Friday 28 June 2013

C More: does anyone know more?

This blogger has just received an email circular from the UK Intellectual Property Office (IPO) which, in relevant part, reads as follows:

We have received notification of a new case referred to the Court of Justice: C-279/13. A request for a preliminary ruling in a case which concerns an appeal against prosecution in Sweden where it was alleged that the Defendant had breached the rights of C More Entertainment to broadcast a webcast of two ice hockey matches and made them available to the public.

This case and the questions referred to the court can be viewed on our website at:

If you would like to comment on this case please e-mail by 08 July 2013 [That's only two Mondays from today, but ...].

We understand how difficult it is to provide detailed comments in the time available. The IPO has tight time limits in which to consider and provide advice to ministers on ECJ cases. In order to help us provide the right advice, we just need a short email by the deadline stating whether you think the UK should intervene and some general points about how you think we should answer the questions.

You are welcome to follow this email up with more detailed comments after the deadline, which can be taken into consideration if we have chosen to submit observations or if we decide to attend a hearing.

If you are aware of any references to the ECJ that are not currently included on our website, you are also welcome to send us your views. If you choose to do this, please include clear information about the case to help us to identify it.

Further information on intellectual property ECJ cases can be found on our website
The IPO circular doesn't quote the questions verbatim, but they appear to look like this:
"1. Does the expression communication to the public, within the meaning of Article 3(1) of the Information Society Directive, include measures to make available on a website open to the public a clickable link to a work which is broadcast by the holder of the copyright in that work?

2. Is the manner in which the linking is done relevant to the answer to question 1?

3. Is it relevant if the access to the work to which the linking is done is in any way restricted?

4. May the Member States give wider protection to the exclusive right of rightholders by enabling ‘communication to the public' to cover a greater range of acts than provided for in Article 3(1) of the Information Society Directive?

5. May the Member States give wider protection to the exclusive right of authors by enabling ‘communication to the public’ to cover a greater range of acts than provided for in Article 3(1) of the Information Society Directive?"
This reference, and the Swedish litigation leading to it, have so far passed this blogger by. If any readers can supply further background details, can they please share them with us!

How far will exhaustion go after UsedSoft? Do let us know!

Calling all exhaustion fans! The IPKat has just launched a poll to gather readers' opinion as to whether the ruling of the Court of Justice of the European Union (CJEU) in Case C-128/11 UsedSoft v Oracle (see Katposts here and 1709 Blog posts here) is likely to be extended to subject-matter other than software.

As 1709 Blog readers will remember, in that case decided almost a year ago the CJEU ruled that 

"Article 4(2) of Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs must be interpreted as meaning that the right of distribution of a copy of a computer program is exhausted if the copyright holder who has authorised, even free of charge, the downloading of that copy from the internet onto a data carrier has also conferred, in return for payment of a fee intended to enable him to obtain a remuneration corresponding to the economic value of the copy of the work of which he is the proprietor, a right to use that copy for an unlimited period."

Pro- vs anti-exhaustion: who will win?
A few months ago a German court held (see Katpost here) that, because of the nature of the Directive 2009/24 (the Software Directive) as lex specialis, the reasoning in UsedSoft could not be applied to other subject-matter (downloadable ebooks and audiobooks in that case). 

However, from the mini-poll that this blogger ran while in Oxford to attend the ATRIP Congress, there seems to be growing belief that the CJEU, when given the opportunity to do so, would rule that exhaustion does indeed apply to digital works other than software.

The main arguments to support this conclusion are CJEU's overriding concerns with ensuring free movement within EU internal market and the fact that ebooks, downloadable audiobooks, digital music are not really "on-line services" for which "the question of exhaustion does not arise" (see Recital 29 to the InfoSoc Directive).

Do vote in the Exhaustion Katpoll!
This blogger is however slightly concerned whether this might be really the case, in that the Court made it quite clear that its conclusion descended from the special nature of the Software Directive. Furthermore, one of the aims of the InfoSoc Directive was to transpose the WIPO Copyright Treaty into EU legal order. The right of distribution as per Article 6 of the Treaty concerns just tangible - not also intangible - copies. Hence, is it possible to say that exhaustion as per Article 4(2) of the InfoSoc Directive applies only to tangible copies?

You have time until Friday 5 July to cast your vote, by clicking your chosen button on the left-hand side of the IPKat content bar. 

Thursday 27 June 2013

The CopyKat - the paws, tails and whiskers of copylife

Canadian anti-piracy group Canipre is currently working on behalf of Voltage Pictures to obtain the identities of individuals said to have pirated that company’s movies in Canada.  As the process moves through the legal system, the Canadian Internet Policy and Public Interest Clinic (CIPPIC)  had the opportunity to cross-examine Canipre chief Barry Logan. TorrentFreak report that  it was a bad-tempered encounter with CIPPIC attorney David  Fewer and James Zibarras, the attorney acting for Logan and Voltage, crossing swords with the latter instructing his client to refuse to answer Fewer's questions no less than 34 times on matters including the ownership structure on Canpire and how potential defendants were identified from an IP address. Seems trolling isn’t the simple process it used to be.

YouTube’s help Channel has launched a new  tool to help explain it’s copyright policy – a video featuring popular puppets Mario and Fafa - and with senior copyright counsel at Google Fred von Lohmann on hand to provide the legal advice. It's a whacky breeze and to be fair, tries to be even handed and explain the basics of YouTube's complaints and take down procedures.

Chinas’s National Copyright Administration, part of the General Administration of Press and Publication,  has said that it will add Apple's App Store, Taobao and Amazon to its copyright supervision plan in this year's campaign against online piracy. The platforms will be required to report on the measures they are taking to protect copyrights and handling complaints filed by content holders. The Administration currently supervises 19 major websites,  and Duan Yuping, copyright supervision officer, said that along with the Apple Store, Taobao and Amazon, video and music on five more websites will also now fall under the authority's supervision. From 2005 to 2012, the Administration says it has settled 4,051 copyright infringement cases and 1,725 websites have been shut down, with 1,041 servers seized and fines totalling 7.83 million yuan ($1.27 million) issued.  In addition, the Authority has transferred 229 cases to the criminal courts. 

The National Copyright Administration has also recently approved an international copyright trading centre in Qingdao development zone, China's first state-certificated exchange centre qualified for copyright authentication and transactions in global cultural and creative works. According to officials, it will significantly boost the development of local creative and cultural industries and promote the city as a regional "wisdom" centre

The new Russian anti-piracy Bill allowing for websites to be blocked by Internet service providers (ISPs has passed through its final two readings in Russia's State Duma.  The new provisions mean that failure to remove site content suspected of copyright infringement within 72 hours would result in the entire site being blocked by ISPs pending the outcome of a court hearing.

The World Intellectual Property Organization's Treaty to Facilitate Access to Published Works by Visually Impaired. Persons and Persons with Print Disabilities (the "Treaty for the Blind") has finally passed, after many years of hard work by copyright activists and activists for the rights of people with disabilities. The Motion Picture Association, the US film industry’s representative body, took a media bettering in the process for resisting some of the proposed innovations, with one website noting “To the shameless lobbyists at the MPA, remember: if you live long enough, the odds are good that you, yourself, will become print disabled.

I'm off to the world's greatest music festival now but MetDesk have just sent me this image of the weather ("feel free to use this image" - so I have - thank you very much!) - but what does that great big dark mess mean? Well Jeremy from MetDesk kindly headed up his email with "here comes the rain" and the Met Office have a similar view. By 6pm (may be earlier, this forecasting business is hard work) tonight it may be a tad dank. But what's Glastonbury without a little bit of rain ......... and we have the Arctic Monkeys, The Rolling Stones, Mumford & Sons, Chase & Status, Kenny Rogers, The xx, Portished, Phoenix, Jake Bugg, Bastille, Rita Ora, Dizzee Rascal,  Editors, Of Monsters And men, I Am Kloot, Alt J, Everything Everything, Primal Scream .... Sir Bruce Forsyth .... and hundreds and hundreds of other acts to look forward too! Hurrah!

Tuesday 25 June 2013

Gone in just ten seconds?

Every new technology seems to pose challenges for legislators - whether its copyright and other intellectual property issues, privacy, threats to security, morality, children, and indeed the uses the new technology will be put to by the great unwashed.

The latest social media phenomena is the picture sharing app Snapchat - you can share pictures - but the recipients can only see the image for ten seconds - and then it's gone - forever (well, unless you are techno savvy and can grab it). It's free to download and has grown hugely - and the company behind the app is now valued at more than $500 million - and has raised $50 million in venture capital - with an estimated 5 million using the service daily - and is growing rapidly with 200 million images now shared every day according to the company. The app is the brainchild of Evan Spiegel and Bobby Murphy, who met at Stanford University, and the spark for the app was watching college friends frantically trying to repair their digital history by removing and de-tagging embarrassing images from social media networks before important job interviews or even marriages. The company says its users share four times as many images each day as users of Facebook's Instagram (which Facebook only recently acquired for $1 billion). 

One popular feature on Snapchat appears to be the sharing of 'selfies' - now I can't promise to be right here - but use your imagination - and remember that 54% of users have received 'inappropriate' images (for all of 10 seconds but that can be more than enough) and 47% had received nude images. Ho hum!

But what of copyright? Undoubtedly a large proportion of the images shared will be self generated (literally!) but some will not be and may well be images owned by and valued by others - whether they are professional photographers, news services, archive and image business like Getty, or private individuals. Will they care if their images are used in a mass sharing - but are visible for only 10 seconds to each recipient? Will they even be able to prove any infringement as the 'evidence' will probably have gone after 10 seconds? Has any damage actually been done for such a transient use? But what happens if users 'commercialise' images for advertising and marketing? And if content owners DO care (and I am sure they will), how does current copyright law facilitate the right to protect copyrights and ultimately bring an action - when the 'copy' is time limited to a ten second life only - unless the recipient pro-actively saving the snap. Is a copy made? Is a copy issued to the public? Is there a 'communication'? 

And what next? Instagram and Twitter's Vine already have video sharing services for very short clips (pint sized popster Justin Bieber seems particularly fond of the former service -  he posted a very random clip  on Instagram the day its video service launched, and yesterday posted a (somewhat blank)  video about falling down stairs) and they to will provide ever more challenges - until they are superseded by the next fad. I was asked to give professional advice on the legal ramifications of six second videos from the Glastonbury Festival posted on Vine yesterday - privacy, copyright, performers rights - all came into play!

Any [polite] thoughts, comments and opinion are, as ever, welcome!

Sunday 23 June 2013

The CopyCat - tantalising titbits and techno tales

Stevie Wonder at Glastonbury 2010 by Nick Cordes
Stevie Wonder has offered to perform live for international negotiators who are in Morocco trying to forge a deal to give the visually impaired greater access to reading material. In a very amusing video message, the blind singer-songwriter urged WIPO delegates to agree saying “So do it, we get it signed, sealed, delivered, I’m yours.” Wonder said he’d fly to Marrakesh to celebrate with delegates if they struck a deal.

We had previously noted that Russia's social networks had started removing illegally uploaded music content en masse in the face of new laws - much to the annoyance of users. Was it all a waste of time? A Russian politician has now suggested that the country’s new anti-piracy laws should only protect copyrights in television programmes and movies – as these are expensive to produce. Aleksey Mitrofanov said he has submitted an amendment to the bill aimed at countering internet piracy saying “The bill must only cover movies and TV series - the copyright objects that are expensive to produce,” Mitrofanov to a session of the expert group on electronic democracy. Microsoft has already expressed surprise that software was excluded.

BuzzFeed, the viral news site, is facing a $3.6 million copyright lawsuit from an Idaho-based photographer who says BuzzFeed lifted an image from his Flickr page and used it in one of its signature photo montage listicles back in 2010. In a complaint filed on June 7 in the Southern District of New York, Kai Eiselein claims that BuzzFeed, Inc. “knowingly and wilfully” infringed on his copyright when it reposted his photo titled “Contact” which features a female soccer player getting hit in the head by a soccer ball. According to the complaint, the image appeared in a post called “The 30 Funniest Header Faces” , a photo montage of people getting hit in the face by soccer balls  posted by BuzzFeed staffer Matt Stopera. The montage was posted on June 14, 2010, and Eiselein claims he sent BuzzFeed a Digital Millennium Copyright Act (DMCA) takedown notice on May 26, 2011. According to the lawsuit, the photo remained on the site for more than two years after Eiselein sent the notice. In addition to remaining on, the lawsuit claims the photo was shared to 63 other sites, most of which appear to be personal blogs.  The montage, has since been conspiciously renamed “The 29 Funniest Header Faces, and Eiselein’s photo is no longer among the images. Eiselein, who is representing himself in the case, said he first uploaded the image to Flickr in 2009 and registered it with the US Copyright Office in 2011. More on the IPKat from Jeff John Roberts here.

UK Culture Secretary Maria Miller needs to show she is "not in the pocket of Google", former culture secretary Ben Bradshaw has said. The Labour MP said copyright theft costs musicians, writers and artists billions of pounds each year and asked when the UK Government is going to enforce copyright law, amid fears not enough is being done to ensure global internet service providers tackle online piracy.

We don’t often get the chance to mention Armenia on this Blog, so I am delighted to report that the Armenian parliament on has approved amendments to the country's copyright law and neighbouring rights, which will mean those using excerpts from newspapers, magazines and the web must reference to the source. The changes stipulate that mention must be made of the original source of information in newspapers and magazines and there must be an active  hyperlink in internet articles. The law will also define a limit on what can be taken and used.
Victoria Espinel, The US Intellectual Property Enforcement Co-ordinator has published her 2013 Joint Strategic Plan on Intellectual Property Enforcement and you can read a shorter review here: "As the Obama administration tries to build on the present intellectual property structure, it’s also looking towards the future. In the first few pages of the report, the enforcement office lays out where it thinks the intellectual property debate will shift in the coming years. Some items, like an ongoing fight against patent trolls and theft of trade secrets from China and other countries, are already high on the administration’s priority list."

Google News in Germany will soon change says TechCrunch. Starting August 1, it will only index sources that have decided to explicitly opt-in to being shown on the search giant’s news-aggregation service. Google News remains an opt-out service in the other 60 countries and languages it currently operates in, but since Germany passed a new copyright law earlier this year that takes effect on August 1, the company is in danger of having to pay newspapers, blogs and other publishers for the right to show even short snippets of news. More from Eleonora on the IPKat here

Normally it’s Getty who issues the lawsuits, but now a US courtroom sketch artist has sued Getty Images for allegedly infringing copyright by displaying her illustrations online and selling copies of them without her consent. Christine Cornell of Weehawken says in her lawsuit that she has served as a courtroom illustrator for nearly every major trial in New York, Connecticut and New Jersey since the 1970s. She alleges that Getty Images wrongly sold drawings from those trials - including sketches of people like Martha Stewart and would-be subway bomber Najibullah Zazi, which she had licensed on French news agency AFP on a limited licence.  Cornell argues that Getty Images has a pattern of acquiring rights to image archives without first making sure that the sellers are allowed to transfer the images. In 2010 Daniel Morel complained that his photos of the earthquake in Haiti which he uploaded to Twitter were distributed to Getty via AFP which then licensed them to other news organizations. That case is pending in the federal court in New York.

And finally, more on China - and the Hollywood Reporter says there is an acute shortage of IP and entertainment lawyers. With the cinema sector alone enjoying 37% growth last year to $2.7 billion, and already up another 40% this May on the same period last year, there are great opportunities it seems. Although Chinese legal traditions and copyright development stem from a quite different base than the American economic traditions, “Part of the problem is a simple shortage of qualified intellectual property and entertainment lawyers in the country". So to all young entertainment lawyers struggling to gain a foothold - the future is clear - Go East!

But I'm going West, and off to Glastonbury! And sunny skies. Maybe.

Friday 21 June 2013

IPO releases new draft exceptions for data analysis, education, research, libraries and archives

Following HM Government announcement in December last (on which see Ben's report here), a couple of weeks ago the UK Intellectual Property Office (IPO) published the first pieces of draft secondary legislation for technical review on private copying, parody, quotation and public administration. 

Confused by this changeable weather?
You're not the only one!
Probably to celebrate the arrival of summer [average summery temperature in South-East England: 16°C], today the UK IPO has released further pieces of draft legislation for technical review. These concern data analysis for non-commercial research, amendments to exceptions for education, and amendments to exceptions for research, libraries and archives. 

The IPO welcomes answers to the questions posed in each document and any specific drafting suggestions by 2 August 2013.
Comments can be submitted by email ( or - for vintage lovers - by post to:

Intellectual Property Office
Concept House
Cardiff Road
South Wales
NP10 8QQ
United Kingdom

The IPO will also be holding a series of open meetings in the week commencing 22 July 2013 to give an opportunity for discussion of the drafts. Numbers will be limited so you are advised to book your place by emailing 

French Supreme Court Takes Position on Thorny Conflict of Law Issue


                                                              Berne, Switzerland

In a ruling dated April 10, 2013 the French Cour de cassation (Supreme Court) held that the issue of  initial ownership of the copyright in a work is to be determined, in accordance with article 5.2 of the Berne Convention, under the law of the country where protection is being sought (and not the law of the country of origin of the work).

This thorny question has been the subject of case-law over the last 20 years with courts at times adopting the view taken by the Cour de cassation in its latest ruling and at times holding, to the contrary, that this issue (original ownership of copyright) does not fall within the scope of article 5.2 of the Berne Convention and must be dealt with under French law's conflict of law principles, which refer to the country of origin of the work.

It remains to be seen whether this latest judicial pronouncement is really definitive or whether lower courts will continue to apply a country-of-origin approach to the question of initial copyright ownership.  I have personally always favoured this latter approach for both policy reasons (are there to be potentially as many initial copyright owners as there are countries in which protection is sought?) and for reasons related to the literal interpretation of article 5.2 of the Berne Convention (which, in my view, does not extend to this issue).

Link to April 10, 2013 ruling here

Wednesday 19 June 2013

Adding to databases: your thoughts are invited

I have just been asked an interesting question and, while I think I know the answer, the question is worth sharing. The object of the question is a database. At this stage it is not clear whether the database is protected by copyright or sui generis database right under the Database Directive (Directive 96/9): both are possibilities. The act to which the undisputed owner of the database objects is not however the unauthorised extraction or re-utilisation of the database but, curiously the unauthorised addition of fresh data.

The question is this: what sort of protection does the law provide for against such an act?

The Copy Cat - marvellous mousetastic morsels to muse over

Hot off the press comes news regarding the litigants in Meltwater. A media monitoring company has referred the Newspaper Licensing Agency’s pricing structure to the Copyright Tribunal because it says charities are required to pay "spectacularly unfair" fees. Cutbot, which provides media monitoring services in the form of online links to news stories, said the NLA’s pricing structure, which Cutbot said is based on the number of employees organisations have, was unfair on charities, which pay a combined total of more than £1m a year to the NLA.

And in other copyright news, Walt Disney Co’s Marvel Entertainment must go to trial to defend itself against a copyright claim by Gary Friedrich, who claims he now owns the comic book character “Ghost Rider”, a motorcycle-riding superhero with a flaming skull. Friedrich claims he first came up with the idea for Ghost Rider in 1968, then assigned his rights to Marvel, which published the first “Ghost Rider” comic book in 1972. Friedrich claims in his suit that the rights to Ghost Rider automatically became his after the initial copyright term expired in 2000. Marvell argued that Friedrich assigned his renewal rights to it in a work-for-hire agreement he signed in 1978. The U.S. Court of Appeals in Manhattan have now reversed a lower-court ruling by Judge Katherine Forrest in favour of Marvel, allowing Friedrich’s claim to go to trial.

Chinese national Xiang Li has been sentenced to 144 months in US federal prison on charges related to a website which distributed more than $100 million worth of pirated software.  U.S. Immigration and Customs Enforcement said this was one of the most significant copyright infringement cases ever uncovered. Between April 2008 and June 2011, Li engaged in over 700 transactions through which he distributed over $100 million worth of  pirated software to over 400 customers located in at least 28 U.S. states and over 60 foreign countries. These software products were owned by approximately 200 different American software manufacturers, ranging from large corporations to small businesses.  Li’s customers included those in embargoed countries in the Middle East, employees of foreign governments and federal government employees and contractors holding security clearances in the United States. More than one-third of the unlawful purchases were made by individuals within the United States, including small business owners, government contractors, students, inventors and engineers. Li will be deported to China after serving his sentence.

Pandora, the US based digital innovator that has just bought  FM radio station KXMZ-FM, in Rapid City South Dakota, seemingly for a seat at the table of the Radio Music Licensing Committee (RMLC) and presumably to attempt to reduced the online royalties it pays to the American music publishers via the music collecting societies, ASCAP and BMI, is facing a new legal challenge from BMI. Pandora itself launched legal action against ASCAP late last year when negotiations failed to go its way, and now Billboard reports that BMI has filed a lawsuit after Pandora terminated its licence with the collection agency in October last year, seeking a new agreement: BMI had proposed an increase in fees to Pandora that it felt were consistent with market rates and the growth in popularity of streaming music, and accounted for those music publishers which were withdrawing from the collective licensing system in the digital domain which included Sony who then directly licensed Pandora – but at higher rates than BMI.

Two Arab TV stations that allegedly broadcast pirated content have been taken off air by a major satellite provider, as legitimate media firms step up a campaign for better copyright enforcement in the region. Panorama Comedy is no longer broadcasting via the Nilesat satellite, while a related channel Panorama Action also came off the air this weekend. Industry figures allege that both channels, which are believed to be based in Egypt, are involved in illegal broadcasting of films to which they do not own the rights. 

As Russia braces itself for the introduction of a tough new anti-piracy law, the major labels have begun blitzing Russia’s social networks, including Russia’s main social networking site vKontakte, with copyright takedowns. The removal en masse of illegal music by the huge social networking site causing outrage among its users, who are now attempting to ‘encrypt’ their music uploads. Russian-hosted services – vKontakte included – will soon face a new legal environment due as responsibility for illegal uploads shifts towards them A new law approved by  the State Duma on Friday pushes the responsibility of swiftly removing infringing content to the services and service providers, who otherwise may find themselves blocked at the ISP level. VKontakte, with 40 million visits a day,  allows its users to upload music to their accounts for anyone to play and as a result the site has become one of the largest repositories of unlicensed music anywhere in the world. The scale of the takedowns become apparent when searches for popular artists such as Rihanna, Adele, Beyonce, Amy Winehouse and Coldplay all began to draw blanks. The user backlash was swift and vocal, with some complaining that their entire collections had been deleted. More on Torrent Freak.

The Screen Production Association of Australia has warned about a proposed easing of copyright laws with SPAA’s executive director Matthew Deaner blasting recommendations by the Australian Law Reform Commission (ALRC).  That “thinking is out of touch with commercial reality and shows no understanding of the issues facing our sector,” he told Screen Australia’s Jobs, Dollars, Hearts and Minds conference in Canberra. “These views, if left uncorrected, would undermine many legitimate sources of income.”

And finally - who can't resist this headline “This One Page Could End The Copyright War Over Happy Birthday” .