Thursday 31 October 2013

Reading, Writing and Arrest-matic as PIPCU strikes three

This blogger received a press release today which makes fascinating reading.  It runs like this:
New Police Intellectual Property Crime Unit (PIPCU) makes third arrest

Detectives from the Police Intellectual Property Crime Unit (PIPCU) have arrested a man at his Reading home today on suspicion of operating a website that was illegally selling music albums, singles and films. This early morning operation, which followed a referral from PRS for Music, is the third arrest made by City of London Police's Police Intellectual Property Crime Unit (PIPCU) since its launch last month.

The 33-year-old man is believed to have been using a website to sell discs containing music and films, which he does not hold the copyright licence for, for a small fee of only a few pounds. Each disc can contain up to 40 music albums and is estimated to be worth hundreds of pounds. The man was taken to a local police station for further questioning by PIPCU officers and subsequently an agreement was reached to transfer the control of the website to City of London Police.

Detective Inspector Rob [an unfortunate choice of forename for a policeman involved in ant--theft activities?] Stirling, from PIPCU, said:
“Today’s arrest forms part of just one of the many investigations PIPCU is currently pursuing. Since the launch of PIPCU we have seen a wide range of businesses come forward with referrals for the unit and today’s operation shows how this information can swiftly be turned into live investigations and arrests. We urge any UK organisation who believes they may be victim to intellectual property crime in the UK or overseas, to get in touch and submit evidence to the unit so we can get right to work.”
A spokesperson for PRS for Music said:
“We welcome the establishment of the new Police Intellectual Property Crime Unit (PIPCU) and will be working closely with them to ensure that member’s rights are protected. Today’s action is a positive step forward in tackling those individuals and companies who profit from the theft of their music.”
The Police Intellectual Property Crime Unit (PIPCU) has been set up to protect UK industries that produce legitimate, high quality, physical goods and online and digital content.

The operationally independent unit is initially being funded - £2.56m over two years [£2.56m is a derisory sum for an operationally independent unit, unless it can rely on PRS for Music, FACT and other bodies to do its investigations for it] - by the Intellectual Property Office, which is part of the Department for Business Innovation Skills [not quite: it's the Department of Business, Innovation & Skills ...].

In the next two years PIPCU will be working with a wide range of national and international partners from public authorities and private industry to build a comprehensive UK policing response to the threat of online intellectual property crime.

The unit will also be focused on influencing online behaviour by site owners, service providers and consumers through education, prevention and enforcement activity, and providing offenders where appropriate with opportunities to accept restorative justice.
To find out more information on PIPCU or to make a referral just click here.

This blogger wonders what would have happened to the 33-year old man from Reading if PIPCU hadn't been invented. Would he not in any event be prosecuted?

Wednesday 30 October 2013

Is Antigua the puurrrrrrfect home for the CopyKat?

Maria Pallante, the US Registrar of Copyrights
In the US, the 7th Circuit Court of Appeals has reversed a District Court’s decision invalidating a copyright registration, in spite of its agreement with the lower court’s factual finding that a copyright registrant had lied about the authorship of the work in question, a business logo, and had lied about the supposed transfer of that work to him. The 7th Circuit held that the District Court had committed legal error in invalidating the registration without first consulting the Register of Copyrights. DeliverMed Holdings v Schaltenbrand, Case No. 12-3773 (7th Cir. Oct. 7, 2013).

And another update naming the Registrar of Copyrights comes from David A. Kluft, writing on the law blog: Noting that in 2011 Congress ordered the US Copyright Office to study what could be done to ensure that individual authors, photographers and other copyright owners have a realistic ability to enforce their rights even when they have comparatively small claims, Mr Kluft reports that the Copyright Office has now finally issued it's 161-page report, complete with a draft statute, saying "The report considered and rejected allowing state small claims courts to hear copyright cases (too logistically nightmarish), and tinkering with the Federal District Courts (too many tricky constitutional issues). Instead, the Report recommended the creation of the "Copyright Claims Board," a voluntary system of adjudication to be administered directly by the Copyright Office with reviews of decisions limited to motions for reconsideration followed by appeal to the Register of Copyrights". Very limited rights to appeal to a District Court (eg for fraud) will be provided for. It can all be found here.

YouTube-mp3, a site dedicated to converting YouTube videos to downloadable MP3s, has lost a German court battle with three music companies acting under the umbrella of industry group BVMI. The site rips music from YouTube and archives the MP3s for future download and said it has a right to provide ripping services but then agreed to a cease and desist order from the claimants. Whilst YouTube-mp3 had argued (a) that it was (some of) it's users who would be infringing copyright and (b) that the service itself was free of liability as it had legitimate uses (as well as infringing uses), the labels discovered that behind the scenes YouTube-mp3 was keeping back-ups of audio-files ripped from YouTube, so that if multiple people wanted to rip the audio from the same video, the ripping service only had to actually access the YouTube platform once. Subsequent rippers would get a copy of their desired audio file directly off the YouTube-mp3 server. The Court ordered the ripping company to pay legal costs.

No pirate bay here!
A long long time ago (well, in 2003) Antigua started proceedings with the World Trade Organization (‘WTO’) challenging the United States’ total prohibition on cross-border online gambling services - and they won, way back in 2004 The US appealed and the judgement was upheld in 2007. The US was given one year to correct its laws but failed to so do - leading to concessions being granted to the small island nation. In January this year the WTO authorised Antigua to suspend US copyrights - and recoup their losses - which have been set at $21 million each year. Antigua and Barbuda have now issued a press release explaining that their “WTO Remedies Implementation Committee” - a panel of IP experts - "continues its work with the convening of a meeting geared towards harvesting benefits from Antigua & Barbuda’s WTO Gaming case" and the Committee is said to be "recommending the establishment by the Government of Antigua & Barbuda of a statutory body to own, manage and operate the ultimate platform to be created for the monetisation or other exploitation of the suspension of American intellectual property rights authorised earlier this year by the WTO.  It is understood that the necessary domestic legislation to implement the remedies is in the final stages of preparation for submission to Parliament.  Additionally, an announcement regarding the opening of tenders for private sector participation in the operating of the platform should be announced shortly". 

If true - the question surely is - how did they get away with it so long (despite that odd quirk of US copyright law in relation to the public performance of sound recordings)? Anyway, reports have come in that Sony is suing United Airlines, claiming the airline has been playing music and videos on its aircraft without permission. Sony Music Entertainment filed the lawsuit in New York’s Southern District Court against Chicago-based United, Inflight Productions, and rights management agency Rightscom - who had prompted the claim by contacting the claimants. The tip-off appears to have triggered a deeper investigation into in-flight music and now a lawsuit. Sony claims United has violated its copyrights by transmitting sound recordings and videos of artists including Britney Spears, Justin Timberlake and Michael Jackson through its on-demand and other in-flight services without a license.

The 'Happy Birthday' lawsuit that is winding its way through federal courts - seeking clarity on whether the music publisher Warner Chappell has a valid copyright in “Happy Birthday to You” has moved on a step. U.S. District Judge George H. King (Central District of California) has ordered that certain tangential claims be stayed until further notice, while the case will move forward on the central claim alone . Judge King’s order confirms the parties’ agreement at an October 7th hearing to bifurcate (separate) the central claim from the remaining claims (seeking an injunction against Warner, and a variety of related claims such as unfair competition, false advertising, and breach of contract) at least through the summary judgment phase of the central claim. Judge King also declined to apply a four-year statute of limitations to the central claim because of the declaratory nature of the order sought in the central claim.

In India, script writer Uday Singh Rajput has brought an action in the Bombay High Court alleging copyright violation of the script of Hrithik Roshan-starred Krrish-3 and seeking a stay on the all India release of the film unless he was awarded compensation of Rs two crore. The writer said that he had written the script titled 'Krrish-2' (the sequel to Krrish part 1) but was being denied the credit for writing the story. Rakesh Roshan, producer of Krrish-3, has also filed a caveat in the High Court urging that no relief should be granted to Uday Singh Rajput unless he (Roshan) is heard in the matter. Rajput said he gave his '2' script (which he registered with The Film Writers Association on July 23,  2008, to Roshan, who then used the same script to make a sequel to Krrish and gave the title as Krrish-3 instead of Krrish-2 - and took the credit as writer. More on the Krrish series here. The film is expected to open this Friday (1st November). The hearing before Justice S J Kathawala is today. 

With 60% of the UK's game developers saying that piracy is a problem in their business, you might have thought that they would, like the music and film industries, be up in arms about the perceived lack of government legislative intervention. But according to a report in the Guardian, only 10% think that stricter enforcement of intellectual property rights is an effective way to deal with the challenge. According to The Guardian, 87% of British gaming companies surveyed by their trade body TIGA said that new business models were the best approach to combat piracy, while 40% agreed that more educational initiatives explaining why copyright is good and piracy bad were also desirable. Nearly three quarters of those who responded were against any sort of 'three strikes' regime where persistent infringers have their net connections slowed down or even suspended. "Tiga’s survey shows that many games businesses continue to find the most effective response to the problem of piracy is to adopt new business models, such as subscription based services and free to play games" said chief executive Dr Richard Wilson.

Finally, remember back in May 2012 the IFPI and the global recording industry welcomed the verdict of the Russian appeal court that confirmed social networking and downloading site vKontakte was liable for the copyright infringement of its users? After the case, brought by SBA Music and Gala Records, the record labels urged vKontakte "to take immediate steps to stop its service being used to infringe copyright on a massive scale". Well the Russian courts have seen some progress - although many commentators are saying that content owners have suffered what might be thought of as a "set back" in a new decision some 18 months later. With new take down procedures in place on Russia's biggest social network, a St Petersburg court has ruled that the social networking set-up was not liable for its users uploading recordings owned by music company claimant Soyuz without permission, noting that no vKontakte employees were involved in the infringement and the firm couldn't be expected to monitor everything uploaded to its servers.  vKontakte is reportedly in talks with the major labels and other music firms about launching a licensed music streaming service.

Tuesday 29 October 2013

Modernising Copyright: the Irish plan

Here, via our good friend Deirdre Kilroy (LK Shields, Dublin), comes a link to “Modernising Copyright”, published by the Irish government-appointed Copyright Review Committee. It's a 180-page document which will take some reading and digesting. According to the Summary of Recommendations
"The centerpiece recommendations relate to the establishment of a Copyright Council of Ireland and specialist intellectual property tracks in the District and Circuit Courts, and to the introduction of tightly-drawn exceptions for innovation, fair use, and very small snippets of text in the context of online links. 
The position of rightsowners will be improved, by recommendations to extend remedies, technological protection measures, and rights management information. Furthermore, photographers in particular will benefit from the recommendation that copyright protection for metadata be strengthened.

The position of copyright users will also be improved, by recommendations to introduce the full range of exceptions permitted by EU law, including format-shifting, parody, education, disability, and heritage, as well as related exceptions for non-commercial user-generated content and content mining. Furthermore, copyright deposit libraries, in particular, will benefit from the recommendation that the existing legal copyright deposit provisions be extended to digital publications. Finally, all users will benefit from a comprehensive recommendation that any contract term which unfairly purports to restrict an exception permitted by the Act should be void".
We look forward to posting more about this, both in terms of readers' comments and from our cousins in Ireland who have been involved in these proposals or who may be affected by them.

MusicBiz? It's child's play

A recent UK government media release has announced a competition, launched by the Intellectual Property Office, aimed at helping 14 to 18 year olds to understand better how songwriters, artists and bands are rewarded for their creativity. According to the media release:
The MusicBiz competition encourages entrants to create a short film or storyboard on how they think the music industry operates and musicians make a living [assuming that they do make a living, of course ...].

Improving the understanding of intellectual property (IP), piracy and copyright issues will help cut IP crime and better support the music industry. The competition winners will win unique industry experiences, concert tickets and music vouchers, and will be announced next year.

Minister for Intellectual Property, Lord Younger said:
“The internet has revolutionised the way that we all get, listen to and store music. However, with these changes we have experienced, unfortunately, increasing amount of piracy and copyright infringement. “One of the ways we can help tackle this is through educating people as to how the music industry operates. Through the MusicBiz competition we hope to show them the importance of both the value and protection of copyright and creativity for our world-class creative industries.”
CEO of UK Music, Jo Dipple said:
“We think that it is important that all young people, irrespective of their future career choice should have an understanding and appreciation of Intellectual Property. “We hope that MusicBiz will appeal to both teachers and students as a valuable learning resource and encourage open discussion in the classroom on a topic that inadvertently affects British consumers".
The competition is part of the IPO’s education campaign, ‘Treasure Island’ [an unfortunate choice of names: see eg here] which aims to build understanding of, and respect for, intellectual property in an engaging and creative way. The IPO will launch its Karaoke Shower at the Music Show in Manchester in November, before it starts a tour of the UK.

The MusicBiz competition closes on 31 March 2014. Further details about the competition can be found at

What future for text and data mining in Europe? An event in Brussels

In case you were wondering: yes, text and data mining is that exciting

As reported by the IPKat over the past few months (herehere and here), things have heated up in Brussels following the release, first, of a Communication from the Commission and, then, the related "Licences for Europe" initiative.

“Licences for Europe” was intended to work as a forum to which relevant stakeholders reunited in four working groups could contribute to deliver rapid progress through practical industry-led solutions in certain areas. These included: cross-border portability of services; user-generated content and licensing for small-scale users of protected works; facilitating the deposit and online accessibility of films in the EU; and promoting efficient text and data mining for scientific purposes.

With particular regard to the latter, readers will remember that some stakeholders representing the research sector, European technology SMEs, and open publishers withdrew from “Licences for Europe”, due to disagreement over the general approach to text and data mining.

On 13 November there will be the final plenary meeting to conclude the "Licences for Europe" stakeholder dialogue. It will be intriguing to see the final outcome of this initiative.

In the meantime, if you have a particular fancy for text and data mining, you may be interested to learn that the day before (12 November) there will be an event hosted by MEPs Pawel Zalewski, Amelia Anderdotter and Marietje Schaake, which aims to look back at what happened and how to move forward in this area. The workshop will bring together a broad range of stakeholders, including MEPs from across the political spectrum, NGOs, industry representatives, and policy experts. 

This blogger, who will moderate the two panel discussions, is looking forward to learning more about text and data mining and hearing views about its present and future legal regulation. 

Further details can be found here.

Monday 28 October 2013

Should droit de suite become a "global right"?

A few days ago Argentinean 1709 Blog friend Luciano Marchione informed this blogger of the launch of an online petition to demand that the Artist’s Resale Right (ARR, or droit de suite) is recognised as a “global right”. 

Since the Artist's Resale Right is quite a difficult specialist topic in the realm of copyright, the 1709 Blog asked droit de suite expert, barrister and University of Glasgow lecturer Philippa Malas to explain to us a bit more about current law on ARR and the background to this campaign.

Here's what Philippa writes:

"The Artist’s Resale Right continues to divide opinion. Readers might recall that the right (a copyright) was harmonised in the EU under EC Directive 2001/84 on the resale right for the benefit of the author of an original work of art and was implemented in the UK under the Artist’s Resale Right Regulations 2006 (as amended). It has proved controversial, especially in the UK as the primary location for art market transactions within the EU (and third globally). A number of art market professionals remain staunchly against the right which they view as imposing additional administrative costs and legal burden on their businesses. 

One of The 1709 Blog team's
favourite magazines
Under ARR a living artist (or estate of an artist up to 70 years after their death) can claim a royalty on the resale of a work following its first transfer. The royalty is calculated on a cumulative percentage basis as long as the work sells for at least €1000 or the equivalent. The total royalty payable on any sale cannot exceed €12,500. Artists nominate a collecting society that reconciles payments from dealers and auction houses. In the UK, DACS and ACS operate collecting societies. Liability to collect and pay the royalty rests with the transacting parties and not the collecting societies.         

Last month, the European Visual Artists (EVA) launched an online petition to demand that the Artist’s Resale Right is recognised as an international right under the auspices of WIPO. EVA is an entity based in Brussels and represents the interests of visual arts collecting societies including: DACS for the UK and ADAGP in France. The online petition appears to be an initiative proposed by EVA, CISAC (France) and GESAC (Brussels). Suffice to say, and fiercely resisting the temptation to draw allusions to The Thick of It, these entities are lobbying bodies.

In addition to EU law, the droit de suite is enshrined under the Berne Convention (signatories to the Union are given here) and currently Article 14ter. It remains however, an optional right after some members of the Union (including the UK) objected to its inclusion the late 1940s. The UK abstained from including the right under its national legislation until the European directive imposed it. Under the Convention, it remains an optional right and is subject to the principal of reciprocity: the right can only be enjoyed if it is provided for in a member’s legislation. An artist in whose country the right does not exist cannot claim it. This principle is reflected in the European legislation under Article 7 of resale right Directive. Prior to the 2011 amending regulations, the UK Artist’s Resale Right Regulations listed the countries with which the reciprocal agreement exists.  At present, those countries are not listed, leaving room for ambiguity.   
It is an interesting moment for EVA and its partners to set up the petition. 

ARR revision class:
A painting entitled to ARR
representing an auction of paintings
entitled to ARR
In 2012, a federal district judge controversially determined California’s resale right unconstitutional on the basis that it attempted to control commerce outside California [see here]. Such control was the remit of federal power. The application to dismiss the class action was brought by auction houses Christie’s and Sotheby’s. Under Civil Code section 986 (California Resale Royalty Act) artists are able to claim a royalty similar to the European right. It is not a right recognised throughout the United States. The Californian Act recognises the international nature of the art market and the provisions extend to resales by a Californian resident even where the sale is not made in within the state. The case is on appeal.

The EVA’s desire to achieve a ‘global right’ under WIPO could well be hindered if the US appellate court upholds the trial court’s decision. The Californian right is a beacon for those wanting to demonstrate that the European right is echoed by other international provisions."

Photographic Copyright Infringement

Apparently it is a tough time to be a professional photographer. Last week brought news of two cases wherein multinational corporations allegedly exceeded licensing terms and consequentially engaged in large scale photographic copyright infringement.  

On October 21, a group of seven high profile sports photographers filed a federal lawsuit accusing the National Football League (NFL) of "rampant, willful and continued" copyright violations. The plaintiffs also accuse Getty Images and the Associated Press of "illegal and unethical misconduct which permitted, encouraged and contributed" to the copyright infringement. At issue were photographs shot at NFL games. These were typically licensed to the NFL through the licensing agencies, Getty Images and the Associated Press. In the complaint the plaintiffs argue that the NFL went beyond the terms of the agreement by using the photographs in connection with advertising, news reporting, promotional materials and products. Due to its market power, the NFL was able to cut deals with the licensing agencies which allowed them to use the content on a royalty free basis. The complaint, however, did not include any antitrust or unfair competition claims.

In addition, a New Jersey judge refused to dismiss a case against Pearson Education. Pearson, who claims to be the largest producer of college textbooks in the world, allegedly has infringed the copyright in four thousand photographs. The claimants, Minden Pictures (a stock-photo corporation based in California) and twelve photographers, had previously licensed Pearson to use their works within the US. They now claim that Pearson went beyond the terms of the license by distributing the photographs internationally.