Google publishes its Transparency Report

Copyright experts carefully
examine removal requests

Yesterday Google released a detailed report which contains various data on content removal requests submitted by copyright holders from July 2011 to mid May 2012. 

It may be interesting to highlight some of the numbers included in the report, in particular those concerning requests received by Google in the past month.

Firstly, the number of requests processed (almost 1,250,000!) came from a relatively small group of copyright owners (less than 1,300). The top three copyright owners to submit copyright removal requests were Microsoft, BPI and NBCUniversal.

Secondly - as foreseeable -, among the top targeted domains were file-sharing websites (filestube, torrentz, and 4shared). The infamous Pirate Bay (on which see here) however, is not at at the top of the rankings. 

Thirdly, Google reports that it removed 97% of search results specified in requests received between July and December 2011. This is a very high number, and shows (so this blogger believes) how useful Google's removal policy is to copyright owners, especially in times when legislative initiatives aimed at addressing online copyright infringements are not particularly (how to say it?) ... ehm ... "popular". According to the Electronic Frontier Foundation, the 3% of takedown notices that Google choose not to comply with is instead the big number, in that "each of those are instances of legitimate speech that would have otherwise been shut down."

In any case, if webmasters feel that a link to their sit was mistakenly removed to a removal request submitted against them, webmasters can submit a counter-notification, pursuant to Sections 512(g)(2) and (3) of the Digital Millennium Copyright Act.

Google also provides some examples of inaccurate or unjustified copyright removal requests for search results which clearly did not link to infringing content:

·            A major U.S. motion picture studio requested removal of the IMDb page for a movie released by the studio, as well as the official trailer posted on a major authorized online media service.

·            A U.S. reporting organization working on behalf of a major movie studio requested removal of a movie review on a major newspaper website twice.

·            A driving school in the U.K. requested the removal of a competitor's homepage from Search, on the grounds that the competitor had copied an alphabetized list of cities and regions where instruction was offered.

·            A content protection organization for motion picture, record and sports programming companies requested the removal of search results that link to copyright removal requests submitted by one of their clients and other URLs that did not host infringing content.

·            An individual in the U.S. requested the removal of search results that link to court proceedings referencing her first and last name on the ground that her name was copyrightable.

·            Multiple individuals in the U.S. requested the removal of search results that link to blog posts and web forums that associated their names with certain allegations, locations, dates or negative comments.

·            A company in the U.S. requested the removal of search results that link to an employee's blog posts about unjust and unfair treatment.

Those above are indicative of various attempts to use copyright for reasons beyond the scope of copyright itself. This is something which recently copyright case law itself has also been concerned with.

Following the Google report, it may be enlightening to receive our readers’ views and experiences: have you ever submitted a content removal request to Google? 

GEMA and YouTube appeal GEMA v YouTube!

Following the German court ruling last month in the long running dispute between YouTube and Germany's music rights collecting society GEMA, both parties have appealed the decision (more background from Monika here). YouTube was held liable under the principle of Storerhaftung (disturbance liability - secondary liability for contributing to someone else's breach of third party rights and was issued with a permanent injunction to take down a number of songs GEMA administers and ensure those songs do not appear on YouTube in the future 

Whilst YouTube seems more than safe under the US's Digital Millennium Copyright Act and has a 'takedown' system for removing unlicensed content, the German courts have taken a firmer approach and seem to want YouTube to be more proactive in removing infringing material. YouTube will argue that their takedown system is already sophisticated and available to all content owners and that more onerous filtering and removal obligations would not only damage the Google platform, but also other websites and services: YouTube spokesperson Mounira Latrache said "The ruling to implement [more] filtering would be damaging for innovation and freedom of expression online". GEMA has also filed papers seeking further clarification of  the rights of its members to protect their content online.

It seems the parties have been  negotiating over a possible licensing deal since the original court hearing, but as it seems no deal could be reached before the appeals submission deadline, both sides have filed appeals.


http://www.thecmuwebsite.com/article/both-gema-and-youtube-appeal-gema-v-youtube-ruling/

Creative for an afternoon? Here's the Workshop for it

With a suitably exotic Workshop venue,
it's easy to be creative for an afternoon ...

This blogger's friends at LexisNexis are being a little bit coy right now, if not downright mysterious. On Wednesday 11 July they are offering a half-day afternoon workshop, "IP In The Creative Industries", at a currently unspecified Central London location -- and, if the event's web page is anything to go by, they've not yet declared who the speakers are. While we don't yet know the venue or the cast [might this be the world's first generic workshop, with truly unbranded speakers?], there are two things that can safely be said about it.  The first is what its raison-d'être is:

"In an increasingly competitive market, companies and artists need to maintain an edge against their competitors. One of the optimal methods of gaining this edge is through effective use of IP rights. A shrewd marketing plan is needed to achieve the best outcome while reducing the risk of litigation for breaching regulations.

[This event offers a] perfect opportunity to ensure that you are up to date on the best methods for protecting creative output and preventing infringement of others intellectual property rights".

The second is that LexisNexis is offering a 10% discount against the registration fee for all readers of this weblog if they quote the magic code, " L11290/IPKAT".  The same discount is offered for a companion workshop, Design Rights", which occupies the first half of the same date, presumably at the same venue. You can inspect the "Design Rights" programme here.

Of Originals and Mere Reproductions

A recent ruling by the French Supreme Court answers the questions of when it is acceptable to call a reproduction of a scuplutre an "original".

In the May 4, 2012 decision the Court was asked to rule on a dispute between heirs of renowned sculptor Camille Claudel.  The heir holding the right of reproduction (in force until 2013 as the artist died in 1943) had issued a certificate of authenticity charcterizing a certain reproduction of the sculpture ("La Vague" or "The  Wave") made after the artits's death as an "original work of the artist".

Heirs holding the moral rights (which are perpetual) took issue with this, alleging that such a characterization was a violation of the right of integrity.  The Court agreed, holding that only those limited edition bronze proofs cast from plaster or in clay made by the sculptor personally such that in their very execution they bore the stamp of the author's personality could be characterized as originals as distinguished from mere reproductions.

The decision is noteworthy both for the very clear crietrion set out for the proper characterization of sculptures (and, presumably paintings and other such works) as "originals" as well as for the legal grounds used to protect against mischaracterization, viz. the right of integrity.

La Vague by Camille Claudel:

The full text of the decision can be found here (in French):  http://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000025807658&fastReqId=1752951674&fastPos=1

Bollywood moguls react with horror to India's new Copyright Act provisions

Bollywood has reacted with horror to the new Indian Copyright (Amendment) Bill, 2012, which seeks to protect owners of literary and musical works and which has been passed by the Rajya Sabha (543-0) and will be presented to the Lok Sabha before it becomes law, much to the delight of singers, script writers, lyricists and composers. But some music and film companies feel that it is "extremely unfair".

The new Act is said to be “empowering the creative sector” and strengthens the royalty claims of artistes, song and script writers, musicians and addresses newer issues related to the digital world and the Internet. The legislation was approved by the Rajya Sabha on May 17th and law provides that authors are the owners of the copyright for their creative work and that this right cannot be assigned to producers, as has been common the practice.

The Act also makes it mandatory for broadcasters from both the radio and television industry to pay royalty to the owners of copyright each time a work of art is broadcast. The law also bans cover versions of literary, dramatic or musical work for five years from the first recording of the original creation.

Human Resources Development Minister Kapil Sibal, who had moved the bill in Lok Sabha, noted that artistes who came from poor background were often left to fend for themselves, as film and record producers cornered all royalties that came from the work, be it stories or scripts or songs. He said the legislation was to help the artistes achieve a decent living even in old age, continuing to receive their dues for the work done during their prime. Giving examples of Shehnai exponent Bismillah Khan and music composer Ravi, the minister pointed out that the financial position of such outstanding artistes was "pitiable" and they were unable to even pay their housing and medical costs, after long and successful careers. The Leader of the Opposition, Sushma Swaraj, also supported the bill and said it was long overdue. Swaraj said that film producers had lobbied her to oppose the bill but she decided to support it when well-known director and music composer Vishal Bhardwaj said the amendments were for the good of lyricists.

The bill also seeks to bring the Indian Copyright Act 1957 in conformity with "international norms" and "World Intellectual Property Organisation guidelines".

The President of the Association of Radio Operators for India Anurradha Prasad said the radio industry will “now survive” saying “I am extremely overjoyed for the industry and the creative professionals. I would also like to say that it is a win-win situation for everyone from the industry. It is just like that if you kill the chicken the egg will stop coming". "The music industry should also be happy with the bill,” she told Radioandmusic.com.

Sony Music Entertainment India and Middle-East president Shridhar Subramaniam stated: “This amendment is an extremely positive move and we are very supportive of this bill. This was long awaited and we believe this will help the overall artiste development and align us with global practices. We now need to wait for the law to be signed by the president and then begin the process of interpreting and implementing the new developments in a broad and consensual manner to develop healthy new practices. The only thing that we are disappointed with is not much has been done about the piracy issue that we all are struggling with and also the issue of statutory licenses for broadcasters."

But many in the movie industry, who have benefitted from acquiring control and ownership of scripts, songs and recordings in the past, were less than happy. Adarsh Gupta, business head of Saregama company, said the proposed legislation spells disaster saying "It is extremely unfair to the film and music industry. It will turn out to be a real issue in times to come. I don't think there will be any creative compromises. There will be a lot of litigation on this issue. The entire equation will need to be re-assessed from start to finish".

The new royalty division is reported as 50 percent for music label; 25 percent for producer and 25 percent to be split between the lyricist and the composer. Currently, 100 percent goes to the music label which can, as I understand it, also be a film company, although I am not clear on the definition of 'producer' at the time of posting this blog.

http://www.smetimes.in/smetimes/news/top-stories/2012/May/23/parliament-gives-nod-strengthened-copyright-law72191.html

http://entertainment.in.msn.com/bollywood/article.aspx?cp-documentid=250070212

Supreme Court refuses Tenenbaum appeal

The US Supreme Court has refused to hear the Joel Tenenbaum case in a case brought by the Recording Industry Association Of America's which resulted in a win for the RIAA and damages of $675,000 awarded by the jury for illegally sharing 30 songs online. The damages were then reduced 90% by the trial judge Nancy Gertner on constitutional grounds but the appeals court subsequently criticised the judge's process, and reinstated the $675,000 damages sum. Tenenbaum's legal advisor Charles Nesson (pictured) hoped to persuade the Supreme Court that his client's damages were indeed unconstitutionally high and that Judge Gertner was correct when reducing the award. But the Supreme Court declined to hear Nesson's arguments yesterday, meaning Team Tenenbaum will have to continue to fight the damages sum in the lower courts, which could involve several more hearings and appeals yet.

Tenenbaum has said publicly that he (unsurprisingly) doesn't have $675,000, and has previously suggested he'd have to bankrupt himself if that figure stood.

From www.thecmuwebsite.com and see  http://articles.boston.com/2012-05-22/metro/31802695_1_copyright-joel-tenenbaum-downloading-music  and  http://www.digitaljournal.com/article/325282 

Homage or Humiliation? Moral Rights, Vertigo, and The Artist

Photo by Martin Dee;
smile by Mira

The 1709 Blog is delighted to bring readers the first in a series of guest blog posts by Mira T. Sundara Rajan on moral rights. Mira should require little introduction to anyone who is concerned with this important subject, since this blog reviewed her book, Moral Rights, last year (here). Mira's next book, Moral Rights: A Guide to Global Practice, is in the pipeline. The subject of her first guest post is ...

Homage or Humiliation? Moral Rights, Vertigo, and The Artist

Michel Hazanavicius’ film, “The Artist,” was a sensational 2011 tribute to silent movies - and also, as the director has since argued, to Hitchcock’s classic 1958 film, “Vertigo” (see BBC News, 10 Jan. 2012). The climactic scene of The Artist plays out to the accompaniment of the haunting score from Vertigo, composed by brilliant film composer and long-time Hitchcock collaborator, Bernard Hermann. In a silent film with no accompanying dialogue or environmental sounds to distract, the juxtaposition of new visuals and old music could not be more stark. For those familiar with Hitchock’s original -- called, by some critics, the greatest film of all time (while Hermann’s film score has been called “the greatest score ever written for Hollywood”: see Alex Ross, The New Yorker, Feb. 24, 2012) -- the feeling of déjà vu is intense. Actress Kim Novak, who played dual roles as Hitchcock’s mysterious heroine in Vertigo, called it a “rape”: “I feel as if my body - or at least my body of work - has been violated by the movie” (BBC News, 10 Jan. 2012).

As a lawyer interested in the moral rights of authors and artists, I couldn’t agree more. The situation surrounding the music for The Artist is a perfect, practical illustration of just how a moral rights violation can occur. Moral rights are based on the twin principles of attribution, which means adequate acknowledgement of the authorship of a work, and integrity, the notion of maintaining the quality of a work intact. The moral right of integrity is particularly relevant where the treatment of the work might cause damage to the author’s reputation.

In the case of Vertigo and The Artist, a highly original work was removed from its creative context and placed into an entirely new one. The use of the original music raises questions of both attribution and integrity. In the film titles, The Artist make no mention of Hermann at all, but only credits Ludovic Bource as the author of the film’s original score -- Hermann’s name appears deep within the end credits (see Alex Ross, above). While the scene is playing, there is no indication that the film has moved from original music to the Vertigo score. The music that is played is taken from Vertigo with no alterations. It is the music from Vertigo’s crucial love scene, in which the doomed heroine re-appears as if resurrected from the dead. And, although the images from Vertigo are not featured, anyone who is familiar with the original film will be reminded of them. Can moral rights in a film be infringed by an evocative allusion through the use of its music, even though the images per se have not been “copied”?

The integrity question, of course, is still broader. Does the removal of film music from its original context amount to a violation of integrity? Is the fact that the music was played without any alteration support the argument that its integrity was maintained by the makers of The Artist, or does it, in fact, violate integrity to replicate exactly the same music in a new context -- akin to copyright infringement in the usual sense? And what about the integrity of the musical score in the new film? Could Ludovic Bource have sued the film’s director for overriding his choices, and substituting the segment from Vertigo for Bource’s own, original composition?

The nature of film-making brings an added level of complexity to these questions. Film is a composite work based on the contributions of many individuals -- producer, director, author of the screenplay, author of the original musical score -- and, of course, the actors who deliver original performances. Worldwide, there is little agreement on who should be considered the “author” of a film. Many jurisdictions, including France, recognize co-authorship, with both director and author of the musical score acknowledged as joint authors of the film. In the case of the film composer, he or she may be simultaneously entitled to two authorial copyrights -- one for the original score, and one in the film as a whole. At WIPO, a new treaty on copyright in “audiovisual performances” is currently pending; if this is adopted, it appears very likely that the moral rights of actors to the attribution and integrity of their performances in films will be explicitly entitled to protection, as authors’ moral rights are now protected under the Berne Convention.

In the case of Vertigo, whose moral rights have been violated? Bernard Hermann’s, as the composer of the musical score? Alfred Hitchock’s, as the director who was responsible for the combined effect of music plus images, and gave the music its narrative significance? The actors -- Kim Novak and Jimmy Stewart -- who played their parts against the background of the music, and infused it with emotional intensity and poignancy?

Finally, the central role played by technology in this dilemma can hardly be overstated. Who says that moral rights have lost their relevance in a technological age? On the contrary, we live in the age of sampling, re-using, and remixing. The juxtaposition of Vertigo and The Artist is only made possible by the technology that remasters and integrates the original musical score into the new production. Moral rights are not only relevant to technology; they represent some of the key cultural issues of our time.

Those familiar with economic copyright might instinctively feel that what happened in The Artist is a form of free-riding on the labours of another. From a moral rights perspective, it amounts to emotional blackmail. As Kim Novak points out, the makers of The Artist are "using [the] emotions [that Vertigo] ... engenders as if it [they] were their own." Ironically, “The Artist” hails from France -- a country that arguably has the longest-standing and most powerful tradition of protection for moral rights in the world. In view of this cultural and legal tradition, the directorial choices in “The Artist” are even more difficult to understand.

Is it time for a super society?

Some of the criticsms levelled at the music industry in the digital age have been those directed at outdated and ineffective licensing models - especially where internet start ups are looking at a global market, whereas as rights owners, often territorially limited collection societies, are mandated to licence within their national borders only. Early entrants in the music sphere spoke of the need to negotiate with hundreds of different organisations each offering 'blanket' licences for just one country - to run a global music streaming service. It took Spotify two years to negotiate basic clearances - as the pirates made merry!


The problem has not escaped the European Commission  who are keen to promote (at least) pan-European licensing regimes: Digital Commissioner Neelie Kroes recently said Digitisation has fundamentally changed content industries, but licensing models simply have not kept up with this. National licensing can create a series of Berlin cultural walls. The price, both in pounds and frustration, is all too real, as creators are stifled and consumers are left empty-handed. It is time for this dysfunction to end. We need a simple, consumer-friendly legal framework for making digital content available across borders in the EU". 


Problems with digital licensing have also not escaped the attention of the UK government, currently advancing plans for the 'Digital Rights Exchange' proposed in the Hargreaves Report. But in my own opinion even a pan-European licensing regime is of little real use or relevance in the digital age. Surely a UK 'licence' for the digital age is becoming more and more redundant! 


To solve Neelie Kroes' concerns, surely just one European society for, say, music might well be an effective solution - at least for potential licensees - as a 'one stop shop': BUT, a sole player might not be so good for content owners such as songwriters (who can presently shop around the various music collection societies such as PRS, GEMA and SACEM), or for the board members, or the staff at individual existing societies - although at least some of the latter could and would (I imagine) be redeployed.  And I have some real concerns on behalf of the end users - customers. Actually, it will be the board members who offer the most resistance as they see their cosseted positions at certain societies threatened by  the threat of closure, merger or takeover; but the conundrum that remains is one of competition law.


In 2005 when this who area was looked at, The EC's three solutions were (a) to do nothing (b) allow the existing (then 24) societies to offer pan-European licences in competition with each other (prompting speculation that this will just encourage a 'race to the bottom' on licensing tariffs or (c) allow rights holders to choose one EU online rights manager. At the moment the EC is waiting for the Court of Justice to determine the way forward in the CISAC case: where it stands now is that there is an order in place prohibiting the 24 European collecting societies from restricting competition by limiting their ability to offer their services to authors and commercial users outside their domestic territory BUT the decision allowed collecting societies to maintain their current system of bi-lateral agreements and to keep their right to set levels of royalty payments due within their domestic territory. 


Why bother with all that - lets go for efficiency! Lets have just the one society! A super society! Digital start ups - especially offering content - want access to ALL content in their sector (whether its films, music, books, news content, whatever) and almost always want to be able to offer and sell that content Worldwide. Whilst  I am sure that the EU would need to consider consumers as a sole European collection society  would be a monopoly - and a monopoly based on the 'monopoly' of music copyrights (if you want Kylie's songs - you can only come to us)  surely one society is a potential solution? Just one collection society for recorded music and just one for songs in Europe - or even just one covering all music rights - at least the EC could potentially regulate this, possibly in the same way the Copyright Tribunal  reviews licensing schemes in the United Kingdom. But globally, now that is a bit more tricky  .....


Europe good - global better? Surely any solution has got be be global? If we have leant nothing else in the last 10 years, we have learnt that this is a 'must have' generation of consumers - if they can't get content legally - they will get it illegally. 


The Universal Music Group's proposed acquisition of EMI's recorded music division from Citigroup has again focussed thoughts on global licensing, with some supporters of the merger pointing to the fact that with a near 50% combined market share, a combined Universal-EMI could be an effective one stop shop on its own for licensing recorded music content, There is the counter argument of course - a combined UMG-EMI (or indeed in the publishing world a combined SonyATV-EMI music publishing)  could equally block any new entrant if they so wanted which must surely be an issue worrying competition regulators. 


One problem is that the music industry's record on anti-competitive (antitrust) behaviour is not wonderful,  not least because of that nagging antitrust case called Starr v Sony  which I am sure the labels would like everyone (including the US courts to forget) about; it's all about the major labels madcap digital start-ups all those years ago called PressPlay and MusicNet. On top of that there is the rather public 2002 settlement by the majors and three of the biggest high street retailers in the USA for price fixing of CDs - and two separate 2005 and 2007 settlements for payola. That said, the recorded music industry is a significantly different business than it was ten years ago – and whatever your views are on digital piracy – it cannot be ignored – and nor can the rise of new independent distribution systems such as Apple’s iTunes, and streaming services such as Spotify.  But whether that justifies the creation of a dominant player with a possible 50% market share is debatable. But at least the concentration of rights into one 'manager' makes licensing easier - and payment possible - doesn't it ..... ?

But that got me thinking, and as I am very uneasy about having just two 'super-majors' in the music industry, surely to prevent further consolidation in the recorded music sector and yet allow for effective licensing, it would be better for Sony, EMI, Warners and UMG along with the independent record sector (represented perhaps by Merlin) to form their own 'super society' to collectively licence ALL recorded music on a global basis. Then potential licensees could have their much wanted 'one stop shop' - and consumers would have legal access to to the World's music. Perfect eh?


Except it would be a super monopoly ....... so I am back to the problem the EC faces trying to balance the need to have effective licensing and the need to have a competitive market place (and we know post MPS v Murphy competition law trumps copyright!). But at least within Europe there is at least the potential for a mechanism to regulate such a monopoly - even if it were a European wide Digital Rights Exchange. But with a global super society .......  who would be the 'World Police'?


Anyway, thoughtful comments would be MOST WELCOME ......



The CISAC case: COMP/C2/38.698 CISAC and CISAC v. Commission; Case T442/08


Starr v. Sony BMG Music Entertainment, 592 F. 3d 314 - Court of Appeals, 2nd Circuit 2010


Karen Murphy v Media Production Services / Football Association Premier League Ltd v QC Leisure and others  joined cases C-403/08 and 429/08