Thursday 26 December 2013

2013 - The Copyright Year

In January the Paris High Court highlighted the tension that can exist between the right of publicity (droit à l'image in French law parlance) and artistic freedom. In this case a renowned Spanish artist used some photographs taken of his former girlfriend to create works of contemporary art.  As the pictures at issue were intimate in nature, she objected and based her action on article 9 of the  Civil Code which protects privacy and the right of publicity.  The artist retorted that he was entitled to rely on article 10 of the European Convention on Human Rights protecting freedom of expression (including artistic expression). And our beloved FrenchKat let us know that the court decided that the right of publicity (or rather privacy here) trumped the artistic freedom of expression.
And progress on the creation of a Global Repertoire Database (GRD) for musical works moved ahead in 2013 - with the project moving into the technology build, with a first release of the database due in 2015. At the end of January, The High Court in London handed down its decision in SAS Institute Inc. v World Programming Ltd in which it applied the CJEU's decision about which aspects of a computer program may be protected by copyright - and here the programming languages were not protected by copyright. Arnold J's analysis was interesting -   when considering the originality of a programming language the Judge used the "intellectual creation" test, rather than the "skill, labour and judgment" test. Assuming a computer language is not a computer program, Iona commented that this implies that the test for originality is now harmonised for all works rather than just for computer programs, databases and photographs. Arnold J also said that even if he had found that a programming language could be an intellectual creation, it did not follow that it had to be a work.

This year a few key words kept coming up again and again - fair use, reform (or review) of copyright law, safe harborblocking orders and the TPP all spring to mind - but more on those later. In February The new “Copyright Alert System” finally launched across all of the major Internet providers in the United States of America including  AT&T, Cablevision, Comcast, Time Warner, and Verizon. Suspected infringers will be flagged up to the Internet providers as part of a “six strikes” program. If a user is accused of downloading the latest box office smash or hot music track,  the user will initially receive “educational notices” designed to warn the user that they have misbehaved. Ignore the notice will results in the next stage of the ‘six strikes’ programme, with an escalation in actions as the process continues. After receiving two “educational” Copyright Alerts, alleged violators will be sent two additional alerts requiring a response; the most severe "mitigation" steps, which would come after the fifth and sixth detected infringement, could reduce or “throttle”  the customer's bandwidth or redirect that person's browsing automatically to an anti-piracy information page. In the UK, and having successfully secured injunctions to force all the major UK ISPs to block access to The Pirate Bay in 2012, the recorded music sector trade body in the UK, the BPI, took successful action to force internet service providers to block access to three more file-sharing websites - with Arnold J agreeing to blocks on Fenopy, H33t and Kickass Torrents. And Eleonora tackled the interesting and very topical question of whether linking can constitute a communication to the public after the European Copyright Society opined that linking was NOT communication to the public within Article 3 of Directive 2001/29/EC. South Korea became one of the first in a growing queue of jurisdictions to bring in fair use: Article 35-3 (Fair Use of Copyrighted Material)  states that  “the copyrighted work may be used, among other things, for reporting, criticism, education, and research” and Article 35-3.2 lists factors to be used to determine if a use is fair (which seem similar to the fair use factors listed in section 107 of the U.S. Copyright Act):  "In determining whether art. 35-3(1) above applies to a use of copyrighted work, the following factors must be considered: the purpose and character of the use, including whether such use is of a commercial nature or is of a non profit nature; the type or purpose of the copyrighted work; the amount and importance of the portion used in relation to the copyrighted work as a whole; the effect of the use of the copyrighted work upon the current market or the current value of the copyrighted work or on the potential market or the potential value of the copyrighted work." 

In March came news that reverberated through the year when the US Court of Appeal for the 9th Circuit (California) unanimously ruled that Gary Fung, the Canadian owner of BitTorrent website isoHunt, had "induced" users to download and distribute films and TV programmes, and that he could not rely on the DMCA safe harbor provisions for protection. Also in the US, Maria Pallante, head of the US Copyright Office, told US politicians that "the law is showing the strain of its age and requires the attention of Congress" Pallante said that "a central equation for Congress to consider is what does and does not belong under a copyright owner’s control in the digital age. I do not believe that the control of copyright owners should be absolute, but it needs to be meaningful. People around the world increasingly are 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." Two of the founders of the Pirate Bay failed in their final appeal against their convictions for copyright infringement in the Swedish criminal courts, with the European Court of Human Rights finding that Sweden had rightly convicted the pair, and finally in March the US Supreme Court ruled in Kirtsaeng v John Wiley & Sons that textbooks and other goods made and sold abroad can be re-sold online and in discount stores without violating U.S. copyright law. In a 6-3 opinion, the court overturned a copyright infringement award to publisher John Wiley against Thai graduate student Supap Kirtsaeng, who used eBay to resell copies of the publisher’s copyrighted books that his relatives first bought in Asia at cut-price rates.  But did it add clarity? Well this case sits uncomfortably alongside the EMI v ReDigi decision in the US which followed (where District Judge Richard Sullivan in Manhattan ruled that the  'first sale' doctrine does not apply to digital goods) which itself sits uncomfortably alongside  the European Court of Justice's (ooops, old skool, sorry Merpel, we meant the CJEU) 2012 decision in case C-128/11 UsedSoft GmbH v Oracle International Corp which held that "An author of software cannot oppose the resale of his ‘used’ licences allowing the use of his programs downloaded from the internet. But then again, a German Regional Court in Berlin held that UsedSoft reasoning does not apply to content such as eBooks and audiobooks because the CJEU had anchored their decision on the Software Directive 2009! Can anyone believe the average consumer would understand the nuances in any of this?

Cariou's photograph  (L) and Price's transformation (R)
In April with copyright reform firmly on the agenda in the USA, Ireland, Australia, the UK and Europe, Iona explored the fascinating topic of transformative art - and fair use: In Cariou v Prince 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 fairThe 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 RastaRichard Prince, an "appropriation" artist the used a number of the photos in new works and in the majority of these the court found "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." So fair use.

In May the Recording Industry Association of America (RIAA) urged Congress to overhaul the "safe harbor" provision of US copyright law that shield websites from infringement actions provided they remove infringing material after being notified, saying the DMCA is too burdensome for copyright holders. In a rare case on copyright in architecture, a federal District Court in the USA has awarded $1.3 million damages to a Texas design firm, finding that Houston-based Hewlett Custom Home Designs, Inc. had a valid claim for infringement against Frontier Custom Builders, Inc. Also in May came the first mentions of the Trans Pacific Partnership Agreement – with the EFF calling it “the biggest global threat to the Internet since ACTA” saying “The United States and ten governments from around the Pacific are meeting yet again to hash out the secret Trans-Pacific Partnership agreement (TPP) on May 15-24 in Lima, Peru. The TPP is one of the worst global threats to the Internet since ACTA." Also in May, Harper Lee, the 87-year-old author of to Kill A Mockingbird, launched an ultimately successful claim alleging that her son of her former agent , one Samuel Pinkus, had devised a "scheme to dupe” the author, taking advantage of her declining hearing and eyesight to get her to assign the book's copyright to him and a company he controlled.  And finally, a Dutch court has dismissed a case brought by Dutch anti-piracy group BRIEN, saying that privacy laws protecting bank account holders are more important than providing information to identify potential  defendants in an alleged  copyright infringement case. The ruling by the Amsterdam district court favoured ING Bank, saying that that the bank does not have to reveal who has access to a bank account, whose number is posted on the website FTD World.

June began with Russia introducing tough new anti-piracy laws, and at the same time the major record labels began 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. The new new laws, approved by  the State Duma, pushes the responsibility of swiftly removing infringing content onto the services and service providers, who otherwise may find themselves blocked at the ISP level. In the UK, progress on post Hargreaves' copyright reform continued, and the UK's Intellectual Property Office (IPO) published the first pieces of draft secondary legislation for technical review on private copying, parody, quotation and public administration - with some like the film archive owners association FOCAL still worried about the reforms. Album artwork designer Roger Dean, famous for his album covers for the band Yes brought an interesting claim against the producers and the director of Avatar, James Cameron; and Stevie Wonder offered to perform live for international negotiators who were 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 - and they did!

Ahhhh July! In a case between the owners of the rights to the literary works of William Faulkner and Sony Pictures over Woody Allen's 2011 film Midnight in Paris, Judge Michael Mills of the US District Court for the Northern District of Mississippi (as Eleonora said at the time - quite unsurprisingly) ruled that use of a single line from a full-length novel singly paraphrased and attributed to the original author in a full-length Hollywood film did not amount to copyright infringement. The Government of New Zealand said it was delaying a review of copyright laws until the Trans-Pacific Partnership negotiations are over, saying it would not be practical while the talks are underway. The setback frustrated the Telecommunications Users Association which said the review is long overdue after already being delayed for five years. And Grammy-nominated singer-songwriter Aimee Mann told the Hollywood Reporter that artists are being systematically robbed of digital royalties. Mann brought a legal action against MediaNet, the 1999 venture, originally called Musicnet set up by EMI and BMG and joined by AOL Time Warner and RealNetworks and then sold to a private equity firm in 2005. Later in the year the case moved forward with Judge George King accepting a number of Mann's arguments.

The US House Judiciary Committee, which launched a “comprehensive review” of copyright law earlier this year - continued with it's epic task in July. The Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on the role of copyright in innovation although commentators noted that the line up before the Committee was a little 'one sided' with the Washington Post noting "innovators are almost entirely absent from the list. The witnesses include the executive directors of the Copyright Alliance and the American Society of Media Photographers, and the general counsel of Getty Images. One website pointed out that completely absent were: representatives from the information technology industry, whose innovations have transformed the market for copyrighted works over the last two decades, and who have repeatedly argued that overly-broad copyright law has stifled innovation" as well as actual creators - who often end up with very little from the copyright pie but in whose name much is argued And as the summer heat intensified, the UK Government announced their major strategy paper on the media and telecoms industry, entitled "Connectivity, content and consumers: Britain's digital platform for growth".

Big bad August:  Cyberlocker service HotFile was found liable for copyright infringement in an action brought by the the Motion Picture Association of America on behalf of five member studios. The copyright infringement suit, filed  in 2011, alleged that the company paid incentives to those who uploaded popular files to the system, that were widely shared. It's affiliate program still offers payment "calculated based on a percentage of the total value of premium accounts purchased by users who download the affiliate's uploaded files." SoundExchange, the US non-profit that collects royalties for musicians from satellite radio firms, Internet radio services and cable music channels, said it has filed a suit against SiriusXM seeking to recover what it calls "massive underpayment" of digital royalties over a six-year period. The organisation said the satellite radio firm underpaid by "$50 to $100 million or more" by taking a number of impermissible deductions and exemptions in calculating its royalty payments from 2007-2012. Sirius also faced a claim from sixties band The Turtles who led a $100 million lawsuit arguing that the satellite broadcasting company has infringed on millions of older recordings from thousands of artists, and that Sirius cannot rely on section 114 of the US Copyright Act for protection – as pre 1972 recordings are subject to state law. Lawrence Lessig filed a federal complaint after YouTube forced the Harvard University law professor and Creative Commons co-founder to take down a video of a lecture that featured people dancing to a copyrighted song. And the now somewhat controversial Robin Thicke (along with Pharrell Williams and T.I.) filed a suit in federal court in California against both the family of Marvin Gaye and a publishing company that holds the rights to some of Funkadelic’s compositions asking for a pre-emptive declaration that  “Blurred Lines” – Thicke's party anthem of 2013 - does not borrow from the defendants works. It failed, and litigation seemed imminent as the year ended.

Onwards to September: In the latest chapter of the Google Books saga, Judge Denny Chin gave Google some cause for optimism. After a mere 40 minutes oral hearing, Judge Chin appeared to favour Google’s fair use claim. Chin repeated the many public benefits that Google Books provides, noting that even his law clerks use it to perform citation checks. He also acknowledged amicus briefs from libraries and humanities professors that support the benefit the project has for researchers. Given these arguments, he posed a question to Authors Guild attorney, Ned Rosenthal: “aren’t these transformative uses, and don’t they benefit society?” Patrick reported that When Rosenthal argued that the project may lead to lower compensation for authors, Chin noted examples where people had bought works after finding information about them through Google Books. When Rosenthal argued that this was a matter for Congress, Chin quipped: “[d]oes anything get done in Congress these days?” He later followed this by asking Rosenthal: “[w]hat are you suggesting? That I don’t decide…and wait for Congress?”. Patrick also reported on the trails of the US Post Office which was ordered to pay a historic $685,000 to Frank Gaylord after it issued a stamp that infringed copyright in Gaylord’s war memorial statues.  a separate claim from Robert Davidson, who created the sculpture called Lady Liberty of the Las Vegas Strip followed later in the year. In the UK the Copyright Licensing Steering Group (CLSG) published a report detailing the successes of implementing Richard Hooper and Ros Lynch's's plans for a Digital 'Copyright Hub' over the past 12 months and plans for implementation of the main recommendations,  and ensure continued cross-border collaboration focused on further streamlining of copyright licensing. And Spain passed legislation that made it a criminal offence to run a website that provides links to sources of unlicensed content, and anyone convicted of running such an operation could face up to six years in jail in "aggravated cases". The law only targets those sites that are run for profit (but that includes those making "direct or indirect profit") and the Spanish government has said that carrying advertising would be sufficient to bring a website into the system. 

In October  The 'Happy Birthday' lawsuit that is (still) winding its way through the US federal courts - seeking clarity on whether the music publisher Warner Chappell has a valid copyright in “Happy Birthday to You”  - was moved on a step. U.S. District Judge George H. King (Central District of California) ordered that certain tangential claims be stayed until further notice, while the case will move forward on the central claim alone. Elsewhere, the Irish Government published "Modernising Copyright”: 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." Eleonora posed the question "Should droit de suite become a "global right"?" and Antigua took action to suspend US copyrights - and recoup the country's losses - which have been set at $21 million each year by the WTO who had challenged the USA's total prohibition on cross-border online gambling services

November November: the Hollywood Reporter told us that the Russian government plans to form an agency in charge of copyright observance amid a series of moves aimed at cracking down on piracy. The Economic Development Ministry has submitted plans for an Agency for copyright control, which is to be formed on the basis of the existing Patent Agency, but will have much broader authority and would be report directly to government.  In the United Kingdom, The Court of Appeal upheld the High Court's decision in SAS v WPL, confirming that copyright cannot protect the look and feel of computer programs. And in UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH und Wega Filmproduktionsgesellschaft GmbH Advocate General Cruz Villalón decided that an internet provider can be required to block access by its customers to a website which infringes copyright provided such a court injunction must refer to specific blocking measures and achieve an appropriate balance between the opposing interests which are protected by fundamental rights. Almost simultaneously the Public Prosecutor in the Court of Rome blocked Italian users access to vKontakte, and the Paris Tribunal de Grande Instance gave its long awaited ruling in the Allostreaming matter - proceedings under Section L.336-2 of the French Intellectual Property Code (which implements Article 8 (3) of the 2001 EU Copyright Directive). The Court found that the impugned websites did indeed infringe copyright (by unauthorized communication to the public) and ordered the ISPs to implement the necessary measures to prevent access to a defined list of websites (for 12 months).  The ISPs were ordered to do so by any efficient means and in particular by means of blocking the domain names.  It ordered the search engines to take the necessary steps to prevent the appearance on their services of any result linking to the infringing websites (for 12 months). Next door in Belgium an Investigating Judge used powers under the Code of Criminal Proceeding and ordered ALL Belgian operators and internet service providers (ISPs) to block access to content hosted by the server linked to the root domain name This decision was upheld by Supreme Court in Belgium who also said this was not a monitoring obligation on the ISP and was legitimate under 15(1) E-Commerce Directive

Beastie Girls?
In December the European Commission launched a public consultation as part of its on-going efforts to review and modernise EU copyright rules. The consultation was framed thus:  "Over the last two decades, digital technology and the Internet have reshaped the ways in which content is created, distributed, and accessed. New opportunities have materialised for  those that create and produce content (e.g. a film, a novel, a song), for new and existing  distribution platforms, for institutions such as libraries, for activities such as research and for  citizens who now expect to be able to access content – for information, education or  entertainment purposes – regardless of geographical borders"  The Review of the EU Copyright Rules invited stakeholders to share their views on areas identified in the Communication on Content in the Digital Single Market including territoriality in the Single Market, harmonisation, limitations and exceptions to copyright in the digital age; fragmentation of the EU copyright market; and how to improve the effectiveness and efficiency of enforcement while underpinning its legitimacy in the wider context of copyright reform." But be quick! And  U.S. Copyright Office Register of Copyrights, Maria Pallante, updated Billboard on the review of US copyright laws, begun this year by Rep. Bob Goodlatte, the new chairman of the House Judiciary Committee. TV broadcasters reiterated their position against Aereo in a brief filed with the U.S. Supreme Court in December, labelling a lower-court decision denying their request to shut down the Internet TV startup “nonsensical” and saying Aereo’s legal arguments defied common sense: also in December, news broke that the 'Wonder' effect works: the Israeli Ministry of Justice published a bill in which it is proposed to add an exception to the Copyright Act (as well as an exception to the Performers and Broadcasters Rights Act) following on from the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.  And fair use, a topic that (along with reforms and blocking orders) has underpinned the Copyright Year, raised its head again in the very public spat between the Beastie Boys and toy company Goldieblox. Was Goldieblox's use of a reworked version of the Beastie Boys track 'Girls' in an advert (that the toy company said was meant to empower young girls to enter science and engineering) fair use? Or were they simply taking commercial advantage of the band - who have been publicly and resolutely against their music appearing in adverts? And whilst it appeared that the US wasn't too keen on introducing a US style doctrine of fair use into the Trans Pacific PartnershipTreaty (which stalled slightly as large swathes of the secret text were put online for all to see and a number of countries rallied against certain US led provisions), the Australian Law Reform Commission recommended introducing a 'fair use' style exception in the form of  "a flexible fair-use exception as a defence to copyright 

The last words - firstly from a letter to the Times in London on the 17th December from a group of copyright users - often drowned out in the debate on copyright by the loud voices of the content industries and the technology sector: Signatories including the British Library, the National Portrait Gallery, the Society of College, National and University Libraries, the Association of Independent Museums and the Wellcome Trust, said: "The Government is on the brink of bringing in new laws which will be fundamental in ensuring that the UK can compete globally. We urge this forward thinking approach to avoid a breakdown in respect for our copyright laws because they no longer reflect the use of digital technologies in everyones' lives". To me this chimes with that iconic graphic from the noughties - the young music fan with the ubiquitous ipod headphones dangling from his his ears, and the motto "I steal music - and I'm not going away!". Reforms, treaties and even judge driven solutions to modern problems are all well and good - but we need pragmatic and effective legislative reforms for copyright - for the benefit of all stakeholders - as Maria Pallante said in December "It's important for investors to do well. It's important for corporate licensees to do well. But at the end of the day, if we want the respect of the public, and we really want to be able to say our law is functioning the way the Constitution envisioned it would, it has to work for creators." 

The EFF's 2013 in Review: The Next Great Copyright Act? here

As ever - readers will have their own views on what should (or perhaps should not) be in their copyright year - The CopyKat writes from a UK/US, music industry and Anglo-Saxon perspective: that said, last year (amongst other things) I missed the immensely important amendments to the Canadian Copyright Act and not one but five Canadian Supreme Court decisions (on the same day, no less!) as well as a very confusing German music sampling case. So please let us know if you think something important is missing - comment is free on the 1709 blog! And Happy 2014.


Castor Canuck said...

Once again, you have slighted poor little Canada, your erstwhile colony. On December 23, 2013 - just in time for Christmas and three whole days before your posting, the Supreme Court of Canada delivered a very important judgment that dealt with, inter alia, the meaning of "substantial part" in the context of reproduction, the admissibility of expert evidence, and considerable comment on damages that is focused on Quebec law but may also apply to some extent in the rest of Canada. See Cinar Corporation v. Robinson, 2013 SCC 73

Castor Canuck Redux said...

Actually, you missed a sixth important Supreme Court of Canada decision last year, involving a doomed attempt to use broadcast regulation to impose a "value for signal" compensation regime for local TV signals - something precluded by copyright legislation. See Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68, [2012] 3 S.C.R. 489. This was a seriously important decision, the significance of which not even all Canadian copyright counsel comprehend.

However, your indifference to and slight of formerly and quaintly colonial Canada is not without precedent or even current context. I am afraid that Canada is best known these days for His Worship Mayor Rob Ford of Toronto. Please believe me, however, that there are other aspects of interest and significance on the snowy plains, rocky peaks, and endless lakes and rivers of the "true north strong and free". After all, it was Canada that gave the world Justin Bieber.

Ben said...

EX colony? I hadn't realised. But THANK YOU Castor Canuck Redux, and please rest assured I DO have an update on the Supreme Court of Canada's long-awaited decision in Robinson v. Cinar Corporation in our next CopyKat, out on January 1st to welcome in 2014!