Saturday 8 August 2015

The CopyKat - that not quite so secret TPP Agreement is back in the news

China's copyright regulator has said that the online music copyright situation has improved since it ordered music providers to remove unlicensed songs in July. Music steaming services had removed more than 2.2 million unlicensed songs as of Friday, said the National Copyright Administration (NCA). Internet companies have also improved their efforts in copyright cooperation, said the NCA. However many commentators such as Billboard saying piracy remains a major issue saying "Well, that deadline has passed, and sites like VeryCD, which allows illegal downloads, and the popular QQ for streaming, are still up and running and still serving up artists like The Beatles". 

Torrent Freak have led with an article headlined "iTunes illegal under UK cpoyright law": TF reached out to the UK Intellectual Property Office, which provided some very clear answers on the recent decision in BASCA v Secretary of State for Innovation and Skills [2015] EWHC 1723 (Admin) saying: “It is now unlawful to make private copies of copyright works you own, without permission from the copyright holder – this includes format shifting from one medium to another,” a spokesperson informed us. The IPO specifically notes that copying a CD to an MP3 player is not permitted. TF says this  means that iTunes’ popular ripping feature, which Apple actively promotes during the software’s installation, is illegal.

The Trans Pacific Partnership Agreement (TPP) continues to attract interest and comment - almost all negative. The latest leaks have revealled that there is a widening disagreement between member nations on the deal’s 'draconian' copyright and intellectual property (IP) provisions which appears to be a split between the USA and almost all of the other 11 potential signatories on a number of copyright provisions. The 12-nation trade pact would put nearly 40 percent of global trade under a trade agreement aimed at spurring growth and closer trade ties between the Asia Pacific region and Western Hemisphere countries. The US's moves to extend the term of copyright beyond life of author plus 70 years is being resisted as are the text that allows authorities to seize and destroy equipment that infringe copyright, as well as “materials and implements relevant to the infringement” such as computers or servers that host such materials. The leak reveals that the U.S. is opposing a measure that would limit these laws to goods “predominantly” used in infringement, instead calling for the seizure and destruction of equipment that committed only 'minor infractions' of these laws according to the International Business Times. TechDirt takes a different tack, looking at the USA's resistance to 'fair use' provisions with the headline "Why Does The TPP Repeatedly Require Stronger Copyright, But When It Comes To Public Rights... Makes It Voluntary?" saying what the USTR is really proposing is a limit on fair use by proposing a rule that would act as a ceiling for the kind of fair use-like protections for the public and making any provisons (in effect) voluntary by using the qualifications that signatories 'shall endeavour' to bring in a fair use scheme - almost all other provisions in the next must be incorporated into signatnories' domestic laws. A Canadian perspective here.

The EFF say this: "For starters, countries are resisting U.S. negotiators' audacious proposal to distort trade secrets law into a weapon against hackers, journalists, and whistleblowers. There are two new proposals in this leaked text, one of which the U.S. itself supports, to allow countries to adopt a narrow safe harbor for whistleblowers in respect of information that exposes a violation of the law. But this is far from enough. The safe harbor isn't compulsory and it doesn't apply to leaks of information that are of vital public interest, but that don't expose illegality—such as the TPP text itself. Another important area of dissent from the U.S. negotiators' hard line appears in the Enforcement section of the IP chapter, in which every single country is now lined up against the U.S. in favor of a remedy for victims of wrongful copyright abuse" with the EFF posing the question "one has to ask why the U.S. administration wishes to prevent its trading partners from adopting a basic protection for victims of copyright trolls that already exists in U.S. law".

Those Turtles
The New York State Broadcasters Association has filed an amicus brief in the Second Circuit U.S. Court of Appeals in case betwewen sixties pop stars the Turtles (Flo & Eddie - Howard Kaylan and Mark Volman) and SiusXM, contesting the lower court's assertion in dicta that the performance rights being established under common law might apply to broadcast radio as well and  arguing that New York state law does not support a common law performance right in sound recordings and saying that upholding such rights would be "impractical and destructive."  "(T)he District Court’s sweeping alteration of the law is unsupported by prior case law, legislative history at the federal level, and the history of the recording and broadcasting industries in New York State," the NYSBA says, adding that "broadcast radio is fundamentally different from satellite radio; broadcast radio is not subscription based and has been a fixture in the music industry for decades.  In fact, broadcast radio is the very medium that made Respondent’s music famous by disseminating it to the public at large at no cost." The brief also argues that "the District Court fashioned a new common law performance right in sound recordings that heretofore never existed," the brief asserted that radio airplay sells music and that common law copyrights for sound recordings have never included performance rights but only against unauthorized reproduction.  And the brief argued that ruling to expand the imputed performance right would result in "financial distress for broadcasters, perverse incentives for artists, and uncertainty for everyone". More here and here. Having prevailed in Claifornia and New York in establishing that state laws protect the public performance of pre-1972 sound recording,  the litigants lost their claim for common law protection of pre-1972 sound recordings in Florida where the judge said no law existed to protect such rights and that the coirt was not disposed to create a new property right which is a matter of the legislature.

Ray Charles
And finally, the United States Court of Appeals for the Ninth Circuit has 'breathed new life' into a case highlighting an interesting intersection of the worlds of estate planning and copyright law. The case in question was initiated in 2012 by the Ray Charles Foundation against 7 of the musician’s 12 children, to block their attempted terminations of copyrights in 51 of Charles’ songs, including “I Got A Woman” and “Hallelujah, I Love Her So.” to get the return of the copyrights. The charitable Foundation was Charles’ sole heir and received the entirety of his estate, including the rights to receive royalties for his songs.  Charles' children, each got a trust worth $500,000 apiece shortly before his death and were required to sign written contracts effectively waiving their rights to any other inheritance. Regular readers will recall the termination right the children are attempting to assert is created under the U.S. Copyright Act of 1976 which allows an artist or his surviving heirs to terminate a copyright 35 years after it was granted.  The Ninth Circuit has now reversed the lower court’s dismissal of the Foundation claim, ruling that the foundation had standing since it receives royalties from the copyrights held by Warner/Chappell Music and so had  standing as a “real party in interest” ruling “It is undisputed that copyright ownership lies with Warner/Chappell, but just as the termination notices affect Warner/Chappell’s ownership of copyrights, they also directly affect the foundation’s right to royalties” and “The foundation is the sole recipient of royalties flowing from Charles’s copyright grants and effective termination would deprive it of the right to receive prospective royalties. We thus have little difficulty concluding that the foundation is litigating its own stake in this controversy.": (Ray Charles Foundation v. Raenee Robinson et al., case number 13-55421, in the U.S. Court of Appeals for the Ninth Circuit.). 

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