Sunday 30 October 2011

Copyright Debate: Is NLA v Meltwater the end of browsing?

Making a debating point --
or hailing a London taxi ...?
It all seems a bit sudden, but in not much more than two weeks from now there will be a free-to-attend copyright debate on the motion "Is NLA v Meltwater the end of browsing?"  The date is Tuesday 15 November 2011 and the two sides will lock horns from 5.15pm to 7.00 pm. The venue is the London office of Baker & McKenzie LLP.

1709 Blog team member Jeremy will be taking the chair. Speaking for the motion are Professor Andrew Murray (London School of Economics) and Dr Neil J. Wilkof (head of Intellectual Property, Herzog Fox & Neeman).  Ranged against them are Dominic Young (blogger and former director and chairman of the Newspaper Licensing Association) and Justine Pila (lecturer at Oxford University).

Why should you attend this debate? As the hosts explain:
The Court of Appeal for England and Wales recently upheld the High Court's judgment that users of commercial news aggregation services infringe copyright when they click on links to articles (The Newspaper Licensing Agency Ltd and others v Meltwater Holding BV and others [2011] EWCA Civ 890, 27 July 2011, on which see earlier 1709 Blog posts here, here and here). As a result anyone who clicks on an internet link creates an infringing copy of the webpage on their computer screen unless they have a licence. 
The Supreme Court's decision as to whether they will accept an appeal from this decision is eagerly awaited, but in the meantime the question that arises is: Is NLA v Meltwater the end of browsing as we know it?
To attend, email Naomi Harrison here and hope there's still room since space is limited.

The debate is CPD-accredited for 1 hour and 30 minutes - Solicitors Regulation Authority Authorisation 009/BAMC

Saturday 29 October 2011

STOP starts war of words

New cross party US legislation, The STOP Online Piracy Act, has set off heated arguments both for and against the new proposals. The entertainment industry is broadly on one side, supporting the law’s provisions. Against are an array of groups including advocates on behalf of individual and civil liberties, the technology industry and other pressure groups. The Bill was introduced by House Judiciary Committee chairman Lamar Smith (R-Texas). The draft legislation is set out as a bill "To promote prosperity, creativity, entrepreneurship, and innovation by combating the theft of U.S. property, and for other purposes."

SOPA (HR 3261) is an attempt to tackle websites and addresses that violate U.S. copyright laws but have no physical presence in the country. They key is to make offending sites invisible to US internet users - and to strangle their income. It requires Internet Service Providers block access to offending sites, and ensure search engines omit them from results. It will also require credit card and other financial services to block payments to them, and US firms from advertising with them. But opponents say that what SOPA doesn’t do is require is any kind of verification that the site is actually infringing and “dedicated to the theft of U.S. property”. Those against SOPA instead express concerns that the proposed law contains too many vague terms, it is technically unfeasible, and it presumes guilt. You can find the Bill here

John Conyers (D-Mich) and one of the Bill’s sponsors said “Today marks an important step in furthering Congress’ constitutional prerogative to protect the rights of artists and innovators” adding “I look forward to working with all of the entities in the online ecosystem to effectively choke off the funding for rogue websites and eliminate their safe-havens as the bill becomes law. Millions of American jobs hang in the balance, and our efforts to protect America’s intellectual property are critical to our economy’s long-term success.”

The Electronic Frontier Foundation strongly disagrees. “Under this bill, service providers (including hosting services) would be under new pressure to monitor and police their users’ activities. Websites that simply don’t do enough to police infringement (and it is not at all clear what would qualify as ‘enough’) are now under threat, even though the DMCA expressly does not require affirmative policing” and many others do too.”

To explain the various positions I thought it easiest to use their words and so below I set out some (but nowhere near all) of the public facing responses. Those against the Bill include The Center for Democracy and Technology, Demand Progress, the Electronic Frontier Foundation, Public Knowledge, Fight for the Future and Tech Freedom. Those for the Bill include The US Committee on the Judiciary, the Recording Industry Assn. of America (RIAA), the Motion Picture Association. of America (MPA), the Copyright Alliance, the Independent Film & Television Alliance, National Music Publishers Association, the American Association of Independent Music and a joint statement from the American Federation of Musicians (AFM) and Screen Actors Guild (SAG) amongst others.


The EFF said this of SOPA under the headline Disastrous IP Legislation Is Back – And It’s Worse than Ever: “We've reported [here] often on efforts to ram through Congress legislation that would authorize massive interference with the Internet, all in the name of a fruitless quest to stamp out all infringement online. Today Representative Lamar Smith upped the ante, introducing legislation, called the Stop Online Piracy Act, or “SOPA” that would not only sabotage the domain name system but would also threaten to effectively eliminate the DMCA safe harbors that, while imperfect, have spurred much economic growth and online creativity.

As with its Senate-side evil sister, protect-ip, SOPA would require service providers to “disappear” certain websites, endangering Internet security and sending a troubling message to the world: it’s okay to interfere with the Internet, even effectively blacklisting entire domains, as long as you do it in the name of IP enforcement. Of course blacklisting entire domains can mean turning off thousands of underlying websites that may have done nothing wrong. And in what has to be an ironic touch, the very first clause of SOPA states that it shall not be “construed to impose a prior restraint on free speech.” As if that little recitation could prevent the obvious constitutional problem in what the statute actually does.

But it gets worse. Under this bill, service providers (including hosting services) would be under new pressure to monitor and police their users’ activities. Websites that simply don’t do enough to police infringement (and it is not at all clear what would qualify as “enough”) are now under threat, even though the DMCA expressly does not require affirmative policing. It creates new enforcement tools against folks who dare to help users access sites that may have been “blacklisted,” even without any kind of court hearing. The bill also requires that search engines, payment providers (such as credit card companies and PayPal), and advertising services join in the fun in shutting down entire websites. In fact, the bill seems mainly aimed at creating an end-run around the DMCA safe harbors. Instead of complying with the DMCA, a copyright owner may now be able to use these new provisions to effectively shut down a site by cutting off access to its domain name, its search engine hits, its ads, and its other financing even if the safe harbors would apply. And that’s only the beginning: we haven’t even started on the streaming provisions. We’ll have more details on the bill in the next several days but suffice it to say, this is the worst piece of IP legislation we’ve seen in the last decade — and that’s saying something. This would be a good time to contact your Congressional representative and tell them to oppose this bill!”

Also against, Tech Freedom said: “Last summer, House leaders assured Silicon Valley they would correct serious defects in the Senate’s Protect IP bill, defects that would have caused long-term unintended damage to innovation. SOPA does just the opposite. SOPA would give media companies unwarranted and unprecedented new powers to shape the structure and content of the Internet. It creates vague, sweeping standards for secondary liability, drafted to ensure maximum litigation. It treats all U.S. consumers as guilty until proven innocent. SOPA is an early Christmas present for Hollywood, and a jobs bill for trial lawyers.

SOPA, regrettably, represents a big step backward in Washington’s efforts to support the digital revolution, one of the only sectors of the economy that continues to grow. A bill that was supposed to target the "worst of the worst" foreign websites committing blatant and systemic copyright and trademark infringement has morphed inexplicably into an unrestricted hunting license for media companies to harass anyone—foreign or domestic--who questions their timetable for digital transformation.

Only by carefully crafting narrow remedies against truly rogue websites can Congress achieve copyright's goal of promoting creativity without undermining basic freedoms and distorting the healthy development of the Internet itself.”


The US Chamber of Commerce said this: “A coalition of over 380 businesses, trade associations, and professional groups from nearly every sector of the economy in all 50 states support enhanced enforcement against rogue sites. Today, the U.S. House of Representative has responded to that call with the introduction of Stop Online Piracy Act. The U.S. Chamber of Commerce applauds the introduction of Stop Online Piracy Act that will disconnect websites dedicated to online piracy and counterfeiting from the U.S. marketplace. This legislation will provide U.S. law enforcement with refined legal tools to act against “rogue sites,” which steal American jobs, threaten consumer health and safety, and weaken the online commerce ecosystem.

“Websites that blatantly steal the creativity and innovation of American industries violate a fundamental right to property,” said Thomas J. Donohue, president and CEO of the U.S. Chamber. “Operators of rogue sites threaten American jobs, endanger consumer safety, and undermine the vitality of the online marketplace. I commend Representatives Smith, Goodlatte, Conyers, and Watt for standing up to the mass theft of American intellectual property.” The bipartisan House proposal is also co-sponsored by Representatives Quayle and Berman.

The Stop Online Piracy Act will disconnect websites dedicated to online piracy and counterfeiting from the U.S. marketplace. This legislation will provide U.S. law enforcement with refined legal tools to act against “rogue sites,” which steal American jobs, threaten consumer health and safety, and weaken the online commerce ecosystem.

Rogue sites attract 53 billion visits per year, jeopardizing the more than $7.7 trillion of U.S. GDP and 60% of exports that the industries they steal from produce for our economy. The sweeping alliance of business and labor leaders, which represent nearly every sector of the 19 million Americans employed in IP-dependent industries, have all called for enhanced enforcement against rogue sites.

“We cannot turn a blind eye to those who take advantage of U.S. innovators and chip away at the American workforce,” Donohue added. “While rogue sites pose a unique set of challenges, legislation like the Stop Online Piracy Act introduced today offer clear, tailored enforcement tools to effectively root them out. The U.S. Chamber looks forward to working with the broad coalition of businesses of every size and shape, and organized labor to support Members of the House and Senate and ensure that rogue sites legislation is enacted this year.”

And the Independent Film & Television Alliance (IFTA) “announced its support of bi-partisan, comprehensive intellectual property enforcement legislation introduced today in the U.S. House of Representatives ..... the Stop Online Piracy Act (H.R. 3261), which considers the role of all players in the online ecosystem and aims to follow the money supporting online theft, could help stem the loss of thousands of jobs resulting from the illegal online distribution of content. Jean Prewitt, IFTA President & CEO, said, “Online theft in the U.S. and overseas threatens the independent film industry and must be stopped. For the Independents, who finance films by pre-selling the rights to distributors worldwide, the drastic damage caused by online theft is measured both in films that cannot be produced and in lost returns on investment in films that have been produced. Independents account for 70% of all U.S. film production, so every independent film that can’t be financed and produced has a dramatic impact on jobs and the economy. We appreciate the House Judiciary Committee’s serious bipartisan work in bringing this bill forward to address both rogue websites and felony streaming, and we look forward to working with them to ensure that strong measures are adopted.” IFTA is working alongside the National Association of Theatre Owners (NATO), the Motion Picture Association of America, Inc. (MPAA), Deluxe Entertainment Services Group Inc. and a growing coalition of entertainment union workers and organizations, businesses and labor groups involved in the production, sale and distribution of creative content in support of the legislation.”

And finally a group comprising the American Federation of Musicians (AFM), American Federation of Television and Radio Artists (AFTRA), Directors Guild of America (DGA), International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, Its Territories and Canada (IATSE), International Brotherhood of Teamsters (IBT), and the Screen Actors Guild (SAG) today released the following statement:

“As the Guilds and Unions that represent more than 400,000 craftspeople, actors, technicians, directors, musicians, recording artists and others whose creativity is at the heart of the American entertainment industry, we applaud Congressman Lamar Smith (R-TX), Chairman of the House Judiciary Committee, Ranking Member John Conyers (D-MI), and Congressmen Howard Berman (D-CA) and Bob Goodlatte (R-VA) along with several other Members of Congress, for introducing HR 3261, the Stop Online Piracy Act today.

“This legislation, a companion bill to the PROTECT IP Act currently in the Senate, will provide U.S. law enforcement agencies with the tools to protect American intellectual property, including the films, television shows and sound recordings created by our members, from foreign rogue websites that knowingly and deliberately engage in the illegal distribution of our content for profit.

“Left unchecked, these rogue websites threaten the vitality of the online marketplace by stealing the work of American innovators and undermining legitimate business. They profit by offering access to content that they had no role at all in creating or financing, and they threaten real jobs, not only for our members but for those with whom they collaborate on set and hundreds of thousands of others whose livelihoods are dependent on the economic health of our business. Without proactive measures like the STOP Online Piracy Act, rogues sites will continue to siphon away wages and benefits from members of the creative community, greatly compromising our industry’s ability to foster creativity, provide opportunities, and ensure good jobs.

“We thank Chairman Smith, Ranking Member Conyers, and Congressmen Berman and Goodlatte as well as the bill’s other cosponsors for recognizing through their action today that the works created by our members - the result of talent, creativity, collaboration and years of hard work – are not only valuable contributions to our culture but are worthy of being protected from rogue sites and the profiteers who operate them. We look forward to working with Chairman Smith, the cosponsors of the bill, and the members of the House Judiciary Committee to ensure that this important legislation moves forward.”

Another stop sign image - this one from

Vladimir Kush "To The Safe Haven" here

Friday 28 October 2011

Collecting Societies Again

The press office of the Bundesgerichtshof (BGH) informs us that the copyright senate of the BGH has issued a judgment on the calculation of collecting society tariffs (BGH, 27 October 2011 - I ZR 25/10, press release available here).

In respect of indoor events, it is the established practice of German music collecting society GEMA to calculate the royalties it collects based on the size of the room where the music is played. To GEMA at least, it seemed logical enough to apply the same to outdoor events such as street fairs and Christmas markets. Accordingly, it took the size of the entire venue as reference point, from the first to the last stall or from the first to the last wall enclosing the space where the event took place (it's Friday, time to rhyme...).

As such things go, the organisers of a number of such outdoor events disagreed with GEMA's calculation methods. In their view, only the space where the sound from the stage can actually be heard should be taken into account. From that space, one should deduct the areas where visitors could not go, i.e. the stalls, the areas where they could not stay for more than a fleeting amount of time, i.e. public transport areas, and the areas where the music from the stage was overlaid with other music, i.e. music played at individual stalls.

Both the court at first instance and the court of appeal decided that the GEMA was entitled to determine royalties according to the size of the entire venue. The BGH confirmed these decisions. It pointed out that it is typical for outdoor events such as street fairs and Christmas markets that the audience in front of or in good listening distance to the stage constantly changes and new listeners replace the old. Consequently, the overall number of people listening to the music is substantially larger than the number of people the space where the music can be heard clearly could hold at any one time. The court added that the music played on stage usually characterises the entire event and that it would be unreasonable to ask GEMA to attend every single outdoor event in the country and measure the space where the music from the stage is clearly audible, and the space within that range where the audience cannot or must not stay or where other music overlays the music emanating from the stage. For reasons of practicality, then, GEMA's method of calculation was deemed appropriate.

I can't help remarking that a constantly changing audience - whether on a market or in a club - means that many people listen to little bit of music, whereas a constant audience - whether at an indoor or an open air concert - means that fewer people listen to more music. If 1,000 people listen to 10% of the music, isn't the end result the same as if 100 people listened to 100% of the music?

Also, I'm not exactly a science whiz, but shouldn't the laws of physics enable you to calculate the area where the music is audible if the organiser lets you know how loud he's going to play it? Throw in a plan of the site - which must exist because German authorities would not allow the organisers to put up stalls willy-nilly - and you can calculate the area covered by stalls as well as any areas where visitors cannot or must not go. Which leaves the musical overlay issue. While personally I find involuntarily listening to random mash-ups of songs that weren't so great in the first place deeply annoying, it appears to be something the organisers of such events seem to encourage for some reason. Otherwise surely they could just play music on the big stage and make putting up a stall conditional upon not playing your own music. So in my view, there is no good reason for deducting the areas of overlay.

We shall all have to wait for the written judgment to be released in order to find out why the BGH thinks the solution I just came up with is less than brilliant. In the meantime, I look forward to any comments or alternative approaches.

Thursday 27 October 2011

Governance for UK collecting societies: your chance to have a say

The UK remains one of just three European countries which does not provide statutory supervision and minimum standards for collecting societies. This is either a good thing, because British collecting societies are so sensitive to the interests of licensees, members and the market at large that they are in no need of regulation -- or it may be a serious omission which requires urgent attention in order to safeguard a plethora of competing interests in a rapidly-changing world.

There's no doubt which of those positions appealed to the Hargreaves Review, which recommended the imposition of a legislative framework within which collecting societies should have to adopt doubly-approved codes of practice, blessed by both the Intellectual Property Office and the competition authorities, to ensure that they operate in a way that is consistent with the further development of efficient, open markets. The UK government has agreed -- but still has to fathom out how best to transfer this aspiration into reality.

Like owls, many of the most successful panelists are those
who look pretty knowledgeable but don't actually say anything ...
Now for the exciting bit. In just under a fortnight, a special event has been laid on for the purpose of sampling, in the discreet and cosy atmosphere of the House of Parliament:, the views of stakeholders, whatever their stake.  The event, "Copyright collecting societies: does the UK need minimum standards?", is fixed for Tuesday 8 November, and is split into two halves: (i) there's a panel event from 6 to 8pm in Committee Room 7; (ii) a reception will then be held from 8 to 10pm, Dining Room R (Portcullis House).  To attend, email the organisers here.

For the record, the fare on offer at the reception has not been divulged.  Panelists on the menu, however, are as follows: 
  Dr Stef van Gompel, postdoc researcher Institute for Information Law (IViR) at the University of Amsterdam. Stef has written on supervision of collecting societies in Europe and is secretary of the Dutch Copyright Committee, which advises the Minister of Justice of the Netherlands on copyright. He will give an overview of how different European countries supervise collecting societies. See Collective Management in the European Union 
  Frances Lowe, head of regulatory and corporate affairs at PRS for Music. PRS is the only UK based collecting society that has adopted a Code of Practice in a ‘commitment to be easy to do business with’. Frances will talk about the process leading up to the adoption of the Code, and the role of the independent Ombudsman. See the PRS Code of Practice and the PRS Members Code 
  Brigid Simmonds OBE, chief executive of the British Beer and Pub Association (BBPA). Following a 200-300 percent increase of PPL’s licensing tariff for background music the BBPA and the British Hospitality Association won a Copyright Tribunal case in 2010 which resulted in PPL having to refund £20 million to retail and hospitality businesses. Brigid will talk about why the BBPA supports minimum standards for collecting societies. See the joint submission of the BBPA and the BHA on the Hargreaves Review to the Business Innovation and Skills committee inquiry
  Chris Johnstone, head of legal at Music Choice. Music Choice’s 2003 complaint against collecting societies led to the so called CISAC decision in 2008, where European authorities ruled that European music collecting societies’ reciprocal agreements violated competition law. Chris will explain why Music Choice originally brought the complaint, give a music user’s perspective on what has happened since then and reflect on whether minimum standards could help to make copyright licensing fit for the digital age. See Interview with Chris Johnstone on CISAC complaint

Wednesday 26 October 2011

Web blocking gets real as court orders BT to implement

Today the details of the implementation of the Newzbin2 ruling were handed down. BT has been told that it must block the site within 14 days and pay all of the implementation costs (estimated at £5000 for initial implementation and £100 for each subsequent notification). You may remember that the outcome was left hanging in the balance of the justice system as the High Court reserved judgment based on a last minute intervention from a BT and Newzbin2 user (see this post from Torrent Freak:

The judgment (up very quickly as always on the excellent BAILII site) is not particularly favourable to BT. Written submissions on behalf of other ISPs have been given limited weight due to their late arrival to the case; Mr Justice Arnold stated that this evidence should have been filed prior to the July hearing. Furthermore, Studios have effectively been given carte blanche to notify BT of additional IP addresses and/or URLs "whose sole or predominant purpose is to enable or facilitate access to the Newzbin [2] website". BT had an issue with the words "or predominant", but the Studios and the judge agreed that an injunction limited to "sole purpose" would be too easily circumvented (this follows the news from last month where Newzbin2 declared it had created a client to circumvent the web blocking order). Amazingly, Studios do not have to return to court to seek an order for every URL and IP address that Newzbin2 operators use, and it is the Studios' reponsibility to accurately identify IP addresses and URLs. Even the judge admitted that "innocent" IP addresses and URLs may inadvertently get caught up in this action.

Another significant element is that of competition. BT raised the point that the Studios are not currently seeking injunctions against their competitors, despite the fact that the Studios (apparently) intend to obtain equivalent orders against other ISPs. Mr Justice Arnold stated that the Studios "are entitled to decide against whom to seek the remedy", and that if their decision "gives rise to competition law issues, that will be a matter to be addressed elsewhere." Given the recent ruling in the ECJ on territorial licensing issues, perhaps the ECJ would be the most appropriate forum for this matter?

Small consolations for Internet users and ISPs are:

1. BT's Cleanfeed system will be used to re-route IP addresses rather than blocking them altogether. The Studios accepted that IP address blocking could lead to 'overblocking' of sites or pages which did not infringe. Anyone who has been subject to local web blocking software will breathe a (small) sigh of relief that some common sense has been shown here.

2. ISPs do not and have not committed any legal wrong against rights holders and therefore should not be directly liable for copyright infringement. However, they do have a duty to assist rights holders affected by infringement. Measures under Article 11 of the Enforcement Directive and Article 8(3) of the Information Society Directive must be "fair and proportionate", according to Mr Justice Arnold and the relevant body of case law (Norwich Pharmacal, L'Oreal v eBay).

According to reporters on the scene, BT's statement on the Newzbin2 ruling was fairly resigned, stating "it is helpful to have the order now and the clarity that it brings." (thanks to @tim and @JoshHalliday for tweeting updates).

Image from Flickr: 'Stop Sign' by ladybeames, used under a CC-BY-NC licence

Tuesday 25 October 2011


Tommy Funderburk (CEO PayArtists, Inc) has contacted me to tell me all about his current venture. He explains: "I come from the music business as recording artist and label and now, founder and CEO of PayArtists is on the artists' and fans' side. We’ve patented a business model that provides a friendlier way for copyright owners to be fairly compensated without resorting to the lawsuits and tactics of the RIAA and MPAA. We believe that if a copyright owner were able to reach out to P2P users, the owners should be grateful for the opportunity to treat them as fans, potential customers".  I suspect that some of this blog's readers may have some thoughts on the subject, particularly once they've read the web page on the PayArtist site headed "Why Settle" ...

Enrico Bonadio (City Law School) wants everyone to read his latest publication: “File Sharing, Copyright and Freedom of Expression”, which has now been published in the European Intellectual Property Review (EIPR). Good news is that you can get it at no cost to yourself via SSRN here . Enrico explores the relationship between copyright and freedom of speech in the internet environment. He believes that file sharing technologies may boost the exchange of information, opinions and ideas among internet users and foster a number of values underpinning the very protection of free speech. For this reason, he argues, copyright rules might be relaxed when it comes to file sharing technologies, e.g. by transforming copyright from a “proprietary” to a “compensation” right.

The Copyright Clearance Center tells us of a profile of its CEO 
Tracey Armstrong, in which she describes how the digital evolution of content has paved the way for new methods for content licensing. Says Tracey:
“Licensing is evolving… It’s evolving because of the way that the users are interfacing with content…. The best technology is transparent. And the best licensing solutions for our users are transparent.” 
She then goes on to highlight that licensing tools which are easy to use have resulted in being used, generating revenue for publishers.If either you can't guess which licensing tools she is referring to, or just want to read the profile for the fun of it, you can find it here.

Last week the United Kingdom's Intellectual Property Office placed two major copyright-related reports on its website, neither of which have I had a chance to see yet.  They are (i) Private Copying and Fair Compensation, by Professor Martin Kretschmer, billed as "A study on the operation of levies on copying media and equipment in the EU. This report offers the first independent empirical assessment of the European levy system as a whole" [nb Ben Challis has posted on this item on the 1709 Blog here; I'm just including it for the sake of completeness in this round-up] and (ii) Changing Business Models in the Creative Industries, which examines the business model response to the change from analogue to digital in the creative industries.

"Sound recordings and copyright" is the title of an article by Tony Kent, parts of this article have previously appeared in The Audio Restoration Handbook, which you can find on the internet here.  As Tony explains:
"The purpose of this article is to provide basic copyright information for those involved in the restoration and remastering of old sound recordings. As my field of expertise is United Kingdom copyright law, this article is written predominantly from a European copyright perspective (UK and European Union intellectual property legislation having now been largely harmonised). Whilst I welcome input from anyone wishing to contribute additional information or to comment on any of the views or opinions expressed, I regret that I cannot provide formal advice on copyright matters via e-mail"

Copyright, Communication and Culture, by Carys J. Craig, received quite a warm and favourable welcome from me on the 1709 Blog when its publication was announced, here.  One of the comments posted in response came from blogger, tweeter and copyright cynic Crosbie Fitch who mentioned that he had requested but not received a review copy.  Crosbie has since reviewed the book, in terms which are far more critical of it. You can read his comments here.  Whether you agree with Crosbie or not, you cannot fault him for the effort and the energy which he has expended in his critique of it.  Readers' comments are, as ever, welcome.

Tied to the mast so that he couldn't jump overboard
in response to the Sirens' song, Odysseus realised
he couldn't access his smartphone ...
Via Chris Torrero -- who has again been scouring the pages of be Spacific for interesting topics -- comes news of "The Song of the Sirens: Google Book's Project and Copyright in a Digital Age", a paper by Clarice Castro and Ruy De Queiroz which you can enjoy via SSRN here.  According to the abstract
"Numerous scholars have highlighted the extraordinary book-scanning project created by Google in 2004. The project aims to create a digital full text search index which would provide people with online access to books and assist research. A few months after the original idea started being implemented, the Authors Guild and the Association of American Publishers-AAP filed a class-action lawsuit, claiming that Google Book’s Project violated copyright law in the United States. The main contention was that the books which were not under public domain could not have been scanned without permission and compensation for authors and publishers. Google’s Book Project radically changed its character from the time of its birth until the negotiation of an Amended Settlement Agreement - ASA with the plaintiffs. It has raised serious controversies not only regarding different aspects of the future of the Internet but also over the issue of privatization of knowledge. Those in favour of the initiative highlight the astonishing accomplishment of Google, allowing us to access books more easily than ever before in human history. However, their claim is as dangerous as the song of the sirens. While at first sight Google tells a tale of extraordinary inclusion, it excludes those who cannot pay to access snippets or limited view of around 80% of the books available. We will also discuss the Amended Settlement Agreement of Google with the Author’s Guild and its failure on March, 2011. Finally, we will explore the concept of “fair use,” or “exceptions and limitation on copyright,” which provides for full access to books to any individual, library or archive as long as they are used for educational or scientific purposes."

Saturday 22 October 2011

Hargreaves - Sir Robin drills!

Solicitor and former SABIP member Laurence Kaye has written a very clear summary of the responses Prof Sir Robin Jacob gave to MPs on the Business, Innovation and Skills Select Committee. Noting that the Hargreaves Review had been far too general and had been given too large a remit in too small a timeframe, Sir Robin said that “it is not possible to do the whole of IP in six months” and he called for an 18 month study of the specific issue of online copyright. Sir Robin's thoughts cover the need to understand what technical steps from ISPs were possible before decisions were taken on the best approach to fighting online copyright infringement, the best forum for protecting copyright (favouring civil law proceedings), how a Dgital Rights Exchange might work (only on an EU level), the ongoing role of the Copyright Tribunal and Sir Robin also strongly supported an exemption to copyright laws to allow data mining, stressing that he had spoken to medical researchers at UCL who said medical advances were being stopped by the lack of this facility. There is much more and its a good read - and its all on Laurie's Blog, Laurence Kaye on Digital Media Law

This blog also has Laurie's thoughts on MPS v Murphy

Friday 21 October 2011

Fighting for Bieber

Fight For the Future, a new US campaign group, has launched a series of photographs showing an arrested and then imprisoned Justin Bieber, on the grounds that the now unfringed pop sensation would have been arrested and possibly imprisoned at the start of his career if the provisions of U.S. Senate bill S. 978 had then been US law – on the basis that Bieber’s rise to fame began with YouTube videos of the pocket rocket singing cover versions of popular songs.

Reports say the new bill will amend the criminal penalty provisions for criminal copyright infringement would make it a felony to stream unlicensed content ten times during any 180-day period and that and has a total economic value, either to the copyright holder or the infringer, of at least $2,500. The Bill (link below) has the support of the nearly 50 entertainment industry organizations, including the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA). It is opposed by the Electronic Frontier Foundation and the Entertainment Consumers Association, among others. The Bill’s sponsor, Amy Klobuchar told reporters “The Bill is not intended nor does it allow law enforcement to prosecute people who may stream videos and other copyrighted works to their friends without intending to profit from the work of the copyright owner. It also does not allow prosecutors to go after individuals that innocently post links on their blogs to copyrighted protected works.”

FFTF say this about what they want from copyright:

“What people want from technology is usually pretty clear...

People love huge open libraries of music, books and video. They don't like censorship and legal landmines that get you sued for making amazing things. They love privacy and open platforms to create and invent. They're happy to pay for good stuff, but hate being coerced to pay for mediocrity and middlemen.

And people are right to want all these things, even when governments and corporations, with their own narrow interests, try to paint this new, expansive cultural freedom as dangerous or destructive. Our goal is to make the public's interest vividly clear, so clear that not even the most powerful lobbyists and smartest monopolies can destroy it.

We're living during a global shift as big as the industrial revolution. Because of the internet, our future will work very differently than the world our parents and grandparents created. We, as a society, are literally building a new world. Fight for the Future is here to bring the most essential human values back into the debate about how society uses technology. We believe there's hardly anything as important as ensuring that our shared future has freedom of expression and creativity at its core.
To do it, we need your help. If you have ideas, tell us. If you care about this stuff too, follow us in whatever way’s best for you (email's best for us). We’ll be gentle on your inboxes, and we’ll try our best to only send things that are awesome. When we do, share it. Hard. Popularity and passion make good ideas dangerous to special interests.

We're friends with EFF, Public Knowledge, FSF, Creative Commons, Demand Progress, Mozilla, Question Copyright and many more. We care passionately about making real concrete change, and we are here to be successful. Plus we're hiring.

To be a bit more concrete, we're asking:

• After spending thousands of years building libraries of donated books, why do governments try to tear them down when they happen spontaneously online?
• Why can't I give money directly to every musician I like, instead of paying Apple or Spotify and leaving virtually nothing in the pockets of the artists?
• Why does the US pay so much for cellphone service? And for slow internet?
• How is it possible that singing "Happy Birthday" in public is still illegal, and why does anyone stand by these laws?
• Will every kid growing up in every developing country have access to every book ever made, as soon as they get a smartphone? Or will the books cost $12, an impossible expense for a poor kid?
• Why have we all been sitting idly while the movie and music lobbyists have been systematically advancing legislation that strips freedoms, blocks innovation, and exclusively advances Hollywood's financial agenda? “

Bill at

Thursday 20 October 2011

Murphy’s law of licensing?

I have been thinking about the practical ramifications of ECJ’s decision in MPS v Murphy and FAPL v QC Leisure (see previous posts) and the impact of the over arching principle that EU competition law should ‘trump’ copyright. I am not sure the decision should have come as that much of a surprise – all Member States are part of a ‘common market’ and the principle of the free movement of people, labour, capital, goods and services is at the heart of that. The ‘Television Without Frontiers' Directive provides for this in the audio visual sphere, and, with certain riders, looks for the free movement of television programmes within the internal market. For those nor familiar with the background to this case I have put some very brief reference materials at the foot of this blog.

So where do rights owners and broadcasters go from here?

- In the long term it may be prudent to treat the EU as ‘one’ territory. It would seem odd to licence audio and audio visual rights for ‘Utah’ or ‘Salt Lake City’ in the USA or for just ‘Essex’ or ‘Colchester’ in the UK – but not impossible. But if Europe is one market with one currency (as it almost is at the moment) then the concept of inter-EU territorial licensing on a country by country may fade.

- That doesn’t mean that Coditel is necessarily bad law. But it is bad law in certain circumstances and might well be decided differently now.

- If a licensor licences say a film for a German TV station then that Licensor have to accept that if anyone in Europe wishes to access that service – whether its free to air or by paying a relevant subscription fee, the they can so do from anywhere within the EU, if it is technically possible – and that will be legal.

- Licensors cannot use contractual terms to restrict inter-EU access, whether such terms restrict access to services or to physical goods such as decoders. With decoders it seems that a system of exclusive licences is contrary to Article 101(1) of the Treaty of Functioning of the the European Union if the licence agreements prohibit the supply of decoder cards to television viewers who wish to watch the broadcasts within the EU but outside the Member State for which the licence is granted. These agreements are restrictive agreements contrary to 101(1).

- There can only be ‘one’ price structure for Europe from a pay TV provider. So if say a customer in Spain wishes to watch Sky TV then they can – provided they pay the relevant subscription fee – and that fee must be the same for all EU consumers.

- Territorial partitioning and in particular artificial price differences between the partitioned national markets are irreconcilable with the fundamental aim of the Treaty, which is completion of the internal market.

- The ECJ said that “The licence agreements must not prohibit the broadcasters from effecting any cross-border provision of services that relates to the sporting events concerned, because such an agreement would enable each broadcaster to be granted absolute territorial exclusivity in the area covered by its licence, would therefore eliminate all competition between broadcasters in the field of those services and would thus partition the national markets in accordance with national borders.” But this doesn’t matter if there is only one broadcaster by satellite – more on that later!

- If a EU customer wishes to watch a Greek service, whatever it contains and wherever they are in the EU, then they can provided again they pay the relevant subscription fee. The decoder is not illicit! A service cannot discriminate on price across Europe – competing services of course can offer different prices – even for the same content.

- As an aside, in my opinion some of the earlier judgments were just plain wrong on whether the Nova signal containing English Premiership football was from the United Kingdom or Greece. It was a Greek service and a Greek programme – not only as a fact as it was uploaded from Greece, but it was a licensed service – licensed by the FAPL, in effect legally licensed by the Claimants themselves.

- And talking of asides, don’t get too waylaid by whether or not there is a ‘copyright’ in a football match. This is all about competition law and the common market. That said, whatever we think about the definition of protected works in the UK, and even if Infopaq means that its all to do with an author’s intellectual creation now, live sport cannot be a ‘work’ or qualify for copyright protection as a work. That is the law now and even accepting that football can be like ballet, I doubt if even Infopaq can be stretched to cover live sport. That said, at one recent seminar on Murphy a very amusing quip came from the audience that surely a ‘fixed’ cricket match must have a script (hehe!). And even if logos and national anthems can be protected by copyright law, does it matter? Not really, no.

- Copyright MIGHT protect the FAPL though - for the protected elements of any programme: I am not convinced Karen Murphy is safe to show the NOVA feed in public as the ECJ said that this is communicating the public and a pub screening would be an unlawful, profit-making communication to the public of copyright works it would not have been taken into account or considered by the authors of the protected works. She can own the decoder and buy the NOVA service for her private use. But enough of copyright, We need to look at the bigger picture!

- I am not sure Sky have been damaged at all, except perhaps in the short term. In fact they may be quite happy! Sky have the potential to do rather well out of this judgment in the long term. Firstly they can insist that all those expats Brits in Spain and Portugal PAY for their decoders and PAY for the Sky service – and they might well end up as the sole European FAPL licensee – for more on that see below.

- So what should the FAPL do? Well in the short term they may well have to re-negotiate their existing licences with Sky and other broadcasters across Europe as these agreements have been ruled anti-competitive if they have the effect of partitioning the internal market: Clauses contained in those agreements which relate to territorial exclusivity cannot now be enforced or relied upon.

- Exclusive broadcast licences based on a language (German, Greek, English) remain a possibility as does the possibility of limiting a broadcast licence to non-commercial (eg private home) use only. Whether the latter is practical remains to be seen.

- But laws meant to regulate a market often end up fitting the ‘law of unintended consequences’ model. Whilst some commentators see the decision as a win for the consumer, resulting in more competition which usually results in more choice and cheaper prices for consumers, I am not so sure.

- As the UK is by far the most important economic driver, surely the FAPL should / could licence JUST Sky – who can then offer the (same priced) service to consumers across Europe – setting whatever price they feel consumers can bear as a pan-European monopoly. The ECJ accepted that “European Union competition law does not, in principle, preclude a right holder from granting to a sole licensee the exclusive right to broadcast protected subject-matter by satellite, during a specified period, from a single Member State of broadcast or from a number of Member States of broadcast”. And I’m not sure who else could compete with Sky who have very deep pockets for English football rights! But I have no idea what EU regulators might think of this!!

- A single license would also allow the FAPL to control the broadcast of live fooball matches in England - a stated core concern as the FAPL need to protect the revenues from the paying audience for live football matches. And they need a new system and it may be one where nobody in Europe gets to see live matches from the Premiership!

- It won’t stop at TV! Neelie Kroes, previously the EU Competition Commissioner and now the Commissioner for the Digital Agenda said this about music and entertainment: “Too many barriers still block the free flow of online services and entertainment across national borders. The Digital Agenda will update EU Single Market rules for the digital era. The aims are to boost the music download business, establish a single area for online payments, and further protect EU consumers in cyberspace. She told the Guardian “"If I can buy a music CD online from a company in the Netherlands and have it posted to me here in Belgium, why can't I buy a digital download from the same company? If I can watch my local team's football matches using online pay-per-view in one member state, why not in 27? This situation does not make much sense to the man on the street. To be honest, it is not a situation that makes much sense to me. And we need to fix it".

- Unless a valid justification for partitioning the single market can be found, new business models will have to be adopted in Europe and many existing licensing arrangements may simply be held invalid as they be contrary to European competition law. I suspect this applies in particular to the pan-European satellite broadcasts and the internet. Is there any future in pan-European internet geo-filtering now? I suspect the answer is 'no'.

- The full effect of the case will become clear when the High Court gives its judgment applying the ECJ's ruling to the facts of the case.

- Of course Greece may have the final word if the EU doesn't sort out the current debt crisis ...... !!!

Tuesday 25 October 2011

BLACA & the BCC have a joint meeting on Tuesday 25th October looking at the communication to the public right in the light of the ECJ decision. This will be a panel discussion led by Professor Paul Torremans with Ted Shapiro (Senior Vice President, General Counsel Motion Picture Association, Brussels) and Jenine Hulsmann (Partner, Clifford Chance) contributing as panellists: VENUE: Reed Smith, The Broadgate Tower 20 Primrose Street EC2A 2RS: 17.45 signing in - 18.00-20.00 pm panel discussion. If you wish to attend you MUST register in advance by emailing or by telephone on: 020 3400 4983.

Karen Murphy v Media Protection Services Ltd / Football Association Premier League Ltd v QC Leisure and others Joined Cases C-403/08 and 429/08

Directive 89/552/EEC - "Television Without Frontiers"
The Directive aims are to ensure the free movement of broadcasting services within the internal market and at the same time to preserve certain public interest objectives, such as cultural diversity, the right of reply, consumer protection and the protection of minors. It is also intended to promote the distribution and production of European audiovisual programmes, for example by ensuring that they are given a majority position in television channels' programme schedules. The Directive establishes the principle that Member States must ensure freedom of reception and that they may not restrict retransmission on their territory of television programmes from other Member States. They may, however, suspend retransmission of television programmes which infringe the Directive's provisions on the protection of minors.

C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009] ECDR 16
The Court emphasised that the author’s right to authorise or prohibit reproduction applies to a "work", i.e. the author’s own intellectual creation - "the expression of the intellectual creation of their author"

Coditel SA and others v Ciné-Vog Films SA (No 1) [1980] ECR 881 62/79 and Coditel SA and others v Ciné-Vog Films SA (No 2) 262/81 [1982] ECR 3381
This case established that exclusive national licences of broadcasting or cable rights in films were not of themselves inimical to EU rules on free movement and anti-competitive agreements with the ECJ saying “The provisions of the Treaty relating to the freedom to provide services do not preclude an assignee of the performing rights in a cinematographic film in a Member state from relying upon his right to prohibit the exhibition of the film in that State without his authority, by means of a cable diffusion if the film so exhibited is picked up and transmitted after being broadcast in another Member State by a third party with the consent of the original copyright owner”

Preview Pictures II (Google Thumbnails)

In a judgment handed down yesterday, the Bundesgerichtshof (BGH) confirmed and expanded its position on Google thumbnails. In last year's 'Vorschaubilder' (preview pictures) decision (BGH I ZR 69/08, see Birgit's IPKat post here), the BGH held that Google's image search service does not infringe copyright in the pictures shown as 'thumbnails' in the search results. Since the copyright owner in that case put the pictures on the web and failed to take any steps to prevent them from appearing in Google's image search (which I understand is easy to do), she was deemed to have granted an implied licence for the pictures to be made available to the public by appearing in Google's image search results.

Now the court went a step further. The factual scenario was as follows: The copyright owner, a photographer, gave permission to someone else to make one of his photographs available on the Internet, presumably without requiring to take technical steps to prevent the photograph from appearing in Google's image search results (the written judgment is not available yet, and the press release is not entirely clear on this). Third parties then copied the photograph and made it available on their own websites. Google image search results then showed the photograph linking to the third parties' websites. The copyright owner complained and later sued Google, but to no avail.

The BGH considered that a search engine cannot distinguish pictures made available with the copyright owner's permission from those made available without the copyright owner's permission. It concluded that since the copyright owner gave someone permission to make his work available on the Internet, he is deemed to have given Google an implied licence to use the work in its image search service no matter what, even if the source of the preview picture is a website whose operator is in breach of copyright for making the work in question available.

Very kindly, though, the BGH pointed out that the copyright owner is free to sue those for copyright infringement who unlawfully made the images available on the Internet. Times were when one might have thought that would go without saying...

I agree that Google did not infringe copyright, but I confess to being confused nonetheless. If the third parties made the photograph available on their websites without permission and are thus infringing copyright, why is Google upon notification of the copyright owner not required under the principles of 'Störerhaftung' (secondary liability for contributing to someone else's breach of rights) to remove the photograph from its image search service as far as those websites are concerned? Surely it must be possible to exclude the third parties' websites from the image search while keeping the thumbnail from the website of the legitimate licensee?

Any comments by our dear readers would be very welcome.

Wednesday 19 October 2011

Private Copying and Fair Compensation: An empirical study of copyright levies in Europe

Professor Martin Kretschmer has produced a report on the legal basis, rationale and economic effects of copyright levies as part of his ESRC Fellowship at the UK Intellectual Property Office. This research,"Private Copying and Fair Compensation: An empirical study of copyright levies in Europe" reports a large amount of new empirical data, including three product level studies of printer/scanners, portable music/video/game devices, and tablet computers. The relationship between VAT, levy tariffs and retail prices is analysed for 20 countries.

The report will be launched today, Wednesday, 19 October 2011, 16:00 – 20:00 at The Work Foundation, 21 Palmer Street, London SW1H 0AD along with a paper titled "Changing Business Models in the Creative Industries: The Cases of Television, Computer Games and Music" by Dr. Nicola Searle from the University of Abertay Dundee. Chaired by Professor Charlotte Waelde of the University of Exeter, with an introduction from Professor Birgitte Andersen, Director of the Big Innovation Centre, this event will provide an opportunity for copyright owners, technology companies, users and consumers, academics and policy makers to hear about and debate what this research means for UK policy making.

If you are interested in attending this event you need to register - please go to

More on Professor Kretschmer's paper can be found using the link below which also provides a link for a download of the full paper:

Tuesday 18 October 2011

Rumble in the (Digital) Jungle

For some time now there have been articles and comments about the legality of ‘re-selling’ legally acquired MP3s and other digital download music and video files by consumers. Now a new platform called ReDigi has been launched with exactly this activity as its core business model, offering a new model where consumers can legally buy and sell ‘second hand’ downloads.

TechCrunch offers this opinion, accepting that there are a number of legal points to be considered (not least when bearing in mind the "tumultuous" and lawsuit-heavy history of the sale and distribution of music on the internet):

“With the rise in the digital distribution of music, movies, software, and more, there has come surfeit legal confusion over whether or not the so-called “first sale doctrine” applies to digital transactions. Basically, under the first-sale doctrine, once the person who owns the rights to, say, a CD sells a copy of that work, the owner relinquishes control of that individual copy. Once that copy is in a new user’s hands, they own it and can do with it as they please, including reselling, lending, or giving it away.

However, Some have claimed that the first-sale doctrine does not apply to digital downloads, for instance, when that digital property has been licensed to the buyer, rather than explicitly sold. In the case of Vernor vs. Autodesk, the software corporation sued Timothy Vernor (an online software reseller) for reselling its software on eBay, saying that, under the terms of use, the software had been licensed to him, not sold; thus, they claimed that he did not own the right to the software and could not lawfully resell their product.

In 2008, the Washington District Court sided with Vernor, ruling that the software was in fact sold, upholding Vernor’s right to resale. However, that decision was subsequently overturned in September 2010 by the 9th U.S. Circuit Court of Appeals, which was followed on October 4th of this year by the Supreme Court’s decision to decline hearing the case, allowing the Court of Appeals’ verdict to stand”

Surely this is bad news for ReDigi? Well, ReDigi says it has done its homework and has taken legal advice – and actively supports the music industry. They say that this is a new business model where ReDigi will check to make sure the item on sale is a legal download and also that the service ensures that the vendor deletes their existing copy when transferring a copy file to the purchaser. ReDigi say that their technology enables a music file to transfer from one user to another without allowing multiple copies to exist at the same time. The service requires customers use its ReDigi Music Manager client, a platform that according to the company first verifies that the digital song was legally purchased and then removes the music file from the original owner’s computer and synced devices. Previously owned songs are stored by ReDigi until they are resold, at which point the track and license are transferred to its new owner. In ReDigi’s own words (from a Facebook post):

ReDigi is launching a “Recycled Digital Media” or used music marketplace ( where owners of digital music can sell and purchase digital music files. We have done extensive research and have spent many hours with well respected law firms in Boston, NYC and LA. We strongly believe that this marketplace will provide and protect the rights of consumers as they were provided for under [the] US Copyright Act and the first sale doctrine. Just because things have gone digital doesn’t mean that people have given up their hard fought for rights, each individual has the right to sell their legally purchased digital goods. The ReDigi marketplace is NOT about file sharing, it is a method of facilitating the legal transfer of music between two parties. The ReDigi approach is novel, it verifies that the track was properly acquired, manages items selected for sale within the sellers music libraries to prevent multiple copies (protecting the seller from copyright infringement), and facilitates an even greater level of copyright protection than the previous CD market. Even just a few years ago technology did not support a readily viable solution. ReDigi has made it a reality for the millions of music users and the billions of legally downloaded tracks that exist in the world today.

One blogger noted this: “There definitely needs to be a way of transferring ownership of music. 10 years ago, if I died, somebody would inherit my CD collection. Today, if I have a $20k iTunes music collection, how can I pass that onto somebody when I die? what exactly happens to it?”. Well, ReDigi CEO John Ossenmacher said “By allowing consumers to sell their used digital music, we are giving digital goods a resale value for the first time ever and opening a new realm of what is possible in the digital age.” But is it legal, even when Ossenmacher states “We are excited about the innovative programs that we have created to support artists and labels ..... As we move forward, social responsibility will remain one of our highest priorities” ?

The impact of “Terms of Sale” is certainly one of the factors that need careful consideration, but I wonder what 1709 readers think? Its not a new debate – but it is suddenly in the news in the news again with a new twist. Back in February 2006 Macworld ran an article titled Make Mine With Music which looked at the legality of selling pre-loaded iPods. Fred von Lohmann, an attorney with the Electronic Frontier Foundation, described the process as a “gray area” saying that though the practice would be perfectly legal were dealing in traditional media, digital copies were different and the rules that apply to them then remained to be settled. Making a copy of purchased songs and going back and deleting the original didn’t necessarily fix the problem said von Lohmann, adding “I don’t see why the copyright owner is hurt by that, but technically if they wanted to they probably could come up with a legal theory to go after [the vendor].

At the time the Recording Industry Association of America (RIAA) said this

“This is, in our judgment, a very clear legal issue ... selling an iPod pre-loaded with music is no different than selling a DVD onto which you have burned your entire music collection. Either act is a clear violation of U.S. copyright law.”

If there any US lawyers out there with a view here, or content owners who would like to chip in, please do make a comment. (terms of sale)

Monday 17 October 2011

Metall auf Metall II – The Curious Case of Free Use and Sampling

Kraftwerk album 'Trans Europa Express'
Sabrina Setlur single 'Nur Mir'
I have only now got around to reading and reporting on ‘Metall auf Metall II’ – a case on free use and sampling decided by the Higher Regional Court of Hamburg (OLG Hamburg) on 17 August (case reference 5 U 48/05). The facts of the case are as follows:

The claimants are members of famous German band ‘Kraftwerk’. In 1977, they released a record that included the title ‘Metall auf Metall’ (‘metal on metal’), which they also produced.

Twenty years later, German rapper Sabrina Setlur had a hit with her title ‘Nur Mir’ (which in context translates as ‘to me only’). The defendants are the producer and the composers of ‘Nur Mir’. They sampled a sequence of two seconds from ‘Metall auf Metall’, put it on a loop and used it as the continuous rhythmic layer for Ms Setlur to rap over on ‘Nur Mir’.

According to the claimants, this constitutes an infringement of their neighbouring rights as producers of the sound recording ‘Metall auf Metall’ (§ 85 (1) (1) UrhG; German law provides no author’s right protection for sound recordings).

The case has already been all the way to the Federal Supreme Court (BGH), was reversed and remanded, and now the OLG Hamburg has granted leave to appeal on legal grounds again because the judges don’t seem too sure they have reached the right conclusion this time round.

In a nutshell, the conclusion they did reach was that ‘Nur Mir’ constitutes an infringement because it would not have been unreasonably cumbersome to produce a ‘sound-alike’ rhythm sequence.

In the decision that reversed and remanded the earlier judgment by the OLG, the BGH held that § 24 UrhG on free use applies mutatis mutandis to neighbouring rights. § 24 UrhG reads:
(1)   An independent work created by free use of the work of another person may be published and exploited without the consent of the author of the used work.

(2)   Paragraph (1) shall not apply to the use of a musical work where a melody has been recognisably borrowed from the work and used as a basis for a new work.

According to the BGH, § 24 (1) BGH does not apply if it is possible to produce the sampled sound sequence independently, or if the sampled sequence is protected as a melody under § 24 (2) UrhG.

Independent Work

In order to be an independent work created by free use for the purposes of § 24 (1) UrhG, the new work must keep sufficient distance to the borrowed original traits of the used work, to the extent that the original traits of the elder work fade into the background in view of the originality of the new work (established BGH case law). Quite when that is the case is a bit of a mystery, though. Especially in cases on parody, courts and commentators do rather a lot of squirming and modify the requirement of ‘fading to the background’. It is said to suffice if the new work keeps a great ‘inner distance’ to the work from which it borrows, especially if an ‘artistic engagement’ (‘künstlerische Auseinandersetzung’) with the borrowed work takes place, but also if the ‘inner distance’ is realised by some other means in the view of an independent observer who knows the elder work but also possesses the intellectual understanding required for the new work. In principle, though, the standard is a strict one. Are you confused yet?

In any case, the OLG found that ‘Nur Mir’ possessed an entirely different character from ‘Metall auf Metall’, even though the rhythm sequence was clearly audible throughout the track. Making allowances for the hip hop genre, the judges stated that it would be asking too much if one were to demand a rhythmic figure in a hip hop track to fade to the background in such a way as to be barely recognisable. The additional elements were deemed enough to turn ‘Nur Mir’ into an independent work according to § 24 (1) UrhG.

Rhythm vs Melody

Fans of Stomp or will be disappointed to learn that a rhythm section does not qualify as a melody for the purposes of § 24 (1) UrhG. Unequivocally rejecting musicologist definitions as too vague and nondescript, the OLG judges reiterated the case law definition of melody as a ‘self-contained and ordered sequence of notes’ (‘in sich geschlossene und geordnete Tonfolge’). § 24 (2) UrhG does not preclude the borrowing of harmonies, rhythms, original instrumentations or special sound effects because such features do not constitute a melody. They held that the short sequence from ‘Metall auf Metall’ was a ‘rhythm surface’ (‘Rhythmusfläche’) comprised of overlapping ‘shreds of notes’ (‘Notenfetzen’). The result may be original and attract copyright protection as a musical work, but it is not a melody. The court also mentioned that § 24 (2) UrhG is a very controversial piece of legislation anyway and as such should be interpreted narrowly.

Possibility of Producing a Sound-Alike

So far so good for the defendants, but their case dies here. The BGH did not provide any guidance as to the criteria that should be met to find for a possibility of producing a sound-alike, so the OLG came up with its own definition. Given that ‘Nur Mir’ was produced professionally and for commercial purposes, the skills and technological possibilities open to a music producer with average equipment are decisive; the reference point is the time when sampling took place (1997 in the case at hand).

According to the OLG, it is not necessary that the sound be identical, but that it would be regarded as equivalent by prospective consumers that are familiar with and possess a certain amount of sensitivity for musical issues without being extraordinarily exacting. Expert witnesses managed to produce an equivalent sound-alike to the ‘Metall auf Metall’ sequence in less than two days. The court held that this was a reasonable amount of time to ask before permitting someone to encroach upon another’s rights without having to seek permission and free of charge. The judges were not entirely certain whether they got these criteria right, though, which is why they granted leave to appeal on legal grounds to the BGH once more.


Wednesday 12 October 2011

Pirates rise in European Parliament

The Pirate Party’s “rise” in Europe – having had two Swedish MEPs elected in 2009 and more recently having gained a substantial number of seats in the Berlin state parliament after polling 8.5% of the votes – has mostly been written off as a niche occurrence with the party having no realistic hope of making a change. But now it seems like the Greens/European Free Alliance, the 5th largest coalition of political groups in the European Parliament, has adopted the Pirate Party’s policies on copyright. The coalition, which has seen the most gains in recent elections on the continent, will now support copyright policies which include a reduction in the basic term of rights protection to five years, extendable to 20 years on registration, a new right to format shift, a ban on new blank media levies and a new right to share files. Counterfeiting and “profiting directly from other people’s work without paying them” will remain illegal. The party’s UK manifesto also contains provisions for individual privacy and free speech.

The UK’s Pirate Party leader Loz Kaye told The Inquirer: "With the recent election victory in Berlin and now the Green EU Block adopting key Pirate Party positions, the movement continues to grow in its influence. This is because of the strength of our ideas. There are real challenges to digital rights world wide - site blocking, three strikes laws and the global intellectual property law treaty ACTA - and people are looking to us to stand up to the industry lobbyists. It's vital that we work at an international level to combat these threats to the open web” adding "Every country with a Pirate Party presence is a country where digital rights, our right to a shared culture and civil liberties, are put firmly on the agenda. Here in the UK, we plan to follow up on our meeting with [the government's culture minister] Ed Vaizey to continue to point the government in the direction of digital inclusion, rather than crackdowns like the Digital Economy Act. The time of the big media lobbies having it all their own way is over".