US IP Czar wants illegal streaming to be a felony

The White House's Intellectual Property Enforcement Coordinator, Victoria Espinel, has submitted 20 recommendations to Congress aimed at cracking down on copyright infringement on items ranging from drugs to music and military equipment – calling for more effective law enforcement and tougher penalties for people convicted of copyright infringement. In particular Espinel urged Congress to make illegally streaming copyrighted content online a felony saying that online piracy and counterfeiting are "significant concerns" for the White House causing "economic harm and threaten the health and safety of American consumers".

Espinel has recommended that Congress act to "clarify that infringement by streaming, or by means of other similar new technology, is a felony in appropriate circumstances." Bob Pisano, president of the Motion Picture Association of America (MPAA) commented "Closing the legal gap between two methods of equally destructive illegal behavior - unauthorized downloading and streaming -- adds more clarity to intellectual property law and, frankly, makes good common sense”.

Espinel own Report states that "Foreign-based and foreign-controlled websites and web services raise particular concerns for US enforcement efforts. We are aware that members of Congress share our goal of reducing online infringement and are considering measures to increase law enforcement authority to combat websites that are used to distribute or provide access to infringing products."
The list of proposals suggests that Congress legislates for longer sentences for many counterfeiting offenses, including selling fake military or law enforcement items, trade secrets and bogus drugs. The White House also calls for wiretap authority in counterfeiting and trademark investigations.

The recommendations gathered widespread praise from a range of groups, including the US Chamber of Commerce, which urged the Obama administration to make the US a "miserable place for counterfeiters and pirates". Perhaps unsurprisingly MPAA also applauded Espinel for "recognizing the danger posed to our workforce by theft, both in the online and physical marketplace, and by making the protection of the creative workers and their craft a top priority.

Espinel also included a proposal to allow a levy on terrestrial radio stations for playing recorded music in a move that will bring the USA into line with Europe and which drew support from the Recording Industry Association of America although US broadcasters were less than impressed.

http://www.dmwmedia.com/news/2011/03/15/us-quotip-czarquot-espinel-make-unauthorized-streaming-felony

Image: Ian Britton: freefoto.com

Public domain seminar: a trailer

Brief Encounter popularised
Rachmaninoff's 2nd Piano Concerto
-- but would the film have been a
success if it opted for public-domain
Mozart, as Elvira Madigan did?

With the 1709 Blog's seminar on "What happens to works when they fall into the public domain?" exactly one week away, Professor Paul J. Heald has given us a flavour of what's to come. He tells us:

"The worldwide copyright term extension debate turns on empirical assumptions about what happens to works when they fall into the public domain. Some proponents of extension claim that public domain works will be underexploited; others claim that works will be damaged through overuse or misuse when they cease to have owners.

I'll be presenting the results of three empirical studies that track works before and after they enter the public domain. The focus of his talk will be on bestselling novels and music from 1913-32, with an eye toward the historically availability of novels, the very interesting market for audio books (including a human subjects experiment on the quality of audio books from PD and protected works), and the frequency of the appearance of musical compositions in movies".

If you've not yet registered, there's still time. Despite the short notice, we've already got 23 people coming, and we're expecting plenty more.

Registration and other details can be found here.

Copyright in currency: taking note of the Bank of England

I've recently been asked what the position is with regard to the reproduction of bank notes in the United Kingdom.  The Bank of England has a helpful page, reproduced below, which would tend to suggest that copyright is the least of the problems facing those who would reproduce British currency, since it seems that even those uses which might pass muster under the 'fair dealing' provisions of the Copyright, Designs and Patents Act 1988 risk attracting criminal liability under the Forgery and Counterfeiting Act 1981 (here).

Incidentally, the 1981 Act employs the term "counterfeit" and furnishes a definition of that word -- but it is specific to that Act and is unlikely to be in much use in intellectual property litigation.

Reproducing Banknotes

Introduction

Under section 18(1) of the Forgery and Counterfeiting Act 1981 it is a criminal offence for any person, without the prior consent in writing of the Bank of England, to reproduce on any substance whatsoever, and whether or not on the correct scale, any Bank of England banknote or any part of a Bank of England banknote. The Bank of England also owns the copyright in its banknotes.

Novelty Banknotes

The Bank of England does not give authority for any reproductions in the form of a novelty banknote (e.g. one where a celebrity or other images are shown on a banknote or other such changes).  This is because there have been instances of notes altered in this way, being accepted as genuine banknotes by unsuspecting members of the public.

Procedure

Those wishing to reproduce Bank of England banknotes should, before taking steps to reproduce such notes, apply for consent on-line by completing and submitting the Banknote Reproductions Application Form, which contains explanation and guidance notes. The Note Reproductions Officer will endeavour to respond within five working days of receipt. Postal applications can also be made by printing and completing the application form below and mailing it to the correspondence address given below. The Note Reproductions Officer will endeavour to post a response within 5 working days of receipt.

The conditions (listed within the Application Form) must be met for any reproductions of any notes currently in circulation and Series D (notes issued in the 1970s and 80s depicting Isaac Newton (£1), Duke of Wellington (£5), Florence Nightingale (£10), William Shakespeare (£20) and Sir Christopher Wren (£50). For notes from earlier Series, the conditions may under certain circumstances be relaxed. If you wish to reproduce older Bank of England notes that were issued before 1971 but cannot meet all of the conditions stated in the current guidelines, please contact the Notes Reproduction Officer to discuss the matter further.

The Notes Reproduction Officer of the Bank of England can be contacted at:banknote.reproductions@bankofengland.co.uk or on +44 (0)20 7601 4028.

Correspondence about the reproduction of banknotes should be addressed to:
Bank of England,
Customer Banking and Notes Division,
Note Reproductions Officer,
Notes Accounting and Policy,
Threadneedle Street,
London,
EC2R 8AH.

The downloadable application form can be accessed here here.

What happens to works when they fall into the public domain?"

"What happens to works when they fall into the public domain?" The 1709 Blog is delighted to confirm that the seminar on this question, which it trailed here, now has a venue.  To refresh memories, the speaker is blog team member Jeremy's friend, Professor Paul J. Heald, of the University of Georgia Law School, who presents some of his thoughts and -- more importantly -- the fruits of some of his own research.

The date of the seminar is Wednesday 23 March and it will be hosted in the lovely, airy room up on the sixth seventh floor of Olswang LLP's offices at 90 High Holborn, London.  Registration begins at 5pm; the seminar starts at 5.30pm and, following questions and discussion, will end by 7pm.  Refreshments will be provided.

Admission to this seminar is free. To register, email Jeremy here and let him know (using the subject line 'Heald Reg').

European orphans: a Commission leader speaks

Every copyright work was
somebody's child once ...

Hot off the press is European Commission Vice-President and IP-non-enthusiast Neelie Kroes's address today in Brussels to IFRRO (the International Federation of Reproduction Rights Organisations) on the occasion of the launch of ARROW+ (Accessible Registries of Rights Information and Orphan Works towards Europeana).  Neelie (who is responsible for the Digital Agenda) may never have said this, since the text of the Europa media release below was issued ahead of her live performance. But here it is anyway:

"Ladies and Gentlemen,

Europeans like the internet; this is obviously a reflection of our open and diverse societies. Europeans have embraced ICT and we will continue to do so in the digital age.

Yet, I believe Europe can offer much more to the cyber-world: by digitising and putting online our rich cultural heritage – and to start with, our authors' books.

However, before putting our libraries collections online, we also know that there are some legal and financial obstacles to overcome. If we let things go, there is a serious risk that there will be a "20th century black hole" on the internet. It is a duty of our time not to let this happen.

Today's celebration of ARROW's achievements and of the next phase of the project is more than an important step in the right direction. I believe we can make it an ambitious central element to solve this problem.

Indeed, in my view, the work you are doing is vital and I want to outline how I see it as fitting into the wider strategy of the EU for the digital age.

What is at stake?

The Digital Agenda for Europe, our ICT policy agenda through to 2020, would simply not be complete if we ignored the content dimension of our vision for the future. Internet is eager for high quality content from reliable sources.

ARROW offers a practical solution to several challenges identified in the Digital Agenda. First, there is the aim of building a common digital market. Second, there is of course also the development of Europeana, the European digital library, to make sure it can become the reference point for Europe's digital culture online.

For the moment only a very small percentage of the material accessible through Europeana is in-copyright material. That should change. And one of the key problems to solve in order to make that happen is the orphan works problem. Indeed, depending on the sector concerned, estimates of the number of orphan works in cultural institutions vary from around 20% for films and slightly less for books, at the low end, to up to 90% for photography at the high end. That is a truly staggering figure, which shows up one of the massive difficulties in applying theory of copyright in practice.

The British library estimates that 40% of works in their collections are orphan and over 1 million hours of TV programmes from BBC archives are not used due to the impossibility or the disproportionate cost to trace rightholders – and the risk of a subsequent legal action is simply too great for this material to be made available online.

That uncertainly benefits neither the rightholders who cannot be traced, nor the creative industries or the wider public.

In other words, we must move away from the current playing field for specialists in copyright law. It is high time to understand that, while the US is looking for solutions through complex judicial means, Europe should move forward and find innovative practical solutions for tapping the huge treasures of our culture for citizens and businesses alike.

Perspectives for an orphan works Directive

As you know, the Commission is working on a proposal for a Directive for orphan works. It should ensure that orphan works can be digitised and used in the information society in projects such as Europeana.

At the same time it must offer guarantees for the rights holders that their legitimate interests are respected. We are currently discussing the modalities, and I must say that the work of the Comité des Sages on bringing Europe's cultural heritage online has set down a number of clear markers. And that includes the need to support the instrument through rights information databases such as ARROW and link it more directly to Europeana.

Indeed, rights information systems which enable swift, accurate and comprehensive searches for rights and rightholders are critical in this process. By ensuring transparency on rights and recording works identified as orphans or out-of-distribution, they ensure we can avoid costly duplication of searches.

For our economy and for our culture, we need therefore to act urgently to solve the problems posed by orphan works. These problems affect print works, photographs and audiovisual, and we'll need to find a solution for all the sectors, in particular through improving the information available.

What is expected from ARROW?

That is the fascinating aspect of the project you are working on. It is about laying the basis for new economic activity and at the same time huge cultural benefits for our age. It can contribute to what the Comité des Sages on digitisation recently called 'the new Renaissance'.

I have a vision: One search in ARROW should be all you should need to determine the copyright status of a cultural good in Europe. If it were embedded in the forthcoming Directive on orphan works, ARROW could become the official portal in Europe where you can find essential rights information and do automated searches of rightholders and copyrights. In the medium-term, it could cover all European print works (books, magazines, etc.) in the EU, and afterwards – why not? – also photographic and audiovisual works.

ARROW should become a one-stop shop for determining, easily and quickly, with full legal certainty, whether a work is orphan or not, out-of-distribution or not, and so on.

For this to be achieved, the system must continue to be run, on a consensual basis, by all the relevant stakeholders. It has to provide comprehensive pan-European coverage of the rights and rightholders involved. Where the cultural infrastructure is not yet in place, we will need to find ways and means to do it. I also expect that ARROW will be able to scale up in order to deal with non-text material. In the short term that means material like visual works and illustrations, but in the long term it could mean more.

So that is the ambition and the goal to be reached in the coming years.

You have reached some promising results already. The collaboration which you have put in place in this project includes publishers, libraries and collecting societies. This is the right approach. Of course, ARROW is still in a validation phase, but its potential is huge. You are leading the way in showing how larger groups of stakeholders can work together to form a new digital future. That's exactly what we need to get "Every European piece of European culture digital"".

Readers' comments are invited. This author's own comment relates to his fascination with the methodology for assessing the number of works in a collection which are deemed "orphans". Do European archival and other institutions share a common definition of "orphan" and the same way of testing it in respect of the millions of works held by them? It would be good to know.

The future of copyright: WIPO's vision

Towards the end of February a media release, "WIPO Director General Addresses the Future of Copyright", gave us an insight into the thoughts of the United Nation's principal agency for fostering intellectual property (it shares this role to some extent with UNESCO) on the vision which it has for the future of a right which, many say, has no future.  According to the release,

"WIPO Director General Francis Gurry ... said that copyright needs to evolve to current technological realities or risk becoming irrelevant [we all agree about that -- but does it evolve to embrace more protection or more exceptions?]. Speaking at a conference hosted by Australia’s Faculty of Law of the Queensland University of Technology (QUT) on the future of copyright, Mr. Gurry said there is no “single magical answer” to the development of a successful policy response to the challenges facing copyright in the digital age, but a combination of “law, infrastructure, cultural change, institutional collaboration and better business models.” [that's a combination of more big concepts than most of us can contain with our little brains, since each of these pulls against forces that are equal and opposite. For example whatever can be achieved through 'institutional collaboration' can be undone by demands for competition and transparency].

Mr. Gurry said the central question facing the evolution of copyright policy is how to maintain a balance between availability of cultural works at affordable prices while assuring a dignified economic existence for creators and performers. Digital technology is having a radical impact on those balances. “Rather than resist it, we need to accept the inevitability of technological change and to seek an intelligent engagement with it,” he said. “There is, in any case, no other choice – either the copyright system adapts to the natural advantage that has evolved or it will perish.” [It's not an either/or scenario.  The copyright system can both adapt and perish, or as a result of its adapting it can end up still alive but not in any useful or meaningful sense for copyright owners]

The Director General said there are three main principles that should guide the development of a successful policy response. The first is “neutrality to technology and to the business models developed in response to technology.” He said the purpose of copyright is not to influence technological possibilities for creative expression or the business models built on those technological possibilities, nor to preserve business models established under obsolete technologies. “Its purpose is…to work with any and all technologies for the production and distribution of cultural works and to extract some value from the cultural exchanges made possible by those technologies to return to creators and performers and the business associates engaged by them to facilitate the cultural exchanges through the use of the technologies. [The idea that business models are not sacrosanct and that they are a means to an end, not an end in themselves, is correct and important -- but it is the nature of every institution to seek to preserve its functions and the mindset is difficult to break. It exists elsewhere in IP where employees of rights-granting offices have to be reminded sometimes that their office exists in order to serve rights owners, not vice versa] Copyright should be about promoting cultural dynamism, not preserving or promoting vested business interests.”

A second principle, he said is “comprehensiveness and coherence in the policy response.” Mr. Gurry recognized the limitation of law to provide a comprehensive answer and said that “infrastructure is as important a part of the solution as law.” In this respect, he said collective management societies “need to re-shape and to evolve“ as their present infrastructure is out-dated as “it represents a world of separate territories and a world where right-holders expressed themselves in different media, not the multi-jurisdictional world of the Internet or the convergence of expression in digital technology.”

“We need a global infrastructure that permits simple, global licensing, one that makes the task of licensing cultural works legally on the Internet as easy as it is to obtain such works there illegally,” he said. [This has much to commend it, and we already have the technology to achieve it. Or if we don't, perhaps we can just borrow it from Google ...]

In this respect, Mr. Gurry said “an international music registry -- a global repertoire database -- would be a very valuable and needed step in the direction of establishing the infrastructure for global licensing. And, secondly, in order to be successful, future global infrastructure must work with the existing collecting societies and not seek to replace them.”

The culture of the Internet also needs to be taken into consideration. Referring to the high rates of illegal downloading, Mr. Gurry said “In order to effect a change in attitude, I believe that we need to re-formulate the question that most people see or hear about copyright and the Internet. People do not respond to being called pirates…They would respond, I believe, to a challenge to sharing responsibility for cultural policy. We need to speak less in terms of piracy and more in terms of the threat to the financial viability of culture in the 21st Century, because it is this which is at risk if we do not have an effective, properly balanced copyright policy.” [Exceeding urban speed limits and taking dangerous drugs for recreational purposes share with downloading the fact that they are widely practised by people who know that they are illegal, who do them regardless of their legality and who do not regard themselves as being criminals.  What can failure to change attitudes in those cases teach us about downloading?]

The third guiding principle for a successful response to the digital challenge is the need for more simplicity in copyright. Mr. Gurry said “Copyright is complicated and complex, reflecting the successive waves of technological development in the media of creative expression from printing through to digital technology, and the business responses to those different media, “ warning “We risk losing our audience and public support if we cannot make understanding of the system more accessible.” [the same end can be achieved by more simplicity and better education; both should be seen as means to achieve an end, not the definition of the end itself].

When the Royals Wed, it's time for the Peasants to Make Merrie ...

If you're planning a party in the United Kingdom, you may be thinking of holding it between 22 April and 6 May 2011 (inclusive), the dates between which music licensing body PRS for Music has temporarily waived the charges that would normally be incurred in securing a licence for the public performance of music.

This waiver applies to not-for-profit events organised by unpaid volunteers "in celebration of the Royal Wedding 2011" for the local community, where fewer than 300 members of the public are present. A further condition of the free licence is that the venue where such celebrations are held must "not otherwise require, or currently hold, a PRS for Music licence".

The 1709 Blog learns from Reuters that the objective of this exercise, according to Keith Gilbert (director of public performance sales) is to allow members of the public to hold street parties for the Royal wedding without having to worry about obtaining a licence (or the threat of penalty for failure to obtain a licence), so that they can play music at these public events.

This blogger sniffs at a larger plot.  The unusually generous period allocated for royal wedding celebrations covers both World Book and Copyright Day (23 April) and World Intellectual Property Day (26 April), both of which are are also dedicated to the celebration of "royalty" ...

Many thanks to Fredericka Argent for the link to this fascinating item!

Unfinished Business in Hungary!

I am writing this blog from my hotel room at the ultra posh and culturally stimulated Kempinski Corvinus hotel in Budapest, currently celebrating the 200th birthday of Franz Liszt and holding an exhibition of the photographs of Tomas Opitz in the Hotel’s own Gallery. All very apt, as I have been speaking at a one day conference with the (translated) title of New Ways and New Trends in Arts Management which was hosted by the British Embassy in Hungary and which launched a book of the same name, a book to which I have contributed a chapter on sustainability in the arts – nope, not on copyright – I do have another life although readers of this Blog may not be aware of the fact this! I work with two organisations in the world of green, the first simply called ‘A Greener Festival’ (www.agreenerfestival.com) which perhaps unsurprisingly works towards promoting environmentally friendly practices at music and arts festivals, and the second the more intriguingly named ‘Julies Bicycle’, the cross music industry initiative on climate change (more at www.juliesbicycle.com) which is a world leader in promoting sustainability in the arts.

After four presentations on sustainable development in the arts, the conference took an interesting look at the arts in the digital age and first up Marc Sands, Director of Media and Audiences at the Tate Gallery who gave a really interesting talk about what the Tate has been doing in the digital realm, beginning with the clarion call to museum and gallery staff “if your boss doesn’t have a Facebook account then make them open one”! Marc, and Barnabas Bencsik from the Ludwig Muzeum in Hungary, both explained how important the web, Facebook and Twitter has become not only in attracting new audiences to their physical world but also in allowing many many more people to enjoy experiencing the Tate and the Ludwig online. The Tate is going to launch a new website soon and the sheer detail and amount of well organised content looked fascinating – something to enjoy when it is launched.

The final session featured three speakers who were looking at preserving and making available culture in the digital age. First up was Agata Waclawik-Wejman, a policy counsel for Google based in Poland. Agata’s take on Google’s role in the arts was very positive and (of course!) she gave a very positive spin on Google Books, Google work with the visual arts (including the Tate) and Google’s role in digitising public domain literary works in Europe and making them accessible on the web. Perhaps most illuminating was Google’s role in the Yad Vashem project – Google has teamed up with Israel’s holocaust memorial Yad Vashem and is digitising and preserving thousands and thousands of photographs and document from the Holocaust. The project started three years ago in the Tel Aviv skyscraper that houses Google's research operations in Israel, partially inspired by a Google initiative encouraging employees to spend 20 percent of work time on projects they feel are important and Google has used experimental optical character recognition technology to make text within documents and photos searchable in multiple languages. In January 2011 the first 130,000 images hit the web.

E Corba Csilla from the Petrofi Literary Museum reminded me how easy it is for an English speaking London dweller working in the music industry to forget that Britain, and perhaps more importantly the USA, are at the forefront of cultural imperialism. Countries like Hungary, which has a vast cultural heritage, do not have the ‘advantage’ of having their literary works written in the English language and this adds another dimension to moving Hungarian literary works into the digital realm and making then available to a wider audience. One solution in Hungary is the Digital Literary Academy which has been set up In Hungary to promote digital access to works by Hungarian writers. The Academy currently has seventy two members, thirty two living writers and forty who have died and it reimburses members for allowing the Academy to take digital ownership of their works to reserve these and make them available, in effect paying living writers a stipend in return for digital access to their copyrights.

The final speaker was Hungarian copyright lawyer Dr Aniko Gyenge who gave an interesting review of the seemingy stalled Europeana Books project and Google’s onwards march to digitise everything and everyone – and the tensions with copyright – particularly in mainland Europe. Aniko touched on many topics which readers of this Blog will find familiar – including the need to find a solution to the ongoing problem with orphan works, and the need to promote copyright law as fit for purpose in the digital age – not least on a pan-European basis. With the need to harmonise European law, Aniko pointed that moves by both the Belgium presidency of the EU and now the current Hungarian presidency have not, as yet, brought about change, but Aniko remained hopeful that the forthcoming Polish presidency might promote change.

And Aniko’s talk reminds me that next week I will be joining Florian Koempal, Andrew Yeates and Don Glista on a panel hosted by the British Literary and Artistic Copyright Association (BLACA) considering recent review of copyright law with the aim of finding the ‘ultimate answer to all questions copyright’ ! Titled ‘Unfinished Business' its on Thursday March 10th at 18.15 at the offices of Berwin Leighton Paisner, Lower Thames Stree, London EC3R 6HE. www.blaca.org.