To bury or to praise?

Mark Antony --
copyright or bust?

"Do we come to bury copyright, or to praise it?"  The title of the forthcoming debate on 12 July (click here for full details) has been widely recognised by readers as a nod to Mark Antony's speech in Shakespeare's celebrated drama Julius Caesar.  You can access the original by clicking here and scrolling down to "Friends, Romans, countrymen ..."

One erudite reader has drawn our attention to what he calls "the original, slightly adapted by Gaius Indiges".  Its relevance to copyright makes it fit to cite here, in the context of the debate.

"Friends, Romans, countrymen, lend me your ears
I come to bury Copyright, not to praise it.
The evil that men do lives after them;
The good is oft interred with their bones;
So let it be with Copyright. The noble critic
Hath told you Copyright was out of date:
If it were so, it was a grievous fault,
And grievously hath Copyright answer'd it.
Here, under leave of the critic and the rest—
For the critic is an honourable man;
So are they all, all honourable men—
Come I to speak in Copyright’s funeral.
It was the creator’s friend, faithful providing just reward
But the critic says it was out of date;
And the critic is an honourable man.
Copyright hath brought many ideas home to the digital services
Whose exploits did their general coffers fill;
Did this in Copyright seem out of date?
When that the creator have cried, Copyright hath helped:
Copyright should be made of sterner stuff:
Yet the critic says it was out of date;
And the critic is an honourable man.

You all did see that on the Lupercal
In thrice times hundred years the world presented many a change
Which it did thrice times hundred managed. Was this out of date?
Yet the critic says it was out of date;
And, sure, the critic is an honourable man.
I speak not to disprove what the critic spoke,
But here I am to speak what I do know.
You all did love copyright once, not without cause:
What cause withholds you then, to mourn for copyright?
O judgment! thou art fled to brutish beasts,
And men have lost their reason. Bear with me;
My heart is in the coffin there with copyright,
And I must pause till it come back to me.
…
But yesterday the word of copyright might
Have stood against the world; now lies it there,
And none so poor to do it reverence.
O masters, if I were disposed to stir
Your hearts and minds to mutiny and rage,
I should do the critic wrong, and the academic wrong,
Who, you all know, are honourable men:
I will not do them wrong; I rather choose
To wrong the dead, to wrong myself and you,
Than I will wrong such honourable men.
But here's a parchment with the seal of copyright;
I found it in its closet, 'tis its will:
Let but the commons hear this testament—
Which, pardon me, I do not mean to read—
And they would go and kiss dead copyright's wounds
And dip their napkins in its sacred blood,
Yea, beg a hair of it for memory,
And, dying, mention it within their wills,
Bequeathing it as a rich legacy
Unto their issue".

The Big Debate now has 107 registrants, representing all sides of the copyright . There's room for more, registration is free and refreshments are provided -- so do let us know if you're coming by emailing Jeremy here with the subject line Copyright Debate".

Tajikistan dances to the beat of the WPPT

Today is an historical day for the 1709 Blog -- it's the first time we have ever had the need to make mention of Tajikistan. Suffice it to say that, through WPPT Notification No. 81 we have been notified of the deposit by the Government of the Republic of Tajikistan, on May 24, 2011, of its instrument of accession to the WIPO Performances and Phonograms Treaty, adopted at Geneva on December 20, 1996 [and grumbled about ever since by various poeple for requiring (i) too much, (ii) too little or (iii) the wrong sort of protection for the works covered by it].

The Treaty will enter into force with respect to the Republic of Tajikistan on August 24, 2011.

Music of Tajikistan here and here

WPP moves to cut of advertising cash for infringing websites

In another example of how the imagined 'Wild West' of the internet is (slowly) being tamed by proactive business practices which can run alongside new legislation and court decisions, advertising giant WPP has announced a list of 2,000 websites in the USA which it says carry illegal or pirated content and will not be used for advertising for the group's clients. The list will be used by the media buying agencies within WPP's GroupM business and executives in those companies have been told not to buy any advertising on those site - and since they have a combined annual spend of $6 billion, $3.5 billion in the US alone – that’s quite a major move. WPP's clients include Ford, Unilever, AT&T and IBM and interestingly their client list also includes two major labels - Universal Music and the Warner as well as the Paramount film company. The list will be regularly updated.

GroupM Interaction's Global CEO Rob Norman told reporters: "We're serious about combating piracy and protecting our clients' intellectual property as forcefully as we possibly can. This policy extends to digital media buyers at all GroupM agencies, as well as other WPP companies like Team Detroit, which manages Ford's media business". According to The Guardian, among the sites blacklisted are access-anything.com, albumhunt.com, extratorrent.com, fileseek.info, free-tv-show.com, gpirate.com, kickasstorrents.com and laptop-downloads.com. Last year Google pledged to stop websites that infringe copyrights from using its adwords service.

http://www.guardian.co.uk/media/2011/jun/08/wpp-groupm-sir-martin-sorrell

Do we come to bury copyright -- or to praise it?

1709 Blog Copyright debate

in conjunction with the IPKat weblog

“Do we come to bury copyright — or to praise it?”

Tuesday 12 July 2011

What’s the debate about?

Is copyright a vital tool for protecting authors, composers and artists, and for encouraging investment in the recording and transmission of their works to the public—or is it an outdated, cumbersome barrier to the spread of information and to the stifling of the very culture which it purports to promote?

The current state and future prospects for copyright law have never been more keenly debated than today, when modern technologies and the expectations of internet users are among the forces which have called for a radical overhaul of what, for others, is a sensible and practical basis for achieving justice while facilitating business.

This debate seeks to air the issues that make us ask: do we come to bury copyright or to praise it?

Four people who are deeply committed to finding an answer to this question will be debating it.  The audience will be polled for their answers both before and after the debate, so that we can see which side has been the more persuasive.

Debating the issue (in alphabetical order):

Crosbie Fitch (An R&D software engineer,  Crosbie has been researching and developing revenue mechanisms and business models for digital artists and their audiences for more than a decade. He has concluded from his work that  copyright is not only an ineffective anachronism, but that it is unethical and unnecessary)

Emily Goodhand (Copyright and Compliance Officer at the University of Reading, Emily enjoys engaging with others on copyright and IP issues and dedicates a lot of time to raising people's awareness of copyright. She writes the copyright4education weblog. As @copyrightgirl she is listed by The Times as a Top Ten tweeter)

David Allen Green (A lawyer and writer, David is head of media at Preiskel & Co LLP, a City TMT boutique firm, and was recently selected as one of The Lawyer’s “Hot 100” for 2011.  He is also legal correspondent of the New Statesman. His “Jack of Kent” blog was shortlisted for the George Orwell Prize in 2010)

Richard Mollet (Richard has been Chief Executive of The Publishers Association—the leading representative voice for the UK's book and learned journal publisher— since October 2010. He coordinates members' views on copyright policy and anti- infringement strategies.  Richard was previously Director of Public Affairs for the BPI, the UK recorded music industry body)

In the chair

 Mr Justice Arnold (Richard was called to the Bar in 1985, became a QC in 2000 and was appointed to the Chancery Division of the High Court in 2008)

Further details

Date: Tuesday 12 July 2011; Time: 5.00pm till 7.00pm; Venue: Freshfields Bruckhaus Deringer, 65 Fleet Street, London EC4Y 1HT, England (please use Tudor Street entrance).

Admission is free. Refreshments will be provided after the debate.

To register, please email Jeremy Phillips here using the subject line “Copyright Debate”.  

Origami artists bring action against Morris

Six origami artists from around the globe are bringing a US legal action against artist Sarah Morris, accusing her of using their works in her own. The origami artist's lawsuit says that some of Morris's collection of 37 abstract works simply titled 'Origami' are nothing more than coloured in versions of their own intricate works of folded paper which feature humming birds, grasshoppers, beetles and other creatures. The lawsuit, filed in California by the six artists whose home countries include Spain, Italy, Japan and the USA, says that in 24 of Morris's works, she copied the original origami crease patterns, changed the colour schemes and then exhibited the works without permission from the original creators of the patterns and designs, saying that the new works by Morris are "strikingly similar to copyrighted artworks". In an interview on her gallery's website she says that "for me, origami is a sign of change. It is always used ... like a harbinger of change. And what the change is depends on your projection of change. You know its an open structure and. Its like an open vessel". Morris had reportedly said that she had based the Origami series on "found origiami designs" and "traditional patterns". It is reported that Morris's lawyer, Donn Zaretsky, told Art Newspaper the case was "completely without merit and we look forward to defending the matter in court. Its hard to think of a clearer use of transformative fair use".

More at http://www.guardian.co.uk/artanddesign/2011/jun/05/tate-artist-sarah-martin-origami-lawsuit

Licensees, third parties and the Software Directive: a reader asks ...

(Third) party time for the
Software Directive ... 

The 1709 Blog has received some interesting questions from one of its readers, who asks:

"“Articles 5(1), 5(2), 5(3) and 6 of the Software Directive (Directive 2009/24) and Sections 50A, 50B, 50BA and 50C of the Copyright, Designs and Patents Act 1988 in the UK set out ‘permitted acts’ in relation to software (see also SAS v WPL here and here, in which questions have been referred to the ECJ regarding the scope of the permitted act of observing, studying and testing). My questions however relate to third parties and the permitted acts. They are:

1. If a licensee engages a third party to carry out a permitted act on its behalf:
(a) would the licensee be able to use the results of the third party’s act without infringing the licensor’s copyright? 

(b) would the third party have a defence to copyright infringement, on the basis it was carrying out a permitted act on behalf of the licensee? 

(c) would the answer to 1(b) be different if the Licence Agreement between licensee and licensor included a prohibition on sublicensing or permitting any other third party use? 

(d) could a prohibition on permitting any third party access for the purpose of carrying out a permitted act on behalf of the licensee, be void under Article 8 Software Directive and Section 296A Copyright, Designs and Patents Act 1988?"

As usual, the 1709 Blog welcomes your answers and comments, even if you are a member of the Court of Justice of the European Union ...

Out with the Acting, in with the Doing

The news is a few days old, but it hasn’t appeared here yet and it should.  This past week the United States got a new Register of Copyrights: Maria Pallente.

Maria has been serving as the Acting Register since the previous Register, Marybeth Peters, retired at the end of the last year.  As of the first of this month, Maria is now the full, official, not-just-acting-but-being, Register.

The US Register of Copyrights works under the Librarian of Congress and does a lot more than just registering things.  Her role does includes developing procedures within the Copyright office for registering works, researching registrations and other such things.  But her increasingly more important role is to provide input and analysis on copyright law and issues relating to copyright, both domestic and international.

Already Maria has testified before Congress about potential changes to the US copyright regime.  Her first day as Register, she appeared before the Subcommittee on Intellectual Property, Competition, and the Internet to discuss various types of online infringement.  She had testified about similar issues before the same subcommittee has Acting Register in March.

Marybeth Peters is often hailed for her many achievements as Register of Copyrights, and I’ve often heard her spoken of fondly by both sides of the great copyright debates.  Maria has some big shoes to fill, but it looks like she’s jumped right in and is ready for the challenge.  Welcome to Maria!

For a full description of the US Register of Copyrights duties: 17 U.S.C. §701

When appeal loses its appeal: CSC turn tables on VPL

CSC Media Group Ltd (formerly Chart Show Channels Ltd) v Video Performance Ltd [2011] EWCA Civ 650, 27 May 2011, is a decision of the Court of Appeal for England and Wales which is not yet available on BAILII (this note being taken from a helpful alert on LexisNexis) but which raises important implications for anyone thinking of appealing against a decision of the UK's Copyright Tribunal.

In August 2010 Mr Justice Floyd heard an appeal against the first decision of the Tribunal on the going rate for broadcasting music videos. The appellant, Video Performance Ltd (VPL), was not very happy when the Tribunal said that the correct royalty rate payable by TV channel operator CSC should be somewhere in the region of 10% to 15% since an earlier licence between VPL and BSkyB set a more comfortably remunerative rate of 20%.  Floyd J allowed VPL's appeal and held that, when the Tribunal assesses the amount the licensee must pay under the Copyright, Designs and Patents Act 1988 s.129, it must give proper weight to the terms of other comparable licences. In this case the Tribunal had taken account of the BSkyB licence only after it had reached its position that 10-15% was correct. Even if the Tribunal had reservations about the BSkyB licence, it couldn't just be shunted into the background since it was the single most significant piece of evidence as to what the proper royalty rate should be. The correct approach involved starting with the most relevant comparable licence, then adapting it to the circumstances of the present case. Since the Tribunal had not only taken the wrong view concerning the earlier licence but had also erred in not applying the pro-rating formula which the parties had themselves agreed while having no proper or rational basis for departing from that formula, the case would be remitted to a differently-constituted Tribunal for reconsideration.

This time it was CSC's turn to appeal, submitting that Floyd J had (i) failed to attribute to the Tribunal awareness, in fixing the reduced window, of its subsequent discussion of comparables and (ii) failed to appreciate that the Tribunal's treatment of the relevance and weight of those comparables was coloured by its earlier discussion of the law and of the music video market.

The Court of Appeal allowed CSC's appeal.  In its view the judge's criticisms of the Tribunal's arrival at the reduced window royalty rate took an unrealistic and unjustified view of its reasoning and adopted too prescriptive a view of the way such cases fell to be decided.  This was because, before arriving at those figures, the Tribunal had surveyed the music video market and effectively rejected VPL's case that it had secured a freely negotiated voluntary acceptance of an alleged standard licensing approach of a headline 20 per cent royalty. Additionally, the Tribunal had made findings of fact which were directly relevant to its assessment of any comparables.  This being so, it was unrealistic to subject the Tribunal's reasoning to a rigorous analysis which was based on the assumption that, when fixing the lower window, it had missed issues which it actually mentioned explicitly later on in its decision.

This would have been enough to bury Floyd J's decision by itself. However, having got up a reasonable momentum, the Court of Appeal was not going to be easy to stop.  It would be odd, it added, to hold that a specialist Tribunal --  in a lengthy, conscientious and detailed judgment -- had ignored its own clear and proper statement of the correct legal approach. What's more, the Tribunal's findings of fact were capable of supporting a perfectly proper conclusion about the reduced window since the law did not compel the Tribunal  to deploy any specific analytical structure and methodology. So long as it discharged its statutory duty under section 126, the precise way it carried out its analysis and the order in which it addressed the material issues in its decision could not undermine the validity of its conclusions.

It wasn't just the judge who came in for a bashing: VPL's criticisms of the Tribunal's approach to the reduced window royalty rate weren't worth a shout since they did not disclose any error of law which undermined the validity of its decision.