(over the) Pond Life

The U.S. government has seized control of dozens of websites it says are offering unauthorized copyrighted or counterfeit content. The Department of Homeland Security's Immigration and Customs Enforcement (ICE) division took over 82 domains including Torrent-Finder.com, RapGodFathers.com, DVDProStore.com, Cartoon77.com, NFLJerseySupply.com and Handbag.com. The seizure orders come from courts in eight states and take place shortly after a U.S. Senate Committee approved the Combating Online Infringement and Counterfeits Act (COICA), which aims to empower the Justice Department to use tactics similar to those just employed by Homeland Security and ICE.

Wired.com report that EMI Records has asked the federal judge overseeing the label's copyright infringement lawsuit against music locker service MP3tunes to bar digital civil liberties group the Electronic Frontier Foundation (EFF) from submitting a "friend of the court" brief in the case saying that the EFF brief is "a pure advocacy piece, not a 'friend of the court," and also that the brief is "duplicative," "contains unsupported speculation," and exceeds the court's page length restriction. EMI also argues that, should EFF's brief be allowed, parties supporting EMI's position should be allowed to submit additional briefs.

TorrentFreak reports that the US Copyright Group, which has filed copyright infringement lawsuits against tens of thousands of internet users who have allegedly illegally downloaded movies such as "Far Cry" has been hit with a class action lawsuit by over 4,500 of those sued. The retaliatory class action lawsuit alleges "extortion, fraudulent omissions, mail fraud, wire fraud, computer fraud and abuse, racketeering, fraud upon the court, abuse of process, fraud on the Copyright Office, copyright misuse, unjust enrichment and consumer protection violations" and says that the offences were committed by US Copyright Group in its efforts to extract settlement fees from alleged file-swappers. The claim also says that the producers of "Far Cry" did not secure a copyright registration for the film until after it began collecting information on peer-to-peer traffic, and argues that this fact invalidates any earlier claims of infringement.

In case you missed it, there is a war of words going on over in the USA all about a letter sent to PC Mag by the major record labels and other music industry trade groups in response to a PC Mag story about the demise of Limewire, which the labels say was promoting unauthorized copyright infringement by naming alternatives to the now defunct Limewire. Apart from the fact it seems that the original story was actually published by PC World (a competitor of PC Mag) the accusations stirred up a hornets nest, in particular over the magazine’s right of free speech with PC Mag saying “PC Mag's job is to cover all aspects of technology, which includes the products, services and activities that some groups and individuals might deem objectionable. We covered these Limewire alternatives because we knew they would be of interest to our readers. We understand that some might use them to illegally download content. We cannot encourage that action, but also cannot stop it. Reporting on the existence of these services does neither.” Not content with that, the letter goes on to say “It worries me that the music industry took this action, because it reeks of desperation. The RIAA and other music industry organizations have spent the better part of the decade fighting the digital transition, with only a shrinking business to show for it. In recent years, though, the fist of anger has turned into at least one open hand as the music industry embraces the once shunned digital music industry. Unfortunately, that warm embrace, and the change that comes with it, are not happening fast enough. Clearly the music industry is still losing money to music piracy and even the recalibrated profit margins brought on by legal music sharing services. It's time for these music execs to pull their collective heads out of the sand and fully acknowledge and accept all the ways their industry has changed. They also have to understand that nothing will stop technology's inexorable march forward. Things will continue to change. Music downloads and sharing will never go away. These execs have to find a way to use all that technology allows and make a business”.

A US teenager has failed in her appeal to have her damages for illegally downloading overturned because she didn’t know what she was doing was illegal. As a 16 year old Whitney Harper had used the then popular Kazaa service to download 37 tracks and she was sued by the RIAA and faced damages of $27,750.00. Harper argued that she was not aware that the file-sharing program on her computer was dealing in stolen property saying she thought the songs could be downloaded for free, just like listening to the radio on the Internet. The Supreme Court disagreed (with one judge dissenting) and upheld the 5th Circuit Court of Appeals who ruled in February that Harper could not pay a reduced minimum fine of $200 per infringed track -- instead of $750 -- as an "innocent infringer." The federal appeals court cited a provision that says infringers should know they are breaking the law since a copyright notice "appears on the published phonorecord."

Now on to Sarah Palin, who has secured much needed publicity for her new book after HarperCollins, the publisher of "America By Heart: Reflections on Family, Faith, and Flag", reached a settlement in their a lawsuit with Gawker.com. The website had published several leaked pages of the book and was ordered to take them down by a New York City judge earlier this week. "In settling the case, Gawker has agreed to keep the posted material off its website and not to post the material again in the future" HarperCollins said in an official statement.

And finally to Bradford Cox, the artist behind Deerhunter and Atlas Sound who had a rather unusual weekend after Sony Music issued a DMCA takedown notice against his blog on Friday, it seems in connection with two albums of his own bedroom-made demos which he had uploaded for his fans to download for free. This was somewhat confusing because Cox is not and has never been signed to any Sony Music label so the album's cannot be their property. Deerhunter are signed to Beggar's 4AD while Atlas Sound release via indie label Kranky according to the CMU Daily. The major has now admitted to Billboard that it had made a mistake and that it had made Cox, his manager and music server Mediafire aware of this fact. Which brings us full circle to the first story and the risks we all run when content owners are given legal powers to have allegedly infringing websites taken offline – what happens if they get it wrong?

http://www.pcworld.com/businesscenter/article/211832/courts_shut_down_82_sites_for_alleged_copyright_violations.html

www.techdirt.com

http://www.courthousenews.com/2010/11/29/32147.htm

How originality is reinventing itself

On Friday Mrs Justice Proudman handed down her judgment in NLA v Meltwater and PRCA, [2010] EWHC 3099 (Ch), a judgment that examines the way European law is transforming English copyright law and the effectiveness of website terms in controlling how content is accessed and used.

Meltwater provides an online media monitoring service to business customers. Customers choose search terms and Meltwater sends them ‘Meltwater News’ – reports of articles containing those search terms. Meltwater News includes the headline of an article (which hyperlinks to the article), the opening words of the article and an extract showing the context in which the search term appears.

The Newspaper Licensing Agency has recently started two licensing schemes, one for media monitoring organizations and the other for end users of those monitoring services. The Agency and several newspapers have sued Meltwater and the professional association for PR companies (PRCA). The issue for the court in this judgment was whether Meltwater’s end users, such as PRs, should require a licence from NLA – would they be infringing copyright if they did not have one? The conclusion reached was that without a licence, end users are infringing the publishers’ copyright.

Copyright infringement

The starting point was that end users are making a copy of Meltwater News on their computers. Were the headlines and extracts in Meltwater News infringing copyright? Headlines, Proudman J found, are sometimes independent literary works and, in that case, copying them is automatically copyright infringement. The text extracts, on the basis of the ECJ’s Infopaq judgment, are theoretically capable of being substantial enough for the purposes of s. 16(3) CDPA and, in practice, in many cases the text extracts did contain elements that are the expression of the intellectual creation of the author. Although Infopaq had changed the test for the part of a work from substantiality to originality, this made little difference in the present case.

European law has challenged the traditional analysis of whether copyright in parts of works has been infringed in two significant ways. Firstly, the CDPA says copyright is infringed when a ‘substantial part’ is copied. The Information Society Directive just says you need to copy ‘a part’. However, Infopaq says that the part must be the ‘expression of the intellectual creation of the author’ – which arguably implies a higher level of originality than has previously been required under English law. Proudman J’s argument becomes a little hard to follow at this point: it was wrong in principle for the court to assess if the extract was itself novel or artistically worthwhile but a part must ‘demonstrate the stamp of individuality reflective of the creation of the author’. This latter statement does seem to raise the bar for originality.

One point that wasn’t touched on is that the InfoSoc Directive provides that sanctions and remedies in respect of infringements should be appropriate and proportionate. Could proportionality provide an alternative mechanism to substantiality to avoid overreacting to small infringements?

Database copyight

End users were not infringing newspapers’ s. 3 CDPA database right. Although newspapers’ websites are ‘databases’ (collections of independent works, systematically arranged and individually accessible), Meltwater’s end users are copying the articles, not their arrangement within the database. (Compare and contrast with Football Dataco v Brittens Pools, currently before the Court of Appeal.)

Was it an infringement of copyright for end users to click Meltwater’s hyperlinks through to the publishers’ sites?

The judge thought it was infringement, more likely than not. The terms of publishers’ sites sometimes say customers of commercial monitoring services require a licence to use the content and they always say they cannot be used for commercial purposes. Nevertheless, the judge was somewhat unimpressed that the claimants were here complaining about users visiting their sites while elsewhere they were complaining that Meltwater’s customers didn’t click through, so depriving the sites of traffic.

Exceptions

End users’ uses failed to fall within any copyright exception: temporary copies, criticism/review or news reporting. Article 10 of the Berne Convention did not persuade Proudman J to take a relaxed approach to quotation: ‘Berne cannot displace the express provisions of the InfoSoc Directive or override what was said by the ECJ.’ She didn’t buy the defendants’ argument that Meltwater benefited from the criticism or review exception because it was letting end users decide whether material was likely to be of interest. And it was tortuous to say that copying to spot mentions of clients in the press fell within the news-reporting exception. In any case, even if exceptions applied, there was no fair dealing and no author acknowledgment.

Recent publications

Issues five and six of the 2010 series of Sweet & Maxwell's European Copyright and Design Reports (ECDR) have both now been published, within days of one another. Cases reported include the recent England and Wales Chancery Division decision on summary judgment for copyright infringement in Allen v Bloomsbury and Rowling (noted by this blog here), the Irish High Court ruling in EMI and others v UPC on the availability of injunctive relief against internet service providers (noted here) and the Court of Justice ruling in the Dali resale rights case (noted here).

The fourth and final issue of Sweet & Maxwell's Intellectual Property Quarterly (IPQ) for this year features "The Centrality of Architecture in Copyright Law" by the University of Exeter's James G. H. Griffin -- the architecture in question being that of Lessig rather than Wren or Palladio: "the way the world is, or the way specific aspects of it are".  Indeed ...

Joost Smiers and Marieke van Schijndel have a highly challenging and lively essay, Imagine there's no copyright and no cultural conglomerates too (you can download it here at no cost). Joost, who is Research Fellow, Research Group Arts & Economics at the Utrecht School of the Arts, explains,

"I just became aware of your interesting blog 1709. Three centuries after this event my co-author and I analyse that it is time to get rid of this tool called copyright. As mentioned in the title of the book, we should also reduce the size of cultural conglomerates that dominate markets substantially, by using revitalised anti trust policies. It does not make sense to approach the question of IP rights isolated from the question whether markets are level playing fields or not. What Queen Anne did [in 1709] was to avoid that book markets would be level playing fields. Now, it's time to reverse this trend". 

Not content with abolishing copyright, the authors dismantle patents too. For those who enjoy vigorous assertion, provocative claims, enthusiastic generalisations and a perspective based largely on the writings of some distinguished radical academic commentators on intellectual property, this is a must-read document.

"The body corporate as author of a copyright protected work" is a Current Intelligence case note by Ankur Gupta on the recent Singapore decision in Pioneers & Leader (Publishers) Ltd v Asia Pacific Publishing Pte Ltd [2010] SGHC 211.  It'll be published in the hard-copy version of the Journal of Intellectual Property Law & Practice next year, but the online version has been available since last week. You can read it here on the jiplp weblog. This decision expanded the scope of authorship under Singapore's copyright law, holding that there is nothing in principle to prevent an incorporated body being deemed the author of a copyright protected work.

St Vincent and the Grenadines

Back in the 1960s we all used to make jokes about St Vincent and the Grenadines being the name of a pop group -- and now the island state has indeed shown itself greatly interested the legal side of the music industry.

By WPPT Notification No. 79 the World Intellectual Property Organization has announced that the Government of Saint Vincent and the Grenadines has deposited its instrument of accession to the 1996 WIPO Performances and Phonograms Treaty, which enters into force there on 12 February 2011.

tvcatchup.com may not be broadcasting – but it might be communicating

‘Communicating to the public’ may be becoming more fashionable judging by today’s decision in ITV v TVCatchup.

ITV, Channel 4 and Channel 5 are in the process of suing TV Catch Up Ltd for infringing their copyright by communicating their broadcasts to the public. tvcatchup.com streams more than 50 channels, making its money from the adverts that it places before programmes and around them as a frame. It’s name is a misnomer: it used to let you catch up by storing shows, but no longer – now it’s all live streaming.

Tvcatchup.com applied for summary judgment on the basis that it could not be defined as ‘communication to the public’ because it was not a ‘broadcast’. Section 20 CDPA (‘Infringement by communication to the public’) states that ‘communication to the public’ includes both (a) broadcasts and (b) making available to the public in such a way that they may access it at a place and time of their choice.

Both parties accept that tvcatchup.com doesn’t fit the definition of ‘broadcast’ in the CDPA, nor can viewers choose when they see the programmes. ‘So,’ the defendants said, ‘tvcatchup.com isn’t communication to the public.’

But the judge said that though ‘communication to the public’ includes broadcasts and on-demand, it can include other things too. (Also, just because tvcatchup.com isn’t a ‘broadcast’ didn’t mean it can’t infringe copyright in a broadcast.)

Anyway, does anyone know why both parties agreed tvcatchup.com doesn’t fall within the definition of ‘broadcast’?

"Food of Love", Part Two

The Music and IP Conference -- known
for its commitment to fun, fantasy and fiddling

Yesterday we published the first batch of "If music be the food of love ..." competition entries. Today we publish the rest.  So, "If music be the food of love, then copyright is ..."

THE FOOD CHAIN

… the salt that in judicious quantity heightens the enjoyment and in excess renders all unpalatable (Anthony Gallafent, Gallafents)

… the preservative (natural, organic preferably); Do not give me excess of it, but enough to encourage the musicians to play on... (Chris Rycroft, Lewis Silkin)

… the hotly debated E colouring within that food, a debate which is never far from the media’s eye (Ben Prangell, Shipley Solicitors)

 … the bright, red ketchup of creativity— a rich and popular source indeed! (Denise McFarland, 3 New Square)

… a bit like marmite: you either love it or hate it! ((i) Alex Freelove, Herbert Smith; (ii) Andrew Clemson, Cleveland)

… a farmer, who uses manure (traditional protection) and undoubtedly harmless chemical fertilizers (advanced protection, keeping the recent developments of technology in mind) instead of doubtful chemical fertilizers (too strong a protection, which hinders the broad public availability of copyrighted material), in order to grow the crops which provide the said food (Kunal Chandra Agrawal, National Law University, Jodhpur, India)

… dessert (Rebecca Dimaridis, Jeffrey Green Russell Solicitors

… the kitchen (Sunelle Geyer, Department of Mercantile Law, UNISA)

… the Tupperware we use to keep the mice off (nb. mouse can gnaw through current Tupperware thickness in 50 years, although there is some risk of European chefs inserting extra (albeit thinner) Tupperware inside all new and even existing products (Dave Sant, BBC Future Media & Technology)

… the way to feed the composer and spread the love (Mary Smillie, Bird & Bird LLP)


IN SICKNESS AND IN HEALTH

...its prophylactic (Nigel Urwin, Lee Bolton Monier-Williams)

... the fridge that preserves it for others to enjoy long past its sell by date (Ben Prangell, Shipley Solicitors)

... the recipe for love going insane (Aliki Foinikopoulou, Greece)

… the gastric bypass (James M. Dedman IV, Gallivan, White & Boyd, P.A.)


SELF-AWARENESS AND DISCOVERY

… the morning after (Steve Hartman, Novartis)

… probably the reason why I am fat and happy! (Andrew Clemson, Cleveland)

… the wise man's drug (Rebecca Dimaridis, Jeffrey Green Russell Solicitors)


AND THE WINNER IS ...

… a madness most discreet, a choking gall and a preserving sweet (Désirée Fields, McDermott Will & Emery) [Says the IPKat, this looks like an elegant graft, a literary nod to Romeo & Juliet].  Well done, Désirée! Please get in touch so we can organise your prize, complimentary admission to the Music and IP Conference on Wednesday 8 December.

"Food of Love", Part One

It has taken too long to get round to sorting out the best entries, but the "If music be the food of love ..." competition received a far larger response than usual. No entries were disqualified for arriving late or for not being contained within an email entitled "Food of Love", though we know who you are ...  Some entries were a little difficult to understand and required some intellectual input on the part of the judges, but we got there in the end.

The identity of the winner of the prize -- complimentary registration for this year's CLT "Music and Intellectual Property" conference on 8 December (programme and registration details here) -- will be announced tomorrow, along with the winning entry. Today, for the edification of readers, the 1709 Blog lists a sample of the better if ultimately unsuccessful efforts. Thanks, by the way, to all the entrants: your wit and in some cases wisdom is very much appreciated.

First, let's remind ourselves of the rules. Shakespeare's play Twelfth Night opens with Duke Orsino saying

"If music be the food of love, play on,
Give me excess of it".

Competitors were asked to complete the following sentence: "If music be the food of love, then copyright is ..."   Today's batch of 10 entries has been tidily subdivided into "Law and Commerce" and "Philosophy, Culture and Aesthetics", though readers will see that these are in some cases only very loose descriptions.

LAW AND COMMERCE

... a bill of attainder (Anton van Dellen, 8 New Square)

… the tab (Henry Ward, 8 New Square)

… the prenuptial agreement (Ben Farrand, European University Institute, Department of Law, Firenze)

… the barcode on the box of heart-shaped choccies (Graeme Fearon, Thring Townsend Lee & Pembertons LLP)

… to ensure that,
If there be nothing new, but that which is
Hath been before….
at least we can get paid for it (Mike Edwards, Audible Magic LLC)

… ... what
Cheer’d EMI with justice of their cause,
With promise of high pay and great rewards:
But all in vain; they had no case to fight,
And for them no hope to win the day (Mike Edwards, Audible Magic LLC, via Henry VI, Part III)

… a method and composition for limiting unauthorized regurgitation (no prizes for guessing that fellow blogger Michael Factor, JMB, Factor & Co., is a patent attorney)

PHILOSOPHY, CULTURE AND AESTHETICS

… the joy of writing (Khadijeh Hamidian)

… responsible for turning the “Free Love” of the 60s and 70s into the “Tainted Love” of the 80s (Andrew Clemson, Cleveland)

… the pearly wisdom gates above (Rebecca Dimaridis, Jeffrey Green Russell Solicitors)

… why every serenader must sing his own song (Peter Smith, Serjeants)

More tomorrow!

SAS: 'And another question...'

Earlier this year Mr Justice Arnold made an epic reference to the European Court following his epic judgment in SAS v World Programming. The questions are about whether computer program functionality, programming languages and interfaces are protected by copyright. It is in the nature of laborious tasks that they have a propensity to become ever more laborious and SAS on considering their answers to the questions found the questions lacking and applied for them to be redrafted. No, said the judge in today's judgment - even though the European Court might accept amendments.

Firstly, he was doubtful that it would be a proper exercise of the power conferred by CPR r. 31.1(7) to vary the Order. Secondly, amending the questions at this point would mean Member States, who are busily preparing their answers to the questions, would have to start all over again (once the questions had been retranslated). Thirdly, he believed the existing questions were adequate for the parties to present their arguments to the Court of Justice.

This is irresistible logic. However, the most significant proposed change is worthy of note. Having asked whether replicating a computer program's functions infringes copyright (which is going to invite the answer 'no'), SAS wanted to add: would it make a difference if the selection of certain operations, formulae, commands, syntax, defaults, iterations were copied. Although these points can certainly be addressed within the context of the existing questions, they do highlight a key issue. These are features that arguably belong to the design of the program, not just its functionality, and it is design (structure, sequence and organization) that can potentially attract copyright protection.

"Copyright owners better off in a regime that allows downloading from illegal sources"

This striking headline comes from a note received from Vivien Rörsch (De Brauw), on two recent and equally striking Dutch decisions handed down last week by the Court of Appeal of The Hague: in the two separate cases the court ruled that, since downloading from illegal sources for private use was permitted under Dutch law, this was to the copyright owner's advantage. Viven explains this paradoxical position as follows:

"In ACI et al. v Stichting de Thuiskopie the question was how the Dutch private copy levy (the “thuiskopievergoeding”) on blank CDs and DVDs should be calculated. Contrary to the decision of the District Court, the Court of Appeal ruled that downloading from illegal sources is permitted and should therefore be taken into account when determining the level of the levy: that should also compensate for loss of income due to downloading from illegal sources.

The Court of Appeal stated that the private copying exemption in the Dutch Copyright Act does not differentiate between copies made from legal or illegal sources. With reference to statements made by the Minister of Justice, the Court argued that the legitimate interest of the right holders is more adequately protected in a regime that allows downloading from illegal sources. In view of the Dutch government’s statements, such a levy system better ensures that compensation is due to right holders for the use of their work. Thus, interpreting the Dutch Copyright Act in light of the three-step test of Article 5(5) of the Copyright Directive that could limit the Dutch private copying exemption would be contra legem, according to the Court.

This decision provides strong support for expanding the existing levy system that currently does not impose levies on equipment most used for downloading, such as MP3 players, USB sticks, smart phones and other hardware devices.

The same Court also ruled on the appeal against a judgment in preliminary proceedings in FTD v. Eyeworks. In this case Eyeworks filed an ex parte injunction against FTD that provides a service through which users can report and find content on Usenet. Contrary to the decision of the preliminary relief judge, the Court of Appeal held that FTD does not infringing copyright and therefore annulled the ex parte injunction. Also here the Court considered that in the Netherlands downloading for private use, even from an illegal source, is legal. It then decided that offering a site that facilitates downloading of copyright content does not constitute a copyright infringement. This makes the judgment remarkable in that it is inconsistent with decisions in other European countries.

Nevertheless, this ruling does not create a safe haven for parties facilitating copyright infringements. The Court of Appeal also ruled that FTD committed a tort by structurally, systematically and deliberately maintaining an application that encourages an activity (unauthorised uploading of copyright content) while FTD knew, or reasonably should know, that this constitutes copyright infringement and causes (serious) harm to the rights holder while FTD itself profits from that activity. The Court issued an injunction against FTD.

Whether this decision is correct under European law is questionable, especially in light of the Copyright Directive and the Directive on the Enforcement of Intellectual Property Rights".

An earlier note on The 1709 Blog on FTD v Eyeworks, in the context of preliminary proceedings, can be read here. See also the decision of Mr Justice Kitchin in Twentieth Century Fox v Newzbin here.

Internet infringement – your place or mine, or both?

One of the most obvious features of the internet is that it is possible to view a webpage hosted in one location in an entirely different location. In fact, you could say that’s the whole point of the internet. So perhaps the first legal question that springs to mind is: what law applies to the internet – the law of the country where a site is hosted or the law of the place where the site is viewed or both? Though the Web has just celebrated its 20th anniversary, the English courts have only just come up with their answer to this question. But did they get it right?

On Wednesday Mr Justice Floyd held that a website's copyright infringement takes place where the site is hosted, not where it is viewed. He was persuaded by the fact that the right in question is known as the ‘making available’ right – it’s the making available that counts, he said, not the receiving. Such a literalistic approach might have led him to the opposite result: the legislation also speaks of ‘communicating to the public’ and communicating usually takes two. Courts across Europe have taken different views on this subject and the delegates to WIPO who penned this right say it takes place both at the place of upload and download. Floyd J said the question was important and not acte claire but opted not to refer the question to the European Court.

This conclusion was reached as part of an interim judgment in the proceedings of Football Dataco v Sportradar. Sportradar GmbH hosts live sports statistics on its servers in Vienna. Football Dataco say Sportradar are copying their data. They argue that when members of the British public view Sportradar’s sites (via betting sites), Sportradar is infringing Football Dataco’s UK copyright and database right.

At this interim stage, Floyd J was determining only whether the English court had jurisdiction: whether there were potentially UK copyright or database infringements. His conclusion was that members of the public who view any infringing material on Sportradar’s site would have primary liability for reproducing it on their computer screens. He found there was a plausible case that Sportradar was authorizing any UK customers’ copyright infringement and was jointly liable for their copyright and database infringements.

The judge did seem a little sceptical as to whether Football Dataco would ultimately show that what is a collection of football scores, red cards etc would attract copyright protection. The database right claim sounds stronger: according to Dataco’s website ex-professional footballers are employed to work as analysts at every game, which I suppose they must find pretty gruelling.

... but he doesn't want to give up his day job

Some Presidents take the rap;
others give it

President Yoweri Museveni of Uganda has been working hard to boost his popularity by releasing a recording of a rap, which you can watch on YouTube here.  There are some copyright issues afoot, since the song is said to be "a folk song that is apparently whose copyright is being registered", though it is not clear "whether it offends the de minimis test under Uganda's Copyright Law".

The work is said to have been mixed or put together by a local DJ without the President's knowledge. So far though, the song is raking in political gold as the campaign for the country's 2011 elections heat up ...

This blog welcomes further information concerning the President's rap.  nb Uganda is not one of the ACTA states.

Thanks, Paul Asiimwe (SIPI Law Associates), for this information.

Belgian SCAM brings cash to British journos

In 2008 the Authors Licensing and Collecting Society (ALCS) struck a deal with the Société Civile des Auteurs Multimedia (SCAM) in Belgium under which the latter was to collect fees due to UK authors under the terms of a statutory scheme dealing with the reprographic copying of UK newspapers in Belgium.  Having received the first payment of fees, ALCS is now preparing to make payments for this photocopying in its next distribution, scheduled for February 2011.

To receive a share of fees in this distribution, freelance journalists are invited to claim their share of the fund. They can only claim their slice of the revenue in respect of articles which are (i) written on a freelance basis, (ii) at least 250 words in length (this might pose problems for people writing for British red-top tabloids), (iii) accredited to the journalist by name and (iv) published in a national UK newspaper between 1 January 1998 and 31 December 2008.  If you think you're entitled to a pay-out, visit the ALCS website or contact the ALCS Licensed Works department at on +44 20 7264 5700.

Creativity and copyright: the panel speaks ...

Georgina Hill (Open Book Publishers) has emailed me with the information that "Copyrights and Wrongs: The Impact of Copyright on the Arts and Authorship in the Digital Area", an event hosted by the British Academy on 27 October, featured a panel discussion on issues to do with copyright, especially in a digital age, in reference to creativity. This discussion has been recorded and is available on the British Academy website here.  Thanks, Georgina!

From Jaw-Jaw to JR: TalkTalk, BT get judicial review of DigiBill

"Net providers get Digital Economy Act judicial review" is the title of a news item on the BBC website. The story is that ISPs TalkTalk and BT have been granted judicial review of the Digital Economy Act by the High Court (see Ben's post here for background).  The Beeb's take on things runs like this:

A judge will now scrutinise whether the Act is legal and justifiable, and could make wide-ranging recommendations [If I were a judge, that's the last thing I'd do unless I could divorce any suggestions entirely from the realm of legislative policy, which is where most of the controversy lives]. BT and TalkTalk argued that the legislation had been "rushed through parliament" before the election [this is beyond doubt: the Bill was subject to a dramatic wash-up process: see John's post here].

Internet service providers (ISPs) are unhappy with the part of the Act that requires them to take action against suspected illegal file-sharers. Depending on the judge's ruling, the government may be forced to change or even scrap the legislation.

... During the parliamentary debate about the Digital Economy Bill, held in the final days before the parliament was dissolved before May's general election, some MPs [but not very many -- only 6% of the country's elected representatives turned up for it] complained that it needed more debate because of its complex nature.

...  A judge will conduct a full review in February, considering whether the parts of the Act that deal with illegal file-sharing are in breach of the E-Commerce Directive, which rules that ISPs cannot be held liable for traffic on their networks. The Act will also be measured against EU privacy and technical standards legislation.

... Ofcom has been working on a final code of practice [see eg Jeremy's post here] for how the process of monitoring file-sharing will work in the UK. It has the power to slow down the net connections of persistent pirates or even cut them off completely, although such measures would not come into force until at least 2012.

A caveat added at the last minute stipulated that new legislation and several rounds of consultation would be required before such a course of action was taken. A spokeswoman for the regulator said it was "business as usual" as far as the code of practice was concerned.

The regulator is expected to publish its final code later this week ..."

Early responses can be gleaned from Which?, The Guardian, Information Age and The Telegraph

Creative Commons License Upheld in Belgian Court

In 2004, the Belgian band Lichôdmapwa released the song “Abatchouck” under a Creative Commons Attribution Non-Commercial No Derivatives license (CC BY-NC-ND). Several years later, one of the band members happened to hear about 20 seconds of the 3:20 song on an advertisement for a theater and festival company. Recently, Lichôdmapwa was awarded 4.500 Euros for the infringement of “Abatchouck”.

When Lichôdmapwa first heard their song on the radio, they contacted the theater company (roughly translated by Bablefish as “Festival of theater of spa”) to see if they could negotiate an outcome favorable to all. The negotiations failed and Lichôdmapwa sued the theater company for copyright infringement in September of 2009.

The Band’s Claims

Lichôdmapwa claimed that the theater company had violated all three of the terms of their chosen CC license. The theater had modified the original work to make it fit in the commercial, violating the No Derivatives provision. The theater violated the Non-Commercial clause by using the work in an advertisement. And the theater violated the attribution requirement by not including any mention of the song’s artist in the commercial.

The band asked for 10,380 Euros in damages, plus to have the theater pay for the publication of the court’s judgment in a magazine called “Dogmagazine.”

The Theater Company’s Defense

The theater company attempted to claim ignorance, arguing that it was unaware of the terms of the license. It appears the theater also argued that since Lichôdmapwa is not a member of the Belgian collecting society, SABAM, the band had no rights to collect payments for the music’s use.

The Court’s Decision

Judge Vandeput did not agree with the theater company’s defenses. She recognized the validity of Creative Commons licenses, citing Dutch, Spanish and American courts as others that have also held CC licenses to be valid. She also confirmed that the musicians’ decision to not join SABAM and instead release their music more openly should not prevent enforcement of the license.

As to the theater company’s claim of ignorance, Judge Vandeput found that this was no excuse for violating the license. As an organizer of festivals and a company involved in using licensing, the company should have known to look for and follow the terms of the license. In addition, the website from which the theater downloaded the music, http://www.dogmazic.net, clearly mentions the terms of the license. There was no reason for the theater company not to know about the license or its terms.

The Money

Even though the band is not part of SABAM, the court held that they still suffered damages. And although Judge Vandeput did not award Lichôdmapwa the 12 Euros per distribution and 1,800 Euros per license term violated that they requested or the magazine print request, she did award the band 1,500 Euros per license term violated. 4,500 Euros and possibly court costs, not bad.

For our multi-lingual readers:

• More about the case by Herkko Hietanen (in Finnish)http://www.turre.com/2010/10/tuomioistuin-tietamattomyys-ei-este-cc-lisenssin-loukkaukselle/
• Full text of the case (in French) http://www.turre.com/wp-content/uploads/2010-10-26-D%C3%A9cision-trib.-Nivelles-Lich%C3%B4dmapwa.pdf

Collecting from charity to be balanced against collecting for charity

"New deal agreed on music licensing system" is the exciting news contained in a press release issued earlier this week by the UK's Intellectual Property Office (IPO).  You'd never guess from this title what the deal was about unless you worked for the IPO, though. According to this missive,

New deal: but who is giving to whom?

"The Government has helped broker a new deal between charities and music creators on the music licensing system. From now on, a public venue, including those used by a charity or not-for-profit organisation, where music is played from records, CDs, the radio or television will now require a licence from both PPL and PRS for Music. These organisations collect and distribute royalties on behalf of copyright holders such as composers, lyricists, music publishers, record companies and musicians. The new system will be fair for both musicians and charities. Those involved in creating music will be rewarded for their work while a package of measures have been agreed to protect charities from excessive costs.

In July 2008 the Government carried out a consultation into amending this legislation. In November last year the then Government responded to the consultation by saying it would reform the licensing system. This was followed by more than 18 months of negotiations with PPL and charity representatives. Since May this year it has been agreed that:

* Charities will be exempt from paying for a PPL licence for the first year giving them 12 months to prepare for the change;
* The lowest tariff of £40 a year has been extended to cover more than 60 per cent of the buildings where voluntary groups meet instead of only 30 per cent of buildings;
* The licence for community buildings has been extended to cover outdoor events like village fetes and carnivals;
* The vast majority of charity shops will pay the lowest tariff of £54 a year;
* The charity shop licence will cover back offices as well as the shop floor;.
* Charities will not face more red tape and bureaucracy. PPL and PRS for Music will create a single licensing system so organisations will only have to make one application. .. "

A statutory instrument ending the exemption has now been laid before Parliament. According to Minister for Civil Society Nick Hurd:

"We have worked hard to ensure that charities, particularly small organisations and charity shops, get extra protection and that the impact of any changes is minimised.  It will be difficult to satisfy everyone but we have achieved a fairer balance between the need to reward musicians for their work and the need to protect charities from excessive costs and additional bureaucracy. In addition, we hope that the agreed delay in implementing these changes will give the whole sector time to prepare and will allow discussions to continue."

Charities and not-for-profit organisations will not begin paying until next year allowing time for further discussions.  A new way to address complaints is also to be created by PPL and, if organisations believe they have been treated unfairly, they will be able to appeal to a new independent reviewer. PPL will operate the same voluntary exceptions as PRS for Music - at family occasions such as weddings, religious services, on hospital wards and for medical therapy.

Copyright Law, Getting in the Way of Getting Copyrighted Works

“The biggest barriers that consumers face in accessing copyright works
are those created by copyright law.”  And with that profound statement, Consumers International begins its exploration into how copyright and consumers interact, investigating the barriers consumers face when attempting to find information.

The book is Access to Knowledge for Consumers: Reports of Campaigns and Research 2008-2010, and it presents the findings of two years of studies conducted by Consumers International.  These studies included surveys of consumers across a wide variety of countries, in-depth reviews of the effects of enacting new flexibilities in the copyright laws of Australia and Israel, and reports from six country groups involved in advocacy at the national level.

Consumer Survey

The global survey looked at potential barriers to access (to knowledge) in four different categories: Political, Economic, Social and Technological.  The book includes a full copy of the survey questions, highlights of notable qualitative answers and full charts of quantitative breakdowns.  Unfortunately, the charts are a bit hard to read sideways on a computer screen.  A surprising finding of the survey was that African consumers have the highest respect for copyright law.  A not-so-surprising finding was that consumers are confused about FOSS (free and open source software) and open licensing.

However, in combination with the other studies, Consumer International also found:

Part of the solution to the access barriers that consumers face is the wider use of open content, such as Open Educational Resources (OER) and free and open source software (FOSS). Our survey found that most consumers are aware of these alternatives, and ready to give them a try.

Based on this information, Consumers International has identified “the need for education of consumers on the unique features of FOSS and (though not covered in the phase one survey) other forms of free licensing such as Creative Commons.” 

Copyright Law Flexibilities

Australia’s 2006 amendments to its copyright act added flexibilities that made time-shifting and formatting-shifting legal.  Before the enactment of the amendments, arguments arose that the amendments would interfere with the markets for legal downloads and a threat to nearly every type of copyright protected work.  Results of the research conducted revealed that the content industry’s nightmares did not come true. 

[T]here was evidence to suggest that the amendments may have increased compliance with the law – not only by legalising the common and harmless consumer practices in question, but by improving some consumers’ respect for the fairness of copyright law in general.

When looking at Australian’s perspectives on whether and when it is ok to download copyrighted material, the book again presents a mix of quantitative data and qualitative information. Some of the justifications of those who feel it is ok to download to their heart’s content are rather amusing.

“Because when I see what happens, when people like Britney Spears
get paid what they do and act like they do. This means to me the
entertainment industry can kiss my arse!!!!!!!!”

Israel introduced fair use into its British-based copyright act in 2007.  To study the effects of the introduction of this provision, researchers compared case law before and after 2007.  The concept of fair use existed in Israeli copyright before 2007, but it was not codified.  Results of the analysis was slightly disappointing but hopeful.  Finding that fair use claims rarely succeeded and that courts were applying the doctrine in disparate ways, the researchers also expressed belief that this will change with the progression of more cases.

In conclusion, we find the law in Israel, while evolving to meet the
new digital creativity landscape, still lacks the balance which will reflect the social understanding of what should constitute a fair use and how copyright can foster creativity and innovation.

Country Group Reports

The book includes reports on national advocacy from Brazil, Cameroon, India, Nigeria, South Africa and Zambia.  Each of these reports discusses activities done in the country to promote access to knowledge and the strengths and weaknesses of these activities.

 

Access to Knowledge for Consumers: Reports of Campaigns and Research 2008-2010 is a 336 page book, but it will not cause you back strain.  The entire book is available in pdf, released under a Creative Commons BY-SA license.

Another slice

Less than two weeks after Judge Kimba Wood in the federal District Court in Manhatten ordered a halt to distribution of the file-sharing software application LimeWire, TorrentFreak reports that a "secret" development team has reengineered the software and released it back onto the Internet as the new and seemingly improved “LimeWire Pirate Edition” which is based on the LimeWire 5.6 beta released earlier this year. TorrentFreak say “LimeWire is back as good as new” with “a few significant changes which make it better and more streamlined than before”. A source told TorrentFreak that after the court’s decision “a horde of piratical monkeys climbed aboard the abandoned ship, mended its sails, polished its cannons, and released it free to the community” adding “All dependencies on LimeWire LLC’s servers have been removed, all remote settings have been disabled, the Ask toolbar has been unbundled, and all features of LimeWire PRO have been activated for free”.

http://s0.2mdn.net/1651284/v3_new.html?rfp=http://www.v3.co.uk/v3/news/2272936/limewire-riaa-p2p-pirate and http://torrentfreak.com/limewire-resurrected-by-secret-dev-team-101108/

IP meets IP, as Bonnier questions hit the CJEU

For those who can never work out whether 'IP' stands for intellectual property or internet protocol, here's a minor nightmare in the making: there's a new reference listed on the Curia website for a preliminary ruling from the Högsta domstolen, Sweden. It's Case C-461/10, Bonnier Audio AB, Earbooks AB, Norstedts Förlagsgrupp AB, Piratförlaget Aktiebolag, Storyside AB v Perfect Communication Sweden AB.  The reference was lodged with the Court of Justice of the European Union (CJEU) on 20 September 2010, since which time we presume it has been in the pipeline, awaiting multiple translations.

The questions referred for a ruling are as follows:

"1. Does Directive 2006/24 ... on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58 ... (the data storage directive), and in particular Articles 3, 4, 5 and 11 thereof, preclude the application of a national provision which is based on Article 8 of Directive 2004/48 ... on the enforcement of intellectual property rights and which permits an internet service provider in civil proceedings, in order to identify a particular subscriber, to be ordered to give a copyright holder or its representative information on the subscriber to whom the internet service provider provided a specific IP address, which address, it is claimed, was used in the infringement? The question is based on the assumption that the applicant has adduced evidence of the infringement of a particular copyright and that the measure is proportionate.

2. Is the answer to Question 1 affected by the fact that the Member State has not implemented the data storage directive despite the fact that the period prescribed for implementation has expired?"

Swedish English-language online paper The Local provides some background here for the uninitiated.  Essentially, this is the first piece of litigation to test out Sweden's anti-file sharing law (Ipred), which was passed in April 2009. The CJEU reference comes after five audiobook publishers sought details of internet users who were known to them only by their IP addresses but the ISP, ePhone, was reluctant to comply with this request.  In June 2009 the trial court ruled in favour of the publishers, but the the Court of Appeal (Hovrätten) upheld ePhone's appeal on the basis that the publishers couldn't prove whether the audio books on the server really had been available to the public. It is the further appeal to the Supreme Court (Högsta domstolen) which led to the CJEU reference.

The answer is right in front of you

On 25 October the European Commission held a Digital Agenda Stakeholder Day at which the European Publishers Council gave one of the presentations, “The answer to the machine is in the machine”. Their project is to build an infrastructure that will pull together the various existing automated licensing systems ranging from Creative Commons to ACAP. As their press release describes:

‘In the internet age we need to be able to identify the content being used and who controls the rights in it; we need to be able to identify the user and the usage; we need to be able to read any permissions information; we need to be able automatically to link these various entities together to complete a transaction. A digital copyright symbol would be a gateway and marker for any person and any machine for all this essential information.’

David’s fair use Silicon Valley dream

On Thursday David Cameron launched a review of Britain’s IP law during an announcement about creating a Silicon Valley in London’s East End. The review is due to report in April next year. According to the BIS press release the review will look at:

· Barriers to new internet-based business models, including the costs of obtaining permissions from existing rights-holders;
· The cost and complexity of enforcing intellectual property rights within the UK and internationally;
· The interaction between IP and Competition frameworks;
· The cost and complexity to SMEs of accessing services to help them protect and exploit their IP.
· The review will also look at what the UK can learn from the US’s “fair use” rules covering the circumstances in which copyright material may be used without the rights-holder's express permission.
· The review will make recommendations on the changes the UK can make as well as the long-term goals to be pursued through the international IP framework.

There is clearly a risk here of reinventing the wheel – apart from anything else by re-running the substantial recent reports generated by the EU and the Labour government. However, some of these areas have not figured particularly large in Labour’s reports: cost of enforcement, competition law and ‘fair use’.

It was the fair use point that the Prime Minister chose to home in on in his speech:

‘The second new announcement I can make today is to do with intellectual property. The founders of Google have said they could never have started their company in Britain. The service they provide depends on taking a snapshot of all the content on the internet at any one time and they feel our copyright system is not as friendly to this sort of innovation as it is in the United States. Over there, they have what are called “fair-use” provisions, which some people believe gives companies more breathing space to create new products and services. So I can announce today that we are reviewing our IP laws, to see if we can make them fit for the internet age. I want to encourage the sort of creative innovation that exists in America.’

Once you get over the distracting mixture of business and law-making (Google, the driving force for revisiting copyright law, also turns out to be putting up the cash for an ‘Innovation Hub’ in the East End), how does this stack up?

1. Have Britain’s laws presented a particular problem for Google’s search engine? Theoretically a question mark hangs over whether search engines are in conflict with European copyright law (the Advocate General in the Google AdWords cases explored this point, while the English judgment Metropolitan International Schools v Designtechnica took the view that a search engine wouldn’t be protected by the hosting defence of the E-Commerce Directive). But in practice Google's search engine has hardly been beseiged by litigation here.
2. Google’s search engine does have legal approval in the US but is ‘fair use’ the reason? When Google was sued over caching, fair use did feature in one case but the more important argument has been that website owners are giving Google an implied licence because they can easily disable the caching. This is an argument that Google could use if it ever found itself in court over its search engine in the UK.
3. If David Cameron wants to give Google’s search engine a clear green light he’d do better to argue in Europe for a copyright exception for search engines. If we had fair use, it would be up to a judge to make the call – he might say it wasn’t fair use.
4. Would fair use make such a difference to foreign investment? As Mark Owen points out, changing tax law might be more relevant. In a report commissioned by the Labour government on the economics of copyright it was found that quantifying the relative economic effects of specific details of copyright law was extremely difficult if not impossible.
5. Fair use is characterized by its flexibility compared with the certainty of the European exceptions: that means the only way you arrive at certainty is litigation. Is it perhaps therefore better suited to the US, where courts hum with copyright litigation? The UK has a fair dealing court case once in a blue moon.
6. Most importantly, introducing a fair use copyright exception will not be easy: it would require an overhaul of the copyright law of 27 European states.

The report’s investigation into the costs of enforcement on the other hand looks more promising…

Crosstown v Rive Droite: the Court of Appeal unfazed by foreign copyright

In 2006 Crosstown Music acquired rights in 119 songs from music publisher River Droite. Rive Droite had been assigned the rights by the songwriters under agreements that stated the rights would revert in the event of a material breach. Accounting failures of Rive Droite resulted in the songwriters Mark Taylor and Paul Barry being underpaid and last year Mann J held that the rights reverted back to them. Crosstown appealed and on Tuesday the Court of Appeal gave its judgment. It dismissed the appeal on all three issues:

1. Crosstown argued that the reversion clause was invalid because it effectively meant that the assignments had been for an indeterminate length of time. The Court of Appeal, however, had no problem with this indeterminacy: to them, it fits quite happily with section 90A of the Copyright, Designs and Patents Act 1988 and with previous case law.

2. Crosstown said the songwriters had given notices of the breaches too late, but the Court of Appeal refused to imply a term that the notices had to be served within a reasonable time.

3. Crosstown said that following the Lucasfilm judgment (which was given after Mann J’s), the trial judge did not have jurisdiction over questions of title to the foreign copyrights that were involved. The Court of Appeal said that Lucasfilm was irrelevant as it had been about infringement of foreign copyright, not copyright ownership or title. Furthermore the agreements conferred exclusive jurisdiction on the English courts.

The Court of Appeal’s decision on this third point is certainly pragmatic. Many copyright licences cover numerous jurisdictions and if an English court could not handle this dispute, then how else should it be managed? Perhaps by a United Nations of IP judges, each opining on their own copyright law. However, was Crosstown’s argument so absurd? Though the agreements were governed by English law, even English contract law cannot override national copyright laws. So if there are any countries where copyright cannot be assigned for an indeterminate length of time, then this reversion clause would seem to present a genuine problem.