Thursday 28 April 2011

Kiwi three strikes prompts cyber attack

The New Zealand government's new 'three strikes' anti-piracy proposals, which have finally moved into law and are due to come into effect in September (2011) have prompted a fresh wave of protests and the threat of cyber attacks on the Government’s websites.

The Copyright (Infringing File Sharing) Amendment Bill has caused immense controversy in New Zealand, particularly in the blogsphere, with many online commentators calling the bill ‘draconian’ and questioning why the bill was rushed through the New Zealand Parliament reportedly using emergency procedures invoked to help victims of the Christchurch earthquake for cover. In particular Section 92A which initially placed the onus on ISPs to disconnect repeat infringers met with fierce opposition when it was mooted two years ago and whilst it has been amended as it currently stands it does provide for a ‘three strikes’ system which ultimately allows for the disconnection of internet users for repeat infringements. However, whilst the ability of copyright owners to apply to have repeat offenders disconnected remains in the legislation, it will not come into effect unless after two years it is shown that other less severe sanctions are ineffective.” However what does remain is the requirement for ISPs to send warning letters to those suspected of infringement and the threat of disconnection for up to six months.

When the laws were passed, numerous NZ websites blacked out their home pages and in protest but now things look a tad more serious - internet activist group Anonymous is threatening to shut down the New Zealand Parliament’s website as a protest against the new copyright law. Anonymous previously threatened to take down internal affairs website and, in March, that site was indeed down for a few days. NZ Parliamentary Services says it is taking this new threat seriously and is now working to try to pre-empt any attack.

New Zealand joins France, South Korea, The UK and Taiwan who have all implemented various configirations of 'graduated response' or three strikes legislation to fight online piracy. France's law HADOPI allows for a graduated response to online infringement. rhe state funded scheme (under which ISPs must provide data) allows for fines and internet suspension for repeat infringers up to one year. Injunctive relief is available to those who could contribute to prevent / terminate infringement. Taiwan has a simlar scheme with judicial proceedings available to rights holders to take action against those who post or host infringing material alongside a "notice and takedown" procedure to have infringing material removed. This is coupled with a three strikes system against internet users who ignore warnings and download material illegally more than twice. A January 23rd poll in France indicated that 49% of French Internet users continue to illegally download music and videos.

Sunday 24 April 2011

CLA launches Multinational Licence

Our friend and colleague Rebecca Dimaridis (Jeffrey Russell Green solicitors), who is making something of a name for herself in this area, writes:
Readers may recall my 2-part report on the 2010 Open Meeting of the Copyright Licensing Agency, see here and here, last October. On Friday, the CLA launched its Multinational Licence. Readers can find more details on the CLA website - but don't be fooled into thinking this is the only information about the licence on the website. Just click on the links available and you will travel down a different path of the website, and there is a fair bit of information - too much to get through on Easter Saturday, so I'm only going to give a brief report at this stage! Perhaps the good folk at the CLA will put all the information in PDF documents on the website at some stage, so we don't all have to worry about whether we've forgotten to click on some vitally important link. Or perhaps I'm just going to have to print off all the pages after the (extended-thanks to William & Kate) break... The Licence's big claim is that, other than for the "Excluded Categories and Works", one single Multinational Licence gives the same rights "to every colleague, in any country, without disrupting the workflow of your organisation". Excluded Categories and Works include music, maps and newspapers. There are several categories of licences, broadly for the business sector, public sector and education sector. A "law licence" application can be found under the "business" sector. The relevant page informs us that the terms of the licence are currently being revised, however the current terms apply to pre-15 January 2011 licences (what does this mean for licences between 15 January to the date the new terms are finalised?).
 For licences issued post-April 2011, there is a host of Multinational Licence support material, including an Application Form, an Explanatory Leaflet and Copying Guidelines. One thing that I found confirmed on the Copying Guidelines is a note that states that users can copy up to 5% of a publication, a single chapter of a book or single article from a periodical (whichever is the greater). Users can even undertake a Risk Assessment on this page. When I do review the documents in detail, I will be keeping in mind the the wish-list that Philip Ditchfield of Glaxo SmithKline PLC put forward last October, i.e. is the new Multinational Licence, easy to understand, user-friendly, up-to-date, comprehensive, and inclusive of all publishers (big and small) and all countries?
 For the time being however, there is finally a breeze coming through our flat, and for the first time I can remember in my almost-4 years (on the 25th!) in the UK there is a lightning storm going on outside. I really miss them so I'm off to watch!

Wednesday 20 April 2011

DEA Judicial Review (largely) fails

Hot off the press is the news that BT and TalkTalk's judicial review application has been rejected on the four main grounds. Apparently, the only claim that was upheld was a small technical point relating to whether ISPs can be made to share certain of Ofcom's general costs in administering its obligations under the Act. As can be expected, rightsholders and the government were happy.

According to the FT, a spokesperson for the Department for Culture, Media and Sport said: “We are pleased that the court has recognised these measures as both lawful and proportionate. The government remains committed to tackling online piracy and so will set out the next steps for implementation of the Digital Economy Act shortly.”

Meanwhile, in a press release, Geoff Taylor of the BPI said “This judgment gives the green light for action to tackle illegal downloading in the UK. It confirms that the DEA is proportionate and consistent with European law. Shareholders and customers of BT and TalkTalk might ask why so much time and money has been spent challenging an act of parliament to help reduce the illegal traffic on their networks. It is now time for BT and TalkTalk to work constructively with government and with rights holders to implement the Digital Economy Act.”

It is now down to the Government and Ofcom to move the implementation process forwards.

Thursday 14 April 2011

AG advises ECJ ISPs can't be ordered to block file-sharing

Advocate General M. Pedro Cruz Villalon gave his Opinion today in Affaire C‑70/10 Scarlet Extended SA v Société belge des auteurs compositeurs et éditeurs (Sabam); Belgian Entertainement Association Video ASBL (BEA Video), Belgian Entertainement Association Music ASBL (BEA Music), Internet Service Provider Association ASBL (ISPA), a reference to the Court of Justice of the European Union from the cour d’appel de Bruxelles, Belgium. Remarkably, the Opinion is so far available only in French -- but Stephanie Bodoni (Bloomberg) has come to my aid with a media release, "Belgacom ISP Can t Be Told to Block File-Sharing, Aide Says". According to this report,
"Belgacom SA's Internet-service provider Scarlet can't be forced by a national court to block users from illegally sharing music and video files, an adviser to the European Union s highest tribunal said.  EU law precludes a national court from making an order, on the basis of the Belgian statutory provision, that requires an Internet-service provider to install a system for filtering communications, Advocate General Pedro Cruz Villalon of the EU Court of Justice said in a non-binding opinion today. The Luxembourg-based EU tribunal follows such advice in most cases. 
A Belgian court last year sought the EU top tribunal's guidance on whether forcing an ISP to stop illegal file sharing on its network is in line with the 27-nation bloc's rules. 
Belgian music-copyright group Sabam started the legal fight over the use of so-called peer-to-peer software for file sharing. 
Belgacom, the largest telephone company in Belgium, won antitrust approval to acquire Scarlet in 2008. Scarlet is appealing a June 2007 Belgian court order to make it impossible for users to breach copyright laws, saying it would entail breaching customers'  privacy rights. 
Sabam said once the court has ruled on the case it would be analyzed very carefully in all EU nations because it would impact other pending cases. The group, which represents authors and musicians, said ISPs aren't properly compensating artists while using their work to promote subscriptions. ...
In a case involving Telefonica SA's Internet unit, the EU court in 2008 ruled that ISPs may not have to reveal the identities of customers accused of illegal file sharing. The Belgian court said that ruling was not sufficient to settle Scarlet s appeal. 
The court adviser today said an obligation for ISPs to install such a filtering system entirely at their own expense and for an unlimited period is a restriction of the freedom of information under the Charter of Fundamental Rights that may be possible if it is in line with national law".
Thanks, Stephanie. We all look forward to finding out how the court will rule -- and some of us look forward to being able to read the Opinion too, without having to resort to online translations.

Tuesday 12 April 2011

Copyright Term Directive: latest news

70 years ago, Glenn Miller recorded
String of Pearls and Chattanooga
In "A game plan against copyright extension", Pirate MEP Christian Engström provides some useful information on today's sudden activity in the European Parliament concerning the generally unpopular proposal to extend from 50 years to 70 the duration of copyright protection for sound recordings in the European Union (on which see yesterday's post here). Today Christian writes, in relevant part:
"We now have a game plan for how to try to stop the extension of the copyright term for neighbouring rights from 50 to 70 years. You can read about the background in yesterday’s blog post. What we want to achieve is to overturn a decision to extend the protection time that was taken by the European Parliament in April 2009, after heavy lobbying by the record companies. ...

According to Rule 59 of the Rules of Procedure of the European Parliament, the parliament can reopen a dossier that is still in first reading if a new parliament has been elected since the first reading position was adopted. Since a new European Parliament was elected in June 2009, this is the case.

If 40 or more MEPs (Members of the European Parliament) ask for it, the proposal for a renewed referral will be put to the vote in plenary.

If we get a majority there, the President (speaker) of the Parliament shall ask the Commission to refer its proposal again to the parliament. This means that the dossier is open again, and we can have a full discussion about the subject matter.

This would be the sensible thing to do. The previous Parliament’s decision to extend the time for the neighbouring rights was ill considered, and has been heavily criticised by legal and economic scholars. There is no reason for the present Parliament to be bound by it.

We will now start the process of collecting at least 40 MEP signatures on the following text:

Request for
to Parliament

pursuant to Rule 59 of the Rules of Procedure

of the proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE amending Directive 2006/116/EC of the European Parliament and of the Council on the term of protection of copyright and related rights (COM(2008)0464 – C6-0281/2008 – 2008/0157(COD)).

If we can collect 40+ signatures, we should be able to get the item on the agenda for the parliamentary session in May. Then we will need citizens to email their MEPs to explain the issue and urge them to vote in the right way. But more about that when the time comes".
Apart from the strange alliance of anti-term-extension forces, with various distinguished academics and other fairly pro-copyright people teaming up with the Pirate Party on this issue, what is notable is the fact that the Pirate Party is seeking to work within the law in seeking to achieve its aims -- a far cry from the stance of some of its past supporters.

New logo

We now have a new logo! The winning design, which appears both here and in our side bar, was submitted by David Brophy (FRKelly, Dublin), to whom our congratulations are due. The vote was 63 for David and 50 for James Legg (Abel & Imray), whom we also thank.

A couple of readers have asked for an explanation, so here it is: the logo represents a clock face with the hands in the position corresponding to nine minutes past five, i.e. "17:09".

Regular visitors to the blog may have spotted that it looks a little different.  We're trying out a different template for a change. If you have strong feelings one way or another, we're sure that you'll let us know!

Monday 11 April 2011

Just when you thought sound recordings had gone quiet ...

The eventual duration of
copyright in sound recordings? 
"Copyright term extension: Back from the grave" is the title of this piece by Bournemouth University's Martin Kretschmer. He explains:
"Two years ago, on 23 April 2009, the last European Parliament voted in first reading for a proposed Directive, extending the term of copyright for sound recordings from currently 50 to 70 years. The Directive was then blocked on the Council of the European Union by a coalition of Benelux, and some Scandinavian and East European countries that took note of the empirical evidence mustered by independent academics from across Europe.

Since 2009, the world has changed. A new European Parliament and Commission are in place, and the focus of recent copyright initiatives has been on the opportunities offered by digitisation for cultural, social and commercial innovation. As Neelie Kroes, European Commission Vice-President for the Digital Agenda said in speech at Avignon on 5 November 2010: 
“Instead of a dysfunctional [copyright] system based on a series of cultural Berlin walls, I want a return to sense. A system where there is scope to create new opportunities for artists and creators, and new business models that better fit the digital age. We want to help you seize the opportunities of this age.“
So why has the Copyright Term Extension Directive suddenly re-appeared on the Agenda of the Legal Affairs Committee of the European Parliament (JURI), as a late addendum (at no. 31, and as of Monday 11 April, not on the website of the JURI committee)? [link here to Pirate Party MEP Christian Engström]

Music industry lobbyists have succeeded in overturning Danish and Czech opposition, picking off key members of parliament in these countries. The Danish government has now notified the Commission that it supports term extension, breaking the blocking minority on the Council. See press release of 24 February.

Prompted by the Internal Market Directorate of the Commission, the current Hungarian presidency of the European Union is now looking to fast track this stale piece of legislation through Parliament while preparing the Council for a vote before the end of its presidency in June.

The Directors of four leading European intellectual property research institutes have just written an open letter in order to raise attention of this matter. It is still possible that the European Parliament will ask for a proper second reading of the text, or that other countries on the Council will reform a blocking minority (including the UK which is currently reviewing her intellectual property laws for their contribution to innovation and growth: Hargreaves Review, due to report at the end of April)".
Further developments will be posted here, as they unfold, tomorrow.

As a relatively keen observer of IP developments, I'm not often taken by surprise -- but this certainly caught me out.  I'm also unaware of any new evidence having been unearthed in order to present a stronger case for extension than that which was previously rejected.  Has there been any? Can anyone tell me?

Thanks are due to Martin Kretschmer and Mike Lynd (Marks & Clerk) for keeping me informed.

Kookaburra still up the gum tree, but judge feels disquiet

In February, in "The kookaburra wins down under", Ben posted this note on the Australian ruling that Men at Work copied Larrikin Music’s song Kookaburra Sits in the Old Gum Tree, written by Marion Sinclair in 1934, in their composition and recording Down Under. There's a neat note here from Australian law firm Allens Arthur Robinson (here) on the dismissal of Men at Work's appeal by the Full Court of the Federal Court in EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47.

A case note from another Australian law firm, Davies Collison Cave, focuses on the following comment of Emmett J, in which he expressed some disquiet concerning the finding of infringement:
"If, as I have concluded, the relevant versions of Down Under involve an infringement of copyright, many years after the death of Ms Sinclair, and enforceable at the behest of an assignee, then some of the underlying concepts of modern copyright may require rethinking. While there are good policy reasons for encouraging the intellectual and artistic effort that produces literary, artistic and musical works, by rewarding the author or composer with some form of monopoly in relation to his or her work (see Ice TV at [24]), it may be that the extent of that monopoly, both in terms of time and extent of restriction, ought not necessarily be the same for every work…".

Sunday 10 April 2011

Is Google fair use? Israeli court to decide

After many years of litigation, the US courts have not decided whether Google Book Search is fair use. However, for those who would like to know whether Google’s success story will continue to be attributed to fair use, a new case may provide some illumination, though too late for the Hargreaves Review. Yonatan Brauner has filed a claim concerning Book Search with the Jerusalem District Court, requesting it to be recognized as a class-action (Globes).

Saturday 9 April 2011

Pay per view takes on a new meaning

Here's a new model for the digital age - and an interesting update on how copyright adapts to the internet. Clearly hoping to bolster traffic to its website, USA Today is seemingly about to start paying annual bonuses to writers based on their number of page views. The story broke via the sports blog The Big Lead and the blogs editor Jason McIntyre wrote "The goal, obviously, is to get writers thinking digital" adding "But once writers start scrutinizing their page view tallies, and realize slideshows, rumors, and celebrities drive traffic, what will be the impact?" Ed Cassidy, USA Today's vice president of communications and event marketing, however, told reporters that the company "has and continues to consider bonuses based on page views but nothing has been decided at this time."

Room at the Top pulled in rights dispute

There are a number of reports accrosss the press that the BBC has been forced to pull a major adaptation of John Braine's 1950s novel Room At The Top just days before it was due to be shown on BBC4. It seems that a row has broken out over who owns the rights to the story, meaning the drama, which stars Maxine Peake and Matthew McNulty, cannot be shown. It appears that whilst the new adaptation by Amanda Coe had been approved by the widow of the author,Pat, a rival producer claims ownership of the novel's screen rights. The new A BBC spokesman said: "Transmission of Room At The Top has been postponed while we address a potential contractual issue which has emerged in the last few days." Tony Braine, the author's son, told the Daily Mail: "My mother has the rights to the book and she was looking forward to watching the drama on Thursday night" adding "We just heard that it won't be on and it's disappointing. The objection is nothing to do with the family members." The BBC have said it would not screen Room At The Top until the rights dispute was settled but do hope to show the programme at a later date.

The story centres on Joe Lampton (McNulty), an amorous Yorkshireman who ruthlessly tries to make his way to the top and the women he upsets to get there and the 1959 film version was acclaimed as a gritty 'kitchen sink' drama and won an Oscar for Simone Signoret. The 1959 film was produced by two wealthy movie-making brothers, Sir Jonathan Woolf and James Woolf. The rights were then acquired by Thames in 1970 for an ITV spin-off comedy series Man At The Top, that revolved around Lampton's amourous exploits , which itself became a spin off feature film.

The current adaptation was produced by Great Meadow Productions and BBC Wales for BBC Drama and BBC4.

Instead of airing the first episode of the sexually charged two-part drama last night, BBC4 showed a repeat of erotic costume drama Fanny Hill in the advertised time slot. and read more at

Tuesday 5 April 2011

Life after Google Books (non)Settlement - a speculative post

Emily Goodhand
The 1709 Blog is delighted to host this piece by Emily Goodhand, who will be known to many readers from her contributions to the twittersphere as @copyrightgirl.
On the surface, it seemed as though it was every librarian’s dream: the mass digitisation of millions of books lying dormant on dusty shelves, unseen and unread. But once again, the librarian’s arch-nemesis, copyright, reared its (arguably) ugly head in the form of class action lawsuits brought by the Authors Guild and Association of American Publishers. In a move which sparked considerable controversy amongst authors, the parties to the lawsuit proposed a Settlement Agreement which outlined a revenue model and released Google and its library partners from liability of digitising books which were still in copyright. The Settlement would have made Google the focal point for digital access to library collections and links with retain booksellers, generating revenue from subscriptions (both individual and institutional) and advertising. However, amidst several revisions and a wave of opposition, Judge Chin rejected the Settlement Agreement in March on the fundamental basis that it was not deemed to be fair and that it exceeded the scope of the original conflict (which essentially addressed only the aspect of scanning and display of snippets). 
So where does this leave ‘Google Library’? 15 million digital books adrift in the Cloud? Google have been reasonably silent on the issue since the ruling, which has given them a number of possible options moving forward. The Judge has scheduled a status conference with the parties on April 25 to see how they want to proceed. I have speculated on the consequences of each, but an excellent overview of the possible progressions of the settlement is given in the form of a flowchart by the US Library Copyright Alliance.
Ø  All parties heed Judge Chin’s advice and revise the agreement so that rightsholders are required to opt in to the scheme rather than be automatically included in it. The consequences of this are that this agreement would vastly reduce the amount of books available in the database, and orphan works where rightsholders were not known or could not be traced would not be able to be included. The cost of a subscription could also be high and many public users may feel it was not worth it. 
Ø  All parties abandon the settlement and resume litigation of the original conflict over whether the scanning and snippet display constitutes fair use. The consequences of this route are that it is expensive (for all involved), subject to delays, and the outcome, if it goes against Google, would set a precedent restricting the fair use provisions.

Ø  Google appeals the Settlement ruling – this would incur costs to all parties, and at worst could significantly delay the process as if the Settlement is rejected at any stage and parties cannot reach agreement after modifications then litigation is resumed and costs spiral. If modifications are agreed, a new Fairness Hearing must be arranged and the process repeats. At best, the appeal is upheld, the settlement is approved, and Google continues with its Library. Given the strong objections to the settlement in its current form, this is highly unlikely.

Ø The Authors Guild and the Association of American Publishers drop the lawsuit – again, given the controversy over the Google Book Settlement, this is highly unlikely.  
But what about the public interest? What would be best for the national and international populace? For Google to strike a stronger chord with the cultural and education communities, they should (or should strongly encourage others to) lobby Congress for legislation. Where the Google Library would have been a vast commercial monopoly, legislation can invite the possibility of having numerous non-commercial databases owned by public institutions where collections could be made available to the public for free. There are already a number of such initiatives in existence (such as Europeana) with the noble desire to “make the cultural and scientific heritage of humanity available, free of charge, to all” (Digital Public Library of America, here). Sadly, no matter how altruistic their nature, little can be achieved without financial capital and technical expertise, which is why Google has been able to digitise so much more quickly than the cultural sector’s non-commercial endeavours. 
Given the current climate around copyright law, with Intellectual Property reviews happening across the globe, it is my personal feeling that orphan works legislation in the form of policy and directives will be crucial to the long-term success of any National (or International) Digital Library. Google has already indicated that it will support orphan works legislation, in which case it should develop closer links with the cultural and education sectors who also favour a solution which enables them to unlock their vault of works long out of print or whose authors have vanished without a trace. The main problem with going down the route of legislation is that it may take a long time to reach an agreement, and it will face substantial resistance from rightsholders who fear for the commercial exploitation of unclaimed works for the gain of those who are merely its conduits. 
Emily's weblog, Copyright for Education, can be accessed here

Logo competition

The deadline for entries to the 1709 Blog competition to choose a new logo passed last night.  We received two entries that were truly logos, which are portrayed here, as well as some hilarious sketches from Claudia Roggero which, if she permits, we hope to use one day as illustrations when an appropriate article arises.   Anyway, the "1709" roundel comes from Abel & Imray's James Legg and the 17:09 clock motif comes from David Brophy (FRKelly). Each would be a worthy successor to Queen Anne, who is looking a little blogged out and definitely needs a break.

At the top of the 1709 Blog's side bar you'll find a poll which will enable you to vote for your preference.  Do take the trouble to vote -- the appearance of this blog depends on you!

Monday 4 April 2011

Much Ado About Kindergarten - Part 2

Apologies for the delay in posting the promised rundown of the proposed changes to the German Copyright Act – sometimes life really gets in the way of one’s plans... Well, here it is now:

The aim of the draft bill submitted to the Bundestag by “the left party” (“DIE LINKE”) is to extend certain copyright exceptions and limitations to nursery schools (BT Drucksache 17/4876,

Public communication of a published work

Currently, s. 52 subs. 1 sent. 1 German Copyright provides that the public communication of a published work shall be permissible at events that cumulatively meet the following requirements:
- they serve no gainful purpose on the part of the organiser,
- spectators are admitted free of charge, and
- the performers, if any, do not receive special remuneration.

According to s. 52 subs. 1 sent. 2, this is usually subject to payment of an equitable remuneration, but s. 52 subs. 1 sent. 3 contains a number of exceptions. Events by the Welfare Services and school events are exempt from the obligation to pay equitable remuneration, on condition that in accordance with their social or educational purpose they can only be accessed by a specifically limited circle of persons. Not all categories of works are covered, though. S. 52 subs. 3 provides that public stage performances and broadcasts of a work and public presentations of cinematographic works always require the consent of the copyright owner. The draft bill extends the above exception to events by child day-care centres and centres for the after-school care of pupils.

At first glance, such events appear to be similar to school events, which would militate in favour of the proposed amendment. However, things are a bit more complicated. School attendance is both compulsory (at least for nine or ten years) and – more crucially – free of charge. Nursery school attendance is not compulsory, but neither is it free. Even most state-run nursery schools charge fees, e.g. €150 per month per child. While I’m aware that this is probably not enough to recoup costs, let alone make a profit, I still wonder if in respect of events at such nursery schools, spectators (i.e. the children) can be deemed to be admitted free of charge for the purposes of s. 52 subs. 1 sent. 1, and if the public communication might serve a gainful purpose on the part of the organiser (i.e. the nursery school). Does anyone have any thoughts on this?

Reproductions of small parts of printed works or of newspaper articles

The second change proposed by the draft bill concerns s. 53 subs. 3 sent. 1, according to which it shall be permissible to make or cause to be made copies of small parts of a printed work or of individual contributions published in newspapers of periodicals for personal use
- in teaching, in non-commercial institutions of education and further education or in institutions of vocational education in the quantity required for one school class; or
- for examinations in the above institutions as well as for State examinations and examinations in schools and universities in the required quantity. The draft bill extends this exception to education in child day-care centres and in centres for the after-school care of pupils.

I have no objections to this. It should be pointed out, however, that this exception only concerns the making of copies of small parts of a printed work or of newspaper articles. S. 53 subs. 3 sent. 2 (and the proposed sent. 3) expressly stipulates that the reproduction of a work that is intended for teaching purposes at schools (or purposes of education in nursery schools) shall only be permissible with the consent of the copyright owner. Consequently, copying a whole work or substantial parts of a work is still subject to a licence and nursery schools may not, for instance, make free copies of sound recordings either.

Reproduction of graphic recordings of musical works and inclusion in private copying levy

Arguably the most controversial amendment proposed by the draft bill relates to the reproduction of graphic recordings of musical works. At the moment, s. 53 subs. 4 lit. a) provides that reproduction of such works shall only be permissible without the consent of the copyright owner
- if carried out by manual copying;
- for the inclusion in a personal archive, if and to the extent that reproduction is necessary for this purpose and if a personal copy of the work is used as the model for reproduction; or
- for personal use if the work has been out of print for at least two years.

The draft bill adds a second sentence to this that reads as follows: “In the cases of subsection 3, number 3 [i.e. education in child day-care centres and in centres for the after-school care of pupils], by way of derogation from sentence 1 lit. a), the reproduction [of graphic recordings of musical works] shall be permissible without the consent of the copyright owner.”

So there we have it: a special exception just for nursery schools! Schools, universities, music schools, private music teachers, the Welfare Services, choirs, the YMCA, you, me – everybody has to obtain a licence, only nursery schools get a free ride. I find that very peculiar, to say the least.

Finally, to make up for this new exception to a certain extent, the draft bill proposes to amend s. 54 and 54a to include graphic recordings of musical works in the private copying levy. In other words, copyright owners are supposed to receive equitable remuneration for the nursery school copies from the producers and importers of reprographic appliances such as photocopiers and scanners.

To my mind, this is all quite messy. The reason why the current exceptions do not include graphic recordings of musical works anymore – they did until 1985 – is that there was a dramatic rise in the number of copies due to the advances in reprographic technology. Choirs and other groups would not buy a copy of the work for each member, but only buy or even borrow a single copy and then make the required number of photocopies. Since the production of sheet music is expensive, the legislature deemed this unacceptably detrimental to authors and other copyright owners and prohibited the reproduction of graphic recordings of musical works except in the abovementioned cases (BT Drucksache 10/387,

Cynics might say that in practice probably nothing much changed and choirs (and kindergarten teachers...) continued their copying frenzies regardless or even in ignorance of the law (one has to admit that, being an exception from an exception that again has exceptions, it is rather complicated). Prosecution would be both impracticable and unpopular. Perhaps, then, it would be better to create a proper private copy exception for sheet music and give composers and lyricists a fair share in the private copying levy. After all, nowadays it is possibly even easier to copy a sound recording than to copy sheet music, but there is no exception from the exception for sound recordings. On the other hand, that would be one more stone paving the way to a "culture flat rate", and I'm not sure that I should like that.

I'll keep an eye on the fate of the draft bill while I continue to make up my mind...

The translations of the relevant provisions from the German Copyright Act are a combination of the WIPO translations ( and my own.

Quicker than making a cup of coffee

The Advertising Standards Authority in the United Kingdom isn't often called upon to make a ruling that reflects on contemporary copyright issues, but it had to do just that in ASA Adjudication on 3GA Ltd, complaint 140713, adjudicated on 30 March 2011 (here). What was it all about? The ASA's website explains
A national press ad, for a CD player with hard disk, included text that stated 
“Good news for CD owners. The Brennan JB7 is a CD player with a hard disk that stores up to 5,000 CDs ... It saves space and clutter and delivers near immediate access to an entire music collection. JB7 owners rediscover then fall in love with their music again simply because the Brennan makes it so accessible. The Brennan also records from vinyl and cassette so you can enjoy your entire music collection but keep it out of the way in another room or retire it to the attic … What’s the point in owning hundreds of CDs worth thousands of pounds if you never listen to them? [Perhaps their owners lay them down, like wines, as investments in the future] The problem with CDs is that it’s quicker to make a cup of coffee than dip into a CD. Try timing how long it takes to pick a CD, load it in the CD player, play a snippet from a track or two, eject it and put it back where it came from. Then there is the problem of finding music. The print on a CD spine is tiny. What if the track is on a compilation CD? What if the CD is in the car? Then there is the clutter. You need to keep your CDs near the player or you won’t play them. So you are forced to share your living space with hundreds of cheap plastic boxes. [But they furnish a room so well, and provide wonderful conversational ice-breakers for visitors checking out your cultural preferences ...] CDs are great but they are also inconvenient, inaccessible and a bit of a chore ... Key Points One button plays the entire collection at random ... Load CDs in about four minutes ... One touch record from vinyl, cassette or radio Loads and plays MP3 from USB ... Used by restaurants, hotels, pubs, dentists, schools Backup music to external USB for safe keeping … ”. 
The ad also included a quotation from Martin Brennan, which stated 
“I always liked the promise of CDs. It wasn’t so much the quality but the quick access to a given track. After vinyl and cassette that was a real plus. My first CD player was a five CD multi changer. My second was a ten CD changer for the car. I liked the idea of quick access to more than one CD and music that didn’t repeat after 40 minutes. These players were fine but a bit clunky - there were several seconds of silence between CDs and in the car I could never find the right CD. A few years ago I had a go at loading my cassette collection onto a PC. Cassettes were obsolete but I owned around 100 and the music on them reflected an important period in my life. I recorded all of the cassettes on to the PC over a period of several weeks. The thing is I never listened to the music on the PC. Somehow using a computer to listen to music never worked out. Maybe the computer was in the wrong place but I think it lacked the immediacy of a physical play button. In the end the computer got a virus and the music files were lost - I still had the cassettes thankfully. The JB7 is really my personal ideal music player”.
The complainant challenged whether the ad incited consumers to break the law, because it was illegal to copy music without permission from the copyright owner.
3GA said the JB7 was one of a new generation of audio devices that offered the facility to load CDs onto an electronic memory to enjoy them better. They said they were not aware of any owners of the product being charged for, or convicted of, infringing copyright and therefore there was no evidence that the ad incited consumers to break the law [can readers spot the illogicality of that proposition?]. They said there would be no evidence of that unless there was a judgement against a JB7 owner. However, it was apparent from the number of such products available that that was unlikely to happen [Does that mean there were so few products available that there was unlikely to be such a judgment, or so many -- so far without a judgment against them -- they what hadn't happened yet wasn't likely to happen in the future?].

3GA said they believed two elements of copyright legislation could be interpreted as being applicable to consumers who enjoyed their music using such devices, because they were essentially music players and, provided the user was playing music they were legally entitled to listen to, the fact there was an electronic copy was incidental and had no independent economic significance. They said the JB7 was different to, for example, a cassette or CD recorder that was used to make physical copies of the work. They said in those instances the copy was a primary function rather than simply part of the playback and therefore using the Brennan as described in the ad was specifically allowed by legislation under the term fair dealing, in which the economic impact on the copyright owner was not significant. They said a consumer who listened to their own material using a Brennan was of no economic consequence to the copyright holder whereas such devices could also be used in ways where the copy was not incidental and had an economic impact; for example, borrowing a CD to load onto the device. 3GA said such use, of a computer or new generation audio device would, therefore, infringe copyright.

They said there were illegal uses for many products however the majority of consumers understood the law and were law abiding so ads for products such as stockings, which could be used for robbery, did not include warnings related to illegal use. They said they did not wish to include such explanatory text in their advertising because it was not possible to summarise copyright law in such a way. 3GA were also concerned that the inclusion of such text could actually incite illegal activity by giving consumers the idea of, for example, copying borrowed material.

Assessment: upheld
The ASA noted the product was a CD player as well as having a hard disk to store CDs and also record from vinyl and cassette. We also noted, however, it repeatedly made reference to the benefits of the product being able to copy music but did not make clear that it was illegal to do so without the permission of the copyright owner. We considered the overall impression of the ad was such that it encouraged consumers and businesses to copy CDs, vinyl and cassettes. In the absence of prominent explanation, we concluded that the ad misleadingly implied it was acceptable to copy CDs, vinyl and cassettes without the permission of the copyright owner. We also considered that the ad encouraged people to use the advertised product in this way and that, therefore, it incited consumers to break the law.

The ad breached CAP Code (Edition 12) rules 1.10 (Legality) and 3.1 and 3.3 (Misleading advertising).

The ad must not appear again in its current form. We told 3GA to ensure future ads for such products prominently stated that it was unlawful to copy material without the permission of the copyright owner.
I just took a quick look at the Brennan website. The only mention of "copyright" comes at the bottom of the page, where it says "© Copyright 2010 3GA Ltd. All rights reserved. Privacy Policy".

A further thought: shopping trolleys are advertised in the media, but there have never to my knowledge been any complaints that those who advertise them must state prominently that it is unlawful for purchasers to pop their shopping into them without paying for them.  Double standards, or a reflection on the fact that we assume that people know they shouldn't steal but are ignorant of copyright?

Friday 1 April 2011

Tattoos and moral rights: a couple of points to ponder

Apologies are owed to my correspondent who wrote me the following missive, which I meant to post last week but completely overlooked. He writes:
"My colleague and I were discussing, at length, the art of tattooing (it was, after all, Friday afternoon!).

My question is this, if a tattoo artist creates a unique design for a client, then this is tattooed on to the aforementioned client, does the tattoo artist still own any intellectual property rights (namely copyright) over this piece of art? If the tattooed subject were to go on to a profession (I can only think of modelling at this precise moment) where the tattoo was constantly broadcast to the general public, and the designer viewed this to be derogatory to their work, would they be able to litigate!"
It seems to me that the potentially derogatory public display and transmission of the tattoo is only one of a number of moral rights issues that can be discussed -- another one is whether, if the tattooed subject wishes to have the tattoo amended or removed, the tattoo artist has any ground upon which to object.

Readers' thoughts on the topic are naturally welcomed.