Monday 29 April 2013

No Performers in Reality-TV Show

In the midst of a public relations debacle in connection with "Koh-Lanta" (the French version of "Survivors") relating to the untimely death of a participant and subsequent suicide of the show's MD, French broadcaster TF1 received a little bit of good news in its long-running legal battle against participants in another reality-TV program called "L'île de la tentation" ("Temptation Island").

Over a series of decisions working their way up to the Supreme Court (and then back to appellate courts after remand), participants in this adventure have successfully challenged the legal characterization of their contract with the production company (a subsidiary of TF1).  While ostensibly labelled a "rulebook for participants", the courts have agreed with the participants that their proper legal characterization is as employment contracts.  This was once again re-affirmed by the Supreme Court in its recent April 24, 2013 ruling.

The piece of good news for TF1 lay in the Court's refusal to go along with participants' other argument to the effect that they were also performers within the meaning of intellectual property law.  The Court held:
"...the court of appeal did not contradict itself in finding that the participants had no role to play nor any text to say, that all that was asked of them was that they be themselves and express their reactions to situations they encountered and that the artificial nature of these situations and the way they unfolded did not suffice to make them actors; having determined that their work involved no interpretation, the court correctly held that the status of performer did not apply to them."
The reasoning brings to mind another ruling involving the well-known documentary "Etre et avoir" where it was similarly held that the fact that one was being asked to be oneself in the context of a documentary (no screenplay or script) precluded treating that person as a performer or actor.

Info re Koh-Lanta scandal here

Supreme Court Ruling of April 24, 2013 (L'île de la tentation):  here

Supreme Court Ruling November 13, 2008 (Etre et avoir):  here

Friday 26 April 2013

Cariou v Prince: a question of Rastafarians and fair use

This week the US Court of Appeals for the 2nd Circuit decided that use of certain photographs in a new piece of art did not necessarily infringe copyright in the photographs as the use could be transformative and therefore fair.

The claim was bought by Cariou, a professional photographer who, over the course of six years in the mid-1990s, lived and worked among Rastafarians in Jamaica. The relationships that Cariou developed with the Rastafarians allowed him to take a series of photographs that Cariou published in 2000 in a book titled Yes Rasta.
Richard Prince, an "appropriation" artist (the Tate Gallery has defined appropriation art as "the more or less direct taking over into a work of art a real object or even an existing work of art."), first came across a copy of Yes Rasta in a book shop in St Barth's in 2005. Between December 2007 and February 2008, Prince had a show at the Eden Rock hotel in St. Barth’s that included a collage comprising 35 photographs torn out of Yes Rasta and pinned to a piece of plywood. Prince altered the photographs significantly, by painting “lozenges” over their subjects’ faces and using only parts of some of the images. In June 2008, Prince went on to buy another three copies of Yes Rasta and to create thirty additional works of art in a similar vein.

Understandably Cariou was none to pleased and the question of whether Prince infringed copyright in the photographs has been bouncing around the US courts since 2011. The question was whether Prince's use of the photographs was fair use, and in particular whether it was transformative. The Court of Appeals has now held that it can be, saying:
"Here, our observation of Prince's artworks themselves convinces us of the transformative nature of all but five, which we discuss separately below. These twenty-five of Prince's artworks manifest an entirely different aesthetic from Cariou's photographs. Where Cariou's serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince's crude and jarring works, on the other hand, are hectic and provocative."

The court found that the five other works were so minimally altered by Prince that they might not be considered fair use by a "reasonable observer". Those were sent back to the lower court for a determination using the appeals court standard for transformative use.
This case is likely to provoke strong views on whether it should be permissible to use part of a photograph in a piece of art without the photographer's consent, even if part of the photo is modified. The real criticism of this case however is that it does not provide much clarity on the murky concept of "transformative use".

The full decision is available here.

Thursday 25 April 2013

A new dawn for British copyright

Here's how the UK government announced the next batch of law reforms to affect the copyright industries and the creators who fuel their fire: it's a media statement from the Department for Business, Innovation and & Skills and you can read it in its unexpurgated version, plus guidance for editors, here.
The Enterprise and Regulatory Reform [which rejoices in the acronym ERR] Bill today received Royal Assent. The Act will bring in a new regime giving shareholders more say on directors’ pay, improve dispute resolution through reform of Employment Tribunals, establish the new Competition and Markets Authority and enshrine the aims of the Green Investment Bank [unsurprisingly, copyright never hit the headline -- even a five-line one].
Business Minister Jo Swinson said: 
[the sort of thing that Ministers usually say, i.e. not a great deal].”
The Enterprise and Regulatory Reform Act passed by Parliament today aims to support long term growth through a range of measures which:
  • ...
  • establish a new Competition and Markets Authoritybringing together the competition functions of the Office of Fair Trading and the Competition Commission. This will be the UK’s lead competition authority with wide ranging powers to tackle anti-competitive behaviour, and a faster, clearer and more effective approach to help make markets work well for consumers. The competition regime will sustain fair and dynamic markets, encouraging businesses to set up and invest in the UK [while copyright is not explicitly mentioned here, holders of copyright, including collecting societies and businesses which use copyright, together with various registered IP rights as a way of creating and maintaining market share, may find this supercharged body -- which has a monopoly in dealing with abuse of monopoly -- may focus its attention on their licensing and/or enforcement policies]; ...
  • modernise the UK’s copyright regime to promote innovation in the design industry [on which see Class 99 blogposts here and here], encouraging investment in new products while strengthening copyright protections. Creating a level playing field for collecting societies and the thousands of small businesses and organisations who deal with them by strengthening the existing regulatory regime [Any idea how much this will cost or benefit collecting society members, such as composers? Presumably this was the fruit of evidence-based policy ...]. For the first time orphan works will be licensed  [it will be interesting to see how this is policed].for use; these are copyrighted works for which the owner of the copyright is unknown or can’t be found. There will also be a system for extended collective licensing of copyright works [to be discussed in full at a later stage].;
  • ...
  • create a power to give consumers the right to view and download the data businesses hold on them in an electronic format. This will help stimulate developers to create new data management tools and services [is the right to view and download transferable and commercially exploitable? It would be good to know];
  • ...
The Act has also been a vehicle for a wide range of repeals and reforms to existing law.
Eleonora has also posted a 'breaking news' item, which you can check out on the IPKat here

US Copyright to be reviewed in the next few months

Bob Goodlatte
As 1709 Blog readers will remember, during a lecture held at Columbia University last month US Register of Copyrights Maria Pallante called for copyright reform and the adoption of “The Next Great Copyright Act” (here, here, here ...).

As explained by Pallante, among other things, areas to be revised include:

·       Licensing;
·       Digital first sale (this is something which does not exist under current US copyright law: see here);
·       Exceptions and limitations, including enhancing clarity in personal use activities);
·       Enforcement, including DMCA safe harbor provisions, and
·       Orphan works.

Yesterday House Judiciary Committee Chairman Bob Goodlatte announced that the Judiciary Committee will conduct a comprehensive review of US copyright law over the coming months.  

During a speech delivered during the World IP Day [for those who have not yet added the relevant entry to their diaries, tomorrow is World IP Day but - sadly enough - this is not marked as bank holiday] celebration at the Library of Congress, Goodlatte made the following remarks:

Technology continues to rapidly advance. [...]

Our Founding Fathers could never have imagined a day in which citizens would be able to immediately access the knowledge and news of the world on their smartphones as they walk down the street.

When I was first elected to Congress in 1993, only 2.5 percent of Americans had Internet access and less than ¼ of one percent of the world population did.  Then, we spoke about the very few who had Internet access. Today, we speak about the few who do not. Technological development has increased at an exponential rate. [...]

There is little doubt that our copyright system faces new challenges today. The Internet has enabled copyright owners to make available their works to consumers around the world, but has also enabled others to do so without any compensation for copyright owners.  Efforts to digitize our history so that all have access to it face questions about copyright ownership by those who are hard, if not impossible, to locate [by the way, have you seen the Digital Public Library of America project?]. There are concerns about statutory license and damage mechanisms. 

Federal judges are forced to make decisions using laws that are difficult to apply today [speaking of (lack of) digital first sale, in its ReDigi decision the US District Court for the Southern District of New York itself pointed out that "the first sale doctrine was enacted in a world where the ease and speed of data transfer could not have been imagined ... It is left to Congress, and not this Court, to deem them outmoded."]

Even the Copyright Office itself faces challenges in meeting the growing needs of its customers – the American public.

So it is my belief that a wide review of our nation’s copyright laws and related enforcement mechanisms is timely. I am announcing today that the House Judiciary Committee will hold a comprehensive series of hearings on U.S. copyright law in the months ahead. The goal of these hearings will be to determine whether the laws are still working in the digital age. [...]

There is much work to be done [1709 Blog team members look forward to seeing the outcome of these efforts].”

Wednesday 24 April 2013

100 years of Imperial Copyright: a book review

A Shifting Empire: 100 Years of the Copyright Act 1911, edited by Uma Suthersanen and Ysolde Gendreau, is a most unusual book.  Uma (Professor in International Intellectual Property Law, Queen Mary, University of London) and Ysolde (Professor of Law, Université de Montréal, Canada) have contrived to do something this blogger would have thought next to impossible: to revive interest in the fabled Imperial Copyright Act by framing it within a legal and historical context of a world that continued to change -- a world which was initially too small and unsophisticated for the copyright regime of the 1911 Act but which eventually matured and outgrew it.  As the publisher's blurb says:
"The 1911 Copyright Act, often termed the ‘Imperial Copyright Act’, changed the jurisprudential landscape in respect of copyright law, not only in the United Kingdom but also within the then Empire. This book offers a bird’s eye perspective of why and how the first global copyright law launched a new order, often termed the ‘common law copyright system’.

This carefully researched and reflective work draws upon some of the best scholarship from Australia, Canada, India, Israel, Jamaica, New Zealand, Singapore, South Africa and United Kingdom. The authors – academics and practitioners alike – situate the Imperial Copyright Act 1911 within their national laws, both historically and legally. In doing so, the book queries the extent to which the ethos and legacy of the 1911 Copyright Act remains within indigenous laws.

A Shifting Empire offers a unique global, historical view of copyright development and will be a valuable resource for policy-makers, academic scholars and members of international copyright associations".
This blogger warmed to the book more than he expected to, possibly because -- in the days of his youth when he worked within the terms of the UK's  'modern' Copyright Act 1956 -- references to the Imperial Act imparted a sort of toxicity which is often found in the company of antiquated and increasingly irrelevant chunks of dead legislation. This book, while allowing the contributors the proper freedom of responsible criticism, lets the reader appreciate that this Act was once young, vibrant, commercially sound and full of meaning.

The list of contributors is both impressive and apt.  Given his interest in colonial copyright, Michael Birnhack must have been the most obvious name on the roll-call; Sam Ricketson too, with his Australian pedigree and his penchant for the patient historical analysis. The others are excellent too and, for this blogger, the eye-opener was Dianne Daley's chapter on Jamaica, a small nation about whose copyright affairs he was hitherto sadly ignorant. This book is never going to be a Harry Potter, but wouldn't it be grand if its sales matched its interest value.

Bibliographic data: Publication date March 2013.  ix + 251 pages.. Hardback ISBN 978 1 78100 308 4; ebook ISBN 978 1 78100 309 1. Price $115.00 ( online price $103.50). Web page here.

Safe harbor defence does not apply to pre-1972 recordings

A New York state appeals court as held that the safe harbor defence found in the Digital Millennium Copyright Act does not apply to pre-1972 recordings.

In UMG Recording, Inc. v. Escape Media Group, Inc. et al, UMG Recording, Inc. sued Grooveshark, an internet-based music streaming service, for copyright infringement, accusing it of uploading around 100,000 recordings without authorisation. Grooveshark conceded that it could not ensure that each work uploaded to its servers was a non-infringing work however, it claimed that it operated on the basis that it was shielded from infringement claims by the safe harbor provisions of the DCMA.
Many of the recordings uploaded by Grooveshark were made before 15 February 1972 which is significant as, when the US Copyright Act was amended in 1971 to include sound recordings, Congress expressly extended federal copyright protection only to recordings "fixed" on 15 February 15 1972 or after. UMG claimed that by permitting the pre-1972 recordings to be shared on Grooveshark, the defendant infringed UMG's common law copyright in those works, and that the DMCA should not apply to those recordings.

Grooveshark responded that the pre-1972 recordings sat within the safe harbor of section 512(c) of the DMCA, but UMG argued that the DMCA could not apply to the pre-1972 recordings because that would conflict with s.301(c) of the Copyright Act that nothing in the Act would "annul" or "limit" the common-law copyright protections attendant to any sound recordings fixed before 15 February 1972.
© Ceridwen
The appeals court found that the safe harbor provisions do not apply to recordings made before 1972, as this was when Congress first recognized a federal copyright for sound recordings.

This flies in the face of previous decisions: last year, the Manhattan Supreme Court relied on the 2011 federal ruling in Capitol Records v. MP3tunes, to find "no indication in the text of the DMCA that Congress intended to limit the reach of the safe harbors provided by the statute to just post-1972 recordings."
This was reversed on Tuesday, when the appeals court said:

"It is clear to us that the DMCA, if interpreted in the manner favored by defendant, would directly violate section 301(c) of the Copyright Act." Therefore without language expressly reconciling the two provisions, the court must presume that Congress did not intend the DMCA to extend to all recordings.
The full text of the decision is here.

Tuesday 23 April 2013

Damages and more damages -- but they still don't add up to much

Portrait of the artist
as a young man ...
Although the news of Cavalcade Records Ltd (trading as Minder Records Ltd) succeeding in its copyright infringement action against HHO Multimedia Ltd is no longer hot news, the case -- which is not available on the BAILII database but can be found on Music Week here, is not without interest. The claim, adjudicated in the Patents County Court by Judge Colin Birss QC, related to an early Rod Stewart recording, The Blues.

HHO was shown to have made Minder’s recording available to a third party partner, Cleopatra Records Inc, which subsequently sold recordings to the public, both as part of physical packages and digitally. The court granted a permanent injunction against HHO and also awarded Minder damages and costs (the latter being estimated at a little over £40,000).

According to a note on this decision on the Lawtel subscription-only service, the damages were not merely compensatory but also additional (= punitive) because,
"although the defendant had not received a significant benefit in licensing a music track, it was a fragrant [sic] and deliberate infringement and it had demonstrated a reckless attitude".
The parties were actually some way apart on the question of quantum. Minder's claim that it was entitled to up to £14,000 was described as "inflated", while HHO's contention that Minder should receive no more than a few hundred pounds was "clearly wrong". The judge eventually settled for a sum of £3,500 for compensatory damages. As for additional damages, it was plain that HHO had a reckless attitude towards its infringement and "could not have cared less". A further £3,500 in damages was therefore awarded on this basis.

The Blues: Rod Stewart and Python Lee Jackson, here

New UK Regulations on Legal Deposit of Non-Print Works

Our friend Graham Titley (Information Specialist, Technology and Information Services, at Plymouth University) kindly prodded this blogger a little while ago with news of the Legal Deposit Libraries (Non-Print Works) Regulations 2013 (2013 No.777), a fresh piece of subordinate UK legislation and another component of the patchwork quilt that is British copyright law.

These Regulations, which you can read in full here, carry some curious exemptions in favour of new businesses and micro-businesses. You can check out the Regulations' explanatory note here. They came into force on 6 April, this being one day after the day on which they were made. Pedants will note, some no doubt with satisfaction, that the Regulations spell "internet" with an initial lower case "i", presumably since it isn't a place name ...

Hooper's plea for better data

Richard Hooper CBE
Richard Hooper, tasked with creating the UK's Copyright Hub and the Digital  Rights Exchange has said the first phase of the licensing platform will launch in July. Hooper told an audience at the London Book Fair that the Hub is in "phase one" of its development, mainly raising awareness of its existence. It's only by "phase three" that people will be able to buy low value rights (perhaps music for a wedding video, or photographs for a small businesses's website) to use copyrighted material, seemingly via third-party websites.

It seems the Copyright Hub will be a place where websites connect to encourage and welcome rights holders to register their rights,licences and permissions. According to Hooper, the Hub will be the portal users go to in the UK to find their way ‘through the maze of copyright’s complexity’. Stemming from Professor Ian Hargreaves 2011 Review of IP in the United Kingdom, The new Hub is being developed by four creative industries – music, publishing, audiovisual and images – under Hooper’s chairmanship. Hooper said style and feel of the Hub is ‘voluntary, opt-in, non exclusive, pro-competitive’, but warned the audience that simplifying copyright licensing is not a short-term task, but ‘a permanent, never-ending requirement of the copyright creative industries as new technology continues to disrupt the established order.’ All businesses and all collecting societies will require ‘eternal vigilance, leading to new strategies and excellent execution of those strategies’ Hooper said.

Giving the Charles Clark Memorial Lecture, Hooper also made the point that the copyright industries need to "get their houses in order" before any kind of Exchange can work and that content owners needed to start labelling and indexing their work accurately and clearly. As an example, Hooper was concerned that the BBC were ignoring two standards of broadcast material metadata and also pointed to failures in the book, music and movie industries have, even where global systems like the International Standard Book Number (ISBN),  in place meaning that on the digital age it is still it not possible to identify and tag individual paragraphs, equations, gene sequences and so on in a text meaning that the original author could be traced from a single extract. Many in the music industry might say the same about samples of sound recordings - surely in 2013 it should be quite simple to embed information in a sound recording so when even a part is used both the user and the owner of the original recording knows who has been sampled.  Indeed The Register reported that Hooper said that "everybody from the BBC to The Sun" is stripping metadata from creative works, and likened it to the tearing of ISBN codes from printed tomes adding that "improving the state of data will enable the multi-media and borderless nature of modern creativity to truly prosper". 

 Hooper also made it clear that the new Hub will not the place for low-volume high-value deals - such as a licence for Premier League football or to develop a blockbuster movie service, and the Register adds "You almost certainly won't be able to launch a music service using licences obtained through the Exchange".

Finland blacks out for copyright reform

Ahhh, Finland, land of lakes, trees, and lovely people. And, you will remember from Iona’s blog, the place where a nine year-old girl had her home raided by the police and her Winnie the Pooh decorated laptop confiscated after attempting to illegally download Finnish pop star Chisu's latest album in November last year. Ho hum.

Well, today is “Finnish Black Out Day” – set up to mark the half-way point of the campaign by Avoin Ministeriö (Open Ministry) to reform Finnish copyright laws. To help gather enough signatures, numerous Finnish websites will be blacked out today, pointing visitors to sign the online petition in support of a “Common Sense in Copyright Law” proposal. Just over a year ago the Finnish parliament amended the national constitution so that any petition that reaches 50,000 signatures must be brought to the parliament for a vote. At the time of writing, the proposal had gathered 26,678 signatures.

The proposed reform centres on reducing the penalty for "small scale" piracy to a fine, rather than the current maximum of two years custody. In turn this would limit the powers available to the Finnish police to investigate infringement claims, including a restriction in their right to obtain private data online or confiscate property. The proposal also includes the right of "fair use" of copyrighted material for teaching and research, and adds a new category of fair use to cover parody and satire, which Arctic StartUp tells me are currently “unclear in the current legislation”.

There are some interesting twists in this proposed reform – and some I quite like: Recording artists' rights would be strengthened, allowing artists to license their works through open licenses.  But additionally, if a fan of an artist was being prosecuted in court for infringement, the artist would have the ability to require their representative organisation to stop any action which involved their content. Now that I do like! But I am not clear if an artist could overrule their record label who may well be the owner of the copyright - despite the fact that until recently labels had done little to enamour themselves to with either consumers or those seeking to promote new business models, with the Recording Industry Association of America coming in for some fairly fierce criticism after conducting a number of high profile (and lengthy) trials for infringement, most of which ended up as nothing short of PR disasters.

The proposal goes further,  and asks for reforms to the composition of Finland’s Copyright Council, which currently includes representatives from the “old” media industries, such as the TV and recording industries. The proposal would add internet operators, software, and gaming industries into that mix. What fun!

Monday 22 April 2013

A seductive prospect? U.S. copyright reform

Maria Pallante
What could be more seductive than the prospect of a new copyright law? In recent comments made before the U.S. House of Representatives, and reiterated at the annual Fordham IP conference in New York earlier this month, Maria Pallante, the current U.S. Register of Copyrights, appears to be calling for just that. As she points out, copyright reform, in the United States as elsewhere, has been a partial and largely “piecemeal” undertaking. A global approach to reform could lead to better results – greater clarity and transparency of the law, as well as more sensible provisions, such as a shorter term of protection of life + 50 years p.m.a., and more accessible rationales for copyright protection. Her initiative is to be welcomed. From a purely practical point of view, the prospect of a new and improved copyright law promises nothing less than the holy grail of modern intellectual property rights – enhanced enforceability, and stronger appeal to the public on which enforcement ultimately depends.

The Register’s list of the areas that would need attention in a new legislative initiative includes many of the usual suspects – orphan works, the scope of educational uses, the music industry, and improvements to licensing and enforcement, to name a few (a comprehensive summary of her remarks can be viewed in an earlier 1709 Blog post). But one major area of copyright law remains decidedly absent: moral rights. With this grand opportunity ahead, why have the moral rights of authors, an area of some significance in copyright laws worldwide, been overlooked?

It has been 24 years since the United States joined the Berne Convention, inaugurating a major new era of American leadership in international copyright law. It is well-known that Berne provides for the protection of authors’ and artists’ moral rights in its Article 6bis, incorporated into the Convention in 1928. All members of the Berne Union are therefore required to recognize moral rights in their legislation, a situation that has ultimately led to copyright reform to include moral rights in the copyright laws of most common-law countries. However, the United States remains an exception.

Since joining Berne, the United States has pursued only one instance of legal reform to promote moral rights at the federal level: the Visual Artists Rights Act of 1990 (VARA). The framework for the protection of artists’ moral rights in VARA is somewhat controversial, being unusually restrictive in certain respects. Notably, the duration of artists’ moral rights in VARA is limited to the artist’s lifetime for works created after VARA’s entry into force (though s. 106A (d) provides that earlier, unpublished works are protected for the duration of economic rights), and a controversial remedy is offered for violations of the integrity of artworks: the removal of attribution of authorship as a way of nullifying potential damage to the author’s reputation (s. 106A(a)(2)). On the other hand, it is worth noting that VARA explicitly prohibits destruction of an artwork “of recognized stature” (s. 106A(a)(3)(B)), still an unsettled issue internationally. A strong precedent for protection from destruction was established in the settlement of Kent Twitchell’s 2008 complaint over a mural that was painted over, for $1.1 million in damages (the case is summarized by CreateLegal here).

It is interesting to note that moral rights enjoy somewhat stronger recognition at the state level in a number of U.S. states which have chosen to adopt special statues for the protection of art (Merryman et al., 2007, 444). For example, California’s moral rights statute specifically recognizes a “public interest” in artworks, rather than considering the moral right primarily as a prerogative of authorship. This theory mirrors the approach to integrity rights in...India.

Of course, legislation is not the only legitimate form of recognition for moral rights. The Berne Convention recognizes as much in its sub-clause on moral rights, Article 6bis(2), which was introduced in 1967 in order to support the protection of moral rights through tort law in the common-law countries. This subsection allows the protection through tort law of at least “some” aspects of moral rights, providing a legal platform for the tacit recognition of defamation and passing off as possible vehicles for the protection of moral rights. In the example of India, admittedly a pro-moral rights jurisdiction, international conventions on cultural property, to which that country adheres, have been offered as an indirect source of protection for moral rights by the Delhi High Court (Amar Nath Sehgal v Union of India, 2005 (30) PTC 253, available here).

What is troubling in the U.S. situation is, however, a parallel trend: new case law that restricts the availability of moral rights protection. In particular, the United States Supreme Court issued an influential decision in 2003, Dastar v Twentieth-Century Fox, which considered the availability of moral rights through the Lanham Act. This federal statute initially codified tort actions for passing off, but has ultimately been recognized as a new form of action in its own right. It specifically provides that the “false designation of origin” of a work, in such a way that “confusion,” “mistake,” or “dece[ption]” might arise, is a violation. The resemblance between the notions of “origin” and “authorship” seems self-evident. Yet the Supreme Court ruled negatively in this case, determining that it was not an acceptable use of s. 43(1)(A) of the Lanham Act to seek to establish a right of attribution for works of original authorship.

A closer look at the facts of the case elicits much sympathy for the verdict. They were distinctly unappealing, with the main issue surrounding the attribution of a television program that had entered the public domain in the United States some two decades earlier, and which was, itself, based on an earlier work, a book. The Court was concerned about the implications of imposing rights in the public domain, effectively recalling a work into the sphere of private ownership. It also pointed out that the work in question could properly be said to have multiple origins, and that the clarification of origin by attributing it to the producers of the original program would not be satisfactory. Subsequent interpretation of Dastar by the American legal community has read the case broadly, extending its scope to works still within copyright term and to all types of copyright works. This suggests that the concerns raised by the Supreme Court in Dastar effectively bar the use of the Lanham Act for the protection of authors’ moral rights in the United States.

The Dastar ruling and its aftermath present a striking contrast to trends at the international level. Moral rights have expanded, and, in particular, new moral rights have been adopted in international treaties. Music has led the way. Moral rights for musical performers were included in the WIPO Performances & Phonograms Treaty of 2002, and these rights were recently extended to performers in the audiovisual context, in the Beijing Treaty of 2012. Taken together, these new instruments offer unprecedented moral rights protection for both musicians and actors. Once again, the United States lags behind – and it is in a truly peculiar position where two important American industries are concerned, music and film. American performers have more rights abroad than they do in their own country.

This observation might generate a curious sense of déjà-vu. The very first case on moral rights in an American film arose in 1992. It was brought by Angelica Huston and screenwriter Ben Maddow, protesting against the broadcast of a colorized version of “The Asphalt Jungle,” a black and white classic directed by her father, John Huston. The colorized version was to be aired in France, but the French court intervened to prevent it. Huston had clearly stated that filming in black and white had been a deliberate artistic choice. In the United States, no recourse was available under American law – unless the situation had somehow been visualized by contract – irrelevant in this particular case. Plus ça change, plus c’est la même chose.

In the meantime, moral rights in America have gained practical recognition in a surprising new context: copyleft. Creative Commons licences include the recognition of attribution of authorship – indeed, it is the very foundation of the licencing structure – as well as expressing some possibilities for the protection of the integrity of works. Why should the American copyright system reject an aspect of copyright law that is accepted even by anti-copyright movements?

The time is ripe for the United States to revisit moral rights. According to conventional copyright wisdom, a statutory solution has always been a good idea. Given the evolution of U.S. case law over the past decade, a statutory solution would now seem to be required. A new copyright law signifies many new reasons to be hopeful and excited. Why not include moral rights on the Register’s impressive new list of issues to be examined, and grant U.S. authors and artists the rights that they already enjoy overseas – and, indeed, through copyleft?

This piece has been posted by Jeremy for Mira T. Sundara Rajan.

Saturday 20 April 2013

YouTube prevail again against Viacom claim

US District Judge Louis Stanton has stood by his original decision in the 2007 billion-dollar lawsuit brought by entertainment giant Viacom accusing Google-owned website YouTube of knowingly profiting from pirated video clips. The suit was dismissed in June 2010 by Judge Stanton on the grounds that YouTube was protected against Viacom's claims by 'safe harbor' provisions of the Digital Millennium Copyright Act. Judge Stanton confirmed his original decision in the case after being instructed by the the 2nd U.S. Circuit Court of Appeals in New York to take another look saying "There is no evidence YouTube induced its users to submit infringing videos, provided users with detailed instructions about what content to upload or edited their content, prescreened submissions for quality, steered users to infringing videos or otherwise interacted with infringing users to a point where it might be said to have participated in their infringing activity."  Viacom have indicated that a further appeal will be lodged.,0,5832848.story

Thursday 18 April 2013

Whose right in our Brave New World?

Copyright reform is perhaps surprisingly high on the political agenda. But why shouldn't it be? Most of us love books and magazines, films and plays, music, television and games. But we have shifted away from a world where distribution had a cost, and copies had a cost – at least in terms of time and effort to produce and and/or a monetary cost. We all know the Internet changed that. We now have a brave new world where multiple copies can be made with little effort and often no cost beyond a file upload – and we have pitted the giants of the content industries – film and television companies, newspaper and book publishers, photo agencies,  games and software producers, record labels and music publishers, against the technology companies – internet service providers, search engines, content aggregators, website hosts and technology companies - new, disruptive technologies – with some, like Sony, Apple and even now Google, with a foot in both camps.

During her testimony to the House Subcommittee on Courts, Intellectual Property and the Internet Committee on the Judiciary, Maria A. Pallante, the US Register of Copyrights at the United States Copyright Office, explained “The law is showing the strain of its age and requires your attention. As many have noted, authors do not have effective protections, good faith businesses do not have clear roadmaps, courts do not have sufficient direction, and consumers and other private citizens are increasingly frustrated” and that the US needed  “the next great copyright act”  which Pallante said  is needed as consumers are increasingly “accessing content on mobile devices and fewer and fewer of them will need or desire the physical copies that were so central to the 19th and 20th century copyright laws.”

It’s not just one issue – digitization is the main driver, but there are other reforms that have been suggested: clarifying the scope of exclusive rights; revising exceptions and limitations for libraries and archives; addressing orphan works; accommodating people who have disabilities when they access content; providing guidance to educational institutions; exempting incidental copies in appropriate instances; updating enforcement provisions; providing guidance on statutory damages; reviewing the DMCA; assisting with small copyright claims; reforming the music marketplace; updating the framework for cable and satellite transmissions; encouraging new licensing regimes; and improving the systems of copyright registration in the USA. The Hargreaves review of copyright in the UK provided a similar if not identical list of issues that needed to be addressed - and progress has already been made on the creation of a “copyright hub” and a Digital Copyright Exchange to promote digital licensing. The UK Government has said that it will support the reform of IP laws ,and highlighted the need to progress this, saying in particular that: copyright exceptions covering limited private copying should be introduced to realise growth opportunities; The  introduction of an exception to copyright for search and analysis techniques known as 'text and data mining' needs to be introduced;  Copyright exceptions to allow parody should also be introduced; the Government would support  introduction of an exception to copyright for search and analysis techniques known as 'text and data mining' and would support establishing licensing and clearance procedures for orphan works.

Elsewhere in Europe, Spain is working on a new anti-piracy law which will be robust enough to keep the country off a U.S. watch list of copyright violating countries. The Copyright lobby group the International Intellectual Property Alliance (IIPA) has recommended the United States Trade Representative put the country back on a so-called “watch list” after removing it last year. Countries on this list can face trade sanctions from the United States if they do not crack down on piracy.. Spain had already passed their anti-piracy law - the so called ‘Law Sinde’ which was designed to crack down on websites popular with Spaniards for illegally downloading free movies, music and video games. But under the law, the burden is on copyright holders to lodge complaints with the government, which is slow to act against websites allegedly violating copyright. The new draft bill takes on board recommendations from the IIPA and others to speed up the process of going after the problem websites. The draft law clarifies that Spain will go after "linking sites" that direct people to content on other services and establishes fines for companies that advertise on piracy websites. It also includes measures to block piracy sites from using payment services such as credit cards The bill, currently receiving public feedback, will be redrafted to go to parliament for debate. The minister said he expected it to be adopted by the end of the year.

The Spanish copyright lobby wants the bill to give the government power to shut down sites quickly where illegal activity is detected. "We want legal protection comparable to any other property right," Carlota Navarrete, director of the Coalition of Content Creators and Industries, said.

Not surprisingly, in the USA the Motion Picture Association of America (MPAA) is already lobbying. According to the MPAA, its member companies “welcome a continuation of the ongoing discussion of the importance of copyright” :  a memo circulated by the MPAA "unapologetically" stated that any debate should easily conclude that copyright law  ”encourages and rewards creativity and breakthrough innovation". But is it fit for purpose? Are laws passed by sovereign states even relevant in a market increasingly dominated by a world wide web which knows no boundaries or territorial exclusions? Some have even said that 'copyright wars are damaging the health of the internet'.

And the lobbying isn’t just from the ‘pro’ copyright camp. In the USA Mark Zuckerberg and other technology leaders, including LinkedIn founder Reid Hoffman, Dropbox chief Drew Houston, Reed Hastings, CEO of Netflix,  Microsoft boss Bill Gates and Eric Schmidt, chair of Google, have set up a new high-profile advocacy organisation. The group, called has enlisted the help of Washington DC-based lobbyists and communications people on both sides of the political divide – although initial reports were not about copyright – they were about immigration and education; "To lead the world in this new economy, we need the most talented and hardest-working people. We need to train and attract the best. We need those middle-school students to be tomorrow's leaders" Zuckerberg said in an opinion piece published in the Washington Post. But watch this space .......

In Europe the technology companies have had a mixed bag of results in the courts. In the UK, Mr Justice Arnold was issued blocking orders ordering ISP BT to remove access to the infringing Newzbin sites in Newzbin 2 (Twentieth Century Fox Film Corp & Ors v British Telecommunications Plc [2011] EWHC 1981 (Ch)). The European Court of Justice took a different approach in 2011 in Scarlet v Sabam where it ruled against the proposed widespread and indiscriminate filtering system which would require constant monitoring at the expense of the ISPs under Article 15 of the Electronic Commerce Directive 2000/31 and Article 3 of the Enforcement of IP Directive 2004/48 which provides that “IP remedies “shall be fair and equitable and shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays”. Bearing in mind possible human rights issues, and citing the Promusicae case, the court commented that the protection of IP rights “must be balanced against the protection of other fundamental rights”. One comment at the time was that the Court’s decision was “hugely important for the openness of the Internet, and therefore for the fundamental rights value and the economic value of the Internet.

Indeed the UK's Supreme Court have just echoed these thoughts in NLA v Meltwater saying  the question being whether the copies made on users' computer screens and hard drives when they access and read content online are temporary for the purposes of Article 5.1 of the InfoSoc Directive meant that "the issue has a transnational dimension and that the application of copyright law to internet use has important implications for many millions of people across the EU making use of what has become a basic technical facility. These considerations make it desirable that any decision on the point should be referred to the Court of Justice for a preliminary ruling, so that the critical point may be resolved in a manner which will apply uniformly across the European Union". 

And that’s where we still are: Its balancing rights – the rights of content owners to protect their rights and their business models - the rights of artists, musicians, dramatists, writers to be paid – the rights of technology companies to promote new businesses and not to be unfairly fettered – the rights to a freedom of expression – and the rights of consumers and individuals to protect their personal data and their freedom to receive or impart information in a free, open and neutral internet.

Most recently organisations representing Europe’s communications industry have urged the European Commission not to change the 2004 directive on the civil enforcement of intellectual property rights (IPRED). The Commission have recently closed a public consultation on proposed changes. The group, which is made up of Cable Europe, ECTA, ETNO and EuroISPA, represent the telecommunication and mobile telecoms operators, Internet Service Providers and cable companies in Europe and the group warned that “introducing stricter enforcement through increasingly restrictive technical measures” would have “a chilling effect” on innovation, consumers’ confidence in digital products, freedom of communications and Internet openness.

The group is particularly worried that under a revision of the IPRED directive, ISPs “may be ordered to implement unspecified, disproportionate and possibly repressive technical measures in a blanket fashion against their customers.”

The consultation on IPRED, which closed March 30, has proved controversial. Many civil liberties activists believe the questions were biased in favour of copyright holders. Blogger Glyn Moody wrote  “This is the worst such consultation I have ever seen. The questions are badly worded and it’s only too easy to tick a box that causes you to miss dozens of important questions. This flows from the totally biased way the consultation has been framed: it’s clearly aimed at holders of intellectual monopolies who want to enforce them more strongly,”
Monica Horten, a visiting fellow at the London School of Economics, agreed saying “All of the questions are addressed to rights-holders and ask only for their viewpoint. There is no place for non-rights-holders, who could be ISPs, to write a response” in an online opinion piece.

This may well be the reason the electronic-communications industry group decided to write its own appeal to the Commission. In it, the group warned that filtering copyrighted material may be “incompatible with fundamental laws of privacy around data protection.”

The industry group also referred back to the ECJ’s decision in Scarlet v Sabam and questioned whether such filtering methods are even effective, given that such measures can be quickly and easily circumvented. Instead, the Commission should urge copyright owners to develop new business models that “embrace the Internet revolution,” the group said.

Disruptive technologies always promote change and usually throw a spanner into the workings of traditional business models: Think of digital cameras and their effect on market leader Kodak's business. Catastrophic. Think of encyclopaedias and Wikipedia. Think of telephones replacing telegraphy.  And once the new technology is in place, as one of our comments noted recently, it's almost impossible to get back to the 'good old days'. Adapt or die. But never has change been driven so quickly - and nor have the technology innovators grown so quickly: the behemoths of Google, Amazon, Apple and Facebook now financially dwarf traditional business models such as the recorded music business and music publishing - and have ever increasing clout. And whichever side of the divide you sit on, one thing is clear - copyright law, whilst not broken in my own opinion, is clearly struggling. 

Recent spats such as the Google Book Search litigation, the recently reported action by collection society Access Copyright in Canada against York University, the criminal and civil actions against platforms such as The Pirate Bay, the high profile prosecutions of file swappers such as Joel Tenenbaum and Jammie Rasset Thomas, The Viacom v YouTube and GEMA v Youtube cases,  The ReDigi and Usedsoft cases, Meltwater (both in the UK and now the USA) and other aggregator vs content owner disputes and the MegaUpload case are just some of the many many examples of the courts being asked to adapt the law to meet innovative - but disruptive - uses of new technology. And the backlash is that consumers are often legitimately confused - asking questions like "why cant I format shift?" and "why don't I own the music downloads I paid for?". Legislation crawls along behind: in the UK content owners remain critical of the Government as key parts of the Digital Economy Act remain unimplemented, but are France and New Zealand's 'Three strikes' laws really appropriate in the digital age?  The DCMA seems to have rapidly outdated after it's short history - is 'safe harbour' in 2013 really a suitable doctrine fit for use in 2013 - surely business models are very different to when the doctrine was was envisaged in the late 90s? Was ACTA really that bad? Is term extension something that makes any sense now? Does the Pirate Party have a valid role in politics? 

Questions, questions, questions - but beneath it all are some fundamental principles and some fundamental freedoms which apply to digital natives and digital immigrants alike - and to those on both sides of the divide.

Aldous Huxley’s dystopian novel  Brave New World is set in the London of 2540 AD, where mass production pervades every aspect of society. Residents keep themselves in a happy stupor by self-medicating the antidepressant-like drug soma. Published in 1932, the book has been requested to be restricted or removed from libraries because of its alleged insensitivity, offensive language, racism, and sexually explicit content and is the “third most censored book in America” according to the American Library Association (in 2010).

Wednesday 17 April 2013

NLA v Meltwater: temporary copies issue referred to the CJEU

Readers will remember that both the High Court and the Court of Appeal held, in NLA v Meltwater, that users of Meltwater's news aggregation service need a licence from the NLA in order to receive and read Meltwater news snippets. The specific question of whether the copies made on users' computer screens and hard drives when they access and read content online are temporary for the purposes of Article 5.1 of the InfoSoc Directive was appealed to the Supreme Court.

There has been some heated discussion on this blog as to whether the case would or would not break the internet, and several academics locked horns to debate whether the case meant the end of browsing. This is a topic on which everyone has an opinion, because the question of whether it is legal to read material online is an important one. So important that the Supreme Court has today held that it will refer the question of temporary copies to the CJEU.
The Supreme Court's decision contains a thorough analysis of the temporary copies exception and previous CJEU case law, and sets out the conclusions that it reaches on the effect of the Information Society Directive as the CJEU has interpreted and applied it to date.

The decision notes that if it is an infringement merely to view copyright material, without downloading or printing out, then those who browse the internet are likely unintentionally to incur civil liability, at least in principle, by merely coming upon a web-page containing copyright material in the course of browsing.
The Supreme Court recognises that "the issue has a transnational dimension and that the application of copyright law to internet use has important implications for many millions of people across the EU making use of what has become a basic technical facility. These considerations make it desirable that any decision on the point should be referred to the Court of Justice for a preliminary ruling, so that the critical point may be resolved in a manner which will apply uniformly across the European Union."

On that basis the Supreme Court will refer to the CJEU the question whether the requirements of article 5.1 of the Information Society Directive that acts of reproduction should be (i) temporary, (ii) transient or incidental and (iii) an integral and essential part of the technological process, are satisfied by the technical features described at paragraphs 2 and 31-32 of the Supreme Court judgment, having regard in particular to the fact that a copy of protected material may in the ordinary course of internet usage remain in the cache for a period of time after the browsing session which has generated that copy is completed until it is overlaid by other material, and a screen copy will remain on screen until the browsing session is terminated by the user.
The specific questions to be referred are yet to be decided.

Disclaimer: Baker & McKenzie acts for Meltwater and PRCA in this case.