaucer, Shakespeare, Milton, Wordsworth, Poe, Longfellow, Emily Dickinson, Conan Doyle, A. A. Milne, Raymond Chandler, Agatha Christie, Cole Porter, Ernest Hemingway, Allen Ginsberg, Martin Amis, and many others. The first and longer of the book's two parts is devoted to English-language authors, arranged in chronological order, along with parodies that they have inspired. The second part includes sections on more general literary topics, on aspects of individual authors which transcend the format of the first part, and on a handful of foreign writers".

Sadly I wasn't kept waiting more than a few minutes, so had little opportunity to sample this book's contents -- but it did seem fun.

The Emperor’s New Copyright

For a court decision to cause a hullabaloo and set off doomsday reports of the end of life as we know it isn’t all that unusual.  But for a court decision that leaves the existing law in place to set off that much ruckus, that is unusual.  Yesterday, the 10th Circuit Court of Appeals in the US handed down just one of these cases.

The case is called Golan and it deals with the effect of the TRIPs agreement on foreign works under US Copyright law.  (full pdf decision.) 

The decision, which leaves in tact the restoration of copyright to certain foreign works has been hailed as “Terrible News” and accused of destroying the public domain.  In reality, neither of these lamentations are correct.

What Happened

After the United States signed the TRIPs agreement, it amended its copyright law to be compliant with both the new TRIPs agreement and the old Berne Convention. (“Compliant” as defined by the US.)  The amended copyright act provided new copyright protection to two types of old foreign works: those that had lost their copyright due to non-compliance with a formality (such as failure to renew after the initial term under the US’s 1909 Copyright Act) and those who had not previously received copyright protection in the US because their country had not then been a member of any of the international copyright treaties to which the US was a party. 

This new protection for old works was called “restored copyright,” and authors who wanted their copyrights restored had to provide notice to known users of the works or the US Copyright Office.

That was the law before Golan, and it is still the law after Golan.

Golan’s Challenge

The plaintiffs in Golan were users of those restored-copyright works who had used the works relying on their status as public domain works.  And they had quite a strong group of copyright experts on their team, including the Stanford Center for Internet and Society and Harvard (of Stanford at the time this case began) Professor Lawrence Lessig.  But the arguments in this case were not about copyright law; they were about constitutional law.  And the defendants, the United States government and the United States Copyright Office, they had the Department of Justice on their team.

The Constitutional Claim

This is the second time Golan has been to the 10th Circuit.  The first time it heard the case, the 10th Circuit affirmed the lower court’s holding with respect to two of the plaintiff’s claims, dismissing claims attempting to argue the violation of the “for a limited time” part of the copyright clause in the Constitution. [full pdf decision.]  But the 10th Circuit also remanded the case to the district court to address whether the law violated the plaintiff’s First Amendment rights.

The district court held that the plaintiffs’ First Amendment freedom of expression rights were violated.  The 10th Circuit disagreed.  And here’s where we need to get a bit into United States Constitutional Law.

First Amendment Law in the US
Details for non-Americans and non-attorneys

The freedom of speech granted by the First Amendment to the US Constitution includes the freedom of expression.  The government is allowed to impinge on this freedom within certain parameters and what they are allowed to do depends on the type of speech they are regulating, how they are regulating it and their interest in regulating it.

There are three options for the court in terms of how the court compares these different pieces to decide if the government’s actions are ok or in violation of the Constitution.  These three options are commonly called levels of scrutiny.  Both parties, the district court and the circuit court agreed that the proper level of scrutiny in this case was intermediate scrutiny.  Agreement all around, always nice.

In order for a law to be upheld as constitutional under this medium level of inspection, intermediate scrutiny, the government must show that it has an important governmental interest in regulating the speech and that the burden placed on speech is not substantially more than necessary.

The Government’s Important Reason

The US Government said it had three important reasons.  The court looked at one, said it was important enough and ignored the other two. 

We might expect that the important interest would be that of the government to uphold US obligations under international treaties.  But then again, we might not be surprised to learn that was one of the reasons the court ignored.

The reason the court found important enough to justify the limit on speech caused by restoring copyright to foreign works was the protection of US works abroad.  Congress passed the amendment to the Copyright Act in part because it believed the world would operate on a you-scratch-my-back-I’ll-scratch-yours basis.  Other countries were refusing to restore copyright to US works in their public domains, - the decision mentions specifically Russia – and the US was told its citizens would get copyright in their works when those countries’ citizens got US copyright in theirs.

The court acknowledged the plaintiffs’ rights and the restrictions restored copyright placed on their speech rights, but it summed up the governments’ interest quite eloquently:

“Although plaintiffs have First Amendment interests, so too do American authors.” (p. 14, internal citation omitted.)

The Not-So-Burdensome Burden

The court found that the restored copyright did not burden the plaintiffs’ speech too much because of a special provision put in the law specifically for people in the plaintiffs’ position. 

In addition to restoring copyright protection to the foreign works mentioned above, the law also created some protections for those people who had used the work relying on its public domain status.  The law gave users a twelve month grace period in which to finish selling or using works with restored copyrights and then provided a mechanism for determining licensing fees if the user wanted to continue using the restored work after the grace period ended.

[British readers may be interested in pages 30 – 33 of the decision where the court spends some time comparing the US system of dealing with the burden on these users to the systems enacted in the UK.]

Separation of Powers

Although this part isn’t really necessary for this blog post and is covered well in-depth by the court decision for those who are really interested, I feel it is necessary to address it at least a bit here because of the mis-information out there in some other posts about this case.

The American government has three branches, the judicial, legislative and executive.  It is structured this way to effectuate a separation of powers, where each branch has its own duties.  Legislative decision making, making laws, belongs to the legislative branch – the US Congress.  Interpreting laws belongs to the judicial branch – the courts.

How to structure laws to effectively enact international treaties is the duty of the legislative branch.  It is Congress that holds hearings with all sorts of interested parties, that listens to the RIAA and the MPAA and those who disagree with the RIAA and the MPAA.  It is Congress that decides which interests are most important for the country to protect and decides how those interests should be protected.  And yes, Congress must stay within the confines of the Constitution when making these laws.  Hence the development of the levels of scrutiny as mentioned above.

When the Golan court discusses how and why Congress made its decision to restore copyright, the court is not looking at whether or not Congress made a good decision.  The court is looking at whether Congress’s decision was reasonable in light of the information it had.  When the Golan decision cites some of the testimony from Congress’s hearings, the court is not “actually rel[ying] on testimony about "losses" from an RIAA official.”  The court is simply giving examples of information upon which Congress relied.

The American people might not agree with Congress’s decision, the judges might not agree with Congress’s decision, but that does not mean the decision is unconstitutional.  It is the people who are supposed to have the power to change the law, not the courts.  The people elect their Congressional representatives to represent their positions.  Whether or not that happens is a whole ‘nother issue not related to this case and addressed very well by Lessig at his site Fix Congress First.

Image credit: “The Emperor’s New Clothes” by Vihelm Pendersen, public domain

BPI warns Google over search links

BPI, the UK recording industry’s trade association has sent a cease-and-desist letter to Google, asking the search engine to take down links to nine "one-click hosting" sites, each of which hosts thousands of illegal songs. The BPI cite 38 links "that are available via Google's search engine, and [requests these] links be removed as soon a possible as they directly link to sound recordings owned by [BPI] members". Simple Google search queries such as keying in artist and song names and then a word like 'MP3', 'download', 'upload' or the name of a file-transfer service lead users to illegal downloads on pages of sites that includes MegaUpload, SendSpace and UserShare. Last October, Google removed links to the Pirate Bay – the infamous illegal BitTorrent tracker – from their search index. The BPI takedown request promoted much chatter online yesterday after it was leaked by the Chilling Effects website with some journalists and bloggers claiming this is a new more aggressive initiative on behalf of the BPI.

CMU Daily says that some commentators also note that the document includes not only a list of specific links to infringing content, but also a list of home page links to the services that have aided the infringement, such as MegaUpload, leading to additional speculation that the BPI is stepping beyond the strict remit of America's Digital Millennium Copyright Act and calling on Google to block access to whole website rather than just infringing content. The BPI has denied there is anything out of the ordinary about this takedown notice to Google and BPI Spokesman Adam Liversage told C-Net that such documents were filed with Google on a regular basis by bodies like the BPI and that "in most cases, Google takes down the links in question, following its own internal procedures".

In more encouraging news for the recorded music sector, The Black Eyed Peas' track 'I Gotta Feeling' has become the first ever single to be downloaded more than one million times in the UK.

http://www.guardian.co.uk/music/2010/jun/22/google-bpi
http://chillingeffects.org/dmca512c/notice.cgi?NoticeID=40373

Linkomanija user lives to fight again

"First case against torrent search engine user fails", by Edita Ivanauskienė and Julius ZaleskisLideika (Petrauskas Valiunas ir partneriai LAWIN), was published last month in International Law Office. You can read it here. This article describes Lithuania's first-ever copyright infringement case against a user of a torrent search engine. This action, in which ANVA, the Lithuanian Anti-piracy Activities Association, sought a ruling of administrative liability against a user of Linkomanija, Lithuania's biggest torrent search engine, was apparently dismissed on what were mainly procedural grounds relating to the collection of evidence.

Actions against internet users for copyright infringement have been possible since Lithuania's Code of Administrative Infringements was amended last year, extending the scope of the earlier provisions which could only be invoked against infringements perpetrated for commercial purposes. In cooperation with the police, the association tracked the internet protocol addresses of 106 Linkomanija users who were downloading and seeding the Microsoft Windows 7 operating system. Based on this information, the police issued a statement of administrative infringement against one of the users.

The Kaunas Regional Court, referring to principles of legality and Supreme Administrative Court case law on the collection of evidence, ruled that there was no evidence that the association, as a public institution, was authorized to collect evidence independently, and no information had been provided as to whether the equipment used to track copyright and related rights infringements by internet users was officially certified. Accordingly the defendant's activity had not been shown to amount to an administrative infringement and the case was dismissed. This decision is under appeal.

Influence and the Copyright Tribunal

In a 14-page ruling in Meltwater Holding BV v The Newspaper Licensing Agency Ltd, CT114/09, 10 June 2010, which you can read in full here, the UK's Copyright Tribunal has confirmed that leading barrister Henry Carr QC -- one of the Tribunal's two deputy chairmen -- can represent a client in proceedings before the three-person Tribunal (the chairman is a lawyer; the other members are laymen). The proceedings in question are part of the big battle between contentious news monitoring service Meltwater Holding BV, which is among other things seeking improved terms for a new web database licence offered by the National Licensing Agency Ltd (NLA).

Obviously, if he was representing Meltwater, Carr wouldn't be able to chair the Tribunal at the same time. Accordingly the hearing of Meltwater's application was scheduled to take place before the other deputy chairman, Colin Birss QC. But might the Tribunal's lay members be likely to be affected by the authority of, and pay undue deference to, Henry Carr's submissions of law?

Presumably influenced by Tribunal chairman Judge Michael Fysh QC -- though, we imagine, not unduly so -- the Tribunal concluded that the NLA had not shown sufficiently that there was any real possibility of unconscious bias arising in the lay member's minds. Certainly there was not enough to lead to a real perception of possible bias to the fair-minded and informed observer. Crucial in this decision was the fact that Henry Carr had not actually sat together with the two lay members (Lucy Connors and Philip Eve) whose turn it was to sit with Colin Birss.

You can check out the full complement of Copyright Tribunal members here.

Flickr Teaming with Getty – Good for Copyright Holders?

Yesterday, Flickr announced a new program available to its users – licensing through Getty Images.  Through the program, users can add a “Request to License” link next to their photos.  Viewers who click this link are put in contact with Getty Images.  Getty licenses the photo to the viewer on behalf of the Flickr user and transfers payment from the viewer to the Flickr user.

At first glance, this program may seem like a really good opportunity for photographers.  But Flickr users interested in the Getty program need to think carefully before jumping on board. 

Getty Images is a large, professional, photo clearing house that has been in business for a long, long time.  Although working with Flickr is a foray into the future, Getty is still an institution based on old business models.  This means a lot a lot of legal gymnastics for anyone wishing to participate, as a photographer or a licensee.

You can check out the FAQ section for more information on model license requirements, the 2-year exclusive contract required for the program and other program details.

Beneficial?

As one Getty program user and supporter comments,

“The effort is not minimal. Gathering model releases, unloading full size images, doing any post processing required, filling in photo details, having to book the shot date in about three different places, uploading model releases seperately [sic] for every photo even if you have the same release for 5 photos from one shoot.”

With all this work required to submit photos, plus the restrictions of a two-year long exclusive contract that prohibits anyone other than Getty Images from licensing your submitted photos and photos similar to your submitted photos – yes that includes even you – is there really any benefit to participating?

After all, there really isn’t a need for a third-party intermediary for licensing photos on Flickr.  Every photographer can easily be contacted via Flickr Mail.  Why should it be necessary to ask a third-party for permission when you can already ask the copyright holder directly?  Additionally, many photographers have already granted licenses to use their photos, without the need to contact anyone.

The most apparent benefit, currently, appears to be the vetting.  Photos admitted to the Getty program are thoroughly reviewed by Getty Images and approved for admission to the program.  Knowing that the vetting is already done might make some photo users feel better about the search process for the right image.  However, Flickr has a strong community that can also serve as a vetting process based on how many views, uses and comments a photo receives.

In the end, the program seems to be more of a way for Getty to increase the number of photographers in its pool than to really help copyright owners with licensing.  But perhaps this judgment is coming too early.

Stretching copyright with contract

Copyright has its limits. To what extent can they be pushed by contract law?

GlobalCOAL facilitates the trading of coal and coal derivatives by means of a standard industry contract (‘SCoTA’) and an online trading platform. Traders and brokers who make use of this platform sign a Product Licensing Agreement. Under this agreement, globalCOAL grants licensees a licence ‘under its Intellectual Property Rights in the globalCOAL Products to use the globalCOAL Products and the Trade Marks’ and in return the licensees undertake not to the ‘use the globalCOAL Products’ in certain ways, including transactions with parties that are not other globalCOAL licensees. ‘Products’ include data, prices, indices and contracts developed and published by globalCOAL.

This agreement was scrutinized last week in Global Coal Ltd v. London Commodity Brokers. The court asked itself: is it only globalCOAL’s IP that licensees are undertaking not to use in prohibited ways or does the undertaking extend further, to not using any of globalCOAL’s information and documents? Mr Justice Briggs came to the conclusion that the undertaking related to the Products, not the IP. If London Commodity Brokers had used the Products in brokering trades with parties that were not globalCOAL licensees, it would be in breach of contract even if it had not made use of globalCOAL’s IP.

So when a licensee signs the agreement he finds himself in some ways more restricted than he was before signing it both because much of the ‘Product’ information is in the public domain and because the restricted ‘uses’ go beyond the types of uses that IP law regulates. Briggs J tried to make sense of this by saying that it would be difficult to trade in this market without making use of globalCOAL’s IP, so globalCOAL’s IP ownership gave it de facto control of the Products. This is questionable and hotly contested by the parties: it seems entirely possible for a broker to implicitly refer to SCoTA and globalCOAL’s index without using the trade marks or copying the contract.

Either way, the licensees’ obligations technically extend beyond IP rights. Copyright could never forbid you to refer to a dictionary when you write something. A contract can, perhaps. Moreover, restricting use of the Products was working more efficiently for globalCOAL than enforcing IP: the court found it easier, quicker and cheaper to determine whether a licensee had used the Products than the IP (e.g. copying SCoTA) – and jurisdiction was cleaner too.

But the advantages may not be without their risks. As the judgment draws to a close, it makes a passing reference to ‘potentially serious issues of abuse of dominant position’, but leaves them for another day.