Thursday 3 July 2014

The CopyKat - JCSI points to potential the illegality of a new UK copyright exception

The Shanghai Daily reports that the license of 'value-added' telecom service run by the Chinese video sharing site QVOD has been revoked by the Guangdong Provincial Telecommunications Administration over copyright infringement concerns. Shenzhen QVOD Technology Co., Ltd. can no longer be engaged in telecommunication services after the withdrawal of its license, the Administration confirmed. According to the Administration, QVOD has violated regulations of telecom service management. The company was informed of an administrative penalty - a rather large fine of 260 million yuan ($41.6 million U.S. dollars). 

The Second Circuit appellate court in the USA has ruled that architectural works cannot always be neatly categorized as compilations of unoriginal material, criticising the 2008 decision by the Eleventh Circuit in Intervest Construction, Inc. v. Canterbury Estate Homes, Inc - saying that decision was "overly simplistic", explaining that not all architectural works consist solely of unoriginal elements. "Some architectural designs, like that of a single-room log cabin, will consist solely of standard features arranged in standard ways; others, like the Guggenheim, will include standard features, but also present something entirely new. Architecture, in this regard, is like every art form."  The real issue, the Second Circuit explained, is to determine what elements of an architectural work are original and therefore protectable, versus what elements are standard and thus not protectable.  Zalewski v. Cicero Builder Developer, Inc 2014 WL 2521388, at *5 (2d Cir. June 5, 2014). More on Mondaq here.

Just days after they went on sale in the UK, Google Glass has been banned from two cinema chains who have screens across the country. Vue cinema chain and the Cinema Exhibitors' Association have both said the gadget cannot be worn during screenings, following cinema chains in the US, who have also banned the use of Glass over fears of copyright infringement being committed by customers using Glass’ forward-facing video camera to record newly released films. Image: Google.

Dr. Monica Horten, a writer, policy analyst and visiting fellow at the LSE, looks at "copyright liability for cloud computing services hovering on the EU horizon" and asks what we can learn from the case of ABC Inc v Aereo in the United States Supreme Court  - over on the LSE Media Policy Project blog in a piece headed "Copyright Liabilities Loom for Cloud Providers in Wake of Aereo Judgement". 

Hackers in Argentina (or well, I suppose they could be anywhere so I am guessing) have taken direct action after The Pirate Bay was blocked in Argentina - the first Latin American country to remove the site on the grounds of copyright infringement. Hackers  managed to replace the website of Argentinean music industry trade body CAPIF (who led the legal action to instigate the block) with a proxy to access The Pirate Bay which remained in place for some ten hours.

Not Katy Perry - but Roald Dahl's "Witches"
A group of Christian hip-hop musicians headed up by rapper Flame are suing pop singer Katy Perry and her record label in federal court in St. Louis, Michigan, claiming that the 2013 hit song "Dark Horse" infringes on their copyright of a 2008 song "Joyful Noise." That song appeared on an album that was nominated for a Grammy for best rock or rap gospel album and the claimants say "By any measure, the devoutly religious message of 'Joyful Noise' has been irreparably tarnished by its association with the witchcraft, paganism, black magic, and Illuminati imagery evoked by the same music in 'Dark Horse' ". 

In the wake of the leak of the European Commission’s White Paper on copyright policy come two articles looking at what should be done to modernise Europe's copyright regime: The first says "Achieving a modern copyright regime that is apt for a digitally connected continent requires a strategic vision" ...... and suggests that a strategic vision should include a proper balance in the copyright framework. Creativity must be incentivised and rewarded without, however, undermining legitimate interests of users and the broader development of a thriving digital economy in Europe". This article is by Jakob Kucharczyk, Director in the Brussels office of the Computer & Communications Industry Association, and is on Disco - the Disruptive Competition Project - and is well worth a read. And TechDirt have this take "EU Publishers Present Their 'Vision' For Copyright: A Permission-Based Internet Where Licensing Is Required For Everything" which can be found here.

And in the UK doubt has been raised about the UK government's power to introduce a new private copying exception to copyright without an associated mechanism for compensating rights holders. In a rather rare move* The Joint Committee on Statutory Instruments (JCSI) said it was unclear whether the introduction of a new private copying right without a mechanism for ensuring rights holders receive "fair compensation" could be permitted under European law saying "if they [the exception] are approved and made, there will be a doubt whether they are intra vires and in particular the Committee's attention had been drawn in particular to the CJEU's judgment in case C-467/08 Padawan in which the Court held that 'fair compensation', within the meaning of Article 5(2)(b) of the Copyright Directive (2001/29/EC), is an autonomous concept of European Union law which must be interpreted uniformly in all the Member States that have introduced a private copying exception; that Member States which decide to introduce the private copying exception into their national law are required to provide for the payment of 'fair compensation' to righstholders. The always readable has a good take on this here http://www.out- asking if this exception could end up being tested in the CJEU to determine the legitimacy of the UK's plans for the new private copying right. It's quite understandable that key elements in the music industry - in particular the record labels, music publishers and the sector collection societies will push for fair compensation to be included - or the exception scrapped so this one may run - although I for one will be looking for my own "fair compensation" - back from those very same labels and publishers - for all of those copyright payments I have made over the years for now obsolete formats like mini-disc, betamax,  VHS, cassette tapes and laser discs. The House of Commons will debate the proposed exceptions including private copying on the 9th July according to an IPO tweet (below).

*I am reliably informed that the fact that the JCSI has reported on the SI is very unusual. I understand that this is only the 7th time an affirmative SI has been reported by the JCSI during this Parliament (ie since May 2010). And it is the 3rd time of the 7 that the report is for doubtful vires. So, third time in four years. Quite a historic event generally and this could be seen as very historic in copyright law history!

1 comment:

Anonymous said...

I think the JCSI has been unduly lobbied. Perhaps another first ?

Anyway, BIS's memorandum in rebuttal is pretty convincing. Not much room to make a credible complaint to the Commission on this one. Plus CopyDan might confirm the broad discretion. The AG in that case seems to think that one MS can levy memory cards and another not. If that is correct, then there is no vires problem here.