Thursday 30 April 2015

Sexies appeal and natural persons: more questions for the CJEU

Case C-110/15 Nokia Italia and others is a reference by the Consiglio di Stato, Italy, to the Court of Justice of the European Union (CJEU) of a request for a preliminary ruling on the compatibility of Italian legislation on copyright, and in particular on compensation due to holders of copyright-related rights for the private reproduction, on any medium of phonograms and videos made by natural persons for personal use (ie not for profit), with Directive 2001/29 -- the InfoSoc Directive. 

The questions referred to the CJEU are
1. Does Community law, and in particular recital 31 in the preamble to, and Article 5(2)(b) of, Directive 2001, preclude national rules (in particular Article 71 sexies of the Italian Legge sul Diritto d’autore (Law on copyright), in conjunction with Article 4 of the [Decree of] 30 December 2009) that provide that, in the case of media and devices acquired for purposes clearly unrelated to private copying (that is to say, for professional use only), determination of the criteria for ‘ex ante’ exemption from the levy is left to private negotiation, or ‘free bargaining’, with particular regard to the ‘application protocols’ referred to in Article 4 above, failing any general provisions and any guarantee of equal treatment between the [notorious famous Italian collecting society] SIAE and persons obliged to pay the compensation, or their trade or professional associations?

2. Does Community law, and in particular recital 31 in the preamble to, and Article 5(2)(b) of, Directive 2001/29, preclude national rules (in particular Article 71 sexies of the Italian Law on copyright, in conjunction with the [Decree of] 30 December 2009, and the instructions on reimbursement given by the SIAE, that provide that, in the case of media and devices acquired for purposes clearly unrelated to private copying (that is to say, for professional use only), reimbursement may be requested only by the final user rather than the producer of the media and devices?
For the record, Recital 31 of the Directive reads like this:
(31) A fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject-matter must be safeguarded. The existing exceptions and limitations to the rights as set out by the Member States have to be reassessed in the light of the new electronic environment. Existing differences in the exceptions and limitations to certain restricted acts have direct negative effects on the functioning of the internal market of copyright and related rights. Such differences could well become more pronounced in view of the further development of transborder exploitation of works and cross-border activities. In order to ensure the proper functioning of the internal market, such exceptions and limitations should be defined more harmoniously. The degree of their harmonisation should be based on their impact on the smooth functioning of the internal market.
and Article 5(2)(b) of the Directive runs thus:
2. Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases:
...(b) in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject-matter concerned;
The UK Intellectual Property Office invites comments. If you have any, just email to the Office at by not later than 11 May 2015 (that's nearly two weeks -- quite a generous time scale by traditional standards). Your comment may, just may, inspire the UK government to make a  submission before the Court.

Wednesday 29 April 2015

Revenge porn - the need to legislate between privacy and copyright?

You may rememer the case between Tulisa Contostavlos (who shot to fame as a member of hip hop group N-Dubz and landed a high-profile role as a judge on the X Factor talent show) and her ex boyfried  Justin Edwards, who posted a sex tape of the couple  on the internet. In July 2012, in the High Court in London,Tulisa accepted the "sincere apologies" from rap artist Edwards, who initially denied being responsible for the tape appearing on the web. Her solicitor, Jonathan Coad, told Mr Justice Tugendhat that the invasion of Miss Contostavlos's privacy "was of the most severe kind imaginable" and that "She suffered and continues to suffer very serious distress at this wholly unjustified and unlawful interference with her rights". Mr Justice Tugendhat granted Tulisa an interim injunction, prohibiting anyone from 'using, publishing, communicating or disclosing all or any part of the film to any other person'. Whilst injunctive relief was granted for the breach of her privacy, and most of the videos were blocked and removed from the internet, Ms Contostavlos had to bring further actons, in 2013 she accepted £42,500 damages from news website TNT over its wrongful publication of a still from the sex tape. Its still out there of course, one of the curses of the digital age. All well and good in the UK then, with Tugendhat J stating: "For years before the passing of the Human Rights Act 1998, the court heard applications for injunctions based on the law of confidentiality, as it was then understood, to restrain the publications of details of their sexual lives… Details of a person’s sexual life have thus been recognised for very many years as high on the list of matters which may be protected by non-disclosure orders. It has also long been recognised that photographs are more intrusive than a verbal or written description. In the case of intrusive and intimate photographs of the kind in question in this case there is no real prospect of a defence of public domain”.  In February this year s33-35 of the Criminal Justice and Courts Act 2015 added a new "revenge porn" provision in thr United Kingdom, meaning those who post private, sexual images of someone without consent and with the intent to cause distress will now face up to two years in prison, with the Act extending to images sent on social networks, including Facebook and Twitter, and those sent by text after April 23th 2015. 

In Denmark, 23-year-old Emma Holten was the victim of "revenge porn" after Emma's email was hacked and nude photos, originally taken for her boyfriend, were subsequently leaked across the internet. After having to suffer a stream of horrendous online abuse and threats from complete strangers, she devised a retaliation plan: to have a series of consensual nude portraits shot by photographer Cecilie Bødker Jensen to create images portraying herself as a human being, not a sexual object, and Holten personally spread them (see above), along with an essay, and a video which you can see on the Guardian. But that's not something everyone can or wants to do. 

So the headline "Woman forced to copyright breasts to fight revenge porn" caught my eye. It's not an entirely accurate strapline, but it does explain the steps one American woman went to to protect her privacy, where the act of publishing nude pictures of a non consenting (ex) partner is only a crime in 17 of the U.S.A.'s 50 states.  California made revenge porn illegal in 2013, although as  a misdemeanor, which can, where guiilt is proven, result in up six months in jail and fines of up to $1,000. There are other charges that can be brought: readers may have recently seen that 28 year old Kevin Bollaert, boss of the UGotPosted revenge porn website was convicted by the state of California on 27 felony counts, including charges of extortion and identity theft. He was sentenced to 18 years in prison. in February this year, another 28 year old, Hunter Moore, pleaded guilty to charges of computer hacking and agravated identity theft in relation to his revenge porn site IsAnyoneUp?  He also faces a prison sentence. But in other cases (and states) the victim can be left clutching at straws. 

In 2014 in New York state, Ian Barber, 29, who tweeted nude photos of his ex-girlfriend to her sister and employer has had all charges against him thrown out: Barber was charged with harrassment - but he didn't communicate with the victim during the alleged crime; He was charged with dissemination of unlawful surveillance, but he obtained the material legally; He was charged with publicly displaying offensive sexual material, but New York law doesn't consider Twitter as "public display." Judge Steven Statsinger said "The Court concludes that defendant's conduct, while reprehensible, does not violate any of the criminal statutes under which he is charged". The case reminded me of the recent decision by the New York Supreme Court Appellate Division who ruled in favour of artist Arne Svenson, who used a camera with a powerful long lens to take pictures from his lower Manhattan residence of people in apartments in a neighboring building. The people who were being photographed had no idea this was happening and images included their children -  and the pictures were then used as part of an art exhibit called "The Neighbors." The ruling says: "This case highlights the limitations of New York's statutory privacy tort as a means of redressing harm that may be caused by this type of technological home invasion and exposure of private life. We are constrained to find that the invasion of privacy of one's home that took place here is not actionable as a statutory tort of invasion of privacy pursuant to sections 50 and 51 of the Civil Rights Law, because defendant's use of the images in question constituted art work and, thus is not deemed "use for advertising or trade purposes," within the meaning of the statute" adding "undoubtedly, like plaintiffs, many people would be rightfully offended by the intrusive manner in which the photographs were taken in this case. However, such complaints are best addressed to the Legislature—-the body empowered to remedy such inequities." 

Charlotte Laws, whose daughter Kayla's computer was hacked to obtain a single nude topless phot 'selfie', mounted a two year investgation into Hunter Moore after Moore ignored her written request to remove the photo under the provisions of the Digital Millennium Copyright Act despite copies sent to Moore's attorney, his hosting service, Facebook and to his internet security company. It was her investigation that sparked the FBI investigation that brought Moore down.

In the current case, CNN Money explains that “Hilary” (a pseudonym) was in a long-distance relationship that, like many in the 21st century, involved some nude selfies and videos. And like many relationships, it came to an unhappy end. But then it got worse: her ex posted those photos online to humiliate her: “[My ex] continually asked [me] to send photos, and it was uncomfortable at first. But I figured, ‘You’re in love so why not?’ They were very intimate,” she said. “There were a lot of topless photos, a lot in bed, I guess simulating sexual acts.”

CNN also explain that there is slow progress in the U.S. because "Writing new laws is difficult because of fears that sweeping legislation would infringe on First Amendment rights. Websites that host these photos often resist demands to remove images, claiming free speech protection under the First Amendment. So victims, despite their distress, have to be creative - and one route is to use copyright: In most cases, the first course of action is filing a takedown notice under the Digital Millennium Copyright Act. If the pictures were taken consensually, and the website refuses to remove the images, suing for copyright infringement is a next step - and remember these are selfies - so owned by the subject - but lets be quite frank, they are intimate and  whilst registering a copyright isn’t difficult it can be complicated and time-consuming. And you have to give the U.S, Copyright Office a copy of the material you want protected. When it involves intimate pictures, that means exposing yourself all over again — this time to the government. As "Hilary" explains “I thought, well no, this must be wrong … they’re forcing me to disclose them further when that’s what I was trying to prevent.” If you didn't take the picture but your ex-partner did - a whole new layer of complexity is added - as your ex is probably the author and owner of those snaps.

All told, Hilary made three different registrations for a total of over 100 images. She tried to supply stills from the videos instead of the actual videos as part of her application but was denied. She ultimately chose not to copyright the videos.

Hilary’s pictures were not put in the Library of Congress (a request for special relief can prevent that), but her real name and the titles of the images do appear in its public catalogue. One of the titles refers to her lingerie. The good news is that she succeeded - to a degree - and the move has worked, to an extent:  but as all of thse victims realise, whilst images and videos can be removed from some websites, its never really gone in the digital age and copyright is surely not the best tool to protect privacy. 


Tuesday 28 April 2015

Copyright odds and ends

The most recent issue of the Queen Mary Journal of Intellectual Property, published by Edward Elgar Publishing, is now available to subscribers online and in printed format. As usual, one major feature in the issue is available on open access and can thus be devoured with enjoyment by even non-subscribers. This issue's free-to-access feature is the Herchel Smith Intellectual Property Lecture 2014, "The need for a new Copyright Act: a case study in law reform", delivered by Sir Richard Arnold, a prominent member of the Patents Court, England and Wales and an active member of the IP community whose participation in debate and discussion at all levels over the past years has been very much appreciated. The abstract of this Lecture runs like this:
There were three United Kingdom Copyright Acts in the twentieth century. It is now 26 years since the Copyright, Designs and Patents Act 1988 was passed. The major thesis of this lecture is that it is time for a new Copyright Act. The minor thesis is that we need to re-think our approach to copyright law reform. Both theses are illustrated by the history of UK copyright legislation over the last 140 years.
You can read the text of the lecture in full by clicking here.


The King's College London Distance Learning programme, "UK, EU & US Copyright Law" which leads to either a Postgraduate Diploma or a Masters Degree, is open for applications for its next run, which starts on 1 October 2015. This blogger has written about its apparent popularity on the IPKat weblog here.  Anyone who wants further details of it should click here.


Via the eagle-eyed Chris Torrero comes a quick word about "Copyright Notice: Public Exhibition of Copyright Works", another in the recent series of United Kingdom Intellectual Property Office Notices which don't have binding legal force and are not per se authoritative but do reflect official thinking.  It explains that, for example,
In the UK, public exhibition is not an act restricted by copyright. This means that it is not an infringement of copyright to put a literary, dramatic, musical or artistic work on public display (for example, in a display cabinet in a museum or gallery).

Despite it being lawful to exhibit a literary, dramatic, musical or artistic work, it would usually be an infringement of copyright to perform such a work in public. This means that, although a musical or dramatic work in the form of writing or notation can be put on display (for example, the script of a play or a piece of sheet music), the public performance of such a work would be restricted by copyright. The term “performance” would include delivery of the work in lectures, addresses, speeches or sermons, as well as any mode of visual or acoustic presentation.

Likewise, playing or showing a sound recording, film or broadcast in a public place would usually be an infringement of copyright.

However, certain exceptions to the public performance right exist. For example, educational establishments are permitted to perform, play or show copyright works without infringing copyright, provided it is done for the purposes of instruction and the audience is solely composed of individuals directly connected to the establishment (namely staff and students).
You can access the document in full here. Source:

Monday 27 April 2015

"Lending" online: more questions for the Court of Justice

On 1 April 2015, the District Court of The Hague passed judgement in the case between Vereniging van Openbare Bibliotheken (Netherlands Public Library Association, VOB) and Stichting Leenrecht (the Public Lending Right Office, SL). The District Court referred questions to the Court of Justice of the EU on online lending of e-books by public libraries. The questions are listed on the website of Dirk Visser's law firm Visser Schaap & Kreijger here. For convenience we reproduce them here:
1. Should Articles 1(1), 2(1)(b) and 6(1) of Directive 2006/115 be interpreted in such a way that "lending", as referred to in the directive, includes making copyright novels, anthologies of stories, biographies, travelogues, children's books and youth literature available for use without direct or indirect economic or commercial advantage by establishments accessible to the public
- by placing a copy in digital form (reproduction A) on the establishment's server and making it possible for a user to reproduce it on his own computer by downloading (reproduction B),
- such that the copy made by the user during the download (reproduction B) is no longer usable after a limited period of time, and
- such that other users are not able to download the copy (reproduction A) onto their computer during this time?
2. If the first question must be answered in the affirmative, does Article 6 of Directive 2006/115 and/or any other provision of European Union law preclude Member States from attaching the condition, to the application of the restriction on the lending right laid down in Article 6 of Directive 2006/115, that the copy of the work (reproduction A) made available by the establishment has been put into circulation by the first sale or other transfer of ownership of that copy in the European Union by the rightholder or with his consent within the meaning of Article 4(2) of Directive 2001/29?

3. If the second question must be answered in the negative, does Article 6 of Directive 2006/115 impose other requirements on the origin of the copy made available by the establishment (reproduction A), such as, for example, the requirement that that copy has been obtained from a legal source? 
4. If the second question must be answered in the affirmative, must Article 4(2) of Directive 2001/29 be interpreted in such a way that the first sale or other transfer of ownership of subject-matter, as referred to in that paragraph, also means the making available of digital copies of copyrighted novels, anthologies of stories, biographies, travelogues, children's books and youth literature at a distance by means of downloading for use for an unlimited period of time?
A full text translation of the decision can be accessed by clicking here.  Thanks, Dirk -- and many apologies for not posting this earlier.  This blogger is still playing catch-up with his Easter emails ...

On this topic, see also Eleonora's Katpost of 15 September last, here.

Who has adopted the Orphans?

Readers will probably be familiar with the background to the Orphan Works debate, (if not then see here, here, here and here) which arguably first entered the public arena with the Gowers Review (pdf) and then chugged along, via the Hargreaves Review, the Digital Economy Bill until finally seeing some legislative resolution in the form of Section 77 of the Enterprise and Regulatory Reform Act 2013, and The Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014. The photographers' lobby group Stop43 marked this milestone with the website headline "You think you own your own photographs? NOT FOR LONG."

So as we near the end of the first six months of the Orphan Works Register, are there any signs that Stop43 were right to be concerned?

As at today, a total of 263 works have been subject to applications for a licence, with 220 licences having been granted. The vast majority of applications (215) are for still images, of which 202 concern photographs and the remainder are for paintings. The next highest area of interest is Written Works, with 34 applications, and 19 licences granted. Fourteen sound recordings have been subject to applications, but so far no licences have been granted in the category. Trailing way behind in popularity are Scripts and Choreographic works (1 application awaiting further information), Musical notation (1 licence granted) and Moving Images (no applications).

As might be expected, a very high proportion of all applications is for material connected to the First World War. The most prodigious applicant has been the Museum of the Order of St John accounting for 175 of the still image applications, all of which have been granted licences. These images are photographs typically of people or scenes involving the work of the St John Ambulance in WW1. One assumes that these were images in the archive of the museum, which are genuine orphans, and so, perhaps, a good example of the altruistic motives which have energised the push for orphan works to be made available to a wider audience. None of the other 14 applications for photographs involve anything which could be considered modern.

Scattered across both the written works and still image categories is a group of applications which centre on ephemera concerning the poet Rupert Brooke. It is tempting to surmise that once again the First World War may be a major factor behind these applications, which were submitted by Brooke's old university, King's College, Cambridge.

Even the Sound Recording applications seem fairly innocuous, although some are for comparatively recent works, such as the one described as "'She's a playgirl' recorded by Clifton Dyson for Q.S records in 1983."

The IPO's Orphan Work Register web page is still in beta format and so a little clunky when trying to do searches. That said, clicking on the title or description of a work takes you into the full registration details for each application. This makes searching the current database relatively manageable, but it will become less and less easy as the overall number of applications on the register increases.

I think it's fair to say that based on the results of the first six months, the applications submitted so far don't exhibit evidence of the abuses which were feared. The majority appear to be requests based on enhancing our cultural heritage rather than outright commercial exploitation. However as the orphan work licensing system becomes better known, that could well change.

Look out for a follow up piece here on orphan works licensing, based on the experience of a real life applicant, in a couple of weeks time. 

The CopyKat

In the UK, and as the general election looms, there's not been much mention of copyright, but one party has come up with some new suggestions - the Green Party - but they may be forced to backtrack on proposals to limit UK copyright terms to 14 years after a "howl of protest" from prominent writers and artists including Linda Grant, Al Murray and Philip Pullman. The Greens’ manifesto said the party aims to “make copyright shorter in length, fair and flexible” but Kate Pool, deputy chief executive of the Society of Authors, told the Guardian that the change would be “appalling injustice” and that artists and writers would be first to lose out under the proposal, with more money being made by manufacturers or distributors.

Calling for US Congress to back an overhaul of licensing rules and a rewrite of the so called consent decrees that govern collective licensing in America, rapper Ne-yo has added some pithy common sense comments in the debate about royalties payable from streaming music services like Pandora and Spotify saying "Songwriters see the smallest fraction of royalty payouts because we are limited in how we can negotiate. Meanwhile, record labels and recording artists often earn twelve to fourteen times more than songwriters for a stream of the exact same song. As an artist who has experienced both sides of this split, I can personally speak to the nonsensical disparity between these different incomes".

Online music streaming service Grooveshark could potentially have to pay hundreds of millions of dollars to major record labels after a U.S. judge ruled ahead of its trial starting today (Monday) that Grooveshark's copyright violations on nearly 5,000 songs were "willful" and made "in bad faith." Last september U.S. District Judge Thomas Griesa,  ruled that Grooveshark's parent company, Escape, and its founders, Samuel Tarantino and Joshua Greenberg, were liable for the illegal uploads of thousands of recordings by artists such as Madonna, Eminem, Bob Marley and Jay-Z. Judge Griesa said the defendants had directed their employees to make the uploads in spite of the legal risk and said that the site's takedown procedures ere not robust and failed to prevent uploaders repeatedly posting infringing material. The remaining matter is now the quantum of damages Escape Media must pay in penalties for the infringement in the action brought by nine record companies including Arista Music, Sony Music Entertainment, UMG Recordings, and Warner Bros Records in 2011. The maximum damages allowed under U.S. copyright law of $150,000 could potentially be awarded for each track infringed, and as Grooveshark has been accused of infringing nearly 5,000 tracks in the lawsuit - that's a massive $736 million (UMG Recording Inc et al v. Escape Media Group Inc et al).

In Russia, owners of 'pirate' sites have been given a final warning by the government. Augist 2013 amendments to the countries copyright law which will come into force May 1 not only protect more content than ever before, but also contain provisions to "permanently block sites that continually make unauthorized content available." Torrentfreak has more.

In NIgeria, the Nigerian Copyright Commission is proposing stringent new penalties for online infringement. The new Nigerian Copyright Act would, if passed into law, allow the NCC to cooperate with internet service providers to target infringing websites carrying illegal content. The NCC is also looking for a 2% levy on photocopiers, DVDs and mobile phones either manufactured locally or imported before the end of May, 2015. The levy is to compensate copyright owners but the NCC would retain a percentage to fund anti-piracy operations and promote creativity. Last year the NCC was involved in 202 anti piracy operations which resulted in 53 convictions. 

And China is clamping down on news webstes that harvest stories from other news providers.  WantChinaTimes reports that on April 22, the National Copyright Administration (NCA)  issued a set of new regulations governing news copyright, stipulating that if internet media outlets want to pick up any article from other sources, they should follow related regulations in China's Copyright Law. This means that these outlets should get advance permission from and make payment to the owner of the article reproduced and should clearly indicate the name of the author, as well as the title and source of the article.

Jean-Michel Jarre, songwriter, musician and now the President of CISAC, the global author rights collecting society body issued a statenent yesterday on World Intellectual Property Day in support of fair compensation for creators, saying  "Article 27(2) of the Universal Declaration Of Human Rights, adopted by the United Nations' General Assembly in 1948, states that, 'Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author'. These words are as valid now as they were 70 years ago" adding "Culture is what brings people together" and. "And is the expression of the cultural diversity that is so cherished by the United Nations and UNESCO. Access to culture is paramount to the elevation of mankind. It goes hand in hand with freedom of speech and freedom to create. Equally important in our eyes are the rights of creators. Without these moral and economic rights, creators would be deprived of ways to sustain a living and continue to create freely, and would also lose control over the use of their works" and "But for this to happen, creators need to be granted fair remuneration for the use of their creative works. In the music sector, we have launched the Fair Trade Music project to address this issue. In the visual arts sector, we are asking for an international treaty on the artist's resale right under the aegis of WIPO" concluding with "Sustainable creative eco-systems depend on the recognition that creative works bring value to so many businesses that would not exist without them. In return, what we, creators, are asking is simple: to be fairly compensated for the use of our works and to be protected for our rights. We are calling upon all the countries represented at the United Nations to endorse our pledge, and work with creators all around the world to ensure a better future for authors".

And finally, and importantly, over on the IPKat Eleonora reports on a recent decision from the German Federal Court (Bundesgerichtshof ) that says that public libraries may now digitise their physical collections and may make available to their users the digitized works through terminals located in the respective reading rooms. They may do so irrespectively of whether the publisher offers a digital version of the book or not. Further, the library users may not only read the digitized works, they may also print out parts thereof or save those parts to USB sticks. Such reproduction, however, must stay within the boundaries of private or academic use according to Sec. 53 UrhG. In return, the publishers are entitled to receive fair compensation. It's all here - and well worth a read.

Sunday 26 April 2015

World Intellectual Property Day - Get Up, Stand Up. For Music.

Never has music been more accessible. The days of queuing up in a record shop to obtain that pre-ordered prized vinyl copy of your favourite band’s new album would seem alien to today’s digital generation (not least as many record shops have disappeared). Digital Natives have YouTube, they have Spotify, they have the BBC iPlayer, they have iPods, they have Amazon – and they have The Pirate Bay and many many other tools on the internet to find both legal and illegal content. Even Digital Immigrants are migrating to digital music and there are few left who are not touched by the digital age in some way.  But how have the music industry, musicians, songwriters, technology companies, legislators and consumers adapted to change? And what's around the corner? Tomorrow and to celebrate World Intellectual Porperty Day,  the CHARTERED INSTITUTE OF LIBRARY AND INFORMATION PROFESSIONALS will publish a new article by 1709 Blogger Ben Challis titled "Music and copyright – that elusive search for perfect harmony"

and you will be able to find that article here

Friday 24 April 2015

World IP Day: "Don't Stop the Music"

This blogger's friends at HGF, an ambitious law firm full of intellectual property specialists, have come up with an attractive marketing ploy that can expect a wider circulation than the usual client seminars and cocktail invitations. In their own words:
With World Intellectual Property Day only a few days away on 26 April, HGF have created an interactive guide to the IP issues surrounding the publication and distribution of music through online platforms, with the aim of both educating artists and raising awareness of the potential IP issues that can arise within the industry. You can find the page here:
The link takes you through to "Don't Stop the Music", described as "A guide to intellectual property for musicians, bands & record labels in a connected world".  The guide, which is also a handy checklist of things that can wrong and which enthusiastic musicians and composers can easily overlook, is visually riveting, though it may not appeal greatly to people who are easily distracted from the written word by visual effects jumping around the page.

HGF say that they will also be promoting the event and interactive guide on social media, using the hashtag; #WorldIPDay, so you have been warned!

Thursday 23 April 2015

Students' Rights - of the Intellectual Kind

To mark World IP day on Sunday, the Intellectual Property Awareness Network (IPAN) is holding its 5th Parliamentary event entitled "IP : a 2020 Vision" today (23rd April) in the Conference Room of the BPI at County Hall, across the Thames from Portcullis House. Given the forthcoming election, quite how well attended the event will be by parliamentarians, remains to be seen. But the need for events like this to raise the awareness of the importance of IP are amply demonstrated by a recent article in the Times Higher Education (THE). THE surveyed just under 70 universities in the UK and found that a significant number of them (just under 20%) required their students to sign over all intellectual property rights in their work to the university as a condition of enrolment, while  handful of others asked for the rights to be transferred or to be licensed to the university.
Clearly the IP covered by such policies will range from copyright in a student's course work, through design right, to in some cases to patents arising from academic research. It remains unclear how much students understood about these rights when they were asked to sign them away. These policies are understandable from the point of view of the universities which are increasingly keen to exploit academic research and innovation as an important revenue stream, but is it really fair that some students are being denied the right to exploit the fruits of their own creativity, especially when they are paying for their tuition?

This comes after the recent launch of the IPO's IPTutor  online tutorial and the BBC's Copyright Aware project (about which see John Ensor's post here) which aim to address a lack of IP awareness amongst young people in general. Students in higher education were identified by a 2012 study (pdf) jointly sponsored by IPAN, the IPO and the National Union of Students, as being eager to receive more teaching on the subject of IP. That study found that 84% of students they contacted thought that having a broad knowledge of IP was important to them in their studies and for their future careers, although only 40% of students considered their current awareness of IP to be enough to support them in their future career. The study also concluded that more should be done to introduce students to IP while they were in secondary education. Teaching on IP in schools was very patchy, and in large part just consisted of making pupils aware of avoiding plagiarism, rather than acting as a foundation for IP in general.

The THE article quoted Charles Oppenheim, a visiting professor at the University of Nottingham, as saying these IP-grabbing policies in universities are a result of "ignorance rather than anything else", and he pointed to the JISC Legal report from 2007 which had warned that such contracts could well be found to be unfair if they were ever challenged in court. Mandy Haberman, a director of the IP Awareness Network, felt there was a huge amount of confusion about IP within the higher education community.

Some of the reasons quoted by the universities do tend to support this suggestion that ignorance and confusion lie behind these policies. The Royal College of Art claimed that it held the IP rights until graduation in order to protect students' work from infringement. On the other hand, the London Metropolitan University wanted to have the rights so that it would not be liable for infringing the students' work if copies had to be made available to second markers.

If students are led to believe that this sort of rights grabbing is the norm, many of them who go on to be entrepreneurs or creators could well be  at a disadvantage when it comes to understanding the value of their IP rights, and it is claimed, this will damage Britain's entrepreneurship. 

Thanks to Chris Torrero for making us aware of the THE article.

California Bill Would Require Libraries to Post IP Infringement Notice on 3D Printers

A California bill, AB-37, introduced in December 2014 by Assemblywoman Nora Campos (D-San Jose) would require libraries providing public access to a 3D printer to post a notice alerting users of their potential intellectual property infringement liability for misuse of the 3D printer. The 14-point type notice would have to:  

“(A) Provide citations to the applicable state and federal laws that may impose civil liability or criminal penalties for misuse of a 3D printer, including laws regarding copyright infringement and trademark and patent protection.
(B) Describe the potential damages for liability and criminal penalties that may apply for a violation of these laws.
(C) Alert users of the 3D printer that it is the responsibility of the user to be aware of and abide by the laws that may apply to the use of a 3D printer.”
The California Department of Justice would have to review and revise the notice annually “to reflect updates to the applicable laws.”

What is 3D Printing?

The bill defines a 3D printer as “a machine or other device that manufactures or produces solid objects by depositing layers of material, including, but not limited to, plastic, pursuant to instructions that are stored and displayed in an electronic format as a digital model.” Indeed, most 3D printers use ABS (acrylonitrile butadiene styrene) or PLA (polylactic acid) plastic as printing material. However, a company is already using 3D printers and bioprinting technology to  print 3D liver tissue from human cells, and it is also possible to use other materials, such as steel or resin.

3D Printing Soon in Every Library?

While the high cost of 3D printers still prevents them to be household staples, some public libraries are already giving their patrons the right to use their 3D printer. The number of U.S. libraries with 3D printers should grow in the near future, as the MakerLab Club, a U.S. community of libraries and museums, has for a goal to “advance 3D digital literacy by bringing 3D printers, 3D printing programs, workshops and access to students, adults, educators, schools and non-profits.” It donates 3D printers to libraries and assists libraries in setting up 3D workshops so that their patrons may learn how to use these new printers.

3D Printing and Intellectual Property

While 3D printers may be beneficial to humanity, by allowing the relatively cheap and easy production of body parts, tools, shoes, or even houses, they may also be used to print infringing goods.

Designers can draw their original 3D printing ideas using a design program such as CAD. The digital object design file may then be used to print the object. Users without design skills may easily find these files on specialized platforms on the web, for instance, the thingiverse site which allows its users to browse the 3D printing files uploaded there by others, and download them for free.

The California bill has been derided by some online, but it seems that requiring such a warning is quite innocuous, and libraries themselves have published models of such warnings to be posted on their 3-D printers. However, I am more concerned that the doctrine of fair use would fail to protect 3D users from cease-and-desist letters demanding they stop their use of a work to create a derivative version of it, by modifying an original digital object design file, or generating such a file by scanning a work protected by copyright. 3D printing indeed could bring a new dimension to fan-art. Toy company Hasbro recently authorized third parties to create their own 3D print version of its famous My Little Pony Toy, as part of a promotion for the famous plastic equine. This is an interesting initiative, but a company which had not  authorized such derivative work could threaten to file an infringement suit. The work may or may not be protected by fair use, but the fan may not have the financial resources to seek legal advice.

Thingiverse asks its users to only upload their own creations, or those created by others, and published under a CC license, but nevertheless received its first DMCA takedown notice in 2011, over the upload on its site of a Penrose Triangle. This example is particularly interesting as it can be argued that, as the Penrose Triangle is in the public domain, its 3D representation is also in the public domain.

But not everybody would agree with this statement. Last year, a 3D printing enthusiast from South Dakota, received a cease-and-desist letter from the Augustana College in South Dakota which had taken umbrage from his uploading to the web 3D scans of two statues owned by the college and displayed in public, which are bronze casts of the David and Moses masterpieces by Michelangelo, both of which are, needless to say, in the public domain. Well, so are their reproductions, including those made using 3D printers. Let’s note that in Europe, owners of the moral rights of a work in the public domain could invoke these rights to prevent, say, the 3D printing of the work in a garish and cheap material, or an obscene or disparaging modification.

Other Legal Issues

As this is a copyright blog, I will not write about other legal issues which could be raised by 3D printing, but consumer law and tort law may also be interested in 3D printing. The American Library Association recently published “An Introduction to 3D Printing and Public Policy” where it noted that 3D printers may produce faulty products which could injure consumers, and wonders who would be held liable for injuries sustained by these defective products. Would it be the inventor who printed and sold the item? Or maybe the manufacturer of the 3D printer? The programmer who wrote the code for the product’s design? Or even the libraries? I wonder if a bill will soon be presented, either in California or in another state, proposing to warn 3D printer users of the potential liabilities they face if printing a defective object which would cause harm…

Image is courtesy of Flickr user Keith Kissel, under a CC BY 2.0 license

The CopyKat - oh the excitement, just four days to World Intellectual Property Day !

New Zealand internet service providers who allow users to bypass geoblocks to access overseas digital content have been threatened with legal action by four of the country’s major media broadcasters. State broadcaster Television New Zealand (TVNZ) and pay-television operators Sky, Lightbox and MediaWorks, have confirmed they are preparing legal action against Call Plus and Bypass Network Services on the basis of breach of copyright. Both ISPs offer a “global mode” to their users which gives them access to content that is unavailable in their country, such as subscriptions to a US account of streaming service Netflix.

Now a bit of self publicity. Readers may know that the CopyKat (in his real life identity) edits Music Law Updates.  Now, whilst MLU will continue as a monthly 'journal' style online publication (as it has for the last decade and more), we now have a blog for those of you eager to get your paws on the latest legal news from the music industry. And where will you find that blog I hear you ask - well its all here! For those interested, Music Law Updates covers interesting copyright updates in music and sound recordings, but also extends into the heady heights of Trade Marks, Contracts, Negligence and Personal Injury, Health & Safety, Licensing, Criminal Law and even Competition Law and Taxation on the odd occasion! But all in the context of the music industry.

Aereo - the TV streaming service which the US Supreme Court effectively closed down when it ruled the 'mini antennae' system it used infringed the copyright of broadcasters, will pay around $950,000 to settle copyright allegations made by CBS, FOX, and ABC - who had originally been looking for nearly $100 million.  Now in bankrupcy, Aereo still faces $7.5 million in claims from creditors, but only has $811,000 left to pay those bills. More here and  re Aereo Inc., 14-bk-13200, U.S. Bankruptcy Court, Southern District of New York (Manhattan).

Tucked away inside the 500-page Canadian budget unveiled in Ottawa was a single sentence that, whilst expected at some point as Canada comes t terms with the Trans Pacific Partnership agreement, has already promoted widespread comment. In a section about “celebrating our heritage,” the budget vows to update the Copyright Act “to protect sound recordings and performances for an additional 20 years,” raising the copyright term for musical works from 50 to 70 years "and potentially signalling further restrictions on works of art yet to be unveiled" according to critics who say that the extension is unwarranted and unjustified. Tamir Israel, staff lawyer at the Canadian Internet Policy & Public Interest Clinic at the University of Ottawa said “There is no proof at all the extended copyright term in any way increases incentives to create. On the other hand, Canadians are robbed of open access to works that should be entering the public domain.”

With its copyright soon expiring, the future of Adolf Hitler's Mein Kampf has been repeatedly in the news. Now Peter Longerich, professor of modern German history at Royal Holloway, University of London, who has published a new biography of Goebbels, is facing a claim from Goebbels' heirs because his book quotes from Goebbels' diaries. Cordula Schacht – a lawyer whose own father, Hjalmar Schacht, was Hitler’s minister of economics – is suing Random House Germany and its imprint Siedler, over Longerich's book Goebbels. With Germany's term of copyright for literary works being life of author plus 70 years, Hitler's minister of propaganda's work will also enter the public domain on the 1st January 2016. If this gets to court it may be an interesting case - not least looking at who actually owns any copyright in Goebbel's writings, but also at how far Professor Longerich is protected by exceptions to copyright in Germany, in the UK and possibly in the USA. Rainer Dresen, general counsel of Random House Germany, told the Guardian that an important principle was at stake. “We are convinced that no money should go to a war criminal,” he said.More on TechDirt here.

The Bookseller tells us that a global piracy ring has been found guilty in a US federal court of intentionally infringing copyright, sharing copies of books from up to 16,000 international publishers. The maximum damages allowed under US law - $37.5m – were awarded. The case of Elsevier Inc v Victor Kozlov and Pavel Kazutsin, which was brought to court as a joint action by the global publishing industry, concerned the defendants' websites Avaxhome and Avaxsearch, which illegally provided access to digital copies of millions of books, as well films, music, games and other copyrighted content.

And finally, Swedish prosecutors are preparing to argue their case in court as to why The Pirate Bay's flagship .se domains should be deactivated or put under government control, as copyright enforcers continue to try and make it harder for piracy platforms to operate.

World Intellectual Property Day. 26th April 2015. 

Friday 17 April 2015

The CopyKat - Is Disney skating on thin Ice?

Back in  August last year the CopyKat noted that Disney could be heading to trial over copyright infringement claims involving it's blockbuster animated hit and $1.22 billion grossing "Frozen".  Now that seems to have come about. Back in August, Kelly Wilson, who created a short 2D computer-animated film called "The Snowman", survived the first round in a copyright lawsuit against the company, after a judge noted some key differences between the two films - such as "Frozen" being lighthearted and The "Snowman" not, but also found some similarities. Now Judge Vincent Chhabria has stated that he has a “fairly strong inclination” that a jury should decide whether the Disney official with creative responsibility for the trailer also had access to Wilson’s computer-animated film. Chhabria stated that he will issue an opinion on the two party’s summary judgment motions, but indicated the matter was headed for a jury trial.  Wilson claims that the marketing trailer for “Frozen” directly infringed on her copyrighted film. Wilson’s complaint states that she created "The Snowman" between 2008 and 2010 and that the short was screened at eight film festivals. One of those screenings was at the San Francisco International Film Festival in 2011, where she shared the stage with an employee of Disney’s Pixar Animation Studios, which was also screening a film in the same session. Wilson’s "Snowman" is the story of a snowman who has to race to save his carrot nose from a group of ravenously hungry rabbits after it falls off and slides to the middle of a frozen pond. Wilson claims the 2013 "Frozen" trailer featuring Olaf dashing to save his carrot nose in a race to the middle of a frozen pond with a reindeer is substantially similar to her film. “The storyboards tell an interesting story,” Judge Chhabria said: “I think it’s a story to be told to the jury.”  More here.

The U.S. Court of Appeals for the Ninth Circuit has revisited the issue of a copyright co-owner’s right to grant an exclusive right to a third party, clarified its prior ruling in Sybersound v. UAV, and explained that a copyright co-owner may unilaterally transfer any exclusive copyright interest he or she possesses.  The decision in in the 'Jersey Boys' case which has been covered by this blog here and here: Corbello v. DeVito, Case No. 12-16733 (9th Cir., Feb. 10, 2015) (O’Scannlain, J.) (Sack, J., sitting by designation, concurring in part). The interesing resource for U.S. clopyright decisions, JDSupra,  has the full picture.

UK copyright laws do not provide online content providers with freedom to retransmit TV programmes shown by UK public service broadcasters (PSBs) to fixed-line internet users who could otherwise watch the programmes on TV, the UK government has said. The Department for Culture, Media and Sport (DCMS) said that it is its view that rules contained under s73 of the Copyright, Designs and Patents Act 1988 (CDPA) do not "apply to content transmitted over the internet". The provisions were drawn up to "support the development of analogue cable infrastructure in the 1980s and 1990s" and are now "out-dated", it said. DCMS said that it intends to repeal s73 "at the earliest opportunity" but has opened a consultation on what the "potential implications" of that move would be as part of wider plans to remove existing regulations relating to public service broadcasting. From the ever excellent The Court of Appeal has of course referred further questions to the Court of Justice of the European Union (“CJEU”) in ITV Broadcasting v TVCatchup (C-607/11) - the second time that the case has been before the CJEU. The Court of Appeal has sought clarification on whether s73 CDPA (the defence for regionalised retransmission of broadcasts by cable) is compatible with Article 9 of the InfoSoc Directive (2001/29/EC) and that it covers streaming of public service broadcasts via the Internet. If you can stomach any thing more on the CJEU on communicating with the 'new public', there's more from Professor Jan Rosen over on the IPKat

The latest efforts by the American record industry to force terrestrial radio stations to pay royalties to labels have moved forwards with new proposed legislation in the Congress:  The Fair Play, Fair Pay Act  is backed by four members of the House Of Representatives: Democrats Jerrold Nadler, John Conyers Jr and Ted Deutch and Republican Marsha Blackburn. While AM/FM radio stations do not pay royalties to labels, online and satellite radio stations do, because the Digital Millennium Copyright Act applied a 'digital performing right' to the sound recording copyright. The New Act would  provide for a general public performance right for all sound recordings that are still within copyright in the USA, including per-1972 recordings which a number of digital operators (including SiriusXM) have argued are outside of federal law. More here.

And following on from that, the U.S. Second Cuircuit Court of Appeals will consider whether the owners of pre-1972 sound recordings have performance rights to their songs in an appeal brought by SiriusXM is seeking to appeal the ruling of New York federal judge Colleen McMahon's that denied its summary judgment motion in a lawsuit brought by Flo & Eddie of The Turtles. In her opinion, the judge addressed whether New York law protected public performance and wrote that "acquiescence by participants in the recording industry in a status quo where recording artists and producers were not paid royalties while songwriters were does not show that they lacked an enforceable right under the common law — only that they failed to act on it."  SiriusXM is presenting two questions to the 2nd Circuit. First, “Under New York law, do the holders of common law copyrights in pre-1972 sound recordings have, as part of the bundle of rights attendant to their copyright, the right to exclusive public performance?” And Second, “Does the Dormant Commerce Clause prohibit the State of New York from enforcing a property right that it recognizes at common law?” More on the Turtle's actions here.

HBO has blamed Periscope for facilitating mass copyright infringement after four episodes of the new series of Game of Thrones were leaked and widely shared using the service. According to The Hollywood Reporter, HBO has sent takedown notices to Periscope and it's also taken a dig at Periscope for what it implies is a hands-off attitude toward piracy. "In general, we feel developers should have tools which proactively prevent mass copyright infringement from occurring on their apps and not be solely reliant upon notifications". Periscope is owned by Twitter and the app  lets users broadcast whatever's around them. Game of Thrones was the most-pirated TV show globally during the last three years.

As the Australian courts ordered Australian internet service providers to reveal the identities of 4,726 internet users who had illegally downloaded ‘Dallas Buyers Club’, there was a massive rise in Google searches for ‘VPN’ : By using VPN services or BitTorrent proxies, user's sharing activities can no longer be linked to their ISP account.

The Fincial Post tells us that the Ontario Court of Appeal has certified a class action allowing the province’s 350 land surveyors to sue the managing corporation of Ontario’s electronic land registry system for copyright infringement. At the heart of the case is the surveyors’ claims that they retain copyright in the surveys they prepare and register. Teranet, who has managed the electronic land registry for the provincial government for 25 years, scans the surveys into digital format and adds the electronic information to its database. Teranet also provides electronic copies of the surveys to system users for a regulated fee but pays nothing to the surveyors. The surveyors claim this infringes their copyright.

And finally from the China IP Newsletter from the IPO, UKTI and British Embassy in Beijing, news that the Chinese State Administration of Press & Publications, Radio, Film & Television (SAPPRFT) has announced new regulatory measures - effective from April 1 - limiting foreign TV shows to a maximum of 30% of content on major streaming platforms. The content of foreign shows will also be subject to stricter supervision and must be pre-approved by SAPPRFT. Pre-launch censorship checks cause distribution in China to lag behind international release dates and have been blamed for increases in online piracy in the country. More here in Chinese.

CONGRATULATIONS to Keswick Football Club for their victory in the Westmorland Senior Cup on the 18th April 2015. Well done !!!!