2014 began with the news from Canada that Quebec artist Claude Robinson’s lengthy battle with Cinar Corp. over copyright infringement had ended with a partial victory in Supreme Court. The case centred on Robinson's creation, in the early 1980s, of preliminary sketches and scripts for a prospective TV series for children that he called Robinson Curiosité; In 1995, Cinar and co-producers France Animation and Ravensburger introduced a new TV series, with characters strikingly similar to Robinson’s concept. The Supreme Court of Canada finally upped Robinson’s total award from the $2.7 million figure set by the Quebec Court of Appeal, but without restoring it fully to the $5.2 million awarded by Superior Court Judge Claude Auclair in 2009. The USA was our next stopover with news that the smallest of the three major record labels, Warner Music Group (WMG) has submitted a proposed settlement to its ongoing digital royalty dispute class action with artistes. WMG proposed a two-part compromise to artists with record deals that pre-date 2002. Affected artistes would see an increase digital royalty rates - and a share of a pot of $11.5 million. Not much really. This was followed by new research, based on a survey of 2,000 internet users in France, that found that the 2009 ‘three strikes’ system in France (the 'Hadopi' law) has not deterred individuals from engaging in digital piracy and the system does not reduce the intensity of illegal activity of those who did engage in piracy. More from Europe: In Case C-355/12 Nintendo v PC Box the CJEU said that circumventing a protection system may not be unlawful. And as the month ended the EU Commission said that it had serious doubts about Italian Communication Authority's (AGCOM) draft online copyright enforcement regulation.
And so on to February: In Utah, District Judge Dale Kimball blocked TV streaming company Aereo from operating in several Western U.S. states, at least until the U.S. Supreme Court took up a related case in April. Judge Kimball ruled that Aereo's retransmission of video signals was "indistinguishable from a cable company." He said that if Aereo continued to do business, it would damage broadcasters' ability to negotiate with legitimate licensees, siphon viewers away from their websites and subject them to potential piracy. This was the beginning of a series of 'bad news' days for Aereo. But the bigger news in Europe was all about links and linking - and all hail Svensson! The CJEU in Svensson (C-466/12) ruled that a clickable hyperlink (as well as a framing link) to an authorised and publicly available work does not infringe the communication to the public right, because the public is not new. So it's all about the "new public" ! The IPKat's recent '2014 Copyright Awards' gave the decision its 'most important copyright case' gong - and Eleonora commented that "In particular, the 'new public' criterion may not appear that straightforward to both understand and apply. Surely there may be some subjective connotation in determining 'the public taken into account by the copyright holders when they authorised the initial communication.' The question is: how can those who provide links be sure about the intention of the relevant righholder? Although it could not be an exaggeration to suggest that one may surely link but do so at his/her own peril, it is hard to think of a case that had a higher potential to affect our daily activities over the internet than Svensson." Elsewhere MEPs strongly backed a new European bill that will allow music download sites to secure single music rights licences from collective management organisations that are valid across the EU, voting 640-18 in favour of adopting the Collective Rights Management Directive and In the southern hemisphere the long-awaited report by the Australian Law Reform Commission into the adequacy of Australia's copyright exceptions was published with the headline recommendation that Australia introduce a flexible 'fair use' style exception.
March began with some settlements - mellow March maybe? Liberation Music settled Lawrence Lessig's August 2013 federal complaint which said that the music company were wrong to force the take down of one of Lessig's lectures from YouTube that featured clips of user-generated videos showing people dancing to Phoenix’s track “Lisztomania”. The settlement includes an admission from the music company that Lessig had the right to use the song and Liberation admitted Lessig's use of the song was protected by fair use - and agreed to adopt new policies around issuing takedown notices. Viacom and YouTube settled Viacom's 2007 litigation with a joint statement saying "This settlement reflects the growing collaborative dialogue between our two companies on important opportunities, and we look forward to working more closely together". And 'transformative' artist Richard Prince reached a settlement with Patrick Cariou, the photographer who accused Mr. Prince of violating his copyrights by using Mr. Cariou’s pictures of Rastafarians as the basis for a series of paintings that sold for millions of dollars. The IFPI published their downloadable Digital Music Report 2014 - which showed that music fans’ growing appetite for subscription and streaming services had helped drive recorded music revenue growth in most major music markets in 2013, with overall digital revenues growing 4.3 per cent - and Europe’s music market expanding for the first time in more than a decade. In Australia where the High Court had bucked the growing trend for courts to issue blocking injunctions forcing ISPs to block access to websites, Music Rights Australia's General Manager Vanessa Hutley said Australian government should undo what the High Court did in the iiNet case. And THAT selfie surfaced - you remember - the one of Ellen DeGeneres and assorted Hollywood Stars at the Oscars - which prompted a slew of comments here and on the IPKat - about who actually owned the copyright in the much copied image: DeGeneres for setting up the snap? Bradley Cooper who pushed the button? All of the featured stars? Sponsor Samsung? Or the Academy of Motion Pictures Arts and Sciences who staged the event? More on sefies and a monkey would soon follow! Google announced an appeal in the 'Innocence of the Muslims' case where actress Cindy Lee Garcia had persuaded Chief Judge Alex Kozinski and a colleague in a split three-judge panel of U.S. 9th Circuit Court of Appeals that she held a copyright in her performance in a trailer for the controversial film, despite appearing for only five seconds - but with dissenting judge N. Randy Smith accusing the panel's majority of writing new law saying "We have never held that an actress' performance could be copyrightable". Finally the Court of Justice of the European Union gave judgment in Case C-314/12 UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft mbH, finding that an internet service provider may be ordered to block its customers’ access to a copyright-infringing website - but such an injunction and its enforcement must, however, ensure a fair balance between the fundamental rights concerned. So, blocking orders: fine so long as they're reasonable!
|Mini-antennae - on a slippery slope?|
June began with the case of Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd and Others, case C‑360/13, where the Court of Justice of the European Union held that browsing and viewing articles online does not require authorisation from the copyright holder, with PRCA director general Francis Ingham saying: "We are utterly delighted that the CJEU has accepted all of our arguments against the NLA". PRCA had lost in the High Court and the Court of Appeal in the UK and David Pugh, managing director of the NLA, stressed that the result of the case had no bearing on the licences NLA Media Access issued to Meltwater and other media monitoring agencies or to those agencies' clients telling PR Week "Media monitoring agencies still require a licence to copy online content to create paid-for services for their clients and their clients still need a licence to receive those services. Peter Sunde, co-founder of file-sharing website The Pirate Bay, was arrested in southern Sweden and sent to serve his outstanding sentence for copyright violations after being on the run for nearly two years. Back over the pond the 'Sherlock Holmes' litigation reached what seemed to be its final (and logical) conclusion with the US Court of Appeals for the 7th Circuit deciding for author Leslie Klinger in his battle with the Conan Doyle Estate, upholding the decision of the US District Court for the Northern District of Illinois that Mr Klinger was free to use material in the 50 Sherlock Holmes stories and novels that are no longer protected by copyright. Writing on behalf of the Court, Judge Richard Posner recalled the decision in Silverman v CBS, in which the 2nd Circuit held that when a story falls into the public domain so does it's story elements - including its characters. Works derived from earlier works whose copyright has expired may nonetheless be protected, but copyright will only extend to the "incremental additions of originality contributed by the authors of the derivative works." The Hamburg District Court (25b C 431/13 and 25b C 924/13) ruled that under certain conditions commercial wireless local area network (WLAN) operators in hotels and holiday apartments cannot be held liable for their guests using the WLAN connection to upload movies illegally to filesharing websites - here where guests could use the Internet temporarily by using a password and confirming that they "assume liability for all actions taken" and that they were aware that "alleged abuse can result in legal actions". And as the month ended the U.S. Supreme Court ruled that Aereo had violated US copyright laws by “capturing broadcast signals on miniature antennas and delivering them to subscribers for a fee.” In a 6-3 split decision, SCOTUS handed down a decision which will prevent Aereo selling a service that allows its subscribers to watch television programs over the Internet almost simultaneously with broadcasts, agreeing that Aereo was infringing the broadcasters right to 'perform' their copyrighted works 'publicly'.
In July the second big 'selfie' debate erupted after a spat between Wikipedia and British photographer David Slater. Slater's camera was apparently stolen by a monkey (a crested black macaque) while he was on a trip to Indonesia in 2011 and the monkey seemingly took a few shots of herself. So the big question arose - who owns those snaps? Wikipedia argued that since was is the monkey and not a human being who took the pictures, there was no copyright; it thus posted the pictures on the entry for the endangered macaque without asking for the photographer's permission. Slater was not best pleased, not least as he later claimed he had set up the camera and had amended the images. After another round of interesting and mostly informed comments, our own poll found that 6% of readers though the monkey owned the copyright: "she's the author, after all". 30% of readers plumped for "Only humans are authors so the photographer owns the copyright as the nearest relevant human". 52% shared the opinion of the US Copyright Office that "There is no copyright in works authored by animals: they are a gift to humanity which we can all use". Just 4% said "The United Nations should set up a special agency to own and control uses of all non-human works like this" and 5% said "Whichever human gets to it first can keep it, just like any other bona vacantia". Aurelia posed her own thoughts in her very interesting piece Monkey See, Monkey Do, Monkey get Copyright, too? As the year ended the appeals court in New York state said that a caged chimpanzee called Tommy could not be recognised as a "legal person" as it "cannot bear any legal duties" although the Nonhuman Rights Project say the state has previously conferred legal "personhood" status on domestic animals who were the beneficiaries of trusts, as well as extending rights to non-human entities such as corporations. Similarly in 2007 an Austrian Supreme Court refused to appoint a woman as legal guardian of a 26 year old chimpanzee called Hiasl as he was not a person in a case that was referred to the European Court of Human Rights. Interestingly in December this year, in another case brought by the Nonhuman Rights Project, a court in Argentina allowed a claim for habeas corpus - for Sumatran orang-utan Sandra - who had been born in captivity and was being held at Buenos Aires Zoo - finding she deserved the basic rights of a non human person, including freedom and pending appeal should be released to a sanctuary; but does that extend to the right to copyright authorship we ask? Elsewhere in mainland Europe, a court in Spain overturned a previous ruling that had led to the blocking for a number of file-sharing sites in a blow to the content industries. The appeals judge in the wonderfully named Court of Instruction No.10 said there were "insufficient grounds" for blocking the offending sites in order to protect intellectual property rights - although this prompted fresh calls to extend or revise the so called Law Sinde in Spain which was meant to have allowed web blocking as a remedy against internet piracy from March 2012. Back in the UK doubts were raised about one of the new UK copyright exceptions (for private copying) when 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. Finally, on this blog, guest blogger Tom Ohta of Bristows LLP provided us with a very useful update on where the UK was with orphan works in Orphan works in the UK: a caring home at last? and digital licensing took a step backwards when the Global Repertoire Database project for music was shelved.
September: The first decision against SiriusXM appeared with a California federal judge delivering a "legal earthquake" by declaring Flo & Eddie of The Turtles "the victors in a lawsuit against SiriusXM over the public performance of pre-1972 sound recordings" by finding that SiriusXM had violated the Turtles' pre-1972 master copyrights by playing their music without licensing it or paying performance royalties. U.S. District Judge Phillip Gutierrez ruled against SiriusXM, holding that California state law, as it is written, gives the master recording owner exclusive performance rights. Consequently, the judge further ruled in Flo & Eddie's favour on all causes of action as it applied to public performance, but not to alleged reproduction copyright violations.
Also in September, blocking injunctions were in the news again and back to Italy where the Italian Administrative Court ('TAR') referred AGCOM's Regulation on Online Copyright system to the Constitutional Court, seeking clarification as to whether administrative blocking conforms with constitutional principles including freedom of expression, economic freedom and proportionality. UK Culture Secretary Sajid Javid warned internet search engine companies that legislation could be introduced if they do not make "real progress" in clamping down on links to pirate websites. He told the Annual General Meeting of the record label's trade association the BPI that he and Business Secretary Vince Cable had written to leading firms such as Google requesting they work with the content sector in finding a way to stop giving easy access to sites which violate copyright. And a federal judge in New York ruled that Grooveshark, the controversial online music streaming service, had infringed on thousands of their copyrights. Judge Thomas P. Griesa of United States District Court in Manhattan ruled that Grooveshark was liable for copyright infringement because its own employees and officers had uploaded a total of 5,977 of the labels’ tracks without permission. Those uploads are not subject to the “safe harbor” provisions of the Digital Millennium Copyright Act with the judge saying “Each time Escape streamed one of plaintiffs’ songs recordings, it directly infringed upon plaintiffs’ exclusive performance rights”.
In October, the headline news in the UK was the introduction of the new exceptions to copyright added into the Copyright Designs and Patents Act 1988 - most notably for parody, caricature and pastiche which had been explained in March
2014 by the IPO in its Guidance for creators and copyright owners. The new legislation came hard on the heels of the CJEU's September musings in Deckmyn which acknowledged parody as a autonomous concept in EU law, and went some way to explaining how the InfoSoc Directive exception for the purpose of caricature, parody or pastiche should be applied in Europe: The Court of Justice for the European Union noted that ‘parody’ must be defined in accordance with its usual meaning in everyday language and also found that a parody need not display an original character of its own, other than that of displaying noticeable differences with respect to the original work parodied saying "the only, and essential, characteristics of parody are, on the one hand, to evoke an existing work while being noticeably different from it and, on the other, to constitute an expression of humour or mockery. In addition The CJEU held that that the application of the exception for parody must strike a fair balance between, on the one hand, the interests and rights of authors and other rights holders and, on the other, the freedom of expression of the person who wishes to rely on that exception but added that if a parody conveys a discriminatory message, a person holding rights in the parodied work may demand that that work should not be associated with that message. It is for national courts to balance interests but the exception must be interpreted uniformly throughout the European Union. The CopyKat said that we should expect case law soon - but what does that cat know! Also introduced were exceptions in the UK for (i) Personal Copies for Private Use and (ii) Quotation and (iii) education along with non commercial research, disability, libraries and archive and public administration. The private copying exception does not apply to computer programs but will permit the making of a personal copy of an individual’s own copy of a work, for that individual’s private use for non-commercial purposes and the exception for quotation permits the use of a quotation from the work (whether for criticism or review or otherwise) provided that the work has been made available to the public. Also in the UK, the orphan works licensing scheme pursuant to s77 of the Enterprise and Regulatory Reform Act 2013 launched, and the UK government confirmed another two years of funding for the City Of London Police's Intellectual Property Crime Unit (PIPCU) which has been spearheading a number of anti-piracy initiatives since its launch last year. Mike Weatherley MP, the UK Prime Minister's then Intellectual Property Advisor, published the third of his copyright reports, called 'Copyright Education and Awareness' and Mr Justice Arnold called for a 'holistic' approach to copyright reform in his 2014 Herchel Smith lecture, noting no fewer than 7 reasons why a new Act is needed, including technological change and the wrong implementation of Directives.
It was a busy month! Also in October the U.S. a three-judge panel of the U.S. Court of Appeals for the 11th Circuit stirred up a hornets nest in Cambridge v. Patton by rejecting a broad ruling on how to determine fair use in an educational setting. One academic website noted "The decision guarantees the case has a long and litigious road ahead of it by reversing the district court’s opinion and sending the case back for further deliberations" and "Rather than strike a decisive blow against fair use, the legal concept that places some limits on the rights of copyright holders, the appeals court instead issued a stern warning against quick-fix, one-size-fits-all solutions to legal disputes - specifically, the idea that copying less than a chapter or 10 percent of a book automatically protects an institution from a lawsuit" - a so called 'bright line' guideline. And also in the U.S.more bad news for SiriusXM when Los Angeles Superior Court Judge Mary Strobel said that having initially favoured Sirius's arguments in a case brought by the major record labes, she was considering the earlier decision of Judge Phillip Gutierrez which she found "persuasive". And in Europe in the BestWater case, the Court of Justice of the European Union followed Svensson and handed down a "landmark" verdict - ruling that embedding or framing copyrighted videos is not copyright infringement, even if the source video was uploaded without permission. The CJEU said as long as the original video was not altered or communicated to a new public, embedding it is not seen as a new communication, with the court saying "“The embedding in a website of a protected work which is publicly accessible on another website by means of a link using the framing technology … does not by itself constitute communication to the public within the meaning of [Article 3(1) of the EU Infosoc Directive] to the extent that the relevant work is neither communicated to a new public nor by using a specific technical means different from that used for the original communication”.
In November, Canada’s Copyright Act was substantially changed - but the 'Notice and Notice' regime, which will require internet intermediaries, such as ISPs and website hosts, to take certain actions upon receiving a notice of alleged copyright infringement, was deferred until January 2, 2015. In the U.S. The U.S. Supreme Court confirmed that it would not hear an appeal in the "Sherlock Holmes" case (Leslie Klinger v Conan Doyle Estate) and the Barry Diller backed TV-over-the-Internet startup Aereo filed for bankruptcy. 60s pop band The Turtles won a second victory against SiriusXM Holdings Inc., with U.S. District Judge Colleen McMahon in Manhattan rejecting Sirius' request to dismiss the lawsuit accusing the satellite radio company of playing pre-1972 songs from the band without permission or paying royalties. She said that unless Sirius raised any factual issues requiring a trial by December 5th, she would rule outright for the plaintiff, Flo & Eddie Inc. And the Innocence of the Muslims case and the concept of copyright in performances moved onwards with the 9th U.S. Circuit Court of Appeals confirming that it would rehear the case en banc. In Australia, the Brisbane Times reported that websites that host or link to copyright infringing movies and TV shows could soon be blocked if the Australian cabinet approved a government submission to tackle online copyright infringement and that ministers were likely to recommend that the government put a requirement on internet service providers to forward letters about alleged copyright infringement from movie and TV studios to their customers - more on that as the year ended. The report also said it was likely ministers will recommend making it possible for rights holders to seek an injunction in court to require multiple internet providers block websites hosting infringing content. A group of 77 prominent computer scientists filed a petition with the U.S. Supreme Court urging it to review the earlier controversial ruling that allowed Oracle to claim copyright on APIs - the essential building block for many everyday software operations. The brief, filed by the Electronic Frontier Foundation, comes in support of Google, which has appealed to the Supreme Court after losing a decision to Oracle in May. you will remember that decision, issued by the Federal Circuit appeals court, reversed a California judge’s conclusion that APIs (application programming interfaces) are not subject to copyright because they are simply a process or a method of instructing one computer program to communicate with another — as opposed to source code or literary works, which are considered original works protected by copyright with the Washington appellate court saying "We conclude that a set of commands to instruct a computer to carry out desired operations may contain expression that is eligible for copyright protection". They had been wanted in July! the UK Government faced a challenge to it's new private copying exception in the form of a judicial review over its implementation of the legislation. The claimants are the British Academy of Songwriters, Composers and Authors (BASCA), Musicians' Union (MU) and UK Music. Whilst they support the introduction of a private copying exception to keep up with the development of technology and practice, they say the government has introduced the exception without means of 'fair compensation' for musicians, composers and rightholders. Having already ruled that “Private users are obligated to check whether their wireless connection is adequately secured to the danger of unauthorized third parties abusing it to commit copyright violation” Jeremy alerted us to McFadden, where a German court asked the CJEU "if a person offers [free] non-password-protected access to the Internet" and that is used by an unknown user to illegally download or upload copyrighted material "then can the person offering the Internet access be absolved of legal liability on the basis that he is but a ‘mere conduit’ under the EU’s ‘E-Commerce’ Directive 2000/31/EC?"
And sport - well the fallout from the FAPL's partial success in the linked cases of C-403/08 Football Association Premier League Ltd and Others v QC Leisure and Others and C-429/08 Karen Murphy v Media Protection Services Ltd continued. At the start of the year BBC Wales reported that a large number of pubs in the Cardiff and Swansea areas, suspected of showing live afternoon Premier League football matches using foreign satellites, were facing legal action. And sure enough, that followed. Interestingly by the end of the year the Premier League's argument that the UK ban on showing live Saturday afternoon football looked like a red herring - even BBC pundit (and ex England striker) Gary Lineker called a 3pm Saturday kick off a 'rare' thing - with early and late Saturday afternoon matches now commonplace alongside 'Super Sunday' and Monday night matches to satisfy paymasters Sky and BT. In November, one of our readers posed the question about the legality of foreign satellite football pictures (which clearly filled their pub up on Saturday afternoons) but also mentioned that the foreign satellite provider they had paid for this service had 'disappeared'. Almost immediately after that question was posed, four pubs in Stoke, Durham, Rochester and Swindon were ordered by the High Court to pay a total of £30,000 in costs to the Premier League (Scottish cases here) - putting a real damper on the decoder wheeze. And the FAPL also turned its attention to Twitter, forcing Vine to suspend the account of Time Warner owned popular sports site Bleacher Report for posting unauthorised six second video clips of goals from Premiership football matches (which are reserved to NewsCorp in the UK). And at the end November, the final founder of file-sharing site The Pirate Bay, Fredrik Neij, referred to as one of the world's most wanted hackers, was arrested by border authorities in Thailand after attempting to enter the country from Laos, where he was living.
|Troll hunting? and it's MY copyright! - (C) the CopyKat|
So there you have it, my copyright year! As the year ended internet radio service Pandora hit back at the action by The Turtles, claiming that the musicians’ lawsuits amounted to an illegal restriction on freedom of speech, and it is asking a court to put a stop to the Turtles’ demands; after extensive lobbying by songwriters and musicians, Congress was also taking an interest at looking at reforms in U.S. copyright law to reflect the shift away from the 'sale' of music to streaming models; And the European Commission made it clear that 2015 will be a year for copyright reform - as well as reform in the telecoms and online sector, and will push for further moves to break down national barriers to create what it calls a digital single market.
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 common law perspective: So please let us know if you think something important is missing - comment is free on the 1709 blog but please be polite and thoughtful!
You can also see the EFF's International Copyright Law: 2014 in Review
From us here and all of our friends (some pictured, left) have a happy, peaceful and prosperous 2015.