More on that Bezpečnostní softwarová asociace ruling

In "The Lionel, the Bezpečnostní softwarová asociace and the Wandering Court of Justice", the IPKat hosts a thoughtful summary by Professor Lionel Bently of the e-discussions which he has been having with a number of leading copyright lawyers about the recent of the Third Chamber of the Court of Justice of the European Union in Case C-393/09 Bezpečnostní softwarová asociace –Svaz softwarové ochrany v Ministerstvo kultury and its potential impact on common law jurisdictions such as the UK and Ireland where the categories of copyright-protected subject matter are closed, being limited by statute.

You can read Lionel's piece and are invited to make your comments on it here.

Viacom v YouTube

Follwing YouTube's summary judgment success in the Viacom litigation last year when Judge Stanton held that YouTube was able to benefit from the Safe Harbor provisions in the Digital Millennium Copyright Act because it did not have actual or constructive knowledge of every specific YouTube URL containing infringing material on the site, The IPKat now has a very good update and summary of Viacom's appeal in the US by Annsley Merelle Ward. Those of you who get the IPKat email updates will know this - and for those of you who don't subscribe to the IPKat - why not? Its marvellous and its free!

http://ipkitten.blogspot.com/2011/01/letter-from-amerikat-i-viacom-v-youtube.html

http://ipkitten.blogspot.com/2011/01/letter-from-amerikat-ii-viacom-v.html

Introducing Art and Artifice

It's not specifically copyright-oriented but already carries plenty of copyright content: it's Art and Artifice, a new art-and-law weblog.  This weblog covers all aspects of art -- particularly but not limited to visual art -- and its points of intersection with the law.

 The team consists of Simone Blakeney (McCann Erickson), Rosie Burbidge (Forsyth Simpson) and Louise O'Callaghan (One Essex Court), with a little assistance from 1709 Blog team member Jeremy.  The blog already has an archive reaching back to October of last year, plus all the usual functionality -- and, as you might expect, lots of illustrations.

You can visit Art and Artifice here.

Willy the Wizard falters in the US, but can he still pull a rabbit from

The BBC report, "Harry Potter plagiarism case dismissed" (here), will not have escaped the eagle eyes of 1709 Blog readers.  The headline refers not to the ongoing litigation in England and Wales between the estate of Adrian Jacobs and the JK Rowling crew, which is set to go to a full trial (see earlier posts on the 1709 Blog here and on the IPKat here) but to its United States counterpart.

In both the US and England and Wales actions Jacobs' estate has claimed that the plot of Harry Potter and the Goblet of Fire plagiarised parts of his earlier Adventures of Willy the Wizard. Judge Shira Sheindlin has however concluded that there were major differences between the two works, which were "distinctly different in both substance and style", adding that "the contrast between the total concept and feel of the works is so stark that any serious comparison of the two strains credulity."

While Mr Justice Kitchin, in the England and Wales proceedings, doubted that the claim would succeed at full trial, it must be remembered that the test of infringement in the United Kingdom does not turn on whether there are major difference between the works in substance or style, or whether the contrast between the two is so stark as to strain credulity, but boringly whether there has been a reproduction in the later work of all or a substantial part of the earlier one -- and a part doesn't have to be very big in order to be  substantial.  This blog accordingly waits with unfeigned excitement to see whether, as has been predicted, the action will fail or whether Willy the Wizard will have just enough magic in him to achieve a result against his best-selling foe.

The PPL provision II: PPL secures not-for-profit levy

Christmas is over – and from January 1st 2011 Phonographic Performance Limited, the record and recording artists collection society, have secured the removal of an exception in music licensing rules which enables PPL to collect from charities and not-for-profit sector. The sector had enjoyed an exemption from the Copyright Designs and Patents Act 1988, although this did not include an exemption from PRS payments which are collected on behalf of publishers and songwriters. PPL has extensively lobbied to have the exemption for music use in village halls, community halls, student nightclubs and council buildings to be removed and bring the UK in to line with European law (the European Copyright Directive and the Copyright and Related Rights Regulations 2003) and provide remuneration for performers and record companies. PPL and VPL chairman and chief executive Fran Nevrkla told Music Week “From a business point of view the countless artificial exceptions and exclusions in existence gave the excuse to many licensees to avoid payment for use of sound recordings” and Nevrkla added, “On my part I was not prepared to accept a situation which meant that the rights of our constituents, both the performers and the record labels, were being constantly downgraded”. New tariffs have yet to be set and the number of organisations that will require a licence unknown, PPL’s Director of Government Affairs, Dominic McGonigal, says it is impossible to calculate how much PPL will collect from the sector in the future following the changes. There will also be a year’s grace period and during this period PPL and the charity sector will sit down to negotiate rates and how the scheme can be implemented. Music Week say that it is already envisaged that there will be a blanket licence for some village halls and community centres and small charities using these facilities will, therefore, not need to obtain a separate licence. Performers who receive payment can choose to donate their revenues to charities of their choice

PPL will continue not to license the use of sound recordings in NHS hospital wards, religious services, domestic use in care homes and in medical treatments taking place in NHS hospitals

http://www.musicweek.com/story.asp?sectioncode=1&storycode=1043770&c=1

http://www.ppluk.com/en/Music-Users/Information-for-Charities/

http://www.prsformusic.com/SiteCollectionDocuments/PPS%20Tariffs/CB-2010-04%20Tariff.pdf

The PPL provision I: Right to free use of sound recordings in student bars removed

A little noticed statutory instrument that came into force on 1 January, the snappily entitled "The Copyright, Designs and Patents Act 1988 (Amendment) Regulations 2010" - SI 2010/2694.

In it, the government has tacitly signalled its capitulation (after a battle lasting nearly 15 years) to the record industry - led by collecting society PPL - who have long maintained that sections 67 (playing sound recordings for clubs and societies) and 72 (free public showing or playing of broadcast) of the CDPA are inconsistent with the rights granted to sound recording producers and performers by the Rental Right Directive.

The effect of the SI is to repeal section 67 and to remove sound recordings from section 72 (which still applies to broadcasts and to the films incorporated in them). Because an earlier set of amendments had limited the impact of those sections to commercial users of sound recordings, the principal impact will be that the not-for profit sector - village halls, student nightclubs etc. Will PPL be the target of the next bunch of student demonstrations?

This decision should not be a surprise to anyone - the consultation took place back in 2008 and the Government response committed them to implementing the changes by April 2010.

Some concrete issues concerning abstracts

Not so scientific -- abstract
work by Paul Klee

In the United Kingdom the Copyright, Designs and Patents Act 1988, section 60(1) states:

"Where an article on a scientific or technical subject is published in a periodical accompanied by an abstract indicating the contents of the article, it is not an infringement of copyright in the abstract, or in the article, to copy the abstract or issue copies of it to the public".

This is echoed in a somewhat different form by the Irish Copyright and Related Rights Act 2000, section 90 of which states:

"Where an article on a scientific or technical subject is lawfully made available to the public in a periodical accompanied by an abstract indicating the contents of the article, it is not an infringement of the copyright in the abstract or in the article to copy the abstract or to make available to the public copies of the abstract or to include the abstract in any other work".

I was wondering whether the availability of scientific and technical abstracts emerged from as an idea: I don't recall seeing it as a defence or an exception under the Berne and Universal Copyright Conventions, and it's not in the US Title 17 or the EU Directives. Nor, despite its obvious value to the patenting community, is it mentioned in the Paris Convention or the Patent Law Treaty.

Three quick questions: (i) do any other countries make specific provision for the unauthorised use of abstracts in this way? (ii) in the absence of such a provision, is it even an infringement to do the specified acts, or could we argue that there is a presumed implied licence to use an abstract for this purpose, by virtue of its very existence and function; (iii) do we even care -- or are people actually litigating over abstracts?

Happy New Year and Welcome to the Public Domain

Holidays, festivals and parties abound as the year turns from one to another.  As we recover from all the celebrating, let us not forget one of copyright’s biggest days buried in the midst of all the punch, eggnog and streamers: Public Domain Day.

As is usual for this most festive of IP days, many posts around the blogosphere are listing works that have entered the public domain, works that would have entered the public domain under previous copyright laws and parties and events celebrating it all.

Picture: A page from this blogger’s favorite public domain work

To help you parse through all the delectable free delights, here’s a smattering of some of the goodies the blogosphere has to offer:

• Publicdomainday.org  An entire website dedicated to the special day.  There’s a color-coded map of copyright terms around the world [oooooh, that’s going to be helpful at work], a list of upcoming public domain related events [the next one is in Torino on 22 Jan] and the Public Domain Manifesto, which you can sign and see your own name on if you have the patience to scroll to the bottom of the very long list of signers.
• The Public Domain Review  Part of the Open Knowledge Foundation site, the Review features in depth looks at works in the public domain this year and the works’ creators.  So far, it appears there is only one review, of American author Nathanael West.  However, the year is young and the Review site is designed to accept contributions from many sources.
• Publicdomainworks.net has a list of authors whose works are entering the public domain in jurisdictions where the copyright term is life of the author plus 70 years.  [The many red countries on the Public Domain Day map.]
• Duke Law has a list of items that would have entered the public domain in the United States had the 1909 Copyright Act still been effect today. 

On a related note, the Duke website also has a sad blurb about Public Domain day in the US:

“What is entering the public domain in the United States? Sadly, we will have nothing to celebrate this January 1st. Not a single published work is entering the public domain this year. Or next year. Or the year after. Or the year after that. In fact, in the United States, no publication will enter the public domain until 2019.”

This last statement is not entirely true.  Americans do get something, just not in the traditional sense of expiration of the term of protection on a long existing work.  At least two exceptions jump out to me, maybe some readers know of the others.  The first is a specific work, the second applies to many works.

Late last year, in 2010, Mark Twain’s memoirs were published.  Twain had requested that the memoirs not be published until 100 years after his death.  That’s long enough that under current copyright laws everywhere, the work should be in the public domain.  However, there seems to be some dispute as to whether or not the memoirs are in the public domain or whether Twain’s estate has a copyright in them.  The published book, which contains more material than just Twain’s own memoirs bears a copyright notice, but that copyright notice also says that Twain passed away in 1910.  It seems even the publishers aren’t sure. The issue was explored more in-depth in The Sydney Morning Herald a few months ago.

Even without death and the passage of time, works can essentially enter the public domain if the author chooses.  Tools like CC0 allow an author to note that he is giving up all the rights the law will allow him to waive.  Those of us sitting and pouting in the US because nothing is entering the public domain via expiration of copyright term don’t have to fret too hard; there’s always the works that will be voluntarily placed there.