The devil’s in the Digital

The UK government’s Consultation on Legislation to Address Illicit Peer-to-Peer (P2P) File-sharing published on 16 June contains (at least) one significant, misleading error. In a section titled ‘What’s happening elsewhere?’ it states:

‘On 6th May the European Parliament passed an amendment to the Telecoms Package which said:

"Article 8f(b) applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened or for other legitimate reasons in which case the ruling may be subsequent".

At the time of writing it is not clear whether this amendment will stand, or whether it will be the subject of a conciliation process.’

The words that I have made blush red are not in the amendment (Amendment 138) passed by the Parliament.

As discussed in an earlier post, Amendment 138 is a singularly inconvenient thorn in the side of the UK government. If finally adopted, it would prevent the Government from requiring ISPs (at the ISPs’ expense) to cut off alleged illegal file-sharers without a prior judicial ruling – and, in my opinion, it would prevent ISPs from applying other ‘technical measures’ without a prior judicial ruling. But if the amendment said what the Consultation has it say, then it would present no such obstacle.

I asked Mike Klym, the enquiries contact for the Consultation, where these extra words had come from. He wrote: ‘At the time the consultation was drafted the position around Amendment 138 was very fluid and we acknowledged as much in the text of the consultation document. The text we included was a quote from information we had received at the time’. Which begs the question: who provided this information and why?

To get this wrong in the consultation document does not inspire confidence. Is this mere incompetence? Conspiracy theorists might argue that (a) it’s too much of a coincidence to have made this of all mistakes; (b) the text in the Consultation did not appear in any earlier version debated in Brussels, so its inclusion couldn’t have been a simple administrative error (unless of course it is the wording that the UK government is going to try to promote in the upcoming negotiations with the European Parliament); (c) the currently agreed wording was fixed six weeks before the Consultation was published and the Consultation had no difficulty reporting the decision of the French Constitutional Council on 10 June; (d) Amendment 138 is a political hot potato and should have been proofread carefully – the European Commission were debating it on 11 June and Lord Carter gave a statement about it to the Lords on 17 June; (e) even though UK law must ultimately comply with the final Telecoms Package and the UK Consultation doesn’t directly affect the outcome of the Telecoms Package debate, it could have an indirect effect. The mis-cited Amendment 138 gives the impression that the UK government’s proposals are palatable and widely accepted in Europe, which they are not. This helps to forward the Government’s case in shaping the Digital Economy Bill. If the UK government makes headway with its national legislation it can use any progress as a bargaining chip in the EU debate (as the French government did with their HADOPI law) since the two processes are evolving in parallel.

But conspiracy theories are for lunatics … aren't they?

Mike Klym’s response to my enquiry can be read on the 1709 Copyright Blog Google Group, which can be joined by subscribing on the right-hand side of this blog's web page.

Internet rights go on trial

Laws against illegal file-sharing are taking shape simultaneously on global, European and national levels. Fundamental rights – in particular the right to freedom of expression – are assuming a more prominent role in the debates in France, Europe…and maybe, one day, Digital Britain.


The European Convention on Human Rights

On 29 May the Council of Europe (not to be confused with the European Commission) adopted a declaration and resolution concerning human rights on the internet. A glittering cast of ministers were there – though Britain could only rustle up a ‘project manager’. The Council emphasized the European Convention on Human Rights, which it authored more than half a century ago, and the case law of the European Court of Human Rights. It stressed the relevance of human rights to the internet, the need to explore how rights are affected by its new modes of communication and the importance of co-operation between nations because ‘the very nature of the information society and, to an even greater extent, of the Internet, has significant cross-border implications. Article 10 of the European Convention on Human Rights [freedom of expression] is especially relevant in this respect given that the rights and freedoms protected therein are guaranteed “regardless of frontiers”.’


Droits Francais

On 10 June France’s Constitutional Council (Conseil constitutionnel) struck through parts of the HADOPI law against illegal file-sharing on the grounds of a conflict with fundamental human rights – a pre-Convention expression of them in the Déclaration des droits de l'Homme et du citoyen of 1789. Article 9 (presumption of innocence) was the basis for objecting to the idea that it should be up to those accused of illegal file-sharing to prove the infringement was the fraud of a third-party. Article 11 declares that the ‘free communication of ideas and opinions is one of the most precious rights of man’. It was the justification for saying that internet access should not be cut off except by a court – attacks on the right to communicate must be ‘necessary, appropriate and proportionate’.


EU Charter rights

Like the HADOPI law, the EU’s current reforms of telecoms legislation has been stumbling on the question of whether it is necessary that penalties for file-sharers should only be imposed by a court. The European Commission is against this requirement but the European Parliament voted for it by a landslide on 6 May. On 11 June the Commission determined to keep challenging the Parliament over this and proposed a new round of negotiations.

The European Parliament can be expected to argue that the French Conseil’s decision bolsters their position. The Commission, au contraire, wants to use the Conseil’s decision as a point in their favour, saying that it indicates that the protection of fundamental rights belongs at national level. This contrasts sharply with the desire of the Council of Europe to see greater co-operation between European countries on this issue.

Amendment 138 to the Framework Directive that the Commission is fighting states:

No restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened in which case the ruling may be subsequent

Article 11 of the Charter of Fundamental Rights being:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

So, only a court would be able to restrict the right to receive or impart information without interference. Amendment 138, it can be said, would give freedom of expression exceptional protection in this context because the guarantee of a prior judicial ruling is not subject to proportionality. The purpose of the Charter of Fundamental Rights is to bring the European Convention on Human Rights into EU law. Whereas the European Court of Human Rights balances rights and considers whether restrictions on rights are necessary and proportionate, Amendment 138 is unequivocal: there will be no restriction on freedom of expression on the internet without a prior judicial ruling, which leaves no room for proportionality. Or rather – it leaves the proportionate decision to a court.


Digital Britain

The phrases ‘human right’ or ‘freedom of expression’ don’t appear in the Digital Britain report. Hardly surprising for the country where sexual intercourse began in 1963 and freedom of expression in 1998. On 16 June, the same day that Digital Britain was published, the government also sneaked out a new consultation on legislation to address illicit P2P file-sharing. Human rights don’t feature here either though ‘consumer protection’ does. HADOPI is outlined: the Conseil ‘argued’ that current provisions did not comply with ‘French constitutional principles’. Gordon Brown wrote in The Times that ‘a fast internet connection is now seen by most of the public as an essential service, as indispensable as electricity, gas and water’. What is ‘seen by most of the public as an essential service’ isn’t quite a human right.

The Digital Britain proposals provide for an initial year trial period of sending out notifications to infringers and identifying serious offenders so that they can be sued by rights-holders. If that fails to reduce illegal file-sharing by 70%, then Ofcom will be able to require ISPs to apply an armoury of ‘technical measures’ such as blocking (site, IP, URL), protocol blocking, port blocking, bandwidth capping (capping the speed of a subscriber’s Internet connection and/or capping the volume of data traffic which a subscriber can access); bandwidth shaping (limiting the speed of a subscriber’s access to selected protocols/services and/or capping the volume of data to selected protocols/services); content identification and filtering – or a combination of all of the above. Which means, despite protestations to the contrary, a ‘three-strikes’ policy remains firmly on the UK legislative agenda.

Digital Britain and the file-sharing consultation propose that the ‘technical measures’ could be imposed by ISPs with no prior ruling by a judicial authority:

It also seems reasonable and appropriate that, should further obligations be imposed, consumers have access to a clear and transparent (and independent) appeals mechanism since such measures may be taken against them without the benefit of a judicial hearing. In those circumstances it may be appropriate for an enhanced consumer appeal process to be introduced along the lines of an ombudsman.

ISPs’ powers are circumscribed: Ofcom would have to be satisfied that the imposition of technical measures by ISPs is objectively justified and proportionate and either House of Parliament could anul the power to impose technical measures – ‘this should ensure that the power cannot be used frivolously’. But these fall short of prior judicial rulings in individual cases.

While the French have decided that a Haute Autorité isn’t good enough to cut off internet connections, the British are considering leaving the job to ISPs. ISPs, it is proposed, would set up a joint call centre – though there would have to be an independent appeals mechanism. On the one hand, we’d be saved judicial costs (what about a P2P Division?) but, on the other hand, ISPs – in my personal experience – make abundant administrative and technical errors and are hell to get through to (half a day being bounced round Indian call centres to no avail). How would outsourced human rights sound? ‘We are currently experiencing high call volumes. If you’re having problems with your broadband, first try rebooting your computer. If that fails, examine your conscience. If your conscience is clear, please hold the line while we try to connect you with an advisor, who will be able to help you with all technical and human rights problems.’


Digital Britain in Digital Europe

If Amendment 138 of the Telecoms Package is adopted, then there would be a potential conflict with EU law. On 17 June Lord Carter made a statement to the House of Lords reporting the 11 June EC Telecommunications Council meeting. EU Telecoms Commissioner Viviane Reding had, he said, expressed concern that refusing to adopt Amendment 138 would delay the Telecoms Package as a whole but the UK had objected, as Lord Carter explained: ‘The vast majority of member states said that they could not accept the EP amendment, some noting that it potentially interfered with national competencies. The UK noted that the amendment was unacceptable both in legal and policy terms, noting how it could constrain future decisions of the Government.’

The UK file-sharing consultation states that ISPs would follow a code and Ofcom would not approve any part of the code that imposes an obligation contravening UK or EU law. The consultation, however, is only consulting on a code for a system of notification and collecting infringement information, not the application of ‘technical measures’. ‘Technical measures’ are only pencilled in for implementation in 2012, so the UK government may be deliberately leaving this aspect of the legislation open until the Telecoms Package is put to bed.

However, even if Amendment 138 isn’t adopted, then trial by ISP may still fall foul of the European Court of Human Rights. Jan Kleijssen, director of standard setting at the Council of Europe, said (before the HADOPI law was gutted) that ‘experts at the Council expected in fact that the so-called French HADOPI law, which cuts internet access for three-time suspected IP rights infringers, eventually will arrive at the European Court of Human Rights’ (IpWatch). Furthermore, the Charter and Convention denounce ‘interference’ with free expression – why should that only apply to cutting off internet access? ‘Interference’ is a fair description of all the ‘technical measures’.

Is Digital Britain heading for three strikes? Strike 1: the decision of the French Conseil. Strike 2: Amendment 138. Strike 3: incompatibility with the Convention on Human Rights. You can cut the courts out of the laws but you can’t cut the laws out of the courts.

Faustian Fudge

Legislators around the world now shaping the new laws concerning digital copyright infringment are considering not only how to catch infringers and what penalties they should face, but who should impose those penalties. The EU has been debating this last issue.

The European Parliament’s second reading of the ‘Telecoms Package’ is due next Tuesday. The Telecoms Package consists of numerous amendments to existing EU telecommunications directives and they are hotly opposed by some, such as Blackout Europe. Amendment 46, to the 2002 Framework Directive, has been subject to some radical last-minute rewriting. The ITRE Committee (for Industry, Research and Energy) voted on it last week, adopting this wording: ‘no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities’. So, for example, a court order would be required before cutting off internet access. Yesterday (29 April), the formulation of what IpTegrity terms a ‘Faustian pact’, was agreed instead:

Measures taken regarding end-users' access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, including in relation to privacy, freedom of expression and access to information and the right to a judgment by an independent and impartial tribunal established by law and acting in respect of due process in accordance with Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Hardly a step in the direction of clarity. The words ‘judicial authorities’ and ‘prior ruling’ have been struck through, replaced by ‘respecting rights including in relation to the right to a judgment’. So you’ve got a right but is it now up to you to appeal to a court after access has been cut? France had opposed the previous wording - their intended new law is to be administered by HADOPI, a non-judicial body, but it is unclear whether HADOPI fits the tribunal described above. The UK government may also be pleased: the recent proposals for handling copyright infringement have envisaged roles for a variety of non-judicial bodies, including ISPs, a Digital Rights Agency and Ofcom, potentially taking action before a court ruling.

If you think this is Faustian or simply a fudge, there is still time to contact your MEP….

Monday in Brussels : The Pirate Party and Google come to town

Tomorrow, Monday, Brussels will be buzzing with copyright-related debate.

The Pirate Party and the Green Party are joining forces to discuss the Telecoms Package (previous 1709 blog posts here). Live streaming of the seminar here. Further info on iptegrity here.

Meanwhile, the EU Google Book Settlement hearing will be taking place. Topics for discussion are here. Speakers here. (No live streaming.)

Some people will miss both events, right.

New EU guide to online rights

The EU yesterday launched eYouGuide, a new consumer guide to online rights. It explains differences between member states - and the UK's private copying rules are singled out: "In the majority of EU countries, you can copy your media file for your own private use, for non-commercial purposes. The number of copies you can make might be limited. The rules differ from country to country. In some EU countries, namely the UK and Ireland, you are not allowed to make a copy of a copyrighted file for private use." More information on ars technica here.

Also yesterday the EU voted to leave the decision to cut off internet access to courts (previously discussed here). IpTegrity provides details of this latest reversal for the Telecoms Package here.

2012 - The Copyright Year

What do you mean- you didn't have time to read the 1709 Blog this year? Shame on you - but here's a quick recap of 2012. It's from my personal perspective, a UK lawyer working in the music industry, so please feel free to comment and add what you think I may have missed out. It's been a "mega" twelve months! Oh, and since it's nearly the end of 2012, can we wish you a very happy, fulfilling and prosperous 2013!

That red bus

In early January, the European Union and twenty two of its member states signed the Anti-Counterfeiting Trade Agreement (ACTA) - designed to ensure a basic system of global intellectual property protection. The signing ceremony went quietly in Tokyo (although there were some very public protests in Poland) and only five EU countries did not sign - Germany, the Netherlands, Estonia, Cyprus and Slovakia – but that was really that last success ACTA saw, as the Treaty received a global PR bashing. The  Spanish Parliament implemented the somewhat controversial Sinde law, which was planned to make it easier for content owners to target copyright and block infringing websites. In Holland a court in The Hague ordered Dutch ISPs Ziggo and XS4ALL to block access to controversial website The Pirate Bay, in order to prevent illegal downloading of music, films and games. In the UK HH Judge Colin Birss QC gave his landmark judgment in Temple Island Collections Ltd v New English Teas Ltd & another – the ‘red bus’ case with Jeremy commenting “If the learned judge's analysis, based on (among other things) the view of the Court of Justice in Case C-5/08 Infopaq as to what constitutes the protectable subject matter of an author's work, is correct, the advice which I have given law students since I first taught copyright in the 1970s is no longer reliable, that the photographer who recreates the effect of another's photograph of a public scene or monument is now a copyright infringer, and that there may now be a notion of copyright in an idea, a lay-out or a scheme for such a photograph”. Question: Can the concept of a picture of red London bus set against a stylised monochrome Houses of Parliament attract protection? Answer: yes it can - on the facts! And the MegaUpload saga began with US raids on Mega's servers, shutting down the website, and the January 19th New Zealand arrest of Kim "Dotcom " Schmitz and three associates on copyright infringement charges - and the seizure of $10 million from banks, and other assets.

MegaUpload

In February the first doubts started to trickle out in the ‘Megaupload’ case and whilst Kim ‘Dotcom’ Schmitz and his colleagues remained in custody at this point (released on bail later in the month) the case was to proving to be required reading during the year. And back to ACTA: some of the previously committed EU signatories started to voice doubt over their commitment – and the EU referred the Treaty to the European Court of Justice. In Spain the law Sinde faced a challenge in the country's Supreme Court, who agreed to hear an appeal from the Association Of Web Users who claim the law is unconstitutional – and the the Court of Justice of the European Union published its long-awaited judgment in Case C-360/10 SABAM v Netlog – and said that the owner of an online social network cannot be obliged to install a general filtering system, covering all its users, in order to prevent the unlawful use of musical and audio-visual work by some, which made for interesting reading for British ISPs who had just digested Mr Justice Arnold's thoughts in Newzbin 2, then compared it to the ECJ's position in SABAM v  Scarlet (Tiscal) and the provisions of Art. 15(1) of the E-Commerce Directive, and then later on the year faced another blocking order against The Pirate Bay.

The Pirate Bay

In March, as The Pirate Bay co-founder Carl Lundstrom prepared to serve his four month prison sentence under house arrest in Sweden, the current Pirate Bay organisers announced plans to put copies of their database onto servers in the sky - on "small airborne drones" connected to the mobile internet - that would have to be literally “shot down” to take the site offline.  The High Court of Justice in London ordered telecoms company O2 to hand personal details of more than 9,000 broadband subscribers to film company Golden Eye International and pornography producer and distributor Ben Dover Productions under a Norwich Pharmacal order. Leave to appeal was granted. In Europe, the ECJ handed down its decisions in two copyright cases. In the first, Public Performance (Ireland) v Ireland, Attorney General (C-162/10), a reference from the Irish High Court, we learned that communications by hotels to hotel bedrooms are communications to the public - although we didn't really learn that, as it had already been decided in the SGAE/Rafael Hoteles case.  We also learned that the ECJ did not think that Ireland was acting consistently with the Rental and Lending Directive Article 8(2) in exempting hotels from the right to equitable remuneration for the communication of sound recordings to the public.  In the second case, SCF v Marco Del Corso (C-135/10), a reference from the Court of Appeal in Turin, John explained that the ECJ had found that the playing of phonograms in dental surgeries was not such as to trigger the remuneration right, because it did not constitute a communication to the public for the purposes of the same equitable remuneration right.  Talking of remuneration, an ongoing theme all year was the paucity of royalties paid by the new online digital services such as Spotify and Vevo, with complaints from both songwriters and recording artistes, music publishers, and even independent labels, that they were being underpaid - if they were being paid at all. 

In April Australia's High Court, the nation's highest, gave a clear ruling that internet service providers are not liable for authorising copyright infringement by making their services available to people who do infringe copyright. The High Court unanimously dismissed the appeal in the case and the Court observed that iiNet had no direct technical power to prevent its customers from using the BitTorrent system to infringe copyright in the appellants' films. Rather, the extent of iiNet's power to prevent its customers from infringing the appellants' copyright was limited to an indirect power to terminate its contractual relationship with its customers. Monika reported that YouTube had lost  a dispute before the Regional Court of Hamburg (LG Hamburg) against German collecting society GEMA and YouTube was held liable under the principle of 'Störerhaftung' ('disturbance liability' - secondary liability for contributing to someone else's breach of a third party's rights) and was issued with a permanent injunction to take down a number of songs in which GEMA administers the making available rights, and was told to ensure that the songs in question do not reappear on the platform in the future. Jeremy brought us news of  Advocate General Bot's opinion in Case C-128/11 Axel W. Bierbach (liquidator of UsedSoft GmbH) v Oracle International Corp: According to Advocate General Bot: creators of computer programs may oppose the resale of 'used' licences which allow their programs to be downloaded from the internet again. However, AG Bot suggested that they may not oppose the resale of 'used' copies, downloaded by their own customers from the internet, given that their exclusive right of distribution relating to those copies is 'exhausted'. And Weird Al' Yankovic became the latest artist to file a digital royalties claim in the US in a wide ranging royalties lawsuit that accused Sony Music of improper reporting of its costs, of failing to pass on any of the damages it won from file-sharing companies and of paying him a record sale royalty on download sales when such revenues should be treated as licensing income, joining the ranks of artistes including of FBT (Eminen's producers), Cheap Trick, The Allman Brothers, Chuck D, Sister Sledge, Boz Scaggs, Whitesnake, the estate of Rick James,  Dixie Chicks, Peter Frampton, REO speedwagon, Toto, The Temptations, Rob Zombie and Kenny Rogers in the fight to get increased digital royalties based on a share of digital revenues rather than the far less attractive 'per unit' royalty based on each digital sale which are then usually then subject to further royalty reducers. Later in the year Def Leppard took the unusual step of re-recording their entire back catalogue to release themselves to circumvent record label practices and poor royalties.

At the beginning of May we reported that the High Court in London had issued orders requiring five internet service providers to block access to The Pirate Bay file sharing site. The five ISPs were Sky, Everything Everywhere, TalkTalk, O2 and Virgin Media, with BT asking for more time. Neelie Kroes, the European Commissioner for the Digital Agenda  said that the Anti Counterfeiting Trade Agreement (ACTA) was likely to follow the US’s SOPA (Stop Online Piracy Act) into the dustbin of failed legislation saying “We have recently seen how many thousands of people are willing to protest against rules which they see as constraining the openness and innovation of the internet” adding “there is a strong new political  voice, and as a voice for openness, I welcome it even if I do not always agree with everything it says on every subject … we are now likely to be in a world without SOPA and ACTA”.  And In a court ruling which has significant implications for the music industry, a Californian judge dismissed a suit by two song publishing companies aimed at preventing Victor Willis, the former lead singer of The Village People, from exercising his right to reclaim ownership of YMCA and a number of other massive Village People hits which he wrote and co-wrote in the 1970s. The right to reclaim arose when the Copyright Act amendments went into effect in 1978 and it meant that songwriters could terminate copyright grants to publishers and record labels 35 years later. Also in the USA, the US Supreme Court  refused to hear the Joel Tenenbaum case on appeal (in a case brought by the Recording Industry Association Of America) which resulted in a win for the RIAA and damages of $675,000 awarded by the jury for illegally sharing 30 songs online. In the yo-yo world of US copyright infringement damages in this and the Jamie Thomas-Rasset case, 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. And Clear Channel, the biggest radio company in the US with 850 stations, entered into a landmark agreement with country music label Big Machine which will see the broadcaster pay a royalty for the use of sound recordings on it's terrestrial radio channels for the first time.

In June the European Parliament's influential International Trade Committee recommended that members of the Parliament vote against adopting the Anti Counterfeiting Trade Agreement (ACTA), prompting an angry backlash from trade groups representing the content industries including the record labels international body the IFPI who said in statement "The recommendation by the European Parliament's International Trade Committee that the Parliament should reject ACTA is a disappointment to Europe's creative, innovative and manufacturing sectors, which employ over 120 million people across Europe and depend on intellectual property to support and grow their businesses". Wikipedia founder James (Jimmy) Wales came out in support of Richard O'Dwer, the 24 year old multimedia student at Sheffield Hallam University who set up TVshack.net, making some £140,000 in the process, and who was then facing extradition from the UK to the USA on copyright infringement charges. In the US the Electronic Frontiers Foundation said that “In an important ruling for free speech” the Court of Appeals for the Seventh Circuit had affirmed that a parody of a popular online video "What What (In the Butt)" was a clear case of fair use and that the District Court's early dismissal of the claim was correct and that early dismissals can be appropriate. In France  the Syndicat National de l'Edition (SNE, the French Publishers Association) and the Société des Gens de Lettres (an authors' group) put an end to a six year long running litigation against Google, over its project of digitising out-of-print books and here on the 1709 blog, Mira T. Sundara Rajan's guest post "Getting Paid is a Moral Right, too! Why Creative Commons Gets itWrong" became one of the most controversial pieces to appear  - and has certainly attracted some of the strongest criticism – and it's well worth another look to see what Mira, now a permanent 1709 nlogger, was suggesting .

Am I legal?

In July the judgment of the Court of Justice of the European Union in Case C-128/11 UsedSoft GmbH v Oracle International Corp was given, holding that "An author of software cannot oppose the resale of his ‘used’ licences allowing the use of his programs downloaded from the internet. The European Parliament voted against the much maligned Anti-Counterfeiting Trade Agreement. And they voted against it in some numbers with just 39 in favour, 165 abstained and 478 were against - interesting as you will remember that all but 5 of the EU's 27 member states have already signed up to the Treaty. In New Zealand statistics from the Federation Against Copyright Theft (FACT) claimed  that since New Zealand's "Skynet Act" three-strike law was implemented in September 2011, the number of illegally viewed films in the top 200 online has dropped from 110,000 to 50,000, i.e. by just over 50%. And in the UK  Richard Hooper published his final report on the creation of a UK based Digital Copyright Exchange. The report, "Copyright Works:  streamlining copyright licensing for the digital age" set out four main recommendations under the remit of setting up a not for profit industry led and industry funded Digital Copyright Exchange and the "Copyright Hub".

ivi - I am not a cable network

In August  the US based television streaming service ivi suffered a major setback after the federal appeals court upheld a lower court’s temporary injunction against the controversial company in a case brought by ABC, NBC, Universal, Univision, Fox Television, CBS and several other broadcasters, asserting that the startup was infringing their copyrights by live-streaming their programming without permission. The US Court of Appeals for the Second Circuit said that allowing ivi to resume service could “threaten to destabilize the entire industry” and inflict irreparable damage on the networks.   It also determined that ivi was not legally the same as a cable network, noting in particular that it “retransmits broadcast signals nationwide, rather than to specific local areas". Also in the US, Federal authorities  seized three domains which they believed were involved in the illegal distribution of pirated Android apps.  In Germany the  Federal Court of Justice, the Bundesgerichtshof, held that internet service providers (ISPs) must disclose the name and address of illegal file sharers when requested by copyright owners. In the UK Anton Vickerman, the owner of TV streaming links site SurfTheChannel, was sentenced to four years custody at Newcastle Crown Court  after being found guilty of conspiracy to defraud for “facilitating” copyright infringement under the Criminal Justice Act. China released a second draft revision of its Copyright Law for public comment, dropping the controversial Article 46 that raised an outcry from Chinese musicians. In India the Madras High Court passed an interim order prohibiting a dozen ISPs and one named individual from uploading the Tamil film "Mirattal" or any portion of it to the Internet. The order also prohibited facilitating downloads of the film. In addition, the Court granted five "John Doe" orders imposing the same restrictions on persons whose identity was not known at the time that the order was granted. And Google said it had taken significant step against online piracy after saying it would alter its search algorithms to favour websites that offered legitimate copyrighted movies, music and television. Google said that it's algorithms would now take into account the number of valid copyright removal notices sites have received and  sites with multiple, valid complaints about copyright infringement may appear lower in Google search results.

So, September! Time for Neelie Kroes, Vice-President of the European Commission responsible for the Digital Agenda, to give a speech entitled "Copyright and innovation in the Creative Industries" addressing why, in a changing digital age, copyright reform is the right way to support the creative sector.  She began by saying that the debate on copyright often involves extreme positions, rigid views, and emotive arguments but that a pragmatic rather than philosophical approach is necessary and commenting that "In 1998, Mark Zuckerberg was 14. Today, almost one billion people around the world actively use Facebook, to share photos, videos, and ideas" pointed out that the world is changing rapidly and that the internet had opened that the creative space up to individuals who can publish their books, blogs, songs and art easily and globally. Staying with Europe, the proposal for a directive on certain permitted uses of orphan works was approved by the European Parliament who voted in favour of the proposed directive by 531 votes to 11, with 65 abstentions. Bruce Willis was said to be considering legal action against technology giant Apple over his desire to leave his digital music collection to his daughters having discovered that, like anyone who has bought music online, he did not actually own the tracks but is instead was  ‘borrowing’ them under a licence. The story was probably a hoax, but made for a great debate! And Simon Clark's guest blog in the 1709 caused quite a stir. 'Why the Meltwater case won't break the internet' provoked widespread comment and indeed a response here , all debating whether Meltwater was a fair and reasonable victory for rights owners - or a chilling clamp down on the freedom to link and browse online.

And what of October I hear you ask? Well my fellow bloggers were busy again. The month started with the news that illegal downloaders in Japan now face prison terms of up to two years and fines of nearly 2 million yen (U.S. $25,679 or £15,900) from today. The Japanese government said that the move was aimed to protect the film industry and stop falling music sales in the World's second largest music market, where record industry officials estimate only one in 10 downloads are legally purchased. The Recording Industry Association of Japan says the legal download music market shrank 16% in 2011, the second consecutive year of decline. The slide comes despite global sales of digital music increasing 8% last year to $5.2 billion. In Europe, Eleonora reported that  the Orphan Works Directive, which has long been in the pipeline, was finally been adopted by the Council. The Council's approval marks the final step in the legislative procedure meaning that the Directive will formally enter into force and Member States will then have two years to transpose it into national law. And Google hit the news , firstly after the search behemoth sent a dramatic letter to several French ministerial offices, threatening to exclude French media sites from search results if France goes ahead with plans to make search engines pay for content (after a number of  leading French newspaper publishers had called on President Hollande's government to adopt a law to force internet search engines such as Google to pay for content )and in other aggregator v publisher battle, 154 members of the Brazilian National Association of Newspapers (ANJ) opted out of the Google News service.

Frog Wars - Disney v Brightspark

November – the nights a drawing in over the Northern hemisphere – and we are nearly there! The Swedish court, the Svea hovrätt, made a request for a preliminary ruling from the CJEU regarding the infringement of exclusive rights to make copyright protected work publicly available by a third party subscription search engine. The case is Nils Svensson, Sten Sjögren, Madelaine Sahlman, Pia Gadd v Retreiver Sverige AB (Case C-466/12). In Finland an ill advised 8am police home raid resulted in the seizure of a nine year old girl's laptop which was used in the failed attempt illegal download  of a song by pop star Chisu from The Pirate Bay website. As Iona commented, it is probably one of the first Winnie-the-Pooh laptops to be seized for attempted illegal activity. Talking of hardware, in The Netherlands Hewlett-Packard, Acer, Dell and Imation filed a claim against the Dutch government at the District Court of the Hague claiming damages caused by the new, higher, private copying levies which were extended to  apply to all hardware from January 2013. And the Spanish Government’s public consultation over the new draft regulation for collecting fair compensation for private copying ended. The consultation was set up after the December 2011 abolition of of the Spanish copyright levy:  it's main objective is to establish a new system to compensate right holders for private copying. Taking a look at Germany, Iona blogged asking the question “should parents be legally responsible for their teenager's actions?” and commented that  “As whilst teenagers are a law unto themselves”  the thought of being legally responsible for one is pretty frightening – and highlighted the decision of the German Federal Court, der Bundesgerichtshof, which said that the parents of a 13 year-old file-sharer could not be held responsible for their son's infringement. Further, they could not be required to monitor or hinder his activity online. Phew! Asim (our French Kat) reported that the  long-running court battle between French FTA television broadcaster M6  and the publisher of a website that gave access to the broadcaster's catch-up TV sites (without permission) ended after the French Supreme Court (Cour de Cassation) rejected the appeal against the appellate court's ruling in favour of the publisher. Richard O'Dwyer, the 24 year old UK student who created TVShack, escaped extradition to the USA. O'Dwyer had done a plea bargain - whereby he would attend the USA and visit a court - and pay over a limited amount of compensation, avoiding both extradition and a criminal trial for the infringements. Iona posted a very interesting blog asking the very timely question "Is the term of protection of copyright too long?", In the US, the debate over who pays what (if anything) to SoundExchange and ASCAP/BMI for using recorded music and songs on internet, satellite and terrestrial radio services continued, and finally, Disney won it’s battle with UK independent production company Brightspark Productions after claiming it was misleading consumers with a series of budget family DVDs which appear to be copycat versions of Disney's own popular animated films (but when viewed most certainly were not).

It’s December – its nearly Christmas, but no time for turkey and Christmas pud yet. The Pirate Party in the UK disabled it's proxy - which provided access to The Pirate Bay, following a legal challenge from UK record labels trade body the BPI. Iona let us know that the Canadian Supreme Court had decided in Cogeco Cable Inc, et al v. Bell Media Inc et al that Canada's broadcast regulator does not have the authority to impose a "value for signal" plan under which television broadcasters would charge cable and satellite firms for retransmission of their content. This seems to be the opposite to what has been decided in Europe - in Airfield the CJEU found that satellite package providers who retransmit content give access to a "new public" and must therefore get authorisation to retransmit the work. The new Spanish copying levy was passed into law. Eleonora reported that the EU Commission held an orientation debate on content in the Digital Economy to address "whether the copyright framework remains fit for purpose in the digital context". In the UK in the aftermath of the Hargreaves Review, a group of creators and copyright owners urged the UK government to reconsider impending changes to copyright law which they say would seriously restrict the ability of British creators and copyright holders to license and earn revenue from their rights - by widening and redefining exceptions to copyright infringement - perhaps to something more akin to the US 'Fair Use' doctrines. The press release pre-empted the Government's Modernising copyright, a modern, robust and flexible framework which detailed planned revisions to 'fair dealing'. The Business Secretary Vince Cable outlined his plans to have a dedicated team at the City of London police force to tackle IP crimes And three EC commissioners, Michel Barnier (Internal Market and Services), Androulla Vassilliou (Education, Culture, Youth) and another mention for Neelie Kroes (Digital Agenda), jointly issued a press release which detailed the four issues they thought should be addressed by "stakeholder dialogue" for copyright reform - cross border access and portability of services to promote multi territory access, user generated content and licensing of small scale users, efficient solutions for text and data mining, and commercial and non commercial uses in the audio-visual sector. And finally, It didn't take Facebook long to backtrack over it's controversial policy changes that it intended to make regarding photo-sharing app Instagram. In a move that reminded me of Myspace's ill advised policy of trying to "own" it's own users' music, Facebook said that user's photos would be owned and could be potentially exploited (in perpetuity) by the web giant without notification or payment,effectively transforming the Web site into the world's largest stock photo agency. Cue the angry backlash, an apology and the terms were swiftly reverted to their 2010 format, but the damage from this and from earlier "user hostile" changes to privacy settings, was done. So as 2012 ends, do we see the beginning of the end  of Facebook?

Let's hope 2013 proves just as interesting!

Last year's review here