Thursday 29 September 2011

Of Glasshouses, Stones and Copyright Infringement

German media reports on alleged copyright infringement by a senior conservative politician (see for example this article in the Handelsblatt). Siegfried Kauder (CDU) recently proposed that copyright infringers should be disconnected from the Internet for three weeks – without a trial, based only on repeat complaints by copyright owners to the relevant internet service provider. He saw this as a milder alternative to criminal prosecution or costly warning letters (costly for the infringer who must pay the right holder’s attorney’s fees).

While that suggestion is constitutionally problematic and was not really taken seriously by anyone even within his own party, it seems to have prompted someone to investigate whether Kauder himself abides by copyright law at all times. Well, apparently not. It is alleged that at least two photographs on his website, showing castles in his constituency, were put there without a licence. The author is not credited either, which would make for an additional infringement of moral rights.

A quick Google Images search reveals the identity of the apparent authors, but as yet neither of them has given a public statement. The pictures have been taken down from Mr Kauder’s website but can still be accessed via archiving sites.

His political rivals and most of the media are understandably delighted by this (minor) scandal. He who sits in the glasshouse should not throw stones or suggest disabling other people's Internet access and all that. However, some people have pointed out that Mr Kauder will hardly have created the website himself. According to the information provided there, it was indeed designed by someone else, but of course that does not answer the question who selected or provided the photographs.

Assuming the person who designed the website also chose the photos and Mr Kauder was unaware that no licence had been given, he would probably not be deemed a direct infringer. He would be liable as a “Störer”, though. The German law concept of “Störerhaftung” does not translate easily – “disturbance liability” would be the literal translation, but liability for breach of a duty of care is probably more accurate in this context. That means that he should have checked that permission to use the pictures had been granted and that he must now make sure that the photos are not used again on his website, but he will not be liable to pay damages.

Not such a big deal then, perhaps, but I guess the public embarrassment hits him harder than a few hundred or thousand euros in damages would. What do you think: poetic justice, preposterous witch-hunt, or politics as usual?

Copyright vs Competition law - a new dawn in European broadcasting??

I early 2007 I spotted what I thought was a very interesting case called MPS v Murphy and blogged about this in March on my Music Law Updates website. The case was (and still is) of great interest to UK publicans and I even got “flamed” in a pub trade weekly magazine’s chat room for daring to suggest anything but the prevailing view, which was that in the UK only Sky TV had the right to show live English Premiership football. I pointed out that whilst that may well be correct as far as copyright and licensing goes, it may not be so right when looking at the general concept of the ‘free movement’ of goods and services within the European Union.

The case concerns South Coast publican Karen Murphy who referred to pay £750 each year for a Nova decoder to get Greek satellite programmes that included live English Premiership football, rather than the reported minimum £4,000 Sky would have charged for live football. She was convicted under s297(1) of the Copyright Designs & Patents Act 1988 for dishonestly receiving a programme with intent to avoid payment. Murphy appealed her conviction to the Portsmouth Crown Court where the conviction was upheld and then onwards to the Divisional Court, who referred the whole matter to the ECJ.

The economics of this are important: BSkyB and Setanta Sports were then reportedly paying £1.7 billion to hold the exclusive rights to screen live matches to the English Premiership in Britain for the next three years. Broadcasters in 208 other countries had recently doubled their payments to secure English premiership rights to a combined £625 million - and of course Sky recoups their investment by charging both consumers for home use and pubs and clubs a fee to publicly show Sky TV in a place of business. Back in 2007 it was said that a public house would often pay upwards of £1,000 per month for Sky Television and whilst this includes Sky Sports and Sky Sports News it would not include all live premiership matches. An additional payment is needed for the full service.]

Now the European Court of Justice is set to rule on the 4th October 2011 in the case of Murphy and the joined case of FA Premier League and Others v QC Leisure following a ‘pro-Murphy’ opinion from Advocate General Juliane Kokott in February this year. In reconciling intellectual property rights with the free movement of services, the judgment has the potential to transform broadcasting in the EU.

On the 11th October City University will be host a panel on this hosted by our very own Jeremy Phillips, and featuring Lorna Woods, Professor at the City Law School, Dan Wilsher, Senior Lecturer at the City Law School and Jonathan Griffiths, Senior Lecturer at the QMUL School of Law. Full details can be found using the link below:

Football, Broadcasting and the Internal Market: Is a common audio-visual space in sight?,-broadcasting-and-the-internal-market-is-a-common-audio-visual-space-in-sight/_nocache?dm_t=0,0,0,0,0

Background here:

Wednesday 28 September 2011

Academics v Publishers: Revolution in the air?

Following George Monbiot's scathing article in the Guardian last month, the subject of academic publishing has been weighed and been found wanting. Of course, librarians and academics have long known that journal publishers monopolise the market; even as much as ten years ago the larger publishers were busy buying out the smaller ones who weren't strong enough to compete with them. But outside of academia people are largely unaware of the struggles every electronic resources librarian faces each year as budgets shrink and journal bundle prices steadily increase. Tough decisions often have to be made, and naturally the impact is felt by researchers, academics and students.

Which is why today's announcement that Princeton University is enforcing an Open Access policy forbidding academics from transferring the copyright in their articles to journal publishers is so significant. Academics are required to licence their work instead, so that they retain the copyright and are therefore able to reproduce it elsewhere without having to seek the permission of the publisher. This could spark a welcome trend which would allow academics and universities to maximise their outputs and revolutionise knowledge sharing.

Certainly in the UK, where most universities now have institutional repositories which host research outputs (scholarly articles written by their academics), this trend would be welcome and would resolve numerous difficulties in attempting to interpret publisher policies. Part of the problem is that academics are often unaware of the terms they agree to when they sign a Copyright Transfer Agreement (for an example see here). Yet even when they are aware, academics often don't have time to negotiate licence agreements with publishers as they are under pressure from their institution and/or funding body to publish. Most of the larger publishers either do not allow a version to be deposited in the repository or are very specific about the version which can be deposited, and attempting to contact publishers for permission is usually incredibly difficult if not impossible. And whilst organisations such as SHERPA/RoMEO provide a useful source of information on publisher policies, policies are changing all the time and it is difficult to maintain up-to-date records. Recent woes include publishers moving to automated systems which invoice funding bodies and universities directly for open access; these sorts of issues cause headaches for repository managers and copyright officers alike.

This is is not to decry the value of academic publishing, and indeed it has been interesting to read reactionary pieces and comments to the Monbiot article (including from the publishers themselves) which indicate moves afoot in the publishing world. But what is increasingly obvious is that the current mainstream system cannot continue forever; something's got to give, and one wonders whether Princeton has just thrown down the gauntlet to universities everywhere...

Photo from Flickr: Princeton University by Yakinodi (CC-BY 2.0)

Copyright in court judgments: a matter of access

The Guardian published "The Courts: judgment day" on 25 September. It touches on one of this blogger's favourite topics -- the accessibility of court rulings.  Since England and Wales is a common law jurisdiction in which the decisions of higher courts bind lower ones and even courts of equal standing will not depart from the reasoning of an earlier court without giving at least the semblance of a rational explanation, access to judicial decisions is more than a pleasant pastime for legal dilettantes and an urgent necessity for law students: it's part of the manner in which the legal system works.  Bearing this in mind,
"When the broadcasters finally begin to show English and Welsh judges delivering sentences in court, anyone will be able to watch the spectacle on TV or online. But if they turn to Google to look for a transcript of, say, a court of appeal judgment, the chances are that they will be unable to find it.

This remarkable situation – which, given the importance of case law in this country, is all the more extraordinary – has arisen because of the Ministry of Justice's decision to release significant judgments through a long-standing contract with a site called Bailii (the British and Irish Legal Information Institute). The legal establishment holds Bailii in justified admiration. The site has done a wonderful job of making case law freely accessible to lawyers: books about law are notoriously expensive. It includes historic and European data that is otherwise very difficult to find. But Bailii is a charity [as to who pays, or should pay, for Bailii, see jiplp here], it struggles to afford to host its 297,000 judgments, and does not allow search engines to index them. In some instances it is not even clear whether the crown or the judge concerned holds the copyright to the words, and reproducing them on any other site is forbidden.

The argument for opening up judgments to real public view and scrutiny is an overwhelmingly strong one. The UK supreme court has set an excellent precedent by releasing all of its judgments in a searchable format (and, just as importantly, summarising them succinctly)....

Now a group of digital activists called Judgmental is promising to publish judgments in a searchable format. It is very important – especially in the light of the Cabinet Office's consultation on Making Open Data Real – that its efforts will not be thwarted by threats to sue for breach of copyright. It would certainly be an irony if the MoJ's drive to see justice publicly done were matched by a parallel determination to keep case law texts as inaccessible as possible. "To be able to obey the law, you have to be able to find out what it is," say Judgmental's founders. "And it would useful to be able to find that out online."

... Lawyers and judges are trained to understand and to interpret the law. But in the digital age, no one should be denied the ability to find and read it in an accessible and searchable format.
The argument for opening up judgments to real public view and scrutiny is an overwhelmingly strong one".
BAILII's Copyright Policy can be found in full here.  From the reference to "META tags" it looks as though it may have been established quite a long time ago, when we were all still suspicious of search engines, spiders and robots and when there were still serious doubts as to the legal, commercial and ethical dimensions to their use.  This blogger holds BAILII in awe and in esteem, but wonders whether the time has come for BAILII either to take a fresh look at its copyright policy or to explain more clearly the reasons that lurk behind it and which may justify its retention in an era in which the use of search engines is pretty well standard in every walk of life.    He also doubts whether in reality (i) BAILII would ever have the inclination and the funds to pursue an action for copyright infringement against any search engine, (ii) the courts would grant injunctive relief, taking into account the public interest in greater access to primary legal sources and (iii) the interesting issue of damages in the absence of any convenient head of commercial loss.  It would be good if BAILII and Judgmental could work together for the common good which they both so palpable have at heart.

Friday 23 September 2011

Lets Face The Music, And Pass?

OK, this isn't strictly about copyright - its about the launch of the new Facebook Music service - which seemed to leave most cyberworld commentators somewhat under-awed. But I wonder if they (and the music industry) are missing the point. Its great to have a internet behemoth like Facebook promoting legal music platforms (isn't it ?) - but - isn't the real value of music being missed again? Facebook's new music service seems to be all about data collection - with the music services (or the 'copyright' element) just the bait to get users to share information with Facebook.

One of cyberworld's commentators, Gizmodo, tells us that Facebook has failed "To Let Fans Share Music Across Platforms". But of course Facebook has never (as yet) claimed to be a content provider itself. Instead, head honcho Mark Zuckerberg wants Facebook Music to be the "connective tissue" needed by music fans and the music industry alike, so that people would be able to share music with each other without friction - and without breaking the law. How will it do this? Well Facebook will let you see what your friends are listening to in a real-time "Ticker" feed that appears on the right side of a Facebook page. But if you want to hear full-length versions of those songs, you'll need to use the same music service as the person who shared it, with Zuckerberg explaining "I can see all the stuff [my friend] is listening to, and play it with whatever music player he used to play it. As Gizmodo rightly explains, it means that if Facebook friends want to become "friends with (musical) benefits," they'll both need to subscribe to the same music service - and users of any participating music service will need to allow Facebook to track their activity - what they are listening to - and to share that data with their friends and followers in real time via the new update stream, or 'Ticker'. So far, so good for the music industry - its pushing people to legal music services.

But one worry is that Facebook Music will ultimately reduce consumer choice - not widen it. The new Facebook Ticker and Timeline features may well be the "connective tissue" for music lovers who use Facebook - but only between listeners who pay to use the same music service. Gizmodo say that there will likely be only one winner in all of this as far as unlimited music subscriptions go, and that could well be Spotify, whose CEO Daniel Ek appeared with Zuckerberg at the recent F8 conference and whose app Zuckerberg said he "really loves": If Facebook Music was open to all platforms, music fans would need to install every (legal) music service their frends use on all of their computers, smartphones, and tablets, just in case they need to find a shared song from a service they otherwise wouldn't use. And I have to agree with Gizmodo, that scenario seems a tad unlikely, to say the least. So Gizmodo expects a single winner to emerge from the existing music subscription platforms - and thinks its Spotify, although there are of course other players such as MOG - and maybe Rhapsody - and Facebook CTO Bret Taylor spent quite some time at the Facebook Music launch explaining how Clear Channel's I Heart Radio venture will also take advantage of Facebook's new data sharing functionality.

The music industry seemed chuffed. Rhapsody President John Irwin told the New York Post "The more you help people discover music, the more social it is, the more they will be engaged. If they're more engaged, then they're more likely to subscribe" and VEVO CEO Rio Caraeff told the Guardian "Today's announcement is a big step forward in Vevo's mission to bring more music to more fans in more places. A deeper integration with Facebook will help VEVO grow its scale and reach to new heights, while better targeting our connected, socially-savvy audience".

And alongside this story is growing concern that the Spotify streaming model just doesn't work for everyone. Recently three small heavy metal labels have pulled their content from Spotify - Prosthetic Records followed Century Media and Metal Blade in withdrawing from the streaming platform with its co-owner EJ Johantgen telling LA Weekly "there [does] not appear to be an upside" to being part of the Spotify party and that payouts are "fractions of pennies". Its interesting that the four UK major labels (Universal, Warners, Sony and EMI) along with Merlin representing the major independent labels own an estimated18% of Spotify - a nice return for shareholderds as the company is now worth upwards of $1 billion - and Universal and Sony part own video streaming platform Vevo. But does this actually help the creators of music - the artists and the songwriters? Well with PRS for Music collecting just 0.085p per stream (or £850 per million streams) it won't be making songwriters rich, in the short term at least, and there have been a number of horror stories about the lack of transparency and low level of payments in general - with Lady Gaga reportedly earning just $167 from a million plays of Poker Face. An online debate about Spotify's payments to both labels and songwriters has been initiated by self-releasing indie-folk outfit Uniform Motion based around the royalties they earn on their sound recordings. Posting a blog about the economics of being a DIY artist, they provided some interesting insights into what artists can make from the various digital services - both download and mail-order - and streaming - and the blog led to an online debate comparing the money artists can make 'per download' via services such as iTunes and 'per stream' models such as Spotify. Spotify responded by pointing out the diffence between the two models and saying that they have paid out $100 million to rights owners and that they are the second largest source of digital revenue for European labels. And of course lets not forget that they DO provide a legal platform. But interestingly, Uniform Motion has since noted that their problem with Spotify and other streaming services isn't so much how much they get paid per stream, but rather how that fee relates to what the streaming firms earn for ad sales and subscriptions saying "What we dislike about Spotify is the lack of transparency in their business model. With Apple, it's simple. They take 30%. With Spotify, we don't know if we're getting a fair deal or not". With two million subscribers paying Spotify now, that's quite a lot of money to be concerned about.

Others say that Facebook Music is hardly a revolution at all. It MAY help new music services get a foothold and gain a more mainstream customer base. Conversely it may prioritise one clear winner. But surely the technology and capacity to capture data will be the greatest asset of all - and that asset will be owned by Facebook. If users allow Facebook to track their online lives and collect rich and important data about what they (and their on-line friends) do and this will have a real value to Facebook who will have the capacity to shape and build new services around users and user data - allowing some fairly specific targeting and predicting, something marketeers dream of. And actually it won't really cost Facebook anything, as they are just piggy-backing on the music services, albeit promoting them at the same time. So, a question for the recorded music and music publishing sectors of the music industry - is this really monetising copyright in the most profitable way for you and your artistes? Or another lost opportunity for the music industry to build a new business model fit for the digital age - outflanked by the Geeks again!

My take on the economics of Spotify here

and in Will New Music Streaming Business Models Survive The Dawn of the Digital Age? here

and here

For Neil Wilkof's interesting take on Amazon's idea for the book publishing industry on the IPKat - Can There Be an E-Book Library? - see here

Photo by 4ELEVEN Images

Wednesday 21 September 2011

How do you solve a problem like Orphan Works?

Yesterday evening, a milestone in the ongoing discussions about copyright and (more importantly) orphan works was reached. A Memorandum of Understanding (PDF) to approve the digitisation and making available of out-of-print books and journals was signed by representatives of European rights holder societies, creators, authors and libraries. It has taken nearly a year, but all stakeholders in the process were finally able to agree on three main principles whichwould allow cultural organisations to make a greater portion of their collections available online:

  1. Agreements must be negotiated on a voluntary basis by all relevant parties to determine what is to be digitised and to ensure that the items in question are no longer in "commerce" (works which were once published and which neither publisher nor author intends to re-print and sell again). Moral rights are key to this process and authorship(where known) must be acknowledged;

  2. Collective licences may be granted by collection management organisations where a substantial number of authors and publishers are represented. Digital library projects must be widely publicised and rights holders given the option to opt out of any collective licensing scheme;

  3. Collection management organisations may limit licences to those of represented rights owners only (rather than on behalf of all rights owners) if agreements include trans-border and/or commercial uses of works.
However, whilst an agreement of this kind is clearly satisfactory to rights holders, it remains to be seen whether libraries and other cultural institutions will truly benefit. The optimism of Olav Stokkmo (CEO of the International Federation of Reproduction Rights Organisations) that this MoU will solve the problem of orphan works is misplaced; large numbers of orphan works that reside in libraries and archives were never 'in commerce' (they are often unpublished, such as letters, diaries and manuscripts) and as such one wonders whether the scope of the MoU would extend to them. In addition, the issue of orphan works covers all types of work; the MoU deals only with text-based works where rights clearances are easier because there is traditionally one author and one publisher, whereas for audiovisual works there are often many independent rights holders to trace.

EU Member States are not required to implement the terms of the MoU,as it has little or no legislative weight. There remains an expectation that legislation from the EU on orphan works is imminent,with the issue currently being discussed at length in the UK as aresult of the Hargreaves' Review of Intellectual Property.

Photo: 'More old books...' by guldfisken (Flickr), reproduced under CC-BY-2.0

Tenebaum damages back to starting point

In the see-saw world of US copyright damages for illegal downloading and file-sharing, a federal appeals court has reinstated a 'hefty' $675,000 judgment against Boston University post graduate student Joel Tenenbaum, who admitted to downloading music on Internet file-sharing sites after a judge had reduced the previous jury award at the same level by 90%. The US Circuit Court of Appeals for the First Circuit rejected Tenenbaum’s assertions that he did not violate copyright protection laws because he was a consumer, not someone looking to make a profit from downloading. The court also vacated the US District Court’s decision to reduce the total charges to $67,500, because Judge Nancy Gertner found the original figure was unconstitutionally excessive. The court instead reinstated the jury’s figure of $675,000 criticising Judge Gertner for disregarding procedure in reducing the award. The case involves 30 infringements of copyright law which attracts maximum statutory damages of $150,000 per violation, or a potential maximum in this case of $4.5 million.

In the other leading case involving single mum Jammie Rasset Thomas (Capitol Records v. Thomas-Rasset) Judge Michael Davis rejected a jury's damages award of $1.9 million through both remittitur and on constitutional grounds, and reduced the award to $54,000. The record labels offered defendant Rasset Thomas a settlement at $25,000but she rejected this, and then the labels appealed the judge determined award and a new trial was convened solely to determine damages. Here the jury awarded $1.5 million. This was again reduced by the judge to $54,000. The RIAA is currently appealing the most recent lower damages figure set by a court in the Eighth Circuit.

Both defendants have said they do not have the means to pay the damages awarded.

Photo: Tenenbaum's lawyer, Harvard law professor Charles Nesson in a fetching turtle-neck sweater.

Tuesday 20 September 2011

"Shaky and ill-prepared": public performance law in South Africa

Public performance of Punch and Judy?
No: it's just lawyers coming to blows
as to what "public performance" means
Earlier this month, in "Two may be company, but can one be a crowd?", here, the 1709 Blog hosted a letter from an anxious reader, writing on behalf of a friend, about what constitutes "public" for the purposes of performance in public.  The post was popular, attracting 14 comments. It has also drawn this substantial piece from South African copyright live-wire Graeme Gilfillan (Nisa Global Entertainment), who writes:
A cursory review of the meaning applied used/provided/defined for “public performance” in the South African Copyright Act 98 of 1978 as amended (“the Act”), at the South African Music Performance Rights Association (SAMPRA) website and Southern African Music Rights Organization (SAMRO) website, confirms that the concept and definition applied to the “public performance” is shaky and ill-prepared for a dispute or legal challenge. Indeed it would appear that there is no case law precedent on this in South African law history (I stand to be corrected on this), and a dispute concerning “public performance” in South Africa would have very specific consequence on musical and literary works, rather than sound recordings and films.

A detailed search of the South African Copyright Act 98 of 1978 (“the Act”) yielded the following results:

a.       The word ‘public’ is not defined in the Definitions section (or anywhere else) in the Act, though the word ‘public’ is used in the following contexts in the Act:

a.       Of, to and by the public
b.      A public delivery
c.       A public place
d.      Performing in public
e.      Place of public entertainment

b.       The phrase “performing the work in public” appears once in the Act, in Ch 1 Sec 6 (c);

c.       In the Act provides in Ch 1 Sec 9 (e) for “communicating the sound recording to the public” and the entire Section 9 makes no reference to ‘perform or performance’. The word “communicating’ appears nowhere else in the Act, and neither it nor ‘communicate’ are defined in the Act.

d.      The phrase “public performance” does not appear in the Act.

e.      The word “performance” is defined in the Definitions (xxxii) of the Act as follows:

performance includes any mode of visual or acoustic presentation of a work, including any such presentation by the operation of a loudspeaker, a radio, television or diffusion receiver or by the exhibition of a cinematograph film or by the use of a record or by any other means, and in relation to lectures, speeches and sermons, includes delivery thereof; and references to “perform” in relation to a work shall be construed accordingly: Provided that performance” shall not include broadcasting or rebroadcasting or transmitting a work in a diffusion service”

f.         The word ‘perform’ is not defined in the Act

g.       In terms of the nature of works eligible for copyright, the Act makes reference to ‘perform’ or ‘performing’ or ‘performance’ only in

a.       Sec 6 (musical and literary works),
b.      Sec 9 A(royalties i.r.o. sound recordings)
c.       Sec 11 B (computer programs)

No other works eligible for copyright include, or make reference to, the words ‘perform’ or ‘performing’ or ‘performance’

At the local performance rights (in musical and literary works) collection society SAMRO’S website, the 1709 Blog reader’s friend would be advised, inter alia the following:
“According to copyright law not only the person performing music in public is liable, but also the proprietor of the premises who permits their permises to be used for such performance in public.”
“Please be aware that a licence issued by the SABC does not entitle the holder to give a performance in public of SAMRO’s copyright music included in broadcast programmes. The agreement between SAMRO and the SABC for the broadcasting of copyright music covers only the reception of such music within the domestic circle. Where broadcast music is rendered audible in public, a separate licence from SAMRO is necessary”. 
“As a user of copyright music it is a requirement under the South African Copyright Act that you pay for the music that is broadcast, performed or “diffused” by your establishment. SAMRO’s Licensing Department is a hugely important aspect of the society, designed to ensure that music users in South Africa, of whatever size, are properly licensed for the performance of copyright music”  
Music users are broken down into different groups: 
·         Essential users (which are entities like broadcasters, promoters and others);
·         Necessary users (like piano bars, discotheques, nightclubs, etc);
·         background users (like restaurants, retail estabishments and hotels);
·         Incidental users (like cafes,and hair salons). 
Remember that the licence issued by SAMRO is a blanket one authorising the broadcast, performance or “diffusion” of any of the million musical works that SAMRO controls on behalf of both our own members and those of its affiliated societies worldwide. The licence is usually in a form of a contract, which runs from year to year and due to the many ways in which musical works are performed, the fees payable under SAMRO’s licence can vary. There are around 46 different tariffs established to ensure we cater for all different types of music users. (see tariffs in this section).”
At the local collection society for owners of sound recordings SAMPRA’s website, the 1709 Blog reader's friend would be advised inter alia the following:
Is there any legal requirement to pay SAMPRA licence fees?  
The Copyright Act imposes an obligation on those who wish to broadcast, communicate to the public or diffuse copyright sound recordings, to pay a licence fee to the relevant copyright holder(s). SAMPRA is authorized by the members of RiSA to grant licences to and collect licence fees from users of their copyright sound recordings. If you do not obtain a licence from SAMPRA, you will be infringing these copyrightholders' rights when you broadcast, diffuse or communicate to the public, any of their sound recordings” 
What does "communicating to the public" mean?  
Communicating to the public is the playing of a sound recording in public (i.e. a non-domestic environment). Just because music is rendered audible for free, the audience is small, there is no admission fee, or the communication to the public is confined to members of a club, or a limited area, it does not mean that it is not a communication to the public. Music rendered audible at an event such as e.g. an office party or a year-end function constitutes a communication to the public. People often reason that "If it is my CD, why can't I play it whenever and wherever I want?" Ownership of the physical CD or Cassette does not confer any rights in the copyright material contained in the sound carrier onto the purchaser or holder in good faith, other than the right to be a licensed user of the copyright material contained on the sound carrier for personal use only” 
“Under section 9 of the Copyright Act 1978 ("the Act"), the copyright in relation to a sound recording is the exclusive right to do all or authorize any of the following acts, amongst others:·         Broadcasting the sound recording
·         Causing the sound recording to be transmitted in a diffusion service, unless the service transmits a lawful broadcast, including the sound recording, and is operated b the original broadcaster
·         Communicating the sound recording to the public".
Crystal clear?  We hope so!

Monday 19 September 2011

Pirates board Berlin Parliament

The Pirate Party has secured 8.5% of the vote in elections for Berlin's state parliament, easily exceeding the 5% threshold needed to gain seats and it is thought to be line to have fifteen new representatives in power. It came fifth of all parties and the Pirates secured around 15% of the vote in the under 30 age group. It’s the most high-profile success for a Pirate Party since 2009, when the Swedish Pirate Party won a seat in the European Parliament following the original trial of the four Pirate Bay founders. Founded in 2006, the Pirate Party originally campaigned on file-sharing and data protection on the Internet, but has since branched out to tackle education and citizen rights. For the Berlin election, the party also called for free public transport and votes for over-14s, while campaigning against secretive privatisation deals.

“At the moment the Pirate Party of Germany does not have any paid employees,” Sebastian Nerz, chairman of the German Pirate Party, told TorrentFreak. “Everyone working for the party – including myself – is working in an honorary capacity" adding “In contrast, Members of Parliament are paid for their work. In addition they receive state money to pay for assistants and co-workers. This will enable those Pirates to work full-time for the party, thus giving us much more work force”. German polling analyst Holger Liljeberg commented that the Pirate Party was “in tune with the Berlin vibe with their relaxed campaign – they focus a lot on liberalism, freedom and self-determination.” He might be right, the UK Pirate Party only managed to attract 1,340 votes across nine seats, or 0.34 percent of the vote, in the last United Kingdom elections two years ago.

The centre-left Social Democrats with 29.5% of the vote and led by popular Berlin Mayor Klaus Wowereit will now form a coalition administration with one of the smaller parties. "Shipmates ahoy" ......... ???

The Guardian Monday 19th September 2011

Treat Me Nice: Fairness Compensation for Elvis Presley Enterprises?

In a recent post, I had a look at the growing number of cases in which § 32a UrhG (German Copyright Act) is invoked to try and obtain further compensation, more floweringly dubbed "fairness compensation", for authors or performers involved in bestselling works (see post here). A craze is not a craze without an iconic figure becoming somehow involved, and to be sure, we have one now. Elvis Presley is at the centre of yet another fairness compensation lawsuit (thanks to Jeremy for pointing this one out to me).

Elvis Presley Enterprises, LLC v Arista Music

In December 2010, Elvis Presley Enterprises, LLC, filed a lawsuit before the Landgericht München I, which has also dealt with some of the other fairness compensation cases outlined in my abovementioned post. The defendant is Elvis’s German record company, Arista Music (formely RCA Records). Apparently, in 1973 chronically ill-advised Elvis was persuaded by his manager Tom Parker and Arista Music to sign away all German rights in his entire back catalogue (allegedly some 1,000 recordings) for $5.4 million. What is more, his manager received 50% of that sum.

Elvis Presley Enterprises, LLC claims that this consideration is strikingly disproportionate in relation to the profits generated from Elvis’s songs by Arista Music. That is probably true. Indeed, § 32a UrhG was actually introduced with just such a situation in mind: a record company with considerably more bargaining power than the artist persuades him to agree to a buy-out for a comparatively meagre sum, the work brings in huge profits, and the author or performer does not benefit financially from his work’s or performance’s outstanding financial success.

Consequently, the Elvis case appears to be quite straightforward. Upon closer scrutiny, however, there are two problems that make this case a rather tricky one.

Applicable law

First, there is the issue of applicable law. “The law of the country where protection is claimed, silly,” some might be tempted to say. But wait, things are a bit more complicated. § 32a UrhG does not have anything to do with copyright infringement. It does not punish tortuous behaviour but gives a claim for the amendment of a contract. In other words, § 32a UrhG does not give the author or performer a copyright claim, but a contractual claim, albeit one pertaining to copyright law. The territoriality principle does not extend to copyright contract law.

In copyright contract law, the applicable law is determined according to ordinary private international law, i.e. the Rome I Regulation (EC 593/2008, see here There are three possible factual scenarios.

In the first possible scenario, the contract contains a choice of law clause that renders German law applicable. In the second possible scenario, the contract contains a choice of law clause that renders US-American law applicable (or indeed a third country’s law, but that would seem highly unlikely in the present case).

In the third possible scenario, the contract does not contain a choice of law clause. In the absence of a choice of law by the parties, Article 4 Rome I Regulation comes into play. Copyright contracts do not fall within the scope of any of the examples in Article 4 (1). According to Article 4 (2), then, the applicable law is the law of the country where the party required to effect the characteristic performance of the contract has his habitual residence. Alas, there is a dispute, or at least a profound lack of clarity, as concerns copyright contracts. One might think that the characteristic performance is the transfer of rights effected by the author. Yet there are voices that argue that the characteristic performance is effected by the publisher who exploits the works and pays the author. At least in case of a so-called buy-out where the author receives a one-off payment and no further royalties, I would favour the first position. If the court in the Elvis case happens to share my view, US-American law will apply.

The Merits of the Case if US Law is Applicable

Assuming the contract did contain a choice of law clause and German law was chosen, § 32a UrhG applies, of course.

Assuming American law is applicable either by the parties’ choice or due to conflict of law rules, it must be determined whether § 32a UrhG is an overriding mandatory provision for the purposes of Article 9 Rome I Regulation that must be given effect regardless of the applicable law. Fair enough, but how can we tell?

Now, as we all know one should always read the neighbouring provisions of the one you are dealing with. If you do that, you will encounter § 32b UrhG. § 32b UrhG makes the application of § 32a UrhG mandatory even if the applicable law is not German law. § 32b UrhG provides exactly that, namely that §§ 32, 32a UrhG remain unaffected by choosing a foreign law. There is a big BUT, though.

§ 32b UrhG only applies to authors. Whereas § 79 (2) (2) UrhG declares § 32a UrhG and a couple of other provisions to apply, mutatis mutandis, to performers, it does no such thing when it comes to performers. There is no room for an analogous application of the provision either (for an instructive article on § 32b UrhG – in German – see Hilty/Peukert, Das neue deutsche Urhebervertragsrecht im internationalen Kontext, GRUR Int 2002, 643). Since the Elvis case concerns performers’ rights, § 32b UrhG does not apply.

It follows that the case fails if US-American law is applicable.

The Merits of the Case if German Law is Applicable

Let’s assume that German law turns out to be the applicable law and § 32a UrhG can in principle be invoked. Before we can turn to the question whether the consideration received is strikingly disproportionate in the light of the profits generated (my guess would be that it probably is), there is the issue of legal standing (Aktivlegitimation).

The rights conferred by § 32a UrhG cannot be transferred. Upon the author’s or performer’s death, it passes on to the author’s or performer’s heirs. According to the official Elvis Presley website (here, his heirs were his parents and his daughter Lisa-Marie, and when his parents died they left everything to Lisa-Marie as well. Her inheritance was held in trust until she turned twenty-five; she then formed a new trust, the Elvis Presley Trust. Elvis Presley Enterprises, Inc. is the business entity of the trust and the parent company of the claimant.

Since the author or performer may not transfer their § 32a UrhG right and the heir cannot have better rights than the author or performer, it is impossible for the heir to transfer her § 32a UrhG right, too. Therefore, as I see it Elvis Presley Enterprises, LLC lacks legal standing. That would be more of a technical issue that could easily be rectified if Lisa-Marie Presley were still the sole proprietor, but she sold 85% of Elvis Presley Enterprises, Inc. in 2005. Consequently, I would be frankly astonished if the current claim by Elvis Presley Enterprises, LLC were successful.


Under any scenario, the likelihood of Elvis Presley Enterprises, LLC being successful in their § 32a UrhG claim would seem very small indeed.

Provided that German law is applicable, however, Lisa-Marie Presley stands a good chance of coming into some money if she claims further compensation pursuant to § 32a, 79 (2) (2) UrhG. 

Some reading matter

Looking for something to read? Here's a short selection of recent material from some IP journals.

Published in Sweet & Maxwell's Intellectual Property Quarterly (IPQ) is "An EU Copyright Code: What and How, if Ever?" by Trevor Cook (Bird & Bird) and Estelle Derclaye (University of Nottingham). According to the IPQ's summary of this collaboration between practice and academe:
"In 2011 we are celebrating 20 years of EU copyright harmonisation. However, in contrast to most other intellectual property rights, which are now both harmonised and unified, copyright harmonisation is unfinished business ad unification has not yet commenced. The new decade may augur changes in this respect. While the Commission hinted at unification in the field of intellectual property (art.118) and some academics think this is the next step forward (Wittem Code 2010), this article takes stock and weighs the pros and cons of future EU legislative action both as to its form and content".

"Media CAT v Adams: the CAT that did not get the cream", by Gary Moss (McDermott Will & Emery) is available online to subscribers of the Journal of Intellectual Property Law & Practice (JIPLP) and will soon be published in hard copy too.  According to the abstract:
"In February 2011 His Honour Judge Birss, sitting in the Patents County Court (PCC), handed down a judgment in the case of Media CAT Limited v Adams & Others
The judgment is illuminating since it casts some light into the murky world of how some individuals and companies have sought to enforce copyright claims against members of the public in circumstances which could, at their most charitable, be described as suspect. It also highlights certain procedural issues which can arise in such cases and which will be of considerable interest to practitioners, not least in relation to the potential abuses which can arise from unfettered use of the Norwich Pharmacal procedure".

Also available online in JIPLP pending its paper publication is "Copy-right-brain v left-brain: the use of musicologists in Canadian copyright infringement cases" by the Canadian-based team of Emir Aly Crowne and Varoujan Arman.  This article deals with expert evidence:
"Musicologists (experts in music) provide crucial evidence to courts in copyright infringement actions, especially in an age of digital samples and ‘mash-ups’. 
Surprisingly, there are only two reported decisions in Canada in which a musicologist or professor of music was qualified as an expert witness. In this article, we examine those cases and consider the practical application and challenges of retaining a musicologist in copyright infringement cases".

Still with JIPLP but this time already published in print is "Approaching or overtaking: transferring copyright in Germany and in the UK" by Dominik Skauradszun (Oppenländer Rechtsanwälte). According to the abstract,
"British and German law provide diametrically opposed answers to the question of the transferability and thus the marketability of copyright property assets. 
Under the current legal situation in Germany, the non-transferability dogma of copyrights is maintained. The law thus continues to follow the monistic theory. However, in recent years it has been observed in German legal literature that this dogma has been eroded. In fact, there are examples showing that the copyright can be legally transferred. 
This development is interesting because German copyright goes one step further than the situation in the UK. Whereas moral rights cannot be transferred under British copyright law, and a waiver is possible at best, in Germany moral rights can factually be transferred under both the law of succession and employment law".

"Can I quote this headline?" is the eye-catching title of a survey of fair use practice in seven jurisdictions which appears in this month's issue of Managing Intellectual Property (MIP). The countries represented are Canada, China, France, Israel, Japan, UK and US.

For a conveniently high-level view of the battle between Mattel and MGA Entertainment for the hearts and minds of American doll purchasers, you can read the unattributed feature, "Barbie and Bratz: the Feud Continues", in the current issue of WIPO Magazine, available online here.

Tuesday 13 September 2011

Googleright exceptions

The Authors Guild, who sued Google for scanning in-copyright books back in 2005 (a suit that is still pending), are now suing the libraries that allowed Google to scan their collections. Google has given the libraries copies of their scans and the libraries have since pooled them in the HathiTrust Digital Library. Now the HathiTrust is on the point of permitting unlimited downloads of those works it deems to be ‘orphans’. Press release here.

The UK government, meanwhile, is expected to start putting pressure on search engines, advertisers and credit card companies to take ‘reasonable steps’ to ‘make life more difficult’ for sites that openly flout copyright. See the FT report here for further details.

MediaCAT saga - solicitors fined

In the latest development in the ongoing saga of the file-sharing cases described in a previous post on this blog as "bullying, copyright trolling, public opinion blunder or what you will", the Solicitors Regulatory Authority has issued fines and costs totalling nearly £200,000 against two lawyers formerly of the firm Davenport Lyons.

The SRA report is worth setting out in full.

Davenport Lyons: Greed clouds judgement and results in £20K fine

Six thousand letters demanding compensation sent on behalf of clients to alleged unlawful file sharers led to a hefty fine at a recent Solicitors Disciplinary Tribunal (SDT) hearing for solicitors David Gore and Brian Miller from law firm Davenport Lyons.

The SDT found all six allegations proven and fined both men £20,000, awarding interim costs to the SRA of £150,000, with.full costs still subject to a detailed assessment.

The letters the solicitors sent out demanded compensation and costs, and warned that recipients faced further action and increased costs if the matter was not settled as a matter of urgency.

The SRA's investigation revealed that the concerns of those who had received letters and protested their innocence were ignored. The SDT found, in effect, that Mr Miller and Mr Gore became too concerned about making the scheme profitable for themselves and their firm. Their judgement became distorted, and they pursued the scheme regardless of the impact on the people receiving the letters—and even of their own clients.

An SRA spokesperson said: "We welcome the decision of the SDT, which follows a lengthy and complex investigation by members of SRA staff.

"Some of those affected were vulnerable members of the public. There was significant distress. We are pleased that this matter has been brought to a conclusion and hope that it serves as a warning to others.

"Solicitors have a duty to act with integrity, independence and in the best interests of their clients. Solicitors who breach those duties can expect to face action by the SRA."

Guest Contribution - comments on Copyright Term Extension

Martin Kretschmer, Professor of Information Jurisprudence and
Centre for Intellectual Property Policy & Management at Bournemouth University and a friend of this blog has contributed the following thoughts on the copyright term extension. The comments are Martin's alone and do not purport to represent the views of any of the other authors of this blog:

The deed is done. Copyright term extension for sound recordings from 50 to 70 years was adopted yesterday (12 September 2011) by qualified majority in the European Council. The remaining opposition came from Belgium, the Czech Republic, Luxembourg, the Netherlands, Romania, Slovakia, Slovenia and Sweden. Austria and Estonia abstained.

The chorus of approval has been led by aging artists, masking the fact that for more than a decade the lobby for copyright extension has been resourced by the multinational record industry. Labels do not want to lose the revenues of the classic recordings of the 1960s which are reaching the end of their current 50 year term. Rather than innovating, right holders find it much easier to exclude competition. Europe is in danger of locking away her music heritage just as digital technology is enabling the opening of the archives.

It is not surprising that many performers’ organisations and collecting societies support the Directive. They do not have to carry the costs – which will exceed EURO 1 billion to the general public (based on the Commission’s own figures – see calculations in Joint Academic Statement issued by Centre for Intellectual Property Policy & Management (CIPPM, Bournemouth University), the Centre for Intellectual Property & Information Law (CIPIL, Cambridge University), the Institute the Institute for Information Law (IViR, University of Amsterdam), and the Max Planck Competition and Tax Law (Munich)

72 percent of the financial benefits from term extension will accrue to record labels. Of the 28 percent that will go to artists, most of the money will go to superstar acts, with only 4 percent benefiting those musicians mentioned in the European Council press release as facing an "income gap at the end of their life times". Many performers also do not appear to understand that the proposal would lead to a redistribution of income from living to dead artists.
In an interview with the NY Times yesterday, I said: "This is a dreadful day for musicians and consumers. Policymakers are schizophrenic, speaking a language of change and innovation, but then respond to lobbying by extending the right which gave rise to the problem in the first place. This only entrenches a cynical attitude toward copyright law and brings it into further disrepute."

Sweden and Belgium issued dissents after the vote in the Council. They are worth quoting in full: Interinstitutional File: 2008/0157 (COD)
Declaration by Sweden
Throughout the negotiations, Sweden has had strong reservations regarding the commission’s proposal to extend the term of protection for sound recordings.
As regards copyright regulation in general Sweden has always stressed the importance of taking all relevant aspects and involved interests into account, in order to maintain a fair balance in the copyright system. We believe this to be essential if we are to successfully uphold respect for the copyright system in the future.
Extending the term of protection for sound recordings as proposed is neither fair nor balanced. It therefore risks undermining the respect for copyright in general even further. Such a development is very unfortunate for all those who depend on copyright protection to make a living.
Sweden believes there to be good reasons for measures aiming at improving the situation for those professional musicians and other artists who often operate under economically difficult conditions. Extending the term of protection will however not primarily be of benefit to this group.
Against this background Sweden regrets the decision to adopt the proposal amending Directive 2006/116/EC of the European Parliament and of the Council on the term of protection of copyright and certain related rights.
Belgian declaration
With regard to the proposal for a directive on the term of protection of copyright and certain related rights, Belgium believes that a term extension is not an appropriate measure to improve the situation of the performing artists. Furthermore, we believe that the negative consequences the proposal entails do not outweigh the advantages it brings. We can therefore not support this proposal.
It seems that the measure will mainly benefit record producers and not performing artists, will only have a very limited effect for most of the performing artists, will have a negative impact on the accessibility of cultural material such as those contained in libraries and archives, and will create supplementary financial and administrative burdens to enterprises, broadcasting organisations and consumers. Therefore, the overall package of the proposal appears, as demonstrated by a large amount of academic studies [1], unbalanced.
Finally, one has to observe that several initiatives which have clear links with and impact on the proposal, have recently been adopted or announced by the Commission in its Communication of 24 May 2011 [2]. These initiatives include for example a proposal for a directive on orphan works, a new initiative on collective management, and a new initiative on online distribution of audiovisual works. Taking into account this global approach of copyright issues in the internal market, we think that it would only be reasonable to re-examine the merits of this proposal in the context of this global approach.

[1] See e.g. "The Proposed Directive for a Copyright Term Extension – A backward-looking package" Centre for Intellectual Property Policy & Management (CIPPM, Bournemouth University), the Centre for Intellectual Property & Information Law (CIPIL, Cambridge University), the Institute the Institute for Information Law (IViR, University of Amsterdam), and the Max Planck Competition and Tax Law (Munich); N. HELBERGER, N. DUFFT, S. VAN GOMPEL, B. HUGENHOLTZ, ‘Never forever: why extending the term of protection for sound recordings is a bad idea’, EIPR 2008, 174; S. DUSOLLIER, ‘Les artistes-interprètes pris en otage’, Auteurs & Media 2008, 426.
[2] Communication from the Commission of 24 May 2011, A Single Market for Intellectual Property Rights Boosting creativity and innovation to provide economic growth, high quality jobs and first class products and services in Europe, COM (2011) 287

Monday 12 September 2011

Sound Recording Term Directive adopted

As predicted by Ben's post on Friday, the Council of Ministers this morning adopted the new Copyright Term Extension, with an implementation deadline of 2 years.

There is of course no formal text yet, but the language which will form the new Directive can largely be found here As usual, lots of "minor" details are left to Member States to implement and no doubt that is where the lobbying machine will next be turning - for example, for sound recordings where copyright will revive, Member States have to protect the "acquired rights of third parties" who have been exploiting public domain material.
Interestingly, the list of dissenting countries is quite long - Belgium, the Czech Republic, Netherlands, Luxembourg, Romania, Slovakia, Slovenia and Sweden all voting against and Austria and Estonia abstaining - so enthusiasm for this measure is still far from unanimous.