Wednesday 30 September 2009
Under UK law the author of a musical work that is computer-generated is the person by whom the arrangments necessary for the creation of the work are undertaken (CDPA1988 s. 9 (3)). So far so simple. But a computer-generated work, the Act tell us, is one of which there is no human author (CDPA 1988 s.178).
David Cope, Dickerson Emeriti Professor at the University of California-Santa Cruz has spent decades working on programmes that "compose" music, reports Ars Technica. Says Cope, "as time progressed ..... I got this idea of data-driven programming. Instead of me writing all the rules for the program, I would create a database of music and have the computer analyze that data to attempt to produce something like it."
The Professor produced EMI (pronounced "Emmy"). "EMI was originally developed to analyze [Cope's] own musical style by feeding it past compositions in hopes of finding patterns—little musical signatures that only he does—and replicating them in new ways". This proved unpopular with musicians - or at least their agents: "A number of big-name classical performers expressed interest, but their agents wouldn't let them touch it with a ten-foot pole, citing industry controversy. They thought it would blemish the name of the performer......" Explore EMI's works as MP3 files here.
Below: A Ten Foot Pole
Now, Professor Cope, looks set to stir up fresh controversy with his new brain child "Emily Howell". Ars Technica reports: "Instead of feeding Emily a database of works that already exist, he gave her a collection of works that EMI had produced to get it going and, from there, she began working on her own musical style. Cope described Emily's style to be similar to modern composers, a "sort of an amalgam of all styles" and very contemporary. But what makes Emily interesting isn't just that; it's the fact that she can take audible feedback—musically or verbally—from an audience in order to modify her compositions."
Cope tells us that"The program produces something and I say yes or no, and it puts weights on various aspects in order to create that particular version. I've taught the program what my musical tastes are, but it's not music in the style of any of the styles—it's Emily's own style."
And Emily?: She is soon to release "her" first CD on Centaur Records. And for the record company, just think of the savings on stylists, photographers, make up artists, and the rest of the army of promotional primpers and crimpers that support many an artist.
Tuesday 29 September 2009
Monday 28 September 2009
Congress created this new position last year as part of a legislative package of intellectual property reform. The formal title of the czar “Intellectual Property Enforcement Coordinator”, which suggests that she may not be equally popular with all sides of the copyright community if she gets the chance to fulfil her job description. According to Threat Level:
"The czar’s position is charged with overseeing government anti-piracy crackdowns and, among other things, training other countries about IP enforcement. The Pro-IP Act also called for the creation of an FBI piracy unit and allows for the forfeiture of equipment used in large pirating operations. The legislation was strongly backed by Hollywood, the recording industry, unions, manufacturers and the Chamber of Commerce".
Friday 25 September 2009
The cover story, it transpires, is a piece by Nigel Gilroy (Davenport Lyons) on how to best protect and monetise online rights. According to the abstract,
"Consumers and businesses around the world have undoubtedly enjoyed the benefits of the internet over recent years. However, these benefits have come at a price for rights owners, who find themselves in a constant battle with those who are happy to exploit intellectual property rights (IPRs) yet are unwilling to pay for the privilege".Familiar story? Yes but, while the basic plot remains the same, each new court decision, lobby poturing and business plan provides a fresh new twist and provides a factual prism through which the 'where's the money?' and 'where's the enforcement?' issues can be reviewed/
Further details of Copyright World are available here.
Thursday 24 September 2009
Not to the French. Google was in court today in France over the same thing ... verdict expected before Christmas.
Those who think enough trees have been demolished in this cause should remember that it concerns almost everything every written (that's in copyright).
Accompanied by culture secretary Ben Bradshaw, he emphasising that illegal downloading is threat to the livelihoods of "talented hard-working people striving to get a foothold" in the creative industries.
He also seems to have tried to calm down some of the more uninformed debate on the topic by emphasising that he is only proposing temporary account suspension, as a last resort and in the most serious cases (although of course it remains unclear how the industry Codes of Conduct contemplated by the new legislation will determine which are the most serious cases).
"WIPO Partners with Actors and Musicians to Boost Performers’ Rights
The World Intellectual Property Organization (WIPO) signed on September 23 an agreement with the International Federation of Musicians (FIM) and the International Federation of Actors (FIA) [if it's FIM and FIA, not IFM and IFA, you can be sure the civil lawyers of continental Europe have been busy ...] to support efforts to improve recognition of the significant contributions [The Department of Ambiguity asks whether 'significant' limits the totality of contributions, or suggests that they are significant by virtue of the fact they are contributions] made by actors and musicians around the world [and not elsewhere?].
The agreement, signed by WIPO Director General Francis Gurry, FIA President Agnete G. Haaland and FIM President John Smith, seeks, in particular, to help improve the status of performers in developing countries.
The agreement highlights the connection between IP and labor ["IP is a legal weapon with a worker at both ends of it"] and the special concerns of cultural workers from the viewpoint of development and cultural diversity [does this mean anything to anyone other than the person who wrote it?]. It provides for the organization of joint activities to strengthen performers’ networks and improve their economic and legal status [well, that can't be bad], as well as for raising awareness of the need to support performers. Actors and musicians are an essential element in the development of the creative potential of all economies, particularly in developing countries [Cf doctors, accountants, lawyers, night-club bouncers, career politicians and diplomats? Depends what you mean by 'essential']. It is further anticipated that the agreement will help to galvanize support for the protection of performers at international level [galvanize, initially, is to provide a superficial external surface to cover the substance that lies beneath ...].
Treaty negotiations on the protection of audiovisual performances were deadlocked in December 2000 because of a lack of agreement on the issue of transfer of rights from the performer to the producer [Some would churlishly argue that it is the producer who is "an essential element in the development of the creative potential of all economies", but this is not the place to raise this issue]. Since that time, WIPO has undertaken extensive international consultations to develop information materials on outstanding differences and to improve the flow of information and understanding of the situation of performers [It's good that information materials are being gathered: it's a tedious task but, in the long run, decisions based on fact are likely to be sound than those based on fashionable sentiment, political preference or economic dogma]. Recent consultations among Member States, held in Geneva, allowed for an open debate on this issue, which remains under consideration of the WIPO General Assembly.
FIA and FIM gather, respectively, unions of musicians and actors from all regions in the world. Together they represent hundreds of thousands of professional performers working both in the sound and audiovisual industry [They do indeed, and their task is hard. As much as they toil to better the plight of their members, technology persists in evolving in ways that make it easy to lose any gains they achieve in policy or legal terms]".
Tuesday 22 September 2009
Tel Aviv District Court judge Michal Agmon-Gonen held that this was an instance of "fair use", since no profit was made from the broadcasts and, under Israeli law, infringement of "broadcasting" copyright only applied in respect of cable or wireless transmission, but not streaming over the internet.
The site, added the judge, had important social aims: "watching sports events is socially important and should remain in the realm of mass entertainment, and not just be for those who can afford it", accepting that those who view online were not damaging the revenues of broadcasters but primarily "those of small means or who are not sufficiently interested in sport to pay".
Sunday 20 September 2009
The BBC Trust’s consultation documents say content may be denied access if it breaks ‘UK laws’. Meaning? ‘It is proposed that any “editorial” policy set by the venture would be limited to those concerning issues of harm, offence, protection of minors and so on as required by the Audio Visual Media Services Directive which the Government and industry expect to be implemented in the UK by 19 December 2009.’
The nearest the statement comes to exploring the copyright questions is when it discusses the concerns of foreign rightsholders:
The United States also believes progress can be made with respect to protecting the interests of foreign rightsholders. Google has already indicated that it will take steps to address the concerns of foreign rightsholders, though, to date, those actions do not appear to have addressed the concerns of the United States’ trading partners, which believe that an opt-out regime for foreign rightsholders is prohibited.The statement goes on to say that the parties should consider an opt in, but doesn’t say that this is a must. In fact, where the statement proposes several solutions to satisfy the class action rules, all proposals include an opt-out element to a greater or lesser extent.
It is surprising that the US government should, of all things, make no attempt to face the fundamental constitutional question posed, for example, by Marybeth Peters of the Copyright Office that the Settlement could be encroaching on the legislative function of Congress. One thing is clear: by avoiding this issue, the government is refusing to block the Settlement on those grounds. Had the government accepted this argument, the Settlement would have been dead in the water. As it is, the specific demands the statement makes are relatively limited: Google should share this business opportunity with other companies and the class action rules need to be satisfied (for which the statement offers the parties a choice of proposals: some are far-reaching but others are relatively painless).
The fact is, as the statement makes abundantly clear, the United States government badly wants to see this digital resource become a reality: ‘The United States strongly supports a vibrant marketplace for the electronic distribution of copyrighted works, including in-print, out-of-print, and so-called “orphan” works.’ For the USA the Google Library Project is a business opportunity that is simply too good to miss.
Wednesday 16 September 2009
In the UK, the topic is equally divisive; After (Lord) Peter Mandelson suggested that the UK could adopt a similar three strikes approach, a sharp divide opened up between the record and film industries (who strongly supported the move) and the Featured Artists Coalition, the British Academy Of Songwriters, the Music Managers Forum and the Music Producers Guild who were far more worried about the effect of content owners suing fans. Nick Mason (Pink Floyd), Dave Rowntree (Blur), Billy Brag and Ed O'Brien (Radiohead) are spearheading the FAC's alternative approach which acknowledges that file sharing can damage record sales but can also stimulate the sale of records, downloads, merchandise and concert tickets and cross generations with Mason saying "the last thing we want to be doing is to go to war with our fanbase. Filesharing means a new generation of fans for us".
Stuck in the middle of all of this is UK Music, the cross-sector music body headed up by ex Understone frontman, Radio Authority member and record label executive Feargal Sharkey who somehow needs to bring together the diverse views of it's membership – which includes labels, retailers, publishers, managers and artists. UK Music issued a new (somewhat vague) statement trying to demonstrate some unity on the issue saying "In context of an evolving licensed digital music market, we believe that government intervention is extremely welcome and that, subject to assessment, [media regulator] OfCom should be granted appropriate and proportionate powers as directed by the Secretary of State" although Sharkey added "Like all of society, like all creative businesses, the UK's commercial music industry reflects a wide spectrum of viewpoints and opinions. Discussions over recent weeks have drawn us much closer together and helped us to realise with greater certainty our shared vision of the future. We continue to welcome the government's support and intervention, both of which will be vital to ensure that those who create and invest in music have the opportunity to deliver their full potential and reap the benefits, rewards and promises of an ever-evolving digital marketplace".
CMU Daily 16 September 2009 http://www.thecmuwebsite.com/
Tuesday 15 September 2009
Now U.S. District Judge A. Howard Matz has granted Veoh's motion for summary judgment, and ruled that the company is protected against such claims saying
"On August 27, 2008, Magistrate Judge Howard R. Lloyd, sitting in the Northern District of California, wrote that the court does not find that the DMCA was intended to have Veoh shoulder the entire burden of policing third-party copyrights on its Web site (at the cost of losing its business if it cannot)”,adding
"Rather, the issue is whether Veoh takes appropriate steps to deal with copyright infringement that takes place. The record presented demonstrates that, far from encouraging copyright infringement, Veoh has a strong DMCA policy, takes active steps to limit incidents of infringement on its Web site, and works diligently to keep unauthorized works off its Web site. In sum, Veoh has met its burden in establishing its entitlement to safe harbor for the alleged infringements here."Universal has understandably vowed to appeal the ruling saying
"The ruling today is wrong because it runs counter to established precedent and legislative intent, and to the express language of the DMCA. Because of this and our commitment to protecting the rights of our artists and songwriters who deserve to be compensated for the use of their music, we will appeal this ruling immediately. The balance between copyright holders and technology that Congress sought in enacting the DMCA has been upended by this decision".Apart from Universal’s setback, the decision might well be a problem for Viacom (owners of MTV) in their 2007 copyright action against YouTube on similar grounds. It is perhaps prudent to note that YouTube have been implementing measures to improve their ‘take down’ system and US commentators have noted that YouTube’s system, with ongoing filter system, is superior to Veoh’s system - which has now attracted safe harbour protection. YouTube has been developing new technical systems that automatically spots content previously banned by a content owner whilst it is being uploaded by a user, so YouTube can, in theory prevent such material ever going live and without receiving a specific take down notice from a content owner and these added ‘enhancements’ to YouTube’s system might well prove to be a major spanner in the works for Viacom’s $1 billion claim. Zahavah Levine, YouTube's chief counsel said.
"With the DMCA, Congress intended to foster online platforms like YouTube, which empower users, offer new distribution channels for content owners, and respect copyright".Fred von Lohmann, senior attorney for the Electronic Frontier Foundation said "Veoh's policies are very similar to YouTube's," adding
"The judge gave Veoh a clean bill of health. I think the court in New York (where the Viacom-YouTube case is being heard) is going to take this ruling very seriously. The facts are very, very close".But Viacom’s general counsel Michael Fricklas was not so sure saying
"Our case is in a different forum, not bound by the Veoh case ….we remain confident that we will prevail on the law and the facts. Today's decision contradicts the consensus that sites and copyright owners share the responsibility to use readily available tools to minimize copyright infringements".http://news.cnet.com/8301-1023_3-10352183-93.html
"The Report details the results of a research study launched in September 2008 to explore differences between "commercial" and "noncommercial" uses of content found online, as those uses are understood by various communities in connection with a wide variety of content.According to the excerpts from the Executive Summary,
The study investigated understandings of noncommercial and use the the Creative Commons "NC" license term through empirical online surveys of content creators and users in the U.S., open access (non random) polls of global "Creative Commons Friends and Family," interviews with thought leaders, and focus group discussions with participants from around the world who create and use a wide variety of online content".
"The empirical findings suggest that creators and users approach the question of noncommercial use similarly [Might this be because, while the functions of creator and user are different, so many people increasingly belong to both categories] and that overall, online U.S. creators and users are more alike than different in their understanding of noncommercial use. Both creators and users generally consider uses that earn users money or involve online advertising to be commercial, while uses by organizations, by individuals, or for charitable purposes are less commercial but not decidedly noncommercial [This suggests the need to recognise a third category rather than the traditional binary split between commercial and non-commercial]. Similarly, uses by for-profit companies are typically considered more commercial. Perceptions of the many use cases studied suggest that with the exception of uses that earn users money or involve advertising – at least until specific case scenarios are presented that disrupt those generalized views of commerciality – there is more uncertainty than clarity around whether specific uses of online content are commercial or noncommercial [ie. there is agreement in theory, but not on specifics].The study home page provides access to the press release, the report itself, the survey appendix, and research data.
Uses that are more difficult to classify as either commercial or noncommercial also show greater (and often statistically significant) differences between creators and users. As a general rule, creators consider the uses studied to be more noncommercial (less commercial) than users. For example, uses by a not-for-profit organization are generally thought less commercial than uses by a for-profit organization, and even less so by creators than users. The one exception to this pattern is in relation to uses by individuals that are personal or private in nature. Here, it is users (not creators) who believe such uses are less commercial [There's a parallel here in terms of file-sharing, where users see their uses as private, therefore noncommercial, while rights owners see the same uses as lost sales, therefore commercial].
The most notable differences among subgroups within each sample of creators and users are between creators who make money from their works, and those who do not, and between users who make money from their uses of others’ works, and those who do not. In both cases, those who make money generally rate the uses studied less commercial than those who do not make money. The one exception is, again, with respect to personal or private uses by individuals: users who make money consider these uses more commercial than those who do not make money.
The results of the survey provide a starting point for future research [It's so refreshing to read this statement. So often, initial survey results are taken as immutable truths and are extrapolated in every imaginable direction. This blog welcomes the recognition that research of this sort is often best done by stepping-stones]. In the specific context of the Creative Commons licenses, the findings suggest some reasons for the ongoing success of Creative Commons NC licenses, rules of thumb for licensors releasing works under NC licenses and licensees using works released under NC licenses, and serve as a reminder to would-be users of the NC licenses to consider carefully the potential societal costs of a decision to restrict commercial use. They also highlight the need for caution when considering whether to modify the CC NC licenses in the course of a license versioning process or otherwise, so that expectations of those using NC licenses are preserved, not broken.".
Monday 14 September 2009
Anyway, this left me thinking about the role played by animals in copyright. They don't generally feature in the world of original literary works (the output of monkeys chained to typewriters was always measured in terms of their typing the public-domain works of Shakespeare rather than works of modern authors, or indeed their own works), though works of art painted by primates, or by ducks with feet dipped in paint and then directed across a canvas, have been keenly debated from time to time.
So we must ask: in this age of animal rights, has the time come for WIPO to set up a Working Party to investigate whether the time is right to create a Standing Committee with a view to advising Council as to the desirability of proposing an instrument, the WIPO Animal Copyright and Performance Treaty, to stimulate investment and protect creativity in the relevant sector?
Friday 11 September 2009
Thursday 10 September 2009
Today the US House of Representatives Committee on the Judiciary held a hearing on ‘Competition and Commerce in Digital Books’. Eight statements were given – here. There’s one from Google and from the Authors Guild but perhaps the most striking comes from Marybeth Peters, Register of Copyrights. Her take on the Google Book Settlement is utterly damning.
Peters strongly objects to the different treatment of out-of-print and in-print books, saying that should be irrelevant to copyright protection, and argues that the Settlement could be a spanner in the works of the ongoing work to frame orphan works legislation. She is also concerned about the effects on international relations – the Settlement ‘has the capacity to create diplomatic stress for the United States’.
But beyond that, she challenges the whole nature of the proceedings and the court’s jurisdiction.
She describes how when the the parties in the original suit settled, the Copyright Office was troubled to find ‘the settlement was not really a settlement at all’ because of the powers it would give Google beyond the issues over which the parties originally litigated.
‘We are not experts on the proper scope of class action settlements, but we do wonder whether, as a constitutional matter, a class action settlement could decide issues that were not properly before the Court as part of the case and controversy presented during the litigation.’She believes – as Microsoft has argued in their objection – that the settlement encroaches on the domain of Congress to frame copyright law.
‘As a matter of copyright policy, courts should be reluctant to create or endorse settlements that come so close to encroaching on the legislative function. Congress generally adopts compulsory licenses only reluctantly in the face of a failure of the marketplace, after open and public deliberations that involve all affected stakeholders, and after ensuring that they are appropriately tailored. Here, no factors have been demonstrated that would justify creating a system akin to a compulsory license for Google – and only Google – to digitize books for an indefinite period of time.’Could the Government pull the plug on the whole thing and compel the district court to say that the Settlement has been found wanting?
VPL's ongoing deal for the public performance of music videos with CSC is based on the broadcaster paying the collection society a percentage of gross revenue for using promotional videos; the collecting society had been demanding a 20% cut of the revenues, a figure which CSC argued was "unreasonably high" putting forward the argument that their service provides promotional benefits to the record labels who own the material licensed by VPL. After negotiations failed to reach an agreement (with VPL maintaining the 20% share and CSC looking for a royalty of 8%) CSC took the issue to the Tribunal. CSC's legal team argued that the record companies received a promotional benefit from having their videos played on their channels and this benefit had not been taken into consideration by VPL before deciding on the revenue cut which it demanded.
It seems the Tribunal agreed with CSC and it set a royalty rate of 12.5% of gross revenue, more than the broadcaster was hoping to pay, but substantially less than the 20% VPL had been demanding. It is interesting that the Tribunal accepted CSC’s arguments, at least in part, saying that there was “uncontroverted evidence … that promotion remains a significant part” of the role of music videos. The record music industry is seen by many as being in terminal decline and that the very existence of record labels is almost certainly dependent on the industry finding new ways to monetise copyrights – and one clear way to do this is to develop income streams from a broadcast models – which is undermined by the very idea of a huge benefit in ‘promoting’ record sales which no longer exist. The record labels would surely argue that is becoming more and more difficult to accept ‘promotional benefit’ as a reason why broadcasters should get free use of copyrights - this is the same argument which has allowed US FM and AM radio stations to avoid paying for sound recording copyrights and this model is now finally under attack in the USA. Perhaps the principles behind the CSC decision will be ready for the Copyright Tribunal to revisit in the not too distant future.
Guardian cartoonist Stephen Bell, of the paper's NUJ chapel committee, told protesters:
"Comment may be free, but content is not free. This move is theft of people's work and their right to make a living from it"-- a statement which will no doubt upset many legal purists by equating the re-use by a party commissioning the taking of a photo with 'theft'. A Guardian spokeswoman is then quoted as saying:
"This change has been introduced at a time when we are cutting back on a wide range of expenditure to ensure [the Guardian Newspaper Group] has a sustainable cost base for the future and is therefore able to continue to continue to invest in photojournalism. It means that we can reuse a photo that we paid to have taken, from 1 September, without paying the photographer again. Photographers retain copyright, and after a 60-day exclusivity period, the photographer is free to resell the picture. Our terms and conditions for freelance photographers remain among the best in the industry."In the old, pre-digital days this would have generated witty comments about one or other side in the dispute having a 'negative' attitude -- but who remembers the old negatives or the mysteries of the dark room in this day and age?
Estimates for the damage done to the music industry by file-sharing (see Consultation on Legislation to Addess Illicit P2P File-Sharing) were approximately £180 million per year (£152 million for film and tv). The plucky triumvirate of talent assert this estimate is based upon the premise that a P2Ptrack results in a lost sale. "..... the estimate is no more than "'lobbyists' speak' [as] it has little support from logic and no economist would seek to weave such a number into a metric aimed at quantifying a 'value gap' for the industries challenged by P2P....." The joint statement notes that the consultation following Lord Carter's Digital Britain Report had thrown up an estimate of £56m-£85m as costs for monitoring illegal file-sharing and labelled such an estimate a "gross underestimate". "Looking backward for insight into how we adapt mass-production product models to the digital age of access and services has been a major obstacle to progress over the past decade................We must begin to look forward to business models that we cannot even imagine yet."
Wednesday 9 September 2009
What is particularly disturbing about this story is that in 1964, Schadeberg - who had chronicled Apartheid during the 1950s - 'needed to leave the negatives behind in
Monday 7 September 2009
Despite copyright laws, hall owners in the orthodox sector have refused to pay ACUM –- the local collecting society for musicians and other copyright holders -– claiming there is no ruling under Jewish law which requires them to pay to play music at events such as weddings.
While HaRav Eliyashiv and HaRav Yosef agree as to the end to be achieved, they disagree with regard to the reasoning by which their conclusion is reached. According to HaRav Eliyashiv,
"Since the hall owner receives a licence to open the facility he is obligated to adhere to all legal requirements, and if the law requires [paying royalties], he has to meet that obligation. If not his licence is not a licence".HaRav Yosef responded to the question from a different angle, applying the principle of Dina d’malchuta dina (the statute law of a secular state becomes part of Jewish law if it does not contradict any of the latter's fundamental principles).
Sunday 6 September 2009
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.
Thursday 3 September 2009
Court order here.
The authors of A Modern and Contemporary History of Korea have successfully sued their publisher for copyright infringement for publishing an altered version of the work. The publisher had been repeatedly ordered to revise ‘leftist’ sections by the Ministry of Education, Science and Technology under the Elementary and Middle School Education Law. The Hankyoreh reports that ‘the court said that while this law could be used to order a suspension of publication if an alteration order is violated, it cannot be used to limit the right to the integrity of the work by the publisher’. The alterations have been the subject of a campaign by history teachers.
It’s good to see that while copyright law has sometimes been used as an instrument of censorship, it can also have the capacity to prevent state meddling.