Thursday 28 February 2013

More on blocking injunctions...

Further to Ben's post last week that BPI is taking legal action to force internet service providers to block access to three more file-sharing websites, today the High Court handed down its decision in EMI & Others v BSkyB & Others in which the UK's six main retail ISPs were ordered to block access to three file sharing websites.

This judgment comes as no great surprise given Arnold J's similar decisions in Newzbin, Newzbin 2 and The Pirate Bay, however it makes it clear that use of s.97A CDPA to get a blocking order is now a viable option for rightsholders trying to prevent access to illegal file sharing sites. Arnold J's decision also contains an interesting discussion on jurisdiction which is often a difficult issue in online cases.
The websites in question were KAT, H33T and Fenopy, all music file-sharing websites. Arnold J first discussed the website users' infringements and the website operators' infringements.

The website users (the uploaders)
It was clear to Arnold J that the websites users' activities constituted both copying and communication to the public.

As regards communication to the public, Arnold J split the issue into three questions:
1. Do users of the websites, who are uploaders, communicate the Claimants' sound recordings to the public?

He held that they did, as they "make the recordings available by electronic transmission in such a way that members of the public may access the recordings from a place and at a time individually chosen by those members of the public."
2. Do such users communicate the recordings to a new public applying the criteria identified in Societá Consortile Fonografici v Del Corso?

In that case, the CJEU held that the broadcasting of sound recordings within private dental practices was not communication to the public for the purposes of Article 8(2) of the Related Rights Directive because the patients constituted a determinate circle of potential listeners, who only heard the recordings one at a time; that the patients attended for the purposes of dental treatment and had no choice over the recordings they listened to; and that the broadcast was not of a profit-making nature.
In the present case Arnold J held that users do communicate recordings to a new public as the users intervene, in full knowledge of the consequences of their actions, to give others access to the works. The recordings are made available to all other users of the websites and although the uploaders didn't directly make money from uploading, they would do so indirectly by downloading other users' music without paying.

3. Does the act of communication to the public occur in the UK?
Arnold J found that where the uploader was located in the UK, communication to the public occured in the UK. He was more doubtful as to whether the same would be true if the downloader was located in the UK. However as in this case the uploaders were in the UK he avoiding having to give a conclusive answer as regards the location of downloaders.

He referred to Football Dataco Ltd v Sportradar Gmbh in which the CJEU held that "re-utilisation" of data held in a database occurs at least in the state of transmission. Arnold J clarified that this should not be interpreted to mean that re-utilisation cannot also occur in the state of emission. He held: "Furthermore, this reading would be consistent with the natural meaning of "making available". It would be odd if this did not include the place of origin." On that basis Arnold J accepted the Claimants' argument that where a communication to the public which originates outside the UK is received inside the UK, the act will be treated as occurring within the UK if the communication is targeted at the public in the UK.
So Arnold J concluded that the users of the websites did communicate works to the public.

The website operators
The question of whether the operators of the websites made copies of the works was not considered. In considering whether the operators of the websites communicated the works to the public, Arnold J again split his analysis into three questions.

1. Do the operators of the websites communicate the Claimants' sound recordings to the public?
Arnold J found that in this instance there was no material distinction between Newzbin 1 and the websites in this case: the defendant had intervened in an active manner to make the films available, therefore the operators of the websites did communicate the Claimants' recordings to the public by electronic transmission.  

2. Do the operators communicate the recordings to a new public?
Arnold J held that they did as they intervened, in full knowledge of the consequences of their actions, to give others access to the works. The recordings were made available to all the users of the websites and the operators benefited financially from their activities.

3. Does the act of communication to the public occur in the UK?
In considering this question Arnold J took into account the CJEU's decisions in Pammer v Reederei Karl Schlüter GmbH & Co. KG and Hotel Alpenhof GesmbH v Heller; L'Oréal SA v eBay International and Donner. In doing so he found that the websites were targeted at the UK as:

- there were a large number of users of each website in the UK;
- a substantial proportion of the visitors to each website was from the UK;

- the recordings listed on each of the websites included large numbers of both (a) recordings by UK artists and (b) recordings that are in demand in the UK; and
- the default language of each of the websites was English.

In addition, KAT included advertisements with prices in sterling. On that basis Arnold J found that KAT was reasonably clearly targeted at the public in the UK but that the position was less clear in the case of H33T and Fenopy. In any event he reached the same conclusion in respect of all three: the act of communication to the public occurs in the UK.
Authorising and Joint Tortfeasorship

Further, Arnold J found that the website operators authorised the users' infringement of copyright. He said that the website operators went "far beyond merely enabling or assisting", they sanctioned, approved and countenanced the infringements of copyright committed by their users and purported to grant users the right to copy and communicate the works to the public. Further, as the operators profited from their activities they were also jointly liable for the users' infringements.

As both the users and the operators of the websites used the Defendants' services to infringe the Claimants' copyright, and as the Defendants had actual knowledge that users and the operators of the websites used the Defendants' services to infringe copyright (this was not denied), Arnold J was satisfied that granting blocking orders was a proportionate remedy. He concluded by saying that:

"The orders are narrow and targeted ones, and they contain safeguards in the event of any change of circumstances. The cost of implementation to the Defendants will be modest and proportionate."

Wednesday 27 February 2013

Where Has the "Author" Gone in Copyright? A call for readers' views

"Where has the 'author' gone in copyright?", Neil Wilkof asked in this post on the IPKat weblog last Friday. Having received a hatful of emails in response together with some powerful comments from readers, Neil has been persuaded to write a follow-up -- but he has suggested that, before he does, it might be worth drawing his original post to readers of the 1709 Blog so that they can add their tuppence-worth.

If you'd like to let Neil know what you think, he'd certainly be grateful.

Tuesday 26 February 2013

What the Harlem Shake can teach us about copyright

This morning I read an interesting blog post  on TechCrunch by Josh Constine on the science behind why the Harlem Shake is so popular, and it made me wonder whether copyright could learn a thing or two from the Harlem Shake.

For those of you who have been blissfully unaware of the phenomenon, the Harlem Shake is a 30 second video, initially created by five Australian teenagers in their Sunny Coast Skate, in which one person dances whilst everyone around them ignores them. After 14 seconds the video cuts to everyone dancing like a loon, generally wearing some kind of fancy dress. The sound track is the Harlem Shake, by US DJ Baauer.
The formula took off and has been repeated thousands of times worldwide. The concept is incredibly simply and easily personalised, and the videos are only 30 seconds long. So, as Constine comments, the end product is "remarkably snackable".

Constine goes on to call the Harlem Shake a "symbiotic meme". He says that "when content creators serve up a meme with an equation full of variables, people remix the variables, and share the product to their own networks. The audience becomes curious about what the source content was. This floods traffic back to the original or flagship version of the meme." The symbiotic relationship is caused by the original meme being so easy to copy that many do copy it, and because so many copies are produced the original becomes notorious in its own right.
It's an interesting concept which brings to mind the success of Psy's Gangnam Style (see here): so many people copied the video that the Gangnam Style dance went viral causing Psy's original to become hugely popular. To give an idea of the scale of the Harlem Shake's success, the Sunny Coast Skate was uploaded on 2 February. According to Wikipedia, on 10 February, the upload rate of Harlem Shake videos reached 4,000 per day. As of 11 February, about 12,000 versions had been uploaded to YouTube, with over 44 million unique views. By 15 February, about 40,000 Harlem Shake videos had been uploaded, totalling 175 million views. That's a crazy rate which most marketers would aspire to.

To be clear, it is unlikely that the Harlem Shake concept would be protected by copyright, as it is an idea or a formula for a video rather than a work itself. However the unprecedented success of the original (the Sunny Coast Skate has been viewed over 17 million times on YouTube) is surely something which rightsholders aspire to. Forgoing copyright and actively encouraging copies is not a strategy that would work for all rightsholders by any means, but it is trend that we are seeing more and more in popular culture and is one that rightsholders might want to at least consider.
As a side note, Baauer hasn't done too badly out of this either. With the exception of a takedown notice issued when established artist Azealia Banks uploaded her own version of the track, Baauer and his label, Mad Decent records, have made use of YouTube's Content ID database to assert copyright over the fan-made videos and to claim a proportion of advertising revenue in respect of each one. This is a bit of a change from what we're used to seeing from music rights holders, and is a change that seemingly benefits everyone.

Prison term for kiwi karoke copycat

The owner of a New Zealand karaoke business has been jailed for four months for offering and selling substantial numbers of karaoke tracks – which had been created from scratch by the owners of Auckland-based Sundown Karaoke, which creates karaoke recordings, burns them to disks and sells them around the world, paying on royalties to the appropriate songwriters. Desmond Robert Adams, 40, also known as Heremia Adams, appeared in the Rotorua District Court  having already  pleaded guilty  to a charge under the Copyright Act 1994 of making for sale an object that was an infringing copy of a copyright work. He was sentenced to four months in prison and ordered to pay reparation of $784. 

Adams was the owner/operator of 1st Choice Karaoke, which provides karaoke and DJ equipment and services throughout New Zealand. According to the police Summary of Facts, in March 2011 Adams advertised karaoke and DJ equipment, and access to 37,000 karaoke songs, on auction website Sella. The complainants contacted him, and Adams sent them a list of songs, telling them he had sold the library to more than 50 clients worldwide. The complainants made a $200 deposit and one member of staff travelled to Rotorua. She met with a team from TVNZ's Close Up programme, who fitted her with a covert camera and microphone to complete the sale. She paid Adams another $584, and was given two external hard drives which held an impressive the 37,000 songs. When random samples were examined by the police they found a number of songs were the copyright property of the complainants.

Judge Jocelyn Munro said there had been few convictions of this type under the Copyright Act. She said there had to be serious consequences for those that breached commercial copyright in order to deter others saying "This is all too common and all too easy in this internet age" adding "For many in recording and entertainment, their livelihoods depend on what they produce." in their victim impact statement, the complainants estimated they had lost in excess of $1.5 million in sales because of Adams and that his actions had reduced their income to next to nothing, destroying their business. Judge Munro noted that with more than 50 sales admitted, the offending had clearly taken place over time saying "This is a large commercial operation you have embarked on. For that reason nothing less than a term of imprisonment is adequate [to provide] deterrence."

Six Strikes launches in the US

The new “Copyright Alert System” is finally launching across all of the major Internet providers in the United States of America including  AT&T, Cablevision, Comcast, Time Warner, and Verizon. The organisation coordinating the Hollywood-backed scheme, the Center for Copyright Information, confirmed in a blog post yesterday (25th February)  that “the implementation phase of the Copyright Alert System” had begun ushering in a system which will monitor and collect the IP addresses of computers apparently downloading and sharing copyrighted content illegally, ultimately exposing infringing users to the risk of "bandwidth throttling". The CCI says that the move marks “the culmination of many months of work on this groundbreaking and collaborative effort to curb online piracy and promote the lawful use of digital music, movies and TV shows”.

Suspected infringers will be flagged up to the Internet providers as part of a “six strikes” program. If a user is accused of downloading the latest box office smash or hot music track,  the user will initially receive “educational notices” designed to warn the user that they have misbehaved. Ignore the notice will results in the next stage of the ‘six strikes’ programme, with an escalation in actions as the process continues. After receiving two “educational” Copyright Alerts, alleged violators will be sent two additional alerts requiring a response; the most severe "mitigation" steps, which would come after the fifth and sixth detected infringement, could reduce or “throttle”  the customer's bandwidth or redirect that person's browsing automatically to an anti-piracy information page. Notably, the ISPs haven't been willing to go as far as the major studios and labels have sought, which would be to actually cut off a users Internet access after multiple alleged offences.

Jill Lesser, executive director of the CCI, said the five ISPs would send notices only about illegal file-sharing, even though it is clear that much of the piracy online has shifted to unauthorized streaming sites and locker services. "It is certainly not the most innovative form of piracy," Lesser said of file-sharing, "but it’s still among the biggest" adding that the content industries had wanted to avoid biting off more than they could chew but “Once they've shown they can make the system work we can find ways to expand it."

Users who receive a warning notice which they believe is false or inaccurate they can challenge it with an independent arbitrator — but will have to fork out a $35 “filing fee”. Opponents of the scheme say that they lay the groundwork for more invasive monitoring by ISPs (with one calling the new scheme a ‘spy programme’), and that they threaten to expose users who should be protected by “fair use” provisions in US copyright law to sanctions by their ISP.

Saturday 23 February 2013

Happy contest gives birth to a new song for you

Its probably the first songs I ever sang. And its been sung badly by millions of kids, mums, dads, friends, families, acquaintances and total strangers ever since. It's part of the musical furniture. “Happy Birthday To You” was published in the late 1800s by two sisters who taught at elementary school, and it was registered for US copyright, as “Happy Birthday To You” in 1935. Time Warner acquired the copyright in 1998. The song earns a reported $2 million each and every year from film use, advertising, and from TV and radio broadcasts and from public performances. It won’t enter the public domain until 2030 at the earliest.

Along with radio station WFMU, the Free Music Archive launched a competition in January to find a new copyright-free and free-to-use celebratory version of a birthday song. The winner, "It's your Birthday!" by Monk Turner and Fascinoma, has just been announced.  It was chosen by a panel of judges including Harvard Law Professor Lawrence Lessig and Yo La Tengo's Ira Kaplan:  it is – ahem – not quite as fun as the original – but that’s my personal opinion – you can make up your own minds by taking a listen here. Me, I am too miserable to have birthdays anyway, that cakes going in the bin. Bah, humbug. 

How will South Korea Implement fair use?

In 2012, the Korean Copyright Act was amended to include the general provision of a fair use. The newly introduced article 35-3 (Fair Use of Copyrighted Material)  states that 

“the copyrighted work may be used, among other things, for reporting, criticism, education, and research.”  

Article 35-3.2 lists factors to be used to determine if a use is fair (which seem similar to the fair use factors listed in section 107 of the U.S. Copyright Act): 

"In determining whether art. 35-3(1) above applies to a use of copyrighted work, the following factors must be considered: the purpose and character of the use, including whether such use is of a commercial nature or is of a non profit nature; the type or purpose of the copyrighted work; the amount and importance of the portion used in relation to the copyrighted work as a whole; the effect of the use of the copyrighted work upon the current market or the current value of the copyrighted work or on the potential market or the potential value of the copyrighted work."

But as a new provision there are, of course, no precedents to guide those wanting to rely on fair use in Korea - as yet - but there have been a number of decisions  concerning Article 28 of Korean Copyright Act (Quotations from Work Made Public) which has been used to recognise exceptions and limitations to Copyright. By way of reference, Article 28 provides:

"It shall be permissible to make quotations from a work already made public; provided that they are within a reasonable limit for news reporting, criticism, education, and research, etc. and compatible with fair practices."

Two leading Korean cases concerning Article 28 could well have an impact on the futire of  fair use. The first concerns a search engine that provided thumbnail images. In that case, The Supreme Court of Korea [Supreme Court of Korea, Decision 2005 Do 7793 (2006)] held that the use of the images were within the meaning of "fair practices" pursuant to Article 28.  The Court found that, to determine whether a particular use is compatible with fair practices, courts should consider various factors including the purpose of the use, the type of the copyrighted work, the content and the amount of the portion used, and whether the copyrighted work could replace the demand of the original work

The second case concerns user generated content (“UGC”). Here the plaintiff uploaded a recording of his 5 years old daughter singing and dancing of the popular Korean song ‘Crazy,’ by Son Dam Bi, to his blog.  The internet blog provider, the defendant in the case, blocked the Plaintiff's blog at the request of the Music Copyright Association of Korea, a second defendant.  The court [Seoul Southern District Court, Decision 2009 GaHap 18800 (2010)] held that the plaintiff should be allowed to upload the content pursuant to Article 28, and citing an earlier Supreme Court decision [Supreme Court of Korea, Decision 97 Da 34839 (1998)] the District Court found that the purpose of quotation cannot be limited to news reporting, criticism, education, and research. 

The case somewhat reminded me of the 2007  ''Prince v Dancing Baby" case in the USA where Universal Music received much criticism for attempting to sue a mother who uploaded a clip of her baby dancing to Prince's 'Lets Go Crazy' onto YouTube. UMC issued a takedown notice for infringement of their sound recording rights, but in 2010 a District Court granted partial summary judgment to the mother allowing fair use -saying that UMC should have considered this before issuing a takedown notice, and would have to show bad faith to prevail, 

The Korean precedents perhaps indicate that the courts in Korea might well be prepared to adopt a flexible approach to the new exceptions to copyright - hopefully moulding the new legislation into a workable framework for the digital age.

Please take a look at the excellent article by Jaewoo Cho  InfoJustice website here

Thursday 21 February 2013

Will 3D printing be the new minefield for infringement?

Before long, many of us will be able to print physical objects at home just  as easily as we once burned DVDs. And just as the Internet made sharing MP3 music files and ripped movies so easy, it seems that downloading 3D images to print on your shiny new “MakerBot printer will be as easy as torrenting your favourite film (if that’s what you do). The sea of 3D creations ranges from practical (citrus juicer) to the cute (a lego Darth Vader). But how many of these objects trespass into copyright-protected waters? Several of the most popular things on marketplace Thingiverse are reproductions of Disney or Nintendo characters.

And when Fernando Sosa created an iPod docking station based on the Iron Throne chair from the popular HBO TV series Game of Thrones, I imagine the last thing he expected was a cease and desist letter from US boradcaster HBO: HBO owns the rights to the show, its characters, and (apparently) the inanimate objects that appear on screen in the popular series. comments “As user-generated 3D model marketplaces like Thingiverse and Shapeways grow, expect to see them flooded with creations based on trademarked and copyrighted material. And expect to hear about more takedowns, lawsuits and new legal precedents”. 

More on and more on KapitallWire here and Public Knowledge's take on this issue here (What's the Deal with Copyright and 3D Printing?) saying "News outlets have discovered 3D printing.  Rightsholders are issuing takedown notices.  And Congress has started to take a look.  At the same time, a lot has stayed the same.  People are continuing to innovate to make home 3D printers better. Creators are pushing the limits as they design even more intricate 3D printed objects.  And we are beginning to see the beginnings of physical remix artists."

BPI look for more blocking orders

Having successfully secured injunctions to force all the major UK ISPs to block access to The Pirate Bay last year, the recoded music sector trade body in the UK, the BPI, is taking legal action to force internet service providers to block access to three more file-sharing websites - Fenopy, H33t and Kickass Torrents: the case is now expected to reach court next week.

For any UK based viewers who missed it, there was a very interesting documentary on BBC4 on the evening of Tuesday 19th Februay 2013 looking at the history of the Pirate Bay and it's three founders, Gottfrid Svartholm Warg, Fredrik Neij and Peter Sunde, as they faced legal action and criminal charges for copyright infringement in Sweden. The programme is part of the Storyville series and is simply called The Pirate Bay -  and can now be accessed on the BBC iPlayer. whilst shot from a Pirate Bay perspective, the programme  paints an unsettling picture of the distance between content owners and some parts of the online community, and a fairly  uncomplimentary picture of Warg, Neij and Sunde as they struggle to suggest their motives. 

Last night (20.02.13)  Storyville followed this with another programme looking at the radical 'Anonymous' group of 'hacktavists' called "How Hackers Changed The World: We Are Legion" again on BBC4 and again on the iPlayer here

Tuesday 19 February 2013

Class action certification: the key to protecting authors' interests?

Whether Google Library’s book-scanning is fair use is at issue in several lawsuits in the United States, the oldest of which is the Authors Guild’s class action. An appeal is pending against its class-action certification. According to Ilaria Maggioni, recent developments in those other cases might influence that outcome, as she explains in her recent article “Happily ever after?”, published in Intellectual Property Magazine, December 2012/January 2013.

According to Ilaria, reversal of class action certification on appeal is crucial to preserving bargaining power for authors. Maintaining the Google Books suit as a class action is likely to foster continuing inadequacy and unfairness of settlement proposals that may ensue. The October 2012 HathiTrust decision by a district court [noted on this blog by Iona Harding here] recognised fair use of Google’s digitisation on behalf of large university libraries. This created a new obstacle for copyright owners and their representatives since the HathiTrust purports to scan books for benefit of the visually-impaired, but HathiTrust does not correspondingly limit access to its digital library. The district court’s regard for that benefit may have led it to blur the applicable standards for fair use, says Ilaria.

Sunday 17 February 2013

Afghan forgers cross swords with the Taleban

Ah the great British weekend, time for many British families to clear out the fridge and freezer to remove all traces of horse burger, ready made 'beef' lasagne and all other traces of donkey and pony, whilst sniggering teenagers try to locate the kitchen to put the obligatory ASDA or Tesco 'ding' meal in the microwave to sample the real 'Grand National' experience. If that makes no sense to non-European readers,  over here in the Eurozone, we have only recently discovered the folly of allowing the food industry to convince us that it should be self regulated, with some fairly shocking results for meat eaters. 100% horse and kidney pie anyone? But as a smug home cooker, I am 'ding' meal free, so I perused the Times this weekend and a rather interesting (albeit shocking) story caught my eye which mentioned the concept of copyright infringement and Sharia law.

I have to profess to know next to nothing about the Sharia code - nor anything about copyright and Buddism (see more on copyright infringement and vinaya here) nor indeed on copyright law provisions in many other religious code:  I do remember being taught about the ancient Irish dispute between Saint Columba and Saint Finian in the sixth century which resulted in a  royal judgment by King Diarmait mac Cerbhiall . Despite St Columba's protestations that without copying (by hand it should be added), books would perish, that copying books cost the owner nothing and that it was right to spread knowledge and the holy word to the 'tribes' (and indeed that the owners of books should be obligated to spread knowledge), the King held that St Columba had been wrong to copy a book of psalms belonging to St Finian saying "to every cow belongs it's calf, to every book its copy". Buddism takes a different approach (and one St Columba would have appreciated somewhat more) and suggests that 'stealing'information is simply an illusion - only physical property can be stolen, not words and designs cannot - a DVD or CD can be stolen - the information on them cannot - although infringement may be a lesser offence to theft. But not all creeds are so benign. 

It seems the Taleban are taking a look at copyright infringement under Sharia law: Letters stamped with the crossed sword emblem of the Taleban and carrying the name of Mullah Mohammed Omar are being sent to thousands of Afghans who are perceived to be on the brink of fleeing the war torn country. The letter demands that the recipient surrender to the insurgents within twenty four hours or "we will bring you out of your house and and kill you and you will not have the right to complain". Harsh - but we are, after all, just humans and perversely the letters have now acquired a real value: with thousands of Afghans trying to escape to Europe,  Australia and North America, a death threat from the Taleban can be taken as clear evidence of a pressing need for asylum.  With a value of up to $1,200 for each letter, some local Taleban commanders, and professional forgers, have now entered the market to produce letters on demand, prompting an investigation by Taleban leadership: "I want them to stop" the Times reports Taleban spokesperson Zabiullah Mujahid saying "they are misusing our name and that of the Mujahideen". It seems Taleban leaders will apply brutal punishments to counterfeiters found guilty of 'copyright infringement' - warning that any Taleban insurgent providing fraudulent copies would face the harshest punishment.

Last year an estimated 50,000 Afghans left the country according to the State Ministry for Refugees, with more Afghans expected to try leave in the next twelve months as foreign forces depart. 

The Times  16 February 2013  page 51

More on horse racing here  hohoho

Friday 15 February 2013

Ahoy! Will Pirates seek prize money for "plundered" design?

A Finnish anti-piracy group has decided to use almost exactly same the design and layout of the infamous Pirate Bay’s classic pirate ship-themed homepage  for its own website. Perhaps slightly tongue in cheek, an anonymous Pirate Bay spokesman told TorrentFreak “We are outraged by this behavior” adding “People must understand what is right and wrong. Stealing material like this on the Internet is a threat to economies worldwide. We feel that we must make a statement and therefore we will sue them for copyright infringement." The Pirate Bay's  usage policy does indeed prohibit use of any site material without permission.

That said, there is no evidence that The Pirate Bay has filed suit, either in Finland or Sweden. The group did not respond to requests for comment via Twitter or e-mail from Torrent Freak. 

The new site, called Piraattilahti (“Pirate Bay” in Finnish), clearly pokes fun at the Swedish original whose three co-founders and original backer all received custodial sentences. It is run by the Copyright Information and Anti-Piracy Centre(CIAPC) in Helsinki. CIAPC told Finnish media that its main page ( had faced a denial of service attack but is still in operation - and of course points to legal content. 

Question: Under the principle of international law known as the "universality principle", a government may "exercise jurisdiction over conduct outside its territory if that conduct is universally dangerous to states and their nationals". This applies to piracy on the high seas. Does it apply to the internet? and more on pirates here 

European Copyright Society says that linking is not communication

Daydreaming Priscilla spent Valentine's
day thinking about
A few months ago, The 1709 Blog and the IPKat reported news of another case referred to the ever-active Court of Justice of the European Union (CJEU), seeking clarification as to the scope of the right of communication to the public within Article 3 of Directive 2001/29/EC (the InfoSoc Directive).

This is Case C-466/12 Svensson and Others [according to well-informed sources, despite hints to the contrary, for once this is not a copyright case about football], a reference from the Svea hovrätt (the Svea court of appeal is one of the six appellate courts in the Swedish legal system) asking the CJEU whether a clickable link can be considered tantamount to an act of communication to the public within Article 3(1) of this directive.

To be precise, the Swedish court referred the following questions to the CJEU:

1.   If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC ...? 

2.   Is the assessment under question 1 affected if the work to which the link refers is on a website on the Internet which can be accessed by anyone without restrictions or if access is restricted in some way?

3.   When making the assessment under question 1, should any distinction be drawn between a case where the work, after the user has clicked on the link, is shown on another website and one where the work, after the user has clicked on the link, is shown in such a way as to give the impression that it is appearing on the same website?

4.   Is it possible for a Member State to give wider protection to authors' exclusive right by enabling 'communication to the public' to cover a greater range of acts than provided for in Article 3(1) of Directive 2001/29/EC ...?

The case is a tough one and its outcome promises to have a significant impact on EU Member States, as similar issues are currently under consideration also at the national level.

Professor Lionel Bently
The 1709 Blog's friend and well-known academic Professor Lionel Bently of the University of Cambridge has brought to this blogger’s attention that the European Copyright Society has just issued an Opinion which sheds some light on this reference from Sweden. 

As readers might be aware of, the European Copyright Society (ECS) was founded at the beginning of 2012 with the aim of creating a platform for critical and independent scholarly thinking on European copyright law. ECS members are renowned scholars and academics from various countries of Europe, seeking to promote their views of the overall public interest. The Society is not funded by, nor has been instructed by, any particular stakeholders.

The Opinion, which has been signed by 17 leading European copyright scholars, is premised on the consideration that:

"Although hyperlinking takes many forms and has multiple functions, there can be no doubt that it is the single most important feature that differentiates the Internet from other forms of cultural production and dissemination. Hyperlinking is intimately bound to the conception of the Internet as a network, and hyperlinks constitute paths leading users from one location to another ... 
The legal regulation of hyperlinking thus carries with it enormous capacity to interfere with the operation of the Internet, and therefore with access to information, freedom of expression, freedom to conduct business, as well – of course – with business ventures that depend on these types of linkages. Europe has developed a significant sector of SMEs, many of whose web operations depend on the use and provision of links. The Court must not under-estimate the importance of its ruling in this case."

As summarised by Lionel,

There are other instances when linking
does not necessarily involve an act of communication
to the public (and does not require
an internet connection either)
"The Opinion argues that hyperlinking in general should be regarded as an activity that is not covered by the right to communicate the work to the public embodied in Article 3 of Directive 2001/29. We offer three reasons for this conclusion:

(a) Hyperlinks are not communications because establishing a hyperlink does not amount to "transmission" of a work, and such transmission is a pre-requisite for "communication";

(b) Even if transmission is not necessary for there to be a "communication", the rights of the copyright owner apply only to communication to the public "of the work", and whatever a hyperlink provides, it is not "of a work";

(c) Even if a hyperlink is regarded as a communication of a work, it is not to a "new public."

However, the Opinion leaves open the possibility that in some circumstances creating hyperlinks might give rise to liability, or be part of a series of acts that gives rise to liability. In fact, as is clear from national case-law, different forms of hyperlinking may give rise to accessory liability (particularly in respect of knowingly facilitating the making of illegal copies); liability under unfair competition law; infringement of moral rights; and possibly for circumvention of technological measures. Only the last of these has been the subject of harmonization at a European level, and thus falls within the competence of the Court of Justice."

As highlighted by Jeremy on the IPKat, the outcome of this case is keenly awaited by all those good souls who are involved in blogging-related activities. As bloggers, we hyperlink all the time and we indeed consider hyperlinks as tools which allow us to either provide appropriate references which support or elaborate on our statements or direct readers towards items which they can find interesting. 

The full text of the ECS Opinion is available here.

Wednesday 13 February 2013

Spotify now available in Italy: this is the way to go

It was only yesterday that I wrote a post in which I ventured to say that the future of entertainment industry relies on the introduction of innovative services, rather than anti-piracy campaigns that in some cases have come to resemble Don Quixote-sque attacks on digital windmills. So I have to say that I was quite delighted when I read on main Italian newspapers (eg here and here) that since yesterday Spotify is available also in the Bel Paese (the country, not the cheese). Indeed, as commented by the Huffington Post, for Italian music lovers the launch of Spotify felt like Chistmas day.

Besides Italy, yesterday the popular music-streaming service which was first launched in Sweden in 2008 became available also in Portugal and Poland, thus reaching the number of 20 countries around the world where consumers can access it.

This service is fully licensed and, according to IFPI (the International Federation of the Phonographic Industry), in Europe in 2011 Spotify was the second single largest source of digital music revenue for record labels.

There are three ways to enjoy the music available on Spotify: Spotify Free (free instant music on users' computers, featuring ads), Spotify Unlimited (ad-free music available at the price of EUR 4,99 per month) and Spotify Premium (downloadable music which can be accessed everywhere from any device and is available at the price of EUR 9,99 per month).

The model proposed by Spotify has become highly successful. According to Wikipedia, total users reached 20 million by December 2012, one quarter of them being subscribers to Unlimited or Premium.

Streaming music does not
necessarily involve
24/7 performances
As far as the Italian market is concerned (and with which this blogger is slightly more familiar than the Portuguese or Polish ones), the launch of Spotify is almost revolutionary, as the presence of on-demand audio streaming services is still limited in this country.
As reported by IFPI, it was just in 2011 that services such as rara, Sony's Music Unlimited and Telecom Italia's Cubomusica were launched, while French Deezer became available in 2012, together with Samsung's Music Hub.

Although in the past decade the trade value of recorded music sales has more than halved in Italy, according to FIMI (the Italian Music Industry Federation) in the first half of 2012, sales of digital music (download or streaming) raised by 43% and currently the trade value of digital music amounts to 33% of the entire Italian music market.
The launch of Spotify may result in these numbers getting even higher. According to Enzo Mazza, FIMI chairman, "according to latest statistics, in Italy streaming represents a huge opportunity: in fact in 2012, trade revenues from streaming music were up 77%."

As also demonstrated by some recent case studies, the presence of a digital sales channel is important to encourage the legal acquisition and use of works. In fact, when a digital sales channel is not available, users will probably turn to piracy and begin to consume much more content through illegal channels than they had previously purchased legally. This is because piracy has high fixed costs but negligible variable ones, the fixed costs being those associated with the purchase/rental of copying devices and the variable ones those influenced by the level of output, ie the amount of pirated material. Once the fixed costs have been paid, it is unlikely that users, who have the choice between free pirated and lawful fee-paying content, will decide to switch back to obtaining content lawfully.

These considerations demonstrate the importance (which has been recognised also by EU Commission President José Barroso) of developing a level playing field for new business models and innovative solutions for the distribution of creative content in order to counteract the growth and spread of pirated works.

So, good luck to Spotify and similar innovative services!