In Belgium, parody is no defence for 'appropriation art'

With the City Law School's seminar with Professor Jonathan Griffiths fast approaching (Parody and copyright in European Union copyright law), the CopyKat has only just found time to report on a January case from the parody hotspot of Europe - Belgium  - and an interesting decision from the Court in Antwerp.

Belgian painter Luc Tuymans had never denied that he had based his painting ‘A Belgian Politician’ on a 2010 photograph of the Belgian right-wing politician Jean-Marie Dedecker taken by photographer Katrijn Van Giel, which was published in the Belgian newspaper De Standaard: but Tuymans used the earlier work without asking for the photographer's blessing or pernission. That now seems to have been a rather costly mistake, as Tuymans has lost an action in the Court of First Instance in Antwerp: Tuymans was unsuccessful in arguing that his work was subject to the parody exception and it was found to have infringed Van Giel’s copyright. Tuyman's work was sold to an American collector.

Van Giel's original phorograph

Tuyman's portrait

In his defence to fast-track proceedings initiated by Van Giel, Tuymans argued that the parody exception should apply, saying that his painting was an original work of art which is noticeably different from the picture - and that the irony lies in (i) the duplication of reality, (ii) the criticism of the imagery of Belgian politics and (iii) the title of the painting. A further arguermnt was that the parody exception would also be applicable because the artist's freedom of expression, guaranteed by article 10 of the European Convention on Human Rights, would be in balance with Van Giel's copyright, without causing any prejudice to her or her picture. Throughout his career, Tuymans has used photographic source material as a basis for his paintings – including images of hospital patients, archive portraits of national socialists and Nazis, Belgian seminarists and Ku Klux Klan leaders.

In  C-201/13 Deckmyn v Vandersteen,  itself a reference from Belgium, the Court of Justice of the European Union decided that ‘parody’ is an autonomous concept of EU law and must be understood according to its usual meaning in everyday language. A parody has just two essential characteristics: first, to evoke an existing work while being noticeably different from it and, secondly, constitute an expression of humour or mockery. The CJEU also noted that the application of the exception for parody, established by the Directive, must strike a fair balance between, on the one hand, the interests and rights of authors and other rights holders and, on the other, the freedom of expression of the person who wishes to rely on that exception

In this case the Court said that a parody requires a distorted representation of the original work and a clear playful or humorous nature, where satire, parody or sarcasm are the only aims. Reflecting that the painting was a 'mere reproduction' of Van Giel's photo, those conditions were not met, as the picture was not reproduced in a clownish, parodied or sardonic manner. The President of the Court was not convinced by Tuymans’ argument that the parody would be in the title of the work (which is not visible on the painting), nor by the fact that Tuymans adheres to the “appropriation art” movement - and readers might want to contrast the Belgian Court's decision with that of the US 2nd Circuit Court of Appeal in Cariou v Prince: the decision may well prompt a wider debate on just how far the parody exception should extend to in the European Union. The President found that the infringement was "in bad faith", as the artist had previously told the press that the picture of Van Giel was "so strong" that he did not have to adapt it as much as usually required when using pictures as a source of inspiration. That said, writing in the Guardian, Adrian Seale argued "There is an enormous difference between the photograph and the painting. Scale is different. Colour is different. Shadows and highlights are shifted, recast, added to and emphasised, abbreviated and deleted .... Most of all, surface is different."

Frinding infringement, the President of the Court dismissed Tuymans’ defence and ordered him to cease from infringement on pain of a penalty of 500.000 EUR for any infringement which would include any further reproductions of the panting, or showing trhe origial work. 

Judgment of the President of Court of First Instance of Antwerp (Belgium), 15 January 2015, docket number 14/4305/A, Katrijn Van Giel v. Luc Tuymans.

http://www.jdsupra.com/legalnews/belgium-even-a-world-famous-painter-nee-55278/

Could Ladybird bring the first parody challenge?

Appropriation art: More on the latest claim against Richard's Prince here.

The CopyKat - shark attacks back

The Federal Court decision in Red Label Vacations Inc v 411 Travel Buys Limited 2015 FC 19  has focussed on a detailed considerations by a Canadian court of the issues of copyright and trademark infringement via the use of metatags. The court held that the plaintiff's metatags were not subject to copyright protection, and therefore there could be no copyright infringement. The court further held that use of the plaintiff's trade name and similar words in the defendant's metatags was not passing off or trademark infringement since it would not likely lead to consumer confusion with te court saying on the issue of copyright "In this case there is little evidence of any sufficient degree of skill and judgment in creating these meta tags, as is required by the test set out by the Supreme Court of Canada in CCH, above, or for the originality required in compiling data or other compilations, as discussed by the Federal Court of Appeal in Tele-Direct." and Justice Manson added  "While in some cases there may be sufficient originality in metatags to attract copyright protection when viewed as a whole, the substance of the metatags asserted by the plaintiff in this case does not meet the threshold required to acquire copyright protection in Canada."

Billboard says Grooveshark, the controversial music-streaming service, could be closer to extinction after a court decision. Judge Alison Nathan of the U.S. District Court, Southern District of New York granted EMI Music North America's motion for summary judgment on claims that Escape Media Group Inc., Grooveshark's parent company, infringed its copyrights. Total damages could amount to $420 million based on the court's finding that 2,807 EMI-copyrighted sound recordings existed on Grooveshark's servers. The maximum statutory penalty per infringement is $150,000 for wilful violations, although the amount can be reduced. Having no licence from EMI, and having failed to prove that safe harbour protection would apply to Groveshark so called user uploaded content after evidence that it was Grooveshark's employees themselves uploaded a substantrial amount of material, and with a finding by Magistrate Judge Sarah Netburn that Escape had an insufficient recordkeeping system, failed to terminate repeat infringers, and "actively" prevented copyright holders from collecting information needed for the takedown requests required by the DMCA - the writing was always on the wall.  Judges Nathan and Netburn also disagreed with Escape's argument that pre-1972 sound recordings should be excluded, with Judge Nathan citing the recent decision in Flo & Eddie, Inc. v. Sirius XM Radio, Inc  saying "the New York Court of Appeals would recognize the exclusive right to public performance of a sound recording as one of the rights appurtenant [pertaining to something that attaches] to common law copyright in such a recording."  In a blog (see below) Grooveshark says that it "disagree[s] with various aspects of the ruling; for example, our ‘one-strike’ repeat infringer policy is even faster than the ‘three-strike’ policies used regularly in the industry for stopping infringing uploads, and we believe our ‘DMCA Lite’ option goes above and beyond DMCA requirements by executing good-faith takedowns in a variety of situations where proper DMCA takedown notices are not provided. 

In the wake of the ruling (and the phrase 'shutting the stable door after the horse has bolted' does spring to mind), Grooveshark has now announced additional anti-piracy measures. One of these is to create a database with data of repeat offenders. On its blog, the company states it will continue to keep track of repeat offenders, “we will now create an additional independent record of repeat infringers from our existing databases, until our appeal clarifies this issue for Grooveshark and other hosting services committed to complying with the DMCA.” The company is also working on tool that offers record companies insights on what music has been uploaded to the service, “we will provide a pre-screening tool for rights holders that provides immediate access to compare uploaded files on our servers that aren’t even yet available for end-user streaming with content owned by the rightsholder. When a rights holder provides a single file URL to the tool, they will receive a list of other files on our servers that have been found to be digitally different, but contain similar metadata.”

The Madras High Court has directed the Indian government not to appoint 'any bureaucrat' as chairman or member of the Copyright Board and directed that its earlier order on appointments in quasi-judicial boards be followed. The First Bench, comprising Chief Justice Sanjay Kishan Kaul and Justice M M Sundresh said, “Bureaucrat or lesser qualified candidates as chairman and members of Copyright Board should not be appointed and our earlier order on appointing judicial members to quasi-judicial boards, should be followed by government.” The Copyright Board’s judicial functions include determining the rate of royalty payable to copyright-holders, revoking copyright granted by the registrar and hearing appeals regarding copyright of products/works. More on the Sen Times here.

On Wednesday 6th of May 2015, Professor Jonathan Griffiths (Queen Mary University) will deliver a talk entitled "Parody and copyright in EU copyright law" at the City University. This is a topic of great interest to the CopyKat, and since the CJEU's intervention in (C-201/13) Deckmyn v Vandersteen, there are now in place some guiding parameters on the application of the exception for "caricature, parody or pastiche" in European Union copyright law. As this exception has only recently been introduced in the United Kingdom - the CopyKat is doubly excited! This talk will consider the impact of Deckmyn and, in particular, the Court's decision that national courts must apply the parody exception in a manner that maintains a "fair balance" between competing fundamental rights. City University, College Building, Room A110 13.00 (1pm). More on the City Law School website  here.

And finally on this Friday, More than twenty prominent European filmmakers including Michel Hazanavicius (“The Artist”), Wim Wenders (“Every Thing Will Be Fine”), Paolo Sorrentino (“La Grande Bellezza”), Ken Loach (“Jimmy’s Hall”) and Abderrahmane Sissako (“Timbuktu”) have rallied to "protect copyright laws" in the EU add ad their voice to move to reform copyright law across Europe - in particular rallying against proposed moves to remove traditional national exclusivity for film and TV licensing (and geo-blocking) and  allow audiovisual and film works to circulate freely across Europe using pan-European licenses. Saying the moves would undermine the way films are financed, The film makers argue that the E.U.’s proposal would harm right-holders, and solely benefit multi territory platforms like Netflix and Google saying "“We share the European Commission’s will to facilitate film availability to all… but let’s not go about it in a way that could be destructive for cinema.” The directors’ alternative proposals included bolstering existing support for Europe’s exhibition circuit,   and a new charter for the EU’s public broadcasters to aid the diffusion of more European films throughout the region. More on Screen Daily here and here.

Monopoly: A game of owns

The CopyKat was intrigued to learn about the endeavours of Mary Pilon, who was been labouring to convince the world that games company Hasbro are somewhat misguided when allocating the sole credit for the board game Monopoly to Charles Darrow, an unemployed salesman from Atlantic City. Why - well Pilon points to the central role of Elizabeth Magie (Elizabeth Phillips), who designed The Landlord's Game - and patented this in January 1904 with the US Patent Office (see left). The game was meant to teach the perils of capitalism - although one version allowed players to create monopolies: Magie, who followed the economic theories of Henry George, designed the game to be a "practical demonstration of the present system of land grabbing with all its usual outcomes and consequences". 

The original Landlord's Game featured a square board with markings for properties, utilities and a corner labelled 'Go To Jail". and it was revised for a 1906 published version (right). Magie's second edition of The Landlord's Game was later published by the Adgame Company of Washington D. C.:This version was two games in one, as there were alternate rules for a game called Prosperity. Pilon's new book The Monopolists says it is bizarre that Darrow is afforded sole credit for Monopoly - not least as Parker Brothers (who originally produced the game) purchased Magie's patent for $500 in 1935. Magie had other games published by Parker. Nevertheless the current owners Hasbro have said "While Elizabeth Magie may have helped inspire the game, the Monopoly game as we know it was designed by Charles Darrow." 

Pilon's new book The Monopolists is described as "the inside story of how the game of Monopoly came into existence, the heavy embellishment of its provenance by Parker Brothers and multiple media outlets, the lost female originator of the game, and [a] lifelong obsession to tell the true story about the game's questionable origins."  Even Wikipedia says this: " By the 1970s, the false notion that the game had been created solely by Charles Darrow had become popular folklore: it was printed in the game's instructions." 

Monopoly (the modern version is pictured left) has sold more than 500 million copies and Hasbro and the previous owners, Parker Brothers, have been very keen to protect their rights: Copyright fans might remember the 2003 legal action brought by Hasbro against spoof version Ghettopoly, which satirised hip-hop culture. The game  became an instant hit when it went on sale in the US and Europe. However, Hasbro, claimed copyright violation and trademark infringement against Ghettopoly. The game sees players get rich through buying stolen properties. In place of the Monopoly top hat, little car and dog players, Ghettopoly players use machine gun, marijuana leaf and basketball icons. According to Ghettopoly creator David Chang, the game also sees “playas” competing with each other by “pimpin’ hoes, building crack houses and getting car jacked”. And instead of Monopoly’s Mayfair or Park Lane, Ghettopoly’s properties include Northside Liquor, The Pawn Shop, Ling Ling’s Massage Parlour or Tyron’s Gun Shop. Apart from copyright and trademark issues, the game has caused outrage in the States! In another legal spat, economics professor Ralph Anspach published the game Anti-Monopoly in 1973, and was sued for trademark infringement by Parker Brothers the following year. The case went to trial in 1976. Anspach won on appeal in 1979, as the 9th Circuit Court of Appeals determined (at that time) that the trademark Monopoly was generic, and therefore unenforceable - a position which is no longer the case in the USA after amendments to trade mark law in 1984 (and being trade marks, not a matter for this blog!). 

More background on Elizabeth Magie here and more on Monopoly here.

Hasbro's monopoly of 'opoly' here

Tangible Digital Files?

Nice picture!

The Paris High Court (Tribunal de Grande Instance) recently handed down a decision of some import from a copyright point of view.

The case involved a dispute between a photographer and her agency.  At issue was the ownership of the digital files derived from the original film used to create the photographic works.

During the course of her collaboration with the agency from 1971 to 2009, the photographer handed over the film containing the pictures to the agency (which was in charge of the management and exploitation thereof), which then proceeded to digitize them (at its expense)  After terminating the relationship, she sought restitution of the totality of the pictures deposited with the agency.

The agency, in turn, noticed that the photographer had posted on her facebook account certain images derived from the digital files and brought legal proceedings for parasitical conduct.

This set the stage for the court to distinguish (as per Section L.111-3 of the Intellectual Property Code) between the photographic works (whose rights vested in the photographer) and the digital files of the photographs which was the medium on which the work existed (which belonged to the agency).  (The court did note that despite the agency's ownership of the digital files, they could not be exploited without the photographer's consent.)

Based on the foregoing distincion, the court found that the photographer's use of the digital files on her Facebook page without the agency's consent was unlawful and therefore awarded the agency €1,000 by way of damages.

While the distinction between "intangible work" and "tangible medium" in which the work subsists is nothing new (and is indeed a feature of all copyright systems), this decision is nonetheless significant because it holds  that the "tangible medium" in this case were the digital files.  In other words, unlike a more traditional scenario where the medium is paper, a CD, a DVD, etc., here the court characterized the digitized versions of the photographic works as the medium.  This is especially interesting in light of recent debates on the right of distribution and whether such right is exhaused in the case of digital goods.

Link to the decision here

Small claims triumph as aerial photographer routs flagrant infringers

There's so much doom and gloom in the world of copyright enforcement, and few readers of this weblog can have failed to notice that life is rarely rosy for photographers.  It is therefore with great pleasure that the 1709 Blog can give some space to a bit of jubilation on the part of a small claims track litigant in the Intellectual Property Enterprise Court (IPEC) for England and Wales. The litigant in question is aerial photographer Jonathan Webb of Webb Aviation (here and here), whose stunning photograph -- portrayed below -- was brutally and callously infringed, with results that turned out to be far better for the victim than the infringers could ever have imagined.  This is what he writes:

Hi, I have news from the IPEC small claims track which may be of interest. The short version is that I was awarded a 500% Flagrancy uplift plus costs which I believe is a new record for the IPEC small claims track. The undisputed value of my images was £300 (ex VAT) so I got that plus £,1500 plus court costs, plus train fair plus £90 witness expenses, making a grand total of £2,716.

Another big first for IPEC small claims is that the corporate veil was well and truly pierced. The two directors were held to be personally jointly and severally liable along side their now dissolved limited company.

In the IP world generally this is probably not big news but for small-time creative like me, the IPEC small claims track has proved to be very effective and has changed the IP scene dramatically. Before the IPEC small claims track opened in 2012 the UK had become a copyright wild west. Copyright of IP worth just a few hundred pounds was effectively unenforceable with legal fees threatening to top £20,000 for a case arguing over a work with only a three figure value. In my own case only a very tiny proportion of commercial users of my images were doing so lawfully. The vast majority of people wanting to use my images were simply illegally copying the image from my website and removing any copyright info from my images.

In 2011 I was at the point of almost giving up and had reduced my expenditure on stock photography in the UK dramatically, preferring to invest more in my German photography, where copyright infringement is much less of a problem. Once the IPEC small claims track opened all that changed dramatically. Not only can I make a few of the infringers pay me, but much more importantly many previous infringers are now having to actually take a licence in my works, which has led to a big increase in normal sales over in addition to the small additional infringement settlement income. This has saved my business form destruction and I am investing in photography once again.

Jonathan then provides further detail.

The Case Number is IP14S01982 Jonathan C K Webb (Claimant:) v 1.VA Events Ltd, Carl Jason Austin and Dale Stanley Vicker, 5 March 2015.

 

The image that was infringed is shown above. In the infringement the image was converted to black and white and each and every one of the copyright notices (©www.webbaviation.co.uk) was removed . Here and here are a couple of close-ups showing the original and infringing versions side by side showing just two of the 33 instances where the script was carefully removed, using the Clone tool as found in photo editing software such as “Photoshop”. Considerable time over many hours has been spent on removing this copyright script as each script has been expertly removed a tiny bit at a time so that the replacing texture matches into the rest of the photograph. Great care and effort has been devoted to ensuring that what was previously covered by the copyright script is replaced by something which looks like what should have been there beforehand, so for example, where © www.webbaviation.co.uk had previously covered a section of tram lines, in the infringing version of the image, new tram lines have been carefully painted into place so that little trace of the removed copyright script remains. Similarly where the script previously crossed a series of roof trusses over the Great Northern Railway Goods warehouse, new roof trusses have been painted in by the infringer to replace those previously covered by the copyright script. The result is that to the layman the image looks like an original image, however to an expert when viewed magnified, the clone tool leaves behind tell tale evidence of its use.

The defendant had put all blame on their elusive web designer who was also a dissolved limited company and apparently could not be contacted. The defendant did not provide any supporting evidence for the web designer's alleged involvement such as the web designers contract.

The big issue of the case was the piercing of the corporate veil. The defendants in this case are a limited company and the two directors against whom I personally issued proceedings as joint tortfeasors with their company. One of the directors was present and represented himself, his co-director and his company. He reiterated in court that the website had been contracted to a third party and that any liability on their side should be the liability of the company and not the directors.

The judge found in the claimant's favour and found the directors to be personally liable with the judge citing MCA Records Inc v Charly Records [2002].

I had thought much of the veil-piercing would rest on the fact that the defendants had abused the corporate veil by dissolving the company in the middle of proceedings (the form to dissolve the company was by amazing coincidence signed the day before the defendants received the claim form!). Anyway, that was not mentioned but much was said over the two directors controlling the company alone. The phrase "directing mind" from the above case was used.

Clearly veil-piercing is not for every situation but in cases like this the directors must have been party to the decisions around the infringement which was criminal in nature, they are personally liable.

The defendants' other defence was the usual Copyright, Designs and Patents Act section 97(1) one: "We didn't know it was copyright protected". This got short shrift from the judge who quoted the Hoffman v Dare judgment. The judge said it was naive to suggest that a company involved in promotion and marketing could say they thought images found on the net were not covered by copyright.

When it came to flagrancy I was shown two letters which the defendants had written to the court, describing the claim as ludicrous and preposterous. I had not been copied with these letters but was given time to read them during the hearing. As well as denying their own liability and placing blame on the uncontactable web designer the defendants' letter also stated that the claimant was responsible for the infringement because I had put the images on the internet. Now if we go back to the original image I linked earlier, you can see that in the entire history of photographs on the internet there has never been a more clearly copyright marked photograph displayed so there is no doubt that the defendants' unwise comments and attitude to copyright contributed greatly to the amount of the flagrancy award -- and indeed the judge commented on the defendants' attitude to copyright in her summing up.

Also coming back to haunt them, the defendants had described the removal of 33 instances of “© www.webbaviation.co.uk” and unlawful use of the image as "inadvertent"! The judge commented that the use of this word was misleading and indicative of the defendants' attitude. The removal of 33 copyright scripts was described by the judge as deliberate, deceitful, calculated and not easy to do with each script being individually removed. This also had the consequence of orphaning the work.

There was also derogatory treatment as the defendants had added their own assertion of copyright on the web page, deliberately removing the claimant;s copyright notice and inserting their own copyright notice at the bottom of each web page which indicates they knew about copyright.

Damages were awarded as the value of the image (uncontested) £300 plus 500% for flagrancy, making £1,800 In total. To that were added court issue fee £205, hearing fee £335, train fare £82, and witness fee of £90 plus interest at 4% making a grand total of £2,716.

With regard to interest, this was added to both the principle and to the flagrancy element. Previously it had been turned down for the flagrancy element but in this case the particulars of claim put more justification on the bases that the flagrant act was carried out in the beginning.

All in all a very interesting day and, for me, the most important thing is not the £2716 I will get from the defendant, but the fact that the defendant has to pay £1,800 for a £300 picture, plus costs, will deter other image users from infringing my work. This will be worth far more than £2,716 in extra sales from people who will now buy instead of infringe.

The CopyKat - choppy seas ahead for safe harbour and fair use?

In the USA, the MPAA and RIAA are backing a new copyright curriculum showing kids how to become "Ethical Digital Citizens." But perhaps tellingly, it was only  public pressure that meant the the curriculum was edited to include the fair use principle, and the more flexible copyright licences that systems such as Creative Commons provide. And it seems this is more fair use in the lesson plans than Hollywood wanted. A series of leaked emails seen by TorrentFreak ends with the MPAA’s Howard Gantman saying  “So the end result contains sections on fair use that are more extensive than we would use if we drafted the curriculum ourselves. But overall, the effort will hopefully lead to an active program within our schools to help get kids to understand what it means to behave ethically on the Internet”.

The Indepdent reports that The High Court in Ireland has told internet service provider UPC that it must introduce a three-strikes system to help combat online piracy.  UPC is Ireland’s second largest broadband provider with 360,000 customers. It means the net firm must start sending warning letters to suspected file-sharers with the threat of sanctions against those customers who ignore the warnings, and according to the ruling the record companies need only cover 20% of the costs associated with the scheme. Mr Justice Cregan said that there was "wholesale theft"  taking place on the UPC network. He said that the constitutional rights of "a whole class of persons are not just being infringed but are being destroyed".  The downloading of music for free is destroying the intellectual property rights of creative artists and should be a matter of great concern in any civilised society, he said.

Mike Weatherley MP

As the life of the current UK Parliament ends, Mike Weatherley MP who is stepping down as a Member of Parliament has published a final Discussion Paper on copyright. Safe harbour provisions and online service providers. The former Intellectual Porperty Advisor to the UK's Prime Minister has this time focussed on 'safe-harbour' provisions in EU law, adding to the ongping debate on copyright reform in the European Union. Commenting on his latest paper, Weatherley told reporters: "I felt that it was important to continue to highlight the issues that have grave consequences for our fantastic creative industries. The creative industries are huge contributors to our economy so it's vital, in order to protect them, that the regulations which were set out in 2000 are updated. The broad scope of the [2000 E-Commerce] Directive results in rights holders losing out to pirates on an industrial scale" and the Report concludes "It does appear to me that the scope of the E-Commerce Directive today is much broader than was envisaged at the time by those drafting it. I would urge the next UK Government to enter into a dialogue with the Digital Single Market team at the EU Commission with a view to considering whether the balance remains fit for purpose."

More on safe habour: In the US, BMG and Round Hill Music continue with their action agaisnt cable company Cox Communications over its alleged inaction in forwarding warning letters to suspected file-sharers. The music firms argued that by failing to act after being alerted to piracy on its networks, Cox should lose its safe harbour protections and be held liable for the copyright infringement of its customers. The claim says Cox failed to disconnect 200,000 repeat copyright infringers. The rightsholders are requesting detailed financial information to show that the company profits from its inaction. Meanwhile TorrentFreak reports that Cox is looking into the ownership of the 1,000 odd works for which they received seven million DMCA takedown notices, and the ISP also wants an expert opinion on the source code of the Rightscorp’s crawler that was used to spot the alleged infringements.

This from InfoJustice commenting on the Lisbon Council and Innovation Economics' The 2015 Intellectual Property and Economic Growth Index:  Measuring the Impact of Exceptions and Limitations in Copyright on Growth, Jobs and Prosperity.  The report by Benjamin Gibert examines limitations and exceptions to copyright in eight OECD countries, and then describes economic growth at the overall and industry level in those countries. The key findings: “countries that employ a broadly ‘flexible’ regime of exceptions in copyright” have higher rates of growth of their overall economy, information technology & service sectors, and even traditional media sectors.  Workers in these economies also fared better, enjoying higher wages overall, in the communications sector, and technology sector. Gibert further notes other positive aspects of more open systems of copyright limitations and exceptions, such as “the promotion o0f education, independent research, free speech, user-generated content and text and data mining.”  He argues that exceptions to copyright should not be viewed as being in conflict with stronger intellectual property protection.  Rather, “the evidence suggests that broad and flexible exceptions to copyright embedded within a strong intellectual property framework may be the best way to achieve both simultaneously.

MusicTank has published a white paper called 'Private Copying Of Music: A New Model For Artist Compensation', part of the think tank's new Future Thinking programme, which aims to put out thought-provoking papers written by postgraduate students on the University Of Westminster's Music Business Management course - with this paper written by Sam Rudy.
Music Tank say that with the European Parliament’s Private Copying report (17.02.14) highlighting that there is currently no other alternative approach to compensation systems for private copying that would ensure appropriate remuneration for rights holders, this paper addresses European Parliament’s call for further discussion to be conducted in order to update the mechanisms and make them more effective, with Sally Gross, MA MBM Course Director, University of Westminster, saying " Extensively researched, this paper positions a timely and convincing argument that a private copy levy, even in these days of streaming, should still make up a substantial part of music industry finance.”

In Australia: "The Abbott government has caved in to sustained pressure from the US media industry and introduced copyright laws into parliament that appear to have the sole purpose of stamping out the rebellion against delayed access to content and rip-off prices." With access to user's metadata now provided for under the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015, Communications Minister Malcolm Turnbull introduced the Copyright Amendment (Online Infringement) Bill 2015 into Parliament on 26 March - with the revisions being blamed by many on the US driven provisions of the Trans-Pacific Partnership trade agreement and provides a procedure for web blocking in the federal courts. Interesting comment on Technology Spectaor here.

In the UK,  the transitional provisions to implement  the repeal of section 52 of the Copyright, Designs and Patents Act 1988 (CDPA) have been published. The change means the period of copyright protection for an artistic work which has been industrially manufactured, will be extended from 25 years to the life of the author plus 70 years. The change has retrospective effect and industrially exploited designs whose copyright protection had expired under the 25 year rule will have copyright protection 'restored'.  Repeal of section 52 of the CDPA will take effect on 06 April 2020: Following the repeal, parties that are currently trading in copies will have an indefinite period to sell off their stock, and may freely deal with copies made prior to the change of the law without this being an infringement. Manufacture or importation of new unlicensed copies will however be unlawful as of 06 April 2020. A guidance will be issued. More from D Young & Co  here.

IBT reports that in recent court papers, lawyers for the Fox News network have argued that posting a third party photograph on a social media site without that person’s permission should not necessarily constitute copyright theft. Why? Because social media - in particular Facebook - is by its very definition “social.” When you "post something on Facebook, you invite other users to comment and critique it" andFox argue that this alone could satisfy the criteria for a fair use defense. Fox are a defendant in a lawsuit regarding the use of Thomas E Franklin’s iconic photograph of New York City firefighters raising the American flag over the rubble of the World Trade Center on Sept. 11, 2001, owned by North Jersey Media Group.

And again in the US, the Professional Photographers of America (PPA) is offering photographers the opportunity to learn more about copyright, and inform their local photo retailers what might constitute infringement. The goal is to reduce copyright infringement on photography nationwide during this April, which is Copyright Awareness Month with the PPA saying ""The most important point to get across to printing retailers is ‘when in doubt, never print or reproduce a professionally-created photograph without written consent from the photographe," 

A U.S. District Court judge has ruled in favor of a parody of the 1970s sitcom “Three’s Company” in a copyright infringement case. Loretta A. Preska, Chief United States District Court Judge for the Southern District of New York, ruled that ’3C,’ a play that parodies ‘Three’s Company,’ does not infringe on that copyrighted programme. Preska wrote in her ruling: “’3C’ is a fair use of ‘Three’s Company.’ The play is a highly transformative parody of the television series that, although it appropriates a substantial amount of ‘Three’s Company,’ is a drastic departure from the original. … Equating the two to each other as a thematic or stylistic matter is untenable". More here.

The National Football League and The Associated Press have defeated a lawsuit filed by freelance professional photographers who cover the NFL and challenged licensing agreements they said violated antitrust and copyright laws.
Southern District Judge Robert Sweet granted motions to dismiss by the NFL and AP, and handed a third defendant a win by granting a prior licensee, Getty Images, its motion to compel arbitration in Spinelli v. National Football League, 13 Civ. 7398.

And finally, the eight-year long battle over whether Jay Z sampled an Egyptian song and recording "Khosara, Khosara” in his hit single "Big Pimpin'” is heading to trial. Judge Christina Snyde has indicated she will dismiss the motion for summary judgment brought by Osama Ahmed Fahmy, heir to composer Baligh Hamdy, against the rapper and fellow defendants Timbaland,  Paramount Pictures, Warner Music, UMG and MTV. Fahmy had previously argued that the moral rights in the track had been were violated as the work had been “mutilated”, but the case is now focussing on whether the Jay Z and Timbaland actually had permission to use the recording as Fahmy now contends that the record company that licensed “Khosara Khosara” to Timbaland never had the right to license the song in the first place. Timbaland made a deal with EMI Arabia, which had a deal with the Egyptian record label Sout el Phan. Fahmy had licensed “Khosara Khosara” to Sout el Phan. He claims EMI Arabia’s license to the song expired in 2007 and that in all events, EMI would have needed his permission to sub-licence the track. Judge Snyder agreed that the terms of the licensing agreements presented triable issues. 

Singapore signs up for Marrakesh

Just released this morning, a World Intellectual Property Organization (WIPO) media release, "Marrakesh Notification No. 7 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled", tells us that the Republic of Singapore has now deposited its instrument of accession to the Marrakesh Treaty -- which is still some way short of coming into force (that will happen three months after 20 countries have committed to it, under Article 18 of the Treaty).

The current list of nations committed to Marrakesh stands at a mere seven so far (you can check the list, which is updated whenever necessary, here).

The London Manifesto: time for reform?

"“Fair copyright for all across Europe” rallying call from libraries, archives and charities" is the title of a media release that went live the moment this blogpost did, at one minute past midnight on 1 April. Issued by the Chartered Institute of Library & Information Professionals (CILIP), it reads as follows:

In a bid for fair copyright laws that will benefit citizens and researchers across Europe organisations including the Wellcome Trust, the National Library of Scotland, the National Library of Wales, the Chartered Institute of Library & Information Professionals, Royal Museums Greenwich and the Open Rights Group have called for much needed reforms.

The London Manifesto calls for fair copyright for libraries and archives across Europe. The manifesto outlines needed reforms that will better support research, innovation and growth and will help create a digital single market. It focuses on the important role of libraries and archives.

The reforms would bolster the rights of disabled people by supporting equal access to knowledge. They would mean that libraries can acquire and lend commercially available digital materials and, with archives, can continue to underpin knowledgeable societies in the digital age. The reforms would allow libraries and archives to better support research through modern text and data mining techniques. They would also create a more manageable system of harmonised copyright laws across EU member states.

Non standardised copyright laws across Europe are failing to support the vision of a digital single market because they currently prevent fair access and use of digital content. This means that researchers and citizens in one country can be subject to a completely different copyright regime than in another country. For example this creates significant problems for researchers who are working collaboratively across Europe. ... .”

Organisations will be able to show their support for fair copyright across Europe by signing in support of the London Manifesto at www.cilip.org.uk/londonmanifesto

The media release also featured supportive quotes from Naomi Korn (Chair of the Libraries & Archives Copyright Alliance) and Martyn Wade (CILIP Chair).

The full text of the London Manifesto reads like this:

Fair Copyright Reform for Libraries and Archives in Europe

Fair copyright across Europe is essential. Without it we will fail to adequately support research, innovation and growth, and hinder the ambition for a digital single market. With it we will better foster knowledge across borders, meet the needs of disabled people and take full advantage of the digital age. We are calling for fair copyright that is fit for purpose and will benefit every European citizen.

We are advocating:

Harmonised exceptions: Harmonisation and uniform application of copyright exceptions across all EU member states so that they apply regardless of media or technology.

Open norm: The addition of a new “open norm”, an open-ended exception subject to the three-step test, to avoid the current situation where European creativity and research cannot immediately benefit from technological innovations because copyright legislation is slow to catch up.

Right to lend: An automatic “right to lend” for libraries, to include the right to lend all digital media, including transferring digital files for a limited period.

Right to acquire: A right at reasonable cost for libraries and archives to purchase or obtain a licence to use any work in copyright that has been made commercially available.

Right to mine: An automatic right to perform computer analysis of copyright works for libraries, archives or their users whenever they have lawful access to the content. This recognises that the right to read includes the right to mine.

Right for disabled people: Individuals with any cognitive and/or physical disabilities are entitled to the same access to knowledge as anyone else. In any country they must be allowed to make copies, or have made copies for them, in any format necessary if their disability is impeding access. The EU and its member states should speedily ratify the WIPO Marrakesh Treaty 2013, in particular to permit the transfer of accessible format copies between countries.

Right to enjoy statutory exceptions: Prohibition of contractual terms and/or technological protection measures (TPMs) that override any statutory copyright exceptions.

Right to cross-border uses: The right for libraries and archives to share resources and make available, communicate, transmit and distribute content and supply copies made under a copyright exception across borders.

Mass digitisation: An automatic right for libraries, archives and museums to mass digitise their commercially unavailable research collections, and give online access across the whole of the EU without liability to compensate rightholders.

Standardised terms of protection for copyright: Swift and complete harmonisation of copyright durations across all member states.

The List of Manifesto signatories at launch on 1 April 2015 is pretty impressive:

Archives and Records Association (UK and Ireland)
ARLIS UK & Ireland
Association of Dutch Public Libraries
Centrum Cyfrowev Chartered Institute of Library and Information Professionals
City University London
CLAUD - Promoting Accessible Libraries
Communia
Copyright for Creativity (C4C)
Dedicon
Electronic Information for Libraries (EIFL)
Estonian Academy of Music and Theatre
European Bureau of Library, Information and Documentation Associations
FOBID Netherlands Library Forum
German Library Association
Kennisland
Libraries and Archives Copyright Alliance
London Metropolitan University
Museums IP Network
National Library of Scotland
National Library of Wales
Open Rights Group
Julia Reda, MEP
Research Libraries UK (RLUK)
Royal Museums Greenwich
Share the Vision
Society of College, National and University Libraries
Swansea University Information Services and Systems
University of the Arts London
University of Leeds
University of Manchester Library
University of Sussex Library
Wellcome Trust

Some of these demands are long overdue and there is no credible objection to them. Harmonised exceptions, standardised copyright terms within the single EU market and ratification of the Marrakesh Treaty are obvious examples. Others will be more controversial. For example, the "right to enjoy statutory exceptions" calls for "prohibition of contractual terms and/or technological protection measures (TPMs) that override any statutory copyright exceptions" -- but it's not clear to this blogger how it at all this affects materials held by libraries, museums and archives and which are out of copyright, but which are not made accessible or are made accessible on restrictive terms such as a prohibition on making a copy or taking a photograph. It would seem anomalous if greater access was granted to works that were still in copyright than to works that had fallen into the public domain.

Readers' thoughts and comments are welcomed.