Wednesday 30 May 2012

Et tu, Brute? - Copyright in short phrases and the notion of "generic copyright"

Et tu, Brute? ("La Morte di Cesare", by Vincenzo Camuccini)
Last week, Neil Wilkof posted an intriguing blog post on the notion of "generic copyright" (over at the IPKat, please read it here). Coincidentally, I have been pondering the same subject of late, as a result of reading Advocate General Trstenjak's Opinion in the Infopaq I case (ECJ, C-5/08). In footnote 22, she invokes the example of the phrase "Et tu, Brute?" to demonstrate that even extremely short sentences or parts of sentences (or possibly even individual words) can attract copyright as long as they are the product of the author's own intellectual creation (see here).
According to General Advocate Trstenjak, there can be no doubt that "Et tu, Brute?" is a reproduction in part of William Shakespeare's play "Julius Caesar". Alas, it was definitely not Shakespeare who first penned the phrase in question (see Marjorie Garber, Shakespeare's Ghost Writers: Literature as Uncanny Causality, 55-56). Apparently it was in common use a considerable time before Shakespeare wrote "Julius Caesar". 

In addition, there is the question whether three words (or an individual word) may indeed constitute a literary work or a substantial part of a literary work with the consequence that unauthorised reproduction will amount to infringement. In most cases, the answer would appear to be "no", see eg Exxon Corp v Exxon Insurance Consultants International Ltd [1982] Ch 119; Francis, Day and Hunter, Ltd v 20th Century Fox Corp, Ltd [1940] AC 112 ("The Man Who Broke The Bank At Monte Carlo"). Trade mark law, unfair competition law or title protection law is more suited to protecting short slogans or invented words than copyright law. Occasionally, though, the question will be answered in the affirmative. For instance, French courts held that the titles "Les hauts de Hurlevent" (as a translation for "Wuthering Heights", Tribunal commerce Seine, 26 June 1951), "Clochemerle" (invented word combining "bell" with "blackbird", Cour d’appel Lyon, 5 July 1979) and "Vol de nuit" ("Night Flight", Tribunal de Grande Instance de Nanterre, 28 April 1998) were sufficiently original to attract copyright protection. 

Nevertheless, even in the latter cases, comprehensive copyright protection might still be excessive. There are two reasons for that. The first concerns proof of authorship, the second that which Neil so fittingly refers to as "genericity". 

In respect of the first reason, both General Advocate Trstenjak's example of "Et tu, Brute?" and Neil's example of the "Faustian bargain" illustrate one of the dangers of granting protection to short phrases, slogans, etc.: Shakespeare wrote the play "Julius Caesar", but he did not come up with the phrase "Et tu, Brute?"; Goethe wrote the play "Faust" (and "Faust II", actually), but Goethe neither invented the character of Dr. Faust nor the idea of striking a pact with the devil - that's folklore, and authors such as Christopher Marlowe reworked the Dr Faustus story long before Goethe's time. 

No one can tell who first came up with the expression "Et tu, Brute?". Even if it were possible to prove that a certain author first used it in a published literary work, that does not necessarily mean that the phrase originates from that author. Maybe the author picked it up from a historically inaccurate Latin teacher.There are also many instances where two authors will independently come up with the same or a strikingly similar phrase. If the prima facie presumption of authorship (see Article 15 (1) RBC) and the procedural assumption of "subconscious copying" come together in such cases, there is little chance of escaping an unjustified copyright infringement claim. 

The second reason refers to cases where the phrase is sufficiently original to render an independent identical creation by someone else improbable, such as Neil's example of the "Catch-22" situation. Yet copyright protection can be excessive precisely because the work has been extraordinarily successful. If the expression in question captures the public imagination and succinctly describes a certain mood, situation, etc, the public will add it to the general store of linguistic expressions, and in such instances freedom of expression will require the phrase to be freely available for all. In that respect, the situation is indeed comparable to the situation in trade mark law, where a trade mark becomes generic and loses its protection if it becomes so successful that it is used by the general public to denote the class of goods or services rather than the particular brand.

One should also be wary of seemingly original phrases such as "Toto, I don't think we're in Kansas anymore" (another example provided by Neil). In a different context, say an account of a car trip from Kansas City to Denver, the remark of one character to another that "I don't think we're in Kansas anymore" would take on a completely different (and rather mundane) meaning. 

As always, any comments and views on this topic will be gratefully received!


YouTube Scores a Victory against TF1 in French Court

In a lengthy (by French standards at any rate:  34 pages) decision handed down yesterday (May 29), the Paris High Court dismissed French broadcaster TF1's lawsuit against YouTube.

The suit dates back to 2008 and involves numerous clips from TF1 (and related entities) that were posted on YouTube.  A group of plaintiffs (all part of the TF1 Group) brought an action against the Google subsidiary alleging copyright infringement, infringement of so-called related (or neighbouring) rights, trademark infringement, unfair competition and parasitical conduct.

The first issue addressed by the Court was the admissibility of the action as regards standing.  The Court addresses each type of IP right separately (related right attributed to a broadcaster, related right attributed to a producer, copyright).  As regards copyright and the related right attributed to the producer, the plaintiffs were held to lack standing inasmuch as they failed to adduce the requisite evidence of their rights.  As regards the related right attributed to broadcasters (Section L.216-1 Intellectual Property Code or IPC), TF1 was found to have standing with respect to seven sports programs that were actually broadcast prior to their appearance on YouTube.  On this point, the Court gives careful consideration to the nature and scope of this oft-neglected related right.  It confirms that the right is intended to proect the broadcasting entity's investment and the right covers the programs as broadcast in the signal.

Having found a very limited standing to sue, the Court went on to address the issue of YouTube's proper characterization.  Applying recent CJEU and French Supreme Court case-law, it had no difficulty finding that YouTube qualified as a mere hoster (as opposed to publisher) of the content posted on its site by its users.  Consequently, its liability could only be assessed in light of the relevant provisions relating to hosting entities.  On this specific point, while the Court did agree with plaintiffs that the five-day delay in removing the infringing content after notification was unreasonable, it nevertheless held that there was no liability because it felt that the conditions of Section L.216-1 IPC were not satisfied due to the fact that access to the site was free.

With all due respect to the Court, this last conclusion seems erroneous.  Leaving aside the question of whether the mere fact that the removal delay was unreasonable is sufficient to incur liability, Section L.216-1 IPC clearly contemplates an infringement where programs (as broadcast) are telecast  ("télédiffusion" in French) OR communicated to the public in a place open to the public in exchange for an entrance fee.  In other words, while the right of communication to the public associated with this related right is narrower than the corresponding right under copyright, the difference is only relevant in cases of communication to the public OTHER THAN telecasts.  Given the broad definition of telecasts in the IPC (Section L.122-2), it is clear that YouTube was telecasting the programs and therefore infringing the Section L.216-1 related right, irrespective of the issue of free or paid access to the site.

After dismissing the claims based on trademark infringement and unfair competition and parasitical conduct, the Court ordered TF1 to pay YouTube €80,000 in costs.

Beyond the error referred to above, the Court makes a rather odd comment about TF1 being unable to invoke both its Section L.216-1 related right and copyright simultaneously.  The Section L.216-1 related right protects the broadcaster's programs as embodied in the signal that is broadcast whereas copyright protects the underlying work.  Contrary to the Court's assertion, there is no legal principle that would prevent a party from invoking both grounds simultaneously; the two rights are independent of one another and protect different subject-matter (the programs in the signal in one case and the work in the other).  As regards the Court's analysis of standing under copyright, it is striking that it makes no reference to the longstanding judge-made rule that use of a work in the absence of adverse claims by the natural person authors cerates a presumption of copyright ownership vis-à-vis third-parties accused of infringement (in fact the Court actually expressly cites Section L.331-1, paragraph 3 IPC in this context, a provision which deals solely with related rights).

TF1 has stated that it is currently studying the decision and considering its options.

Google transparency and Chilling Effects

Some chilling effects
are not so unwelcome ...
A recent Electronic Frontier Foundation (EFF) news release, "Google Releases New Copyright Transparency Report", picked up on BeSpacific, reports that
 "Google expanded its transparency reports program ... by releasing a detailed report of content removal requests from copyright holders. The new copyright report joins its semi-annual government takedown transparency report, and covers more than 95% of the copyright takedown requests it has received for Search results since July 2011.1  Though Google has posted the content of takedown requests to [the EFF-backed] Chilling Effects where possible before, this report presents the data collectively (and graphically) for the first time." 
It occurs to this blogger that, while the Google transparency program reports on take-down requests globally, the structure and content of Chilling Effects is US-directed. He wonders whether this useful and informative online service might be adapted for deployment in other jurisdictions, particularly in those parts of the world where the absence of an actual and enforceable constitutional right to communicate information can make the effect of a take-down request even more chilling.

Thank you, Chris Torrero, for supplying the original link.

Tuesday 29 May 2012

Is Apple deleting the history of music? Moral rights on iTunes

Following the much-deserved success of her first guest post on moral rights last week, which attracted a fascinating bunch of comments, the 1709 Blog is delighted to bring readers the second of Mira T. Sundara Rajan's contributions to this weblog. This week's post addresses a question that is bound to raise a few eyebrows -- and hackles: Mira asks
Is Apple deleting the history of music? Moral Rights on iTunes

After downloading, music will never be the same – not the recorded music industry, which has been fighting for its life since sharing music on the Internet became common in the late 1990s – and not artists, who have watched their livelihoods evaporate as record sales have dropped. A section dedicated to music downloading in my 2011 book, Moral Rights, included an overview of the fascinating strategies adopted by music companies to try to undercut the “illegal” downloading of music online. Among these, Apple’s iTunes has led the way. This leading platform for legal music downloads, revolutionary in its time, adopted a practical strategy that showed just how much Apple had learned from the illegal downloading scene. 
Apple focused on selling music singles as individual tracks, and at prices so insignificant that it was almost like getting music for free. Of course, it is possible to buy entire albums on iTunes – and, on occasion, in more specialized genres like jazz or classical, only albums might be available – but the basic format on which iTunes is built remains the single. Popular music tracks typically sell for around $1.29, while jazz and classical “singles” are usually priced at a mere 99 cents (for more on Apple's pricing scheme click here). And Apple is selling something more than just music. It is selling insurance – a way to be reasonably sure that downloaded music is legally obtained, or at least, to make it credible to argue that it is.

A time may come when downloading will entirely surpass the market for recordings in “hard copy” (see here for an interesting analysis).  The economic consequences of such a shift have been analyzed countless times. But, in an environment that is overwhelmingly online, what will be the fate of moral rights in music?

There has been surprisingly little discussion of moral rights in the online environment. What little has been said emphasizes the practical reality, obvious but immensely significant, that it is very difficult it is to protect moral rights online. Given the freedom to manipulate data, and the fact that many online exchanges of music occur in informal or illegal contexts, maintaining the attribution and integrity of musical works depends almost entirely on the goodwill of the individuals involved. There are some inherent incentives to maintain the source and integrity of data on file-sharing networks (also discussed briefly in my book), and there is some overlap between an interest in data per se and moral rights in music; but this is still a far cry from explicit recognition for music rights.

Will CDs just vaporise?
To date, the tacit consensus seems to be that moral rights are of limited relevance to digital transactions. From the artists’ perspective, however, nothing could be further from the truth. As noted above, the music industry seems to be moving towards an era when revenues from music CDs will largely disappear. Some of those revenues will be replaced by legitimate online sales, but musicians will also have to find other ways of making a living. While the ultimate shape of the music industry to come is still unclear, it is possible to catch certain glimpses of its future face. Live performance may experience a resurgence; self-promotion and the development of a unique musical presence, or “brand,” will be essential; and successful strategies for selling music through venues like iTunes will be crucial. In all of these areas, the value of reputation, name, and a uniquely identifiable product or creation seems to be at least as important as it was in the era of recorded music. Moral rights, and the twin principles of attribution and integrity, in particular, will be more important than ever to the musicians of the future.

But online platforms are not only relevant to the future of music; they play a crucial role in relation to its past. As recordings are essentially transferred from CDs to music services like iTunes, these vast online databases will become increasingly important as repositories for the entire history of recorded music. In relation to the music of the past, the attribution and integrity of musical recordings is involved. This issue should be of concern to anyone and everyone with an interest in music.

A look at iTunes provides a clear illustration of what is at stake. iTunes is already a vast digital library, offering tracks for sale in virtually every genre of music. However, there are obvious problems in relation to both attribution and integrity. For example, a jazz performance usually involves a degree of collaboration between at least three people – a soloist supported by bass and drums. Many of these “side men” are extraordinary musicians in their own right. Charles Mingus was an extraordinary bassist who also played piano, composed, and led a big band. The bassists who played with pianist Bill Evans were in a special class known for their virtuosity – Scott LaFaro, Eddie Gomez, Marc Johnson. A large number of percussionists have attained the status of jazz legends. And yet, a survey of jazz recordings on iTunes suggests that some number of them, quite probably a majority, do not list the names of contributors anywhere on the track.

A similar problem occurs in relation to classical music recordings, but classical music tracks also contain other kinds of mistakes. A fan of the Scriabin sonatas recorded by legendary pianist Vladimir Horowitz might want to download the tracks from his 1989 RCA Victor album, but the listener would be startled to find that one of the feature pieces, the famous first movement of Scriabin’s third piano sonata (“Dramatico”), actually contains another piece. The recording is available for download in its proper form from Apple’s competitor online,

Where integrity is concerned, the problems are also fundamental. Some artists feel that splitting an album into individual tracks affects the integrity of their music – a case that was made, successfully, by rock group, Pink Floyd, in 2010 (though one wonders how committed the group was to this concept, as they have subsequently struck a deal with EMI Classics that allows the company to continue selling individual tracks online). A work of classical music like Glenn Gould’s recording of the Goldberg Variations by J.S. Bach is available as a series of individual tracks, although Gould, very unusually, re-recorded this work in order to explore the “overarching ... pulse,” in the phrase of journalist Jonathan Cott (Conversations With Glenn Gould (University of Chicago Press, Chicago 1984), that unites all of the variations. It is possible to think of many reasons why it might be interesting and important to be able to download single variations, and the point here is not to argue against making them available. Rather, in cases like this, it may be important to make them available with a specific focus on maintaining the integrity of the work. Something as simple as indicating that the piece is part of a larger work, and showing where the selection fits within the whole, could accomplish this goal.

It is apparent that an awesome responsibility has fallen to Apple and other companies dealing in online music. Not only must they help to promote the artists of the future, but they must also do what is necessary to preserve the legacy of the past. By a happy coincidence, the technology to accomplish these goals is comfortably within reach. ...Reassuringly, tracks from an album entitled “ Legendary Jazz Drummers,” put out by Stardust Records in 2009, receive an unusual treatment on iTunes – the names of bandleader, group, and drummer all scroll across the top of the screen as the track plays. The way of the future?

Might this be the mystery case?

This blog's quest for details of the mysterious reference to the Court of Justice of the European Union (CJEU) in Case C-170/12 Pinckney has yielded an early dividend. A correspondent (thanks!) has emailed to suggest that this case may be a reference from the Cour de cassation, France, to the CJEU concerning jurisdiction in online copyright infringement disputes in M. X v Kdg Mediatech AG , which is available online thanks to Legalis here.

The action seeks to test out the legal position regarding the offering of CDs for sale on the internet, looking this time at the distribution right, not the right of communication to the public (though the questions referred appear to cover both communication to the public and physical distribution).

Early efforts at online trade caused more
technical problems than legal ones ...
In short, one X, a songwriter resident in France, claimed that Austrian company Mediatech infringed his copyright by making CDs of his songs which were then sold by British companies on websites that were accessible in France. His preference would be to sue Mediatech in France, but the French court said it did not have jurisdiction. X then appealed and the top French appellate court, the Cour de cassation, is now asking the CJEU whether Article 5(3) of the Brussels Regulation means that, in a case of online copyright infringement, the claimant can issue proceedings in any country where the site can be viewed (for the purpose of obtaining damages for that jurisdiction alone) -- or does the content of the website have to be targeted at that jurisdiction or have some other connection with the jurisdiction? And does it make any difference if the infringing content is in a physical medium?

Has anyone any better suggestions? And would anyone like to hazard a guess as to what, in the light of current CJEU jurisprudence, the answer is likely to be?

Pinckney: can anyone help?

A couple of pink knees
here, but not quite what
we're looking for ...
notification from the UK Intellectual Property Office (IPO) informs us of a new copyright case that has been referred to the Court of Justice of the European Union: it's Case C-170/12 Pinckney. The subject of the reference is said to be "Identification of the courts with jurisdiction in relation to an alleged cross-border copyright infringement" and the IPO kindly furnishes a link to the case on the Curia website.

Alas, on clicking through, this blogger has been unable to unearth the questions which have been referred for a preliminary ruling, since there no documents in the case file. This is a pity, because the IPO invited comments by 26 May.

Can anyone shed light on this litigation?

Monday 28 May 2012

Can Wi-Fi owners be held accountable for users' infringements?

Today Communications Alliance, which is the primary telecommunications body in Australia, published an extremely interesting information paper on the issues being generated by the emergence of Public Wi-Fi Networks in Australia (see the report of ComputerWorld here). 
As stated in the press release, the paper "provides an overview of the current state of the Public Wi-Fi industry in Australia and the legal and regulatory obligations and technical requirements to be considered by existing and new operators of Public Wi-Fi networks." In particular, the paper "looks at the commercial models being employed around such networks, the emergence of new protocols that may significantly boost the capability of Wi-Fi Networks, and end-user issues associated with Wi-Fi connectivity."  
"Public Wi-Fi networks have long been available throughout office environments and public areas such as airports and shopping centres for use as either a free or commercial service for mobile workers, travellers and shoppers, and appear likely to play a larger role in the national ‘connectivity matrix’ in years to come" pointed out the Chair of the Public Wi-Fi Networks Group. However, as explained by Communications Alliance CEO, the technical, regulatory and planning guidelines for Public Wi-Fi networks are not as well defined in Australia as they are for mobile networks.
Indeed, it was not long time ago that the High Court of Australia published its judgment in Roadshow Films v iiNet (on which see the report of the IPKat here). 
However, as noted in Communications Alliance’s paper, pressure on users of fixed networks in relation to the behaviour of end users who infringe copyright via online activities "might continue and be extended to mobile and/or Wi-Fi networks in the future."
In particular,
At present if an end user is identified as accessing prohibited content via a Wi-Fi network then the party with the legal responsibility for identifying the offender has not been tested. Similarly the nature of the interaction between Wi-Fi network operators and service providers with law enforcement agencies (LEAs) has not been tested. This is in contrast to standing arrangements that exist between LEAs and both licensed carriers and [Carriage Service Providers] …
While legal/lawful interception can be done, the associated processes are not standardised in the way they are for tracing (phone) numbers in a licensed carrier network.  Practical challenges on a public Wi-Fi network may include: 
(a) Dynamic address allocation, which hampers usage tracking  i.e. a different IP address is allocated per session, which can make tracking usage by IP address quite difficult. 
Some people prefer to wear discreet disguises
to carry out infringing activities
 in public Wi-Fi areas
(b) The absence of user data on a Public Wi-Fi network  i.e. there is typically no user data retained on public Wi-Fi  networks, unlike in licensed carrier networks.
(c) Permitting anonymous, temporary use, which can be difficult to trace after the event.

This said, the paper recommends that operators use Wi-Fi Protected Access II (WPA2) protocol, which is used for encryption to secure wireless links. This is because "WPA2 is the de facto standard for securing Wi-Fi networks".
This blogger suspects that enforcement via Wi-Fi owners has the potential to quickly become a truly hot topic in the realm of online copyright. Whilst there is not specifically relevant case law in Australia (yet), it may be interesting to note that a few days ago a district Finnish Court ruled that open Wi-Fi owners cannot be held liable for the copyright infringing activities of third parties (see the reports of TorrentFreak and ArsTechnica, and the comment by the Electronic Frontier Foundation).

Sunday 27 May 2012

YMCA victory prompts more claims for reversion of rights

It seems that the victory in the federal courts by Victor Willis, the 'Village People' front man, in his bid to obtain ownership of his share of "YMCA" and some 32 other songs he co-wrote with the iconic disco ensemble has prompted something of a trend: According to the U.S. Copyright Office, 285 notices of termination have been filed under Section 203 of the US Copyright Act, most of them related to music compositions or sound recordings. Willis says he's received "emails from all over the world" congratulating him, but says he's also pleased that it has alerted others that this provision even existed.

Section 203(a) of the Copyright Act allows writers and artists to reclaim their works 35 years after an assignment to a third party. The Section 203(a) provisions set the effective date on or after January 1st 1978, meaning that the first works can go back to authors starting in 2013. It is expected that that record labels in particular will challenge terminations by contending that the master recordings were works made "for hire" or at their behest.

Friday 25 May 2012

IP professor needed in Glasgow!

The 1709 Blog's friend and eminent scholar Professor Lionel Bently of the University of Cambridge wishes to bring to its readers' attention an exciting opportunity which has recently arisen at the University of Glasgow. 
The School of Law is seeking to appoint a professor to strengthen its REF submission in the field of intellectual property law and copyright law, and to be the Director of a newly established RCUK-funded research centre: the Centre for Creativity, Regulation, Enterprise and Technology (CREATe). 
A pair of these comes
with the application pack
CREATe is an £8m research centre to be established with initial funding of £5m from RCUK. This interdisciplinary research centre will engage with key research challenges in the creative economy relating to copyright, new business models, and digital transformations. While based at the University of Glasgow, CREATe draws upon a consortium of research expertise from 7 participating HEIs throughout the UK (Edinburgh, Glasgow, Goldsmiths, Nottingham, St Andrews, Strathclyde and UEA).
The successful candidate will divide their time equally between the running of CREATe and other academic activities within the School of Law.
Further details about this yummy vacancy can be found here.
The closing date for applications is 15 June and interviews shall take place on 27 June. So: hurry up and apply!
Good luck to all the applicants and, to those who will be shortlisted and invited for an interview: do not forget to bring your rain jackets to Scotland!

Google publishes its Transparency Report

Copyright experts carefully
examine removal requests
Yesterday Google released a detailed report which contains various data on content removal requests submitted by copyright holders from July 2011 to mid May 2012. 
It may be interesting to highlight some of the numbers included in the report, in particular those concerning requests received by Google in the past month.
Firstly, the number of requests processed (almost 1,250,000!) came from a relatively small group of copyright owners (less than 1,300). The top three copyright owners to submit copyright removal requests were MicrosoftBPI and NBCUniversal.
Secondly - as foreseeable -, among the top targeted domains were file-sharing websites (filestube, torrentz, and 4shared). The infamous Pirate Bay (on which see here) however, is not at at the top of the rankings. 
Thirdly, Google reports that it removed 97% of search results specified in requests received between July and December 2011. This is a very high number, and shows (so this blogger believes) how useful Google's removal policy is to copyright owners, especially in times when legislative initiatives aimed at addressing online copyright infringements are not particularly (how to say it?) ... ehm ... "popular". According to the Electronic Frontier Foundation, the 3% of takedown notices that Google choose not to comply with is instead the big number, in that "each of those are instances of legitimate speech that would have otherwise been shut down."
In any case, if webmasters feel that a link to their sit was mistakenly removed to a removal request submitted against them, webmasters can submit a counter-notification, pursuant to Sections 512(g)(2) and (3) of the Digital Millennium Copyright Act.
Google also provides some examples of inaccurate or unjustified copyright removal requests for search results which clearly did not link to infringing content:
·            A major U.S. motion picture studio requested removal of the IMDb page for a movie released by the studio, as well as the official trailer posted on a major authorized online media service.
·            A U.S. reporting organization working on behalf of a major movie studio requested removal of a movie review on a major newspaper website twice.
·            A driving school in the U.K. requested the removal of a competitor's homepage from Search, on the grounds that the competitor had copied an alphabetized list of cities and regions where instruction was offered.
·            A content protection organization for motion picture, record and sports programming companies requested the removal of search results that link to copyright removal requests submitted by one of their clients and other URLs that did not host infringing content.
·            An individual in the U.S. requested the removal of search results that link to court proceedings referencing her first and last name on the ground that her name was copyrightable.
·            Multiple individuals in the U.S. requested the removal of search results that link to blog posts and web forums that associated their names with certain allegations, locations, dates or negative comments.
·            A company in the U.S. requested the removal of search results that link to an employee's blog posts about unjust and unfair treatment.
Those above are indicative of various attempts to use copyright for reasons beyond the scope of copyright itself. This is something which recently copyright case law itself has also been concerned with.
Following the Google report, it may be enlightening to receive our readers’ views and experiences: have you ever submitted a content removal request to Google? 

Thursday 24 May 2012

GEMA and YouTube appeal GEMA v YouTube!

Following the German court ruling last month in the long running dispute between YouTube and Germany's music rights collecting society GEMA, both parties have appealed the decision (more background from Monika here). YouTube was held liable under the principle of Storerhaftung (disturbance liability - secondary liability for contributing to someone else's breach of third party rights and was issued with a permanent injunction to take down a number of songs GEMA administers and ensure those songs do not appear on YouTube in the future 

Whilst YouTube seems more than safe under the US's Digital Millennium Copyright Act and has a 'takedown' system for removing unlicensed content, the German courts have taken a firmer approach and seem to want YouTube to be more proactive in removing infringing material. YouTube will argue that their takedown system is already sophisticated and available to all content owners and that more onerous filtering and removal obligations would not only damage the Google platform, but also other websites and services: YouTube spokesperson Mounira Latrache said "The ruling to implement [more] filtering would be damaging for innovation and freedom of expression online". GEMA has also filed papers seeking further clarification of  the rights of its members to protect their content online.

It seems the parties have been  negotiating over a possible licensing deal since the original court hearing, but as it seems no deal could be reached before the appeals submission deadline, both sides have filed appeals.

Wednesday 23 May 2012

Creative for an afternoon? Here's the Workshop for it

With a suitably exotic Workshop venue,
it's easy to be creative for an afternoon ...
This blogger's friends at LexisNexis are being a little bit coy right now, if not downright mysterious. On Wednesday 11 July they are offering a half-day afternoon workshop, "IP In The Creative Industries", at a currently unspecified Central London location -- and, if the event's web page is anything to go by, they've not yet declared who the speakers are. While we don't yet know the venue or the cast [might this be the world's first generic workshop, with truly unbranded speakers?], there are two things that can safely be said about it.  The first is what its raison-d'être is:
"In an increasingly competitive market, companies and artists need to maintain an edge against their competitors. One of the optimal methods of gaining this edge is through effective use of IP rights. A shrewd marketing plan is needed to achieve the best outcome while reducing the risk of litigation for breaching regulations.

[This event offers a] perfect opportunity to ensure that you are up to date on the best methods for protecting creative output and preventing infringement of others intellectual property rights".
The second is that LexisNexis is offering a 10% discount against the registration fee for all readers of this weblog if they quote the magic code, " L11290/IPKAT".  The same discount is offered for a companion workshop, Design Rights", which occupies the first half of the same date, presumably at the same venue. You can inspect the "Design Rights" programme here.

Of Originals and Mere Reproductions

A recent ruling by the French Supreme Court answers the questions of when it is acceptable to call a reproduction of a scuplutre an "original".

In the May 4, 2012 decision the Court was asked to rule on a dispute between heirs of renowned sculptor Camille Claudel.  The heir holding the right of reproduction (in force until 2013 as the artist died in 1943) had issued a certificate of authenticity charcterizing a certain reproduction of the sculpture ("La Vague" or "The  Wave") made after the artits's death as an "original work of the artist".

Heirs holding the moral rights (which are perpetual) took issue with this, alleging that such a characterization was a violation of the right of integrity.  The Court agreed, holding that only those limited edition bronze proofs cast from plaster or in clay made by the sculptor personally such that in their very execution they bore the stamp of the author's personality could be characterized as originals as distinguished from mere reproductions.

The decision is noteworthy both for the very clear crietrion set out for the proper characterization of sculptures (and, presumably paintings and other such works) as "originals" as well as for the legal grounds used to protect against mischaracterization, viz. the right of integrity.

La Vague by Camille Claudel:

The full text of the decision can be found here (in French):

Bollywood moguls react with horror to India's new Copyright Act provisions

Bollywood has reacted with horror to the new Indian Copyright (Amendment) Bill, 2012, which seeks to protect owners of literary and musical works and which has been passed by the Rajya Sabha (543-0) and will be presented to the Lok Sabha before it becomes law, much to the delight of singers, script writers, lyricists and composers. But some music and film companies feel that it is "extremely unfair".

The new Act is said to be “empowering the creative sector” and strengthens the royalty claims of artistes, song and script writers, musicians and addresses newer issues related to the digital world and the Internet. The legislation was approved by the Rajya Sabha on May 17th and law provides that authors are the owners of the copyright for their creative work and that this right cannot be assigned to producers, as has been common the practice.

The Act also makes it mandatory for broadcasters from both the radio and television industry to pay royalty to the owners of copyright each time a work of art is broadcast. The law also bans cover versions of literary, dramatic or musical work for five years from the first recording of the original creation.

Human Resources Development Minister Kapil Sibal, who had moved the bill in Lok Sabha, noted that artistes who came from poor background were often left to fend for themselves, as film and record producers cornered all royalties that came from the work, be it stories or scripts or songs. He said the legislation was to help the artistes achieve a decent living even in old age, continuing to receive their dues for the work done during their prime. Giving examples of Shehnai exponent Bismillah Khan and music composer Ravi, the minister pointed out that the financial position of such outstanding artistes was "pitiable" and they were unable to even pay their housing and medical costs, after long and successful careers. The Leader of the Opposition, Sushma Swaraj, also supported the bill and said it was long overdue. Swaraj said that film producers had lobbied her to oppose the bill but she decided to support it when well-known director and music composer Vishal Bhardwaj said the amendments were for the good of lyricists.

The bill also seeks to bring the Indian Copyright Act 1957 in conformity with "international norms" and "World Intellectual Property Organisation guidelines".

The President of the Association of Radio Operators for India Anurradha Prasad said the radio industry will “now survive” saying “I am extremely overjoyed for the industry and the creative professionals. I would also like to say that it is a win-win situation for everyone from the industry. It is just like that if you kill the chicken the egg will stop coming". "The music industry should also be happy with the bill,” she told

Sony Music Entertainment India and Middle-East president Shridhar Subramaniam stated: “This amendment is an extremely positive move and we are very supportive of this bill. This was long awaited and we believe this will help the overall artiste development and align us with global practices. We now need to wait for the law to be signed by the president and then begin the process of interpreting and implementing the new developments in a broad and consensual manner to develop healthy new practices. The only thing that we are disappointed with is not much has been done about the piracy issue that we all are struggling with and also the issue of statutory licenses for broadcasters."

But many in the movie industry, who have benefitted from acquiring control and ownership of scripts, songs and recordings in the past, were less than happy. Adarsh Gupta, business head of Saregama company, said the proposed legislation spells disaster saying "It is extremely unfair to the film and music industry. It will turn out to be a real issue in times to come. I don't think there will be any creative compromises. There will be a lot of litigation on this issue. The entire equation will need to be re-assessed from start to finish".

The new royalty division is reported as 50 percent for music label; 25 percent for producer and 25 percent to be split between the lyricist and the composer. Currently, 100 percent goes to the music label which can, as I understand it, also be a film company, although I am not clear on the definition of 'producer' at the time of posting this blog.

Supreme Court refuses Tenenbaum appeal

The US Supreme Court has refused to hear the Joel Tenenbaum case in a case brought by the Recording Industry Association Of America's which resulted in a win for the RIAA and damages of $675,000 awarded by the jury for illegally sharing 30 songs online. The damages were then reduced 90% by the trial judge Nancy Gertner on constitutional grounds but the appeals court subsequently criticised the judge's process, and reinstated the $675,000 damages sum. Tenenbaum's legal advisor Charles Nesson (pictured) hoped to persuade the Supreme Court that his client's damages were indeed unconstitutionally high and that Judge Gertner was correct when reducing the award. But the Supreme Court declined to hear Nesson's arguments yesterday, meaning Team Tenenbaum will have to continue to fight the damages sum in the lower courts, which could involve several more hearings and appeals yet.

Tenenbaum has said publicly that he (unsurprisingly) doesn't have $675,000, and has previously suggested he'd have to bankrupt himself if that figure stood.

From and see  and 

Tuesday 22 May 2012

Homage or Humiliation? Moral Rights, Vertigo, and The Artist

Photo by Martin Dee;
smile by Mira
The 1709 Blog is delighted to bring readers the first in a series of guest blog posts by Mira T. Sundara Rajan on moral rights. Mira should require little introduction to anyone who is concerned with this important subject, since this blog reviewed her book, Moral Rights, last year (here). Mira's next book, Moral Rights: A Guide to Global Practice, is in the pipeline. The subject of her first guest post is ...
Homage or Humiliation? Moral Rights, Vertigo, and The Artist

Michel Hazanavicius’ film, “The Artist,” was a sensational 2011 tribute to silent movies - and also, as the director has since argued, to Hitchcock’s classic 1958 film, “Vertigo” (see BBC News, 10 Jan. 2012). The climactic scene of The Artist plays out to the accompaniment of the haunting score from Vertigo, composed by brilliant film composer and long-time Hitchcock collaborator, Bernard Hermann. In a silent film with no accompanying dialogue or environmental sounds to distract, the juxtaposition of new visuals and old music could not be more stark. For those familiar with Hitchock’s original -- called, by some critics, the greatest film of all time (while Hermann’s film score has been called “the greatest score ever written for Hollywood”: see Alex Ross, The New Yorker, Feb. 24, 2012) -- the feeling of déjà vu is intense. Actress Kim Novak, who played dual roles as Hitchcock’s mysterious heroine in Vertigo, called it a “rape”: “I feel as if my body - or at least my body of work - has been violated by the movie” (BBC News, 10 Jan. 2012).

As a lawyer interested in the moral rights of authors and artists, I couldn’t agree more. The situation surrounding the music for The Artist is a perfect, practical illustration of just how a moral rights violation can occur. Moral rights are based on the twin principles of attribution, which means adequate acknowledgement of the authorship of a work, and integrity, the notion of maintaining the quality of a work intact. The moral right of integrity is particularly relevant where the treatment of the work might cause damage to the author’s reputation.

In the case of Vertigo and The Artist, a highly original work was removed from its creative context and placed into an entirely new one. The use of the original music raises questions of both attribution and integrity. In the film titles, The Artist make no mention of Hermann at all, but only credits Ludovic Bource as the author of the film’s original score -- Hermann’s name appears deep within the end credits (see Alex Ross, above). While the scene is playing, there is no indication that the film has moved from original music to the Vertigo score. The music that is played is taken from Vertigo with no alterations. It is the music from Vertigo’s crucial love scene, in which the doomed heroine re-appears as if resurrected from the dead. And, although the images from Vertigo are not featured, anyone who is familiar with the original film will be reminded of them. Can moral rights in a film be infringed by an evocative allusion through the use of its music, even though the images per se have not been “copied”?

The integrity question, of course, is still broader. Does the removal of film music from its original context amount to a violation of integrity? Is the fact that the music was played without any alteration support the argument that its integrity was maintained by the makers of The Artist, or does it, in fact, violate integrity to replicate exactly the same music in a new context -- akin to copyright infringement in the usual sense? And what about the integrity of the musical score in the new film? Could Ludovic Bource have sued the film’s director for overriding his choices, and substituting the segment from Vertigo for Bource’s own, original composition?

The nature of film-making brings an added level of complexity to these questions. Film is a composite work based on the contributions of many individuals -- producer, director, author of the screenplay, author of the original musical score -- and, of course, the actors who deliver original performances. Worldwide, there is little agreement on who should be considered the “author” of a film. Many jurisdictions, including France, recognize co-authorship, with both director and author of the musical score acknowledged as joint authors of the film. In the case of the film composer, he or she may be simultaneously entitled to two authorial copyrights -- one for the original score, and one in the film as a whole. At WIPO, a new treaty on copyright in “audiovisual performances” is currently pending; if this is adopted, it appears very likely that the moral rights of actors to the attribution and integrity of their performances in films will be explicitly entitled to protection, as authors’ moral rights are now protected under the Berne Convention.

In the case of Vertigo, whose moral rights have been violated? Bernard Hermann’s, as the composer of the musical score? Alfred Hitchock’s, as the director who was responsible for the combined effect of music plus images, and gave the music its narrative significance? The actors -- Kim Novak and Jimmy Stewart -- who played their parts against the background of the music, and infused it with emotional intensity and poignancy?

Finally, the central role played by technology in this dilemma can hardly be overstated. Who says that moral rights have lost their relevance in a technological age? On the contrary, we live in the age of sampling, re-using, and remixing. The juxtaposition of Vertigo and The Artist is only made possible by the technology that remasters and integrates the original musical score into the new production. Moral rights are not only relevant to technology; they represent some of the key cultural issues of our time.

Those familiar with economic copyright might instinctively feel that what happened in The Artist is a form of free-riding on the labours of another. From a moral rights perspective, it amounts to emotional blackmail. As Kim Novak points out, the makers of The Artist are "using [the] emotions [that Vertigo] ... engenders as if it [they] were their own." Ironically, “The Artist” hails from France -- a country that arguably has the longest-standing and most powerful tradition of protection for moral rights in the world. In view of this cultural and legal tradition, the directorial choices in “The Artist” are even more difficult to understand.

Is it time for a super society?

Some of the criticsms levelled at the music industry in the digital age have been those directed at outdated and ineffective licensing models - especially where internet start ups are looking at a global market, whereas as rights owners, often territorially limited collection societies, are mandated to licence within their national borders only. Early entrants in the music sphere spoke of the need to negotiate with hundreds of different organisations each offering 'blanket' licences for just one country - to run a global music streaming service. It took Spotify two years to negotiate basic clearances - as the pirates made merry!

The problem has not escaped the European Commission  who are keen to promote (at least) pan-European licensing regimes: Digital Commissioner Neelie Kroes recently said Digitisation has fundamentally changed content industries, but licensing models simply have not kept up with this. National licensing can create a series of Berlin cultural walls. The price, both in pounds and frustration, is all too real, as creators are stifled and consumers are left empty-handed. It is time for this dysfunction to end. We need a simple, consumer-friendly legal framework for making digital content available across borders in the EU". 

Problems with digital licensing have also not escaped the attention of the UK government, currently advancing plans for the 'Digital Rights Exchange' proposed in the Hargreaves Report. But in my own opinion even a pan-European licensing regime is of little real use or relevance in the digital age. Surely a UK 'licence' for the digital age is becoming more and more redundant! 

To solve Neelie Kroes' concerns, surely just one European society for, say, music might well be an effective solution - at least for potential licensees - as a 'one stop shop': BUT, a sole player might not be so good for content owners such as songwriters (who can presently shop around the various music collection societies such as PRS, GEMA and SACEM), or for the board members, or the staff at individual existing societies - although at least some of the latter could and would (I imagine) be redeployed.  And I have some real concerns on behalf of the end users - customers. Actually, it will be the board members who offer the most resistance as they see their cosseted positions at certain societies threatened by  the threat of closure, merger or takeover; but the conundrum that remains is one of competition law.

In 2005 when this who area was looked at, The EC's three solutions were (a) to do nothing (b) allow the existing (then 24) societies to offer pan-European licences in competition with each other (prompting speculation that this will just encourage a 'race to the bottom' on licensing tariffs or (c) allow rights holders to choose one EU online rights manager. At the moment the EC is waiting for the Court of Justice to determine the way forward in the CISAC case: where it stands now is that there is an order in place prohibiting the 24 European collecting societies from restricting competition by limiting their ability to offer their services to authors and commercial users outside their domestic territory BUT the decision allowed collecting societies to maintain their current system of bi-lateral agreements and to keep their right to set levels of royalty payments due within their domestic territory. 

Why bother with all that - lets go for efficiency! Lets have just the one society! A super society! Digital start ups - especially offering content - want access to ALL content in their sector (whether its films, music, books, news content, whatever) and almost always want to be able to offer and sell that content Worldwide. Whilst  I am sure that the EU would need to consider consumers as a sole European collection society  would be a monopoly - and a monopoly based on the 'monopoly' of music copyrights (if you want Kylie's songs - you can only come to us)  surely one society is a potential solution? Just one collection society for recorded music and just one for songs in Europe - or even just one covering all music rights - at least the EC could potentially regulate this, possibly in the same way the Copyright Tribunal  reviews licensing schemes in the United Kingdom. But globally, now that is a bit more tricky  .....

Europe good - global better? Surely any solution has got be be global? If we have leant nothing else in the last 10 years, we have learnt that this is a 'must have' generation of consumers - if they can't get content legally - they will get it illegally. 

The Universal Music Group's proposed acquisition of EMI's recorded music division from Citigroup has again focussed thoughts on global licensing, with some supporters of the merger pointing to the fact that with a near 50% combined market share, a combined Universal-EMI could be an effective one stop shop on its own for licensing recorded music content, There is the counter argument of course - a combined UMG-EMI (or indeed in the publishing world a combined SonyATV-EMI music publishing)  could equally block any new entrant if they so wanted which must surely be an issue worrying competition regulators. 

One problem is that the music industry's record on anti-competitive (antitrust) behaviour is not wonderful,  not least because of that nagging antitrust case called Starr v Sony  which I am sure the labels would like everyone (including the US courts to forget) about; it's all about the major labels madcap digital start-ups all those years ago called PressPlay and MusicNet. On top of that there is the rather public 2002 settlement by the majors and three of the biggest high street retailers in the USA for price fixing of CDs - and two separate 2005 and 2007 settlements for payola. That said, the recorded music industry is a significantly different business than it was ten years ago – and whatever your views are on digital piracy – it cannot be ignored – and nor can the rise of new independent distribution systems such as Apple’s iTunes, and streaming services such as Spotify.  But whether that justifies the creation of a dominant player with a possible 50% market share is debatable. But at least the concentration of rights into one 'manager' makes licensing easier - and payment possible - doesn't it ..... ?

But that got me thinking, and as I am very uneasy about having just two 'super-majors' in the music industry, surely to prevent further consolidation in the recorded music sector and yet allow for effective licensing, it would be better for Sony, EMI, Warners and UMG along with the independent record sector (represented perhaps by Merlin) to form their own 'super society' to collectively licence ALL recorded music on a global basis. Then potential licensees could have their much wanted 'one stop shop' - and consumers would have legal access to to the World's music. Perfect eh?

Except it would be a super monopoly ....... so I am back to the problem the EC faces trying to balance the need to have effective licensing and the need to have a competitive market place (and we know post MPS v Murphy competition law trumps copyright!). But at least within Europe there is at least the potential for a mechanism to regulate such a monopoly - even if it were a European wide Digital Rights Exchange. But with a global super society .......  who would be the 'World Police'?

Anyway, thoughtful comments would be MOST WELCOME ......

The CISAC case: COMP/C2/38.698 CISAC and CISAC v. Commission; Case T442/08

Starr v. Sony BMG Music Entertainment, 592 F. 3d 314 - Court of Appeals, 2nd Circuit 2010

Karen Murphy v Media Production Services / Football Association Premier League Ltd v QC Leisure and others  joined cases C-403/08 and 429/08