Quicker than making a cup of coffee

The Advertising Standards Authority in the United Kingdom isn't often called upon to make a ruling that reflects on contemporary copyright issues, but it had to do just that in ASA Adjudication on 3GA Ltd, complaint 140713, adjudicated on 30 March 2011 (here). What was it all about? The ASA's website explains

Ad
A national press ad, for a CD player with hard disk, included text that stated 

“Good news for CD owners. The Brennan JB7 is a CD player with a hard disk that stores up to 5,000 CDs ... It saves space and clutter and delivers near immediate access to an entire music collection. JB7 owners rediscover then fall in love with their music again simply because the Brennan makes it so accessible. The Brennan also records from vinyl and cassette so you can enjoy your entire music collection but keep it out of the way in another room or retire it to the attic … What’s the point in owning hundreds of CDs worth thousands of pounds if you never listen to them? [Perhaps their owners lay them down, like wines, as investments in the future] The problem with CDs is that it’s quicker to make a cup of coffee than dip into a CD. Try timing how long it takes to pick a CD, load it in the CD player, play a snippet from a track or two, eject it and put it back where it came from. Then there is the problem of finding music. The print on a CD spine is tiny. What if the track is on a compilation CD? What if the CD is in the car? Then there is the clutter. You need to keep your CDs near the player or you won’t play them. So you are forced to share your living space with hundreds of cheap plastic boxes. [But they furnish a room so well, and provide wonderful conversational ice-breakers for visitors checking out your cultural preferences ...] CDs are great but they are also inconvenient, inaccessible and a bit of a chore ... Key Points One button plays the entire collection at random ... Load CDs in about four minutes ... One touch record from vinyl, cassette or radio Loads and plays MP3 from USB ... Used by restaurants, hotels, pubs, dentists, schools Backup music to external USB for safe keeping … ”. 

The ad also included a quotation from Martin Brennan, which stated 

“I always liked the promise of CDs. It wasn’t so much the quality but the quick access to a given track. After vinyl and cassette that was a real plus. My first CD player was a five CD multi changer. My second was a ten CD changer for the car. I liked the idea of quick access to more than one CD and music that didn’t repeat after 40 minutes. These players were fine but a bit clunky - there were several seconds of silence between CDs and in the car I could never find the right CD. A few years ago I had a go at loading my cassette collection onto a PC. Cassettes were obsolete but I owned around 100 and the music on them reflected an important period in my life. I recorded all of the cassettes on to the PC over a period of several weeks. The thing is I never listened to the music on the PC. Somehow using a computer to listen to music never worked out. Maybe the computer was in the wrong place but I think it lacked the immediacy of a physical play button. In the end the computer got a virus and the music files were lost - I still had the cassettes thankfully. The JB7 is really my personal ideal music player”.

Issue
The complainant challenged whether the ad incited consumers to break the law, because it was illegal to copy music without permission from the copyright owner.
...
Response
3GA said the JB7 was one of a new generation of audio devices that offered the facility to load CDs onto an electronic memory to enjoy them better. They said they were not aware of any owners of the product being charged for, or convicted of, infringing copyright and therefore there was no evidence that the ad incited consumers to break the law [can readers spot the illogicality of that proposition?]. They said there would be no evidence of that unless there was a judgement against a JB7 owner. However, it was apparent from the number of such products available that that was unlikely to happen [Does that mean there were so few products available that there was unlikely to be such a judgment, or so many -- so far without a judgment against them -- they what hadn't happened yet wasn't likely to happen in the future?].

3GA said they believed two elements of copyright legislation could be interpreted as being applicable to consumers who enjoyed their music using such devices, because they were essentially music players and, provided the user was playing music they were legally entitled to listen to, the fact there was an electronic copy was incidental and had no independent economic significance. They said the JB7 was different to, for example, a cassette or CD recorder that was used to make physical copies of the work. They said in those instances the copy was a primary function rather than simply part of the playback and therefore using the Brennan as described in the ad was specifically allowed by legislation under the term fair dealing, in which the economic impact on the copyright owner was not significant. They said a consumer who listened to their own material using a Brennan was of no economic consequence to the copyright holder whereas such devices could also be used in ways where the copy was not incidental and had an economic impact; for example, borrowing a CD to load onto the device. 3GA said such use, of a computer or new generation audio device would, therefore, infringe copyright.

They said there were illegal uses for many products however the majority of consumers understood the law and were law abiding so ads for products such as stockings, which could be used for robbery, did not include warnings related to illegal use. They said they did not wish to include such explanatory text in their advertising because it was not possible to summarise copyright law in such a way. 3GA were also concerned that the inclusion of such text could actually incite illegal activity by giving consumers the idea of, for example, copying borrowed material.

Assessment: upheld
The ASA noted the product was a CD player as well as having a hard disk to store CDs and also record from vinyl and cassette. We also noted, however, it repeatedly made reference to the benefits of the product being able to copy music but did not make clear that it was illegal to do so without the permission of the copyright owner. We considered the overall impression of the ad was such that it encouraged consumers and businesses to copy CDs, vinyl and cassettes. In the absence of prominent explanation, we concluded that the ad misleadingly implied it was acceptable to copy CDs, vinyl and cassettes without the permission of the copyright owner. We also considered that the ad encouraged people to use the advertised product in this way and that, therefore, it incited consumers to break the law.

The ad breached CAP Code (Edition 12) rules 1.10 (Legality) and 3.1 and 3.3 (Misleading advertising).

Action
The ad must not appear again in its current form. We told 3GA to ensure future ads for such products prominently stated that it was unlawful to copy material without the permission of the copyright owner.

I just took a quick look at the Brennan website. The only mention of "copyright" comes at the bottom of the page, where it says "© Copyright 2010 3GA Ltd. All rights reserved. Privacy Policy".

A further thought: shopping trolleys are advertised in the media, but there have never to my knowledge been any complaints that those who advertise them must state prominently that it is unlawful for purchasers to pop their shopping into them without paying for them.  Double standards, or a reflection on the fact that we assume that people know they shouldn't steal but are ignorant of copyright?

Tattoos and moral rights: a couple of points to ponder

Apologies are owed to my correspondent who wrote me the following missive, which I meant to post last week but completely overlooked. He writes:

"My colleague and I were discussing, at length, the art of tattooing (it was, after all, Friday afternoon!).

My question is this, if a tattoo artist creates a unique design for a client, then this is tattooed on to the aforementioned client, does the tattoo artist still own any intellectual property rights (namely copyright) over this piece of art? If the tattooed subject were to go on to a profession (I can only think of modelling at this precise moment) where the tattoo was constantly broadcast to the general public, and the designer viewed this to be derogatory to their work, would they be able to litigate!"

It seems to me that the potentially derogatory public display and transmission of the tattoo is only one of a number of moral rights issues that can be discussed -- another one is whether, if the tattooed subject wishes to have the tattoo amended or removed, the tattoo artist has any ground upon which to object.

Readers' thoughts on the topic are naturally welcomed.

Ref’s Net penalty decider

This week the recently retired Lord Justice Jacob referred an important question to the ECJ in Football Dataco v Sportradar [2011] EWCA Civ 330. It’s about whether someone who uploads infringing content on the internet is liable in the country where he is – or where the content is viewed – or both.

Football Dataco compile Football Live, a database of UK football statistics updated during matches (goals, goal scorers, yellow and red cards, substitutions). Sportradar provides a competing service, Sport Live Data, with servers in Germany and Austria, accessible in the UK via betting sites. Football Dataco claim that Sportradar are copying data from Football Live, constituting infringement of UK copyright and database right.

Last November, Floyd J, determining whether the English courts had jurisdiction, held in [2010] EWHC 2911 (Ch):

1. There was a good arguable case that Football Dataco’s content was protected by copyright, that Sportradar had copied a part of it and had authorized/was jointly liable for copyright infringements by punters in the UK who had reproduced the data on their computer screens.
2. There was a good arguable case that Sportradar would be jointly liable with punters for database infringement by extraction and with the UK betting site for re-utilization.
3. Sportradar had not itself re-utilized Football Live in the UK. ‘Re-utilization’ is defined as ‘making available’, which Floyd J concluded would be committed where Sportradar’s servers are, not in the UK.

All points were appealed and on Tuesday the Court of Appeal held:

1. Football Live might be protected by copyright but there was no copyright infringement if Sportradar had copied data from it. ‘Its recording may sometimes involve some skill (who scored in a goalmouth scramble) but it is not creative skill.’ It followed that Sportradar could not be authorizing or jointly liable for punters’ copyright infringement.
2. There was a plausible case of Sportradar being jointly liable for database infringements by the UK betting site and punters.
3. The question of whether ‘making available’ occurs where a site is hosted and/or where it is viewed required a reference to the ECJ.

It was only in December that Jacob LJ referred to the ECJ the question: ‘Does “author’s own intellectual creation” require more than significant labour and skill from the author, if so what?’ He appears to now know at least part of the answer (creative skill).

The jurisdictional question now being sent to the ECJ concerns the database right not copyright, and the copyright and database ‘making available’ rights are not identical. However a parallel question exists in relation to copyright and it would seem likely that whatever the ECJ decide for the database right would also apply to copyright. The legislative history and case law of copyright’s making available right therefore come into consideration.

Sportradar make the policy argument that if making available on the internet happens everywhere that a site can be seen, then websites have the impossible task of making themselves compliant with all the different national laws in the world. A counter policy argument would be: if liability were only wherever servers are located, then infringement is avoided by using servers in countries with lax or no relevant laws.

While the ECJ nuts this out, the proceedings concerning joint-tortfeasorship will continue. This too could make foreign websites liable under the law of the country where they are viewed, through joint liability with end users’ infringements.

The Web is big and it is sticky.

Much Ado About Kindergarten

I have been following for some time now - and with growing bemusement - a heated debate in Germany over the use of sheet music in nursery schools. The apple of discord is a letter from German collecting society GEMA, sent on behalf of another German collecting society (VG Musikedition, which represents composers, lyricists and publisher of sheet music) to some 36,000 German nursery schools. In said letter, GEMA reminds the nursery schools that under German copyright law you need a licence to copy sheet music and proposes the conclusion of a respective licence agreememt.

So far, so normal, one may think, but to most of the German press, this simple occurrence was a complete outrage. Emotions running high, most headlines read something along the lines of "Nursery Schools to Pay for Singing!" and "GEMA Rip-off in Kindergarten!" Inevitably, politicians jumped on the bandwagon: Sibylle Laurischk (of liberal democratic FDP) said that "singing in nursery schools is a basic part of education" and that, therefore, GEMA should exempt nursery schools from paying licences (http://www.bild.de/politik/2010/fuer-kinderlieder-15226246.bild.html). Heiko Maas (of social democratic SPD) echoed the "rip-off in kindergarten" view and said singing in nursery schools was an expression of an untroubled childhood (http://www.focus.de/finanzen/news/gema-kritik-an-kinderlieder-gebuehr_aid_585392.html). They and most other critics conveniently ignored that the letter did not actually concern the singing of any songs whatsoever. Unless nursery school children perform at a public event, they may sing whatever they like free of charge.

What the letter does concern is the copying of sheet music. German law only contains a very limited private copy exception for sheet music. According to s. 53 subs. 4 lit. a) German Copyright Act, one may only make a copy of a graphic recording of a musical work (1) by means of manual copying, (2) for the inclusion in a personal archive if and to the extent the reproduction is necessary for that purpose and a PERSONAL copy of the work is used to make the reproduction, or (3) if the copy is for personal use AND the work has been out of print for at least two years. All other uses require a licence from the right holder. GEMA (as instructed by VG Musikedition) now offers such licences to nursery schools for €56 per annum for up to 500 copies, € 112 for up to 1,000 copies and so on. So that's roughly €0.11 per copy (if you get a licence for up to 2,500 copies or more, the rate decreases slightly).

That is, if you actually make copies. I don't know about the esteemed readers of this blog, but when I was at nursery school, I learned songs by repeating from and singing along with my teachers. Most children aged three to six can arguably neither read lyrics nor musical notation, so the number of copies needed (if any) should in most cases be accordingly minor. Also, one may, of course, copy public domain works to one's heart's content. Concerning the arrangement of such public domain works, s. 3 sent. 2 German Copyright provides that "insignificant adaptations of a non-protected musical work shall not enjoy protection as independent works."

One good thing that has come out of this at times rather ludicrous debate is a collection of just such public domain songs suitable for children (which make me feel about four years old and can be downloaded here: http://data.musikpiraten-ev.de/public/kinder-wollen-singen.pdf). The initiators, Frankfurt-based "Musikpiraten e.V." have pledged to print some 50,000 copies of the booklet and donate them to nursery schools throughout Germany; the campaign is funded by charitable contributions from a range of companies and individuals who raised about €40,000 in less than two months (http://musik.klarmachen-zum-aendern.de/kinderlieder) - quite an achievement!

One maybe or maybe not so good thing is a draft bill for an amendment of the German Copyright Act submitted to the Bundestag by the parliamentary group of socialist party DIE LINKE ("The Left"). I shall mercilessly dissect it in a separate blog post tomorrow, so watch this space.

Bits and pieces

Further to John's post yesterday ("Liability in Italy -- Yahoo! held responsible", here), the text of the decision is now available, naturally in Italian, on Interlex.it, here.  Apparently the initial reports of this decision were somewhat overstated and the end of the world has not yet arrived for ISPs: the ruling is a 'procedimento cautelare', a sort of preliminary or summary judgment and not a full decision. No further reasoning will therefore be produced. The judge ordered Yahoo! to remove the links to infringing websites since the company had knowledge of the infringement because it received notices sent by the plaintiff (PFA Film srl) but had failed to activate the take-down procedure, became liable. Google Italia and Microsoft (who were also parties) were not found responsible since they did not administer their engines directly; they were held entitled to receive compensation of the costs of the judgment from PFA (thanks, Gaetano Dimita, for the link and the explanation).

This one seemed
quite nice, but
it has apparently
been taken ...

Having stuck with the portrait of Queen Anne (she of the Act of Anne) since April 2009, the 1709 Blog has decided to dispense with her services and get itself a real logo.  If you fancy your talents as a logo designer, please send your entry to Jeremy here with the subject line "1709 logo", and remember to let the blog have an irrevocable non-exclusive licence to use it on the blog and for its promotions. A prize, in the form of a copy of International Copyright by Paul Goldstein and Bernt Hugenholtz, will go to the best effort received by midnight on Sunday 3 April.

... or do they?

"Do bad things happen to works when they fall into the public domain?"  Further to Professor Paul J. Heald's thoroughly entertaining and instructive seminar last week (noted here), the 1709 Blog can report that Paul's PowerPoints are now available here.

Where it hurts most – right in the copyright bundle

Last week the New York Court of Appeals gave an intriguing answer to a jurisdictional question from the Second Circuit Court of Appeals. The case is Penguin v American Buddha (previous post here). The question and its answer are:

‘In copyright infringement cases involving the uploading of a copyrighted printed literary work onto the Internet, is the situs of injury for purposes of determining long-arm jurisdiction under N.Y. C.P.L.R. § 302 (a) (3) (ii) the location of the infringing action or the residence or location of the principal place of business of the copyright holder? In answer to this reformulated question and under the circumstances of this case, we conclude it is the location of the copyright holder.’

The New York Civil Practice Law and Rules give NY courts jurisdiction over non-domiciliaries who commit torts in NY and those who commit torts outside NY that cause injury to person or property in NY (the Big Apple’s equivalent of Shevill v Presse Alliance in the EU). Penguin alleges that copyright infringements were committed by the defendant in Arizona or Oregon, by uploading their books on servers there. The question is whether these out-of-state infringements caused injury in NY, where Penguin USA is based. The New York Court of Appeals explained their reasoning as follows:

‘Although it may make sense in traditional commercial tort cases to equate a plaintiff's injury with the place where its business is lost or threatened, it is illogical to extend that concept to online copyright infringement cases where the place of uploading is inconsequential and it is difficult, if not impossible, to correlate lost sales to a particular geographic area. In short, the out-of-state location of the infringing conduct carries less weight in the jurisdictional inquiry in circumstances alleging digital piracy and is therefore not dispositive. The second critical factor that tips the balance in favor of identifying New York as the situs of injury derives from the unique bundle of rights granted to copyright owners.… Based on the multifaceted nature of these rights, a New York copyright holder whose copyright is infringed suffers something more than the indirect financial loss we deemed inadequate in Fantis Foods. For instance, one of the harms arising from copyright infringement is the loss or diminishment of the incentive to publish or write…’

Basically what this appears to mean is since (a) the loss-of-sales injury caused by copyright infringements on the internet could be anywhere, it’s hopeless trying to pin that down but (b) the plaintiff’s rights themselves are injured (devalued) by the copyright infringement, it makes sense to say the injury happened where the plaintiff is located. This has a certain elegance, tidying up the ubiquitousness of internet copyright infringement. On the other hand, the idea that copyrights are located in the offices of a plaintiff’s business and are themselves injured is not only somewhat bizarre but may prove less than straightforward. What if the plaintiff is a licensee or there are several joint copyright owners in different locations?

Kazakhstan takes Steppes to prevent MS misappropriation

Kazakh Steppe (small extract)

News travels fast from the US and other hi-tech instant message jurisdictions, but it reaches the 1709 Blog in a more stately fashion when it comes from the Kazakh Steppe. Still, better late than never!  On 14 October of last year the Kazakhstan Ministry of Justice issued Order No. 279 regulating the protection of unpublished works, specifically the delivery, acceptance and storage of unpublished manuscripts.  A news item from Petosevic reports that

According to paragraph 3 of the Order, the Order entered into force ten calendar days after its first publication, which was on 12 January 2011 in the national newspaper Kazakhstanskaya Pravda. 

The new regulations were drafted in accordance with the Kazakhstan Law on Copyright and Related Rights and aim to prevent misuse and misappropriation of unpublished works. 

The Justice Ministry has appointed the Committee for Intellectual Property Rights as the authority responsible for protection of unpublished works.

How refreshing, when everyone else seems to be worrying out file-sharing and pursuing the Golden Grail of a copyright-proof business model for the digital age, that here at least is an issue that depends more on matters of principle than in trends of technology.  But what might have prompted this legislation at this particular time? A severe outbreak of manuscript-rustling?

Source: Kazakhstan PTO, via "Kazakhstan New Regulations on Protection of Unpublished Works", Petosevic

Liability in Italy - Yahoo! held responsible

We are grateful to one of our Italian friends for sharing with us the following information about a surprising decision of the Italian courts:

Yahoo! is responsible for all the copyright infringements in relation to unauthorized links: the caching providers’ responsibility PFA Films, an Italian production and distribution company, legitimate owner of all of the exploitation rights of the film “About Elly”, has summoned Yahoo! Italia S.r.l., the service provider, asking them to remove all the links and files unauthorized by PFA in connection to the film ”About Elly”. Surprisingly the Court of Rome agreed on the request and ordered Yahoo! to disable all the websites which allow the web surfer to watch the film or just some pieces of it in streaming, downloading or peer-to-peer. The judge basically says that only the official film website is lawful while all the others are illegitimate. 


The decision is really astonishing and probably it will be the beginning of a new trend. The judge indeed is very precise in the description of the facts and in focusing her attention in the interpretation of the law. She carefully referred to the legislation and to the interpretation of Italian courts in relation to the service providers’ responsibility. She rightly referred to art. 14, 15, 16 and 17 of decree 9/4/2003 n.70 and to the European Court of Justice (CGE C236/08 and C238/08) [the Google AdWords case] . She defined Yahoo! as a caching provider, which is responsible just for removing all the illegitimate links, only the ones that are brought out to its attention. So Yahoo! was responsible because it did not remove all the pirate links, yet PFA Films did not provide any lists of websites asking in such a general way for Yahoo! the clearing of every content reproducing all or just part of the film “About Elly”. The conclusion is a bit complicated to understand and takes the distance from the other previous decisions on he matter. Yahoo! must not previously verify the contents of the websites to which it links because it does not have any legal obligations to identify the contents previously, yet, just after a general warning notice by the owner of the exploitation rights of the audiovisual aids, it is responsible for removing all the pirate links or audiovisual files, because the official website of the film is the only one which is legitimated to show all or part of the film.

This takes the present UK discussions about a site-blocking remedy to a completely different place and is no doubt not the last word on this subject.