Monday 28 December 2015


2015 - It's been another busy copyright year! Pre-1972 sound recordings, the copyright in performances and protecting a 'vibe' in the USA, as well as the art of photography in France, web blocking in Australia, a failed private copying exception in the United Kingdom all featured on the 1709 copyright blog, along with topics such as the Trans Pacific Partnership Agreement and the ensuing changes in countries such as Canada and New Zealand, and the reform of copyright law, both in the U.S. and Europe. These, and many more updates, regularly made our headlines - and here's just a brief and somewhat personal account of who said what to whom and why they did. The carve up of the 'digital pie' by the music industry was another recurring theme, as were culinary recipes and all things food, along with the hot topic of the definition of  'communication to the public' and what this actually means - which seemed to leave the Court of Justice of the European Union clutching at ever more complicated and ever more common sense defying decisions when looking at online linking. Well to the man on the Clapham omnibus anyway. 

The year began with one of those topics that featured on a regular basis throughout 2015: 60s pop band the Turtles' ongoing battle with Sirius XM to get paid royalties for the use of their pre-1972 sound recordings such as 'Happy Together": In January a New York federal judge largely dismissed Sirius XM’s request to reconsider her 2014 decision in favour of members of the band over the payment of royalties for recordings made before 1972. U.S. District Judge Colleen McMahon rejected Sirius’ arguments that Flo & Eddie Inc, controlled by founding band members Howard Kaylan and Mark Volman, did not own copyrights in The Turtles’ recordings or that Sirius had an “implied” license to play Turtles' songs. Judge McMahon did, however, agree with the New York-based satellite radio company that Flo & Eddie could recover damages for copyright infringement only for the three years before it sued on Aug. 16, 2013, not six years as she had previously suggested. Also in the US, the 9th Circuit Court of Appeals ruled that watchmaker Omega's attempt to use copyright laws to block the sale of Omega watches at discounted prices by Costco will just not work - because of the 'first sale' doctrine' - and that Omega's action was also a misuse of copyright. In Europe, The Court of Justice of the European Union ruled that the consent of a copyright holder does not cover the distribution of an object incorporating a work where that object has been altered after its initial marketing to such an extent that it constitutes a new reproduction of that work (Case C‑419/13, Art & Allposters International BV v Stichting Pictorightwith Eleonora opining that the decision means that that there is no such thing as a general principle of digital exhaustion under the InfoSoc Directive. Another thread that ran through to the close of the year was the harmonisation of copyright in the European Union: The European Copyright Society (ECS) said in a letter to the European Commission's digital commissioner Günther Oettinger, that the "actual Union-wide unification of copyright", as opposed to simply further harmonising the existing EU copyright regime, would have "several major advantages" saying "While copyright unification may be considered undesirable, or perhaps too drastic, by certain stakeholders and national legislatures, this is in our opinion the only way a fully functioning digital single market for copyright-based goods and services can ultimately be achieved. It is in fact the logical next step for the EU legislature to take in this field" and "a European copyright law would establish a truly unified legal framework, replacing the multitude of often opaque and sometimes conflicting national rules that presently exists. Mr Oettinger seemingly agreed as he had previously expressed his preference for "uniform rules" on copyright to apply across the European Union.

In February, Swedish songwriters joined their UK counterparts in criticising the way in which revenues from the digital streaming pie are currently shared out, pointing out the unfair and unsustainable way in which royalties stemming from streaming services are being shared between different stakeholders - in particular the large share taken by record labels on their own behalf, and on behalf of recording artistes, leaves little for music publishers and songwriters. The U.S. Copyright Office released a comprehensive study, “Copyright and the Music Marketplace” detailing the ageing music licensing framework as well as the ever-evolving needs of those who create and invest in music in the twenty-first century. In addition to providing an exhaustive review of the existing system, the report made a number of recommendations that would bring both clarity and relief to songwriters, artists, publishers, record labels, and digital delivery services. Also in the USA, Andrus Nomm, a 36 year old Estonian who lives in the Netherlands, and one of a small group of ex MegaUpload staffers who are facing extradition to the US for involvement in the running of the controversial file-transfer company, pleaded guilty to criminal copyright infringement charges was been sentenced to a year and a day in a US prison. Nomm pleaded guilty in US District Court for the Eastern District of Virginia to conspiracy to commit felony copyright infringement.  A New York federal judge agreed to certify an interlocutory appeal by SiriusXM against the ruling that gave state copyright law protection to pre-1972 sound recordings.  As a result, the 2nd Circuit would now address the legal issue that copyrights in pre-1972 sound recordings didn't cover the right to exclusive public performance - a position successfully challenged by Turtle's musicians Flo & Eddie who filed filed 2013 lawsuits in California, Florida and New York. In one of a number of 'food' cases this year, A federal judge told a Cleveland restaurateur that food recipes can't be protected by copyright law: Judge Patricia A Gaughan said: "The identification of ingredients necessary for the preparation of food is a statement of facts. There is no expressive element deserving copyright protection in each listing. Thus, recipes are functional directions for achieving a result and are excluded from copyright protection under 17 U.S.C. 102(b)" adding for good measure "Certainly plaintiffs cannot be suggesting that somehow the copyright prevents defendants from serving chicken salad sandwiches". And the French civil Supreme Court, the Cour de Cassation, held that a corporation cannot be the author of a work protected by copyright: “une personne morale ne peut avoir la qualité d’auteur.” The case is Cass. Civ. 1ère, No. 13-23566.

March was all about the 'Blurred Lines' in copyright and a US Jury's decision to award $7.3 million to the Estate of Marvin Gaye on the basis that Pharrell Williams and Robin Thicke’s soul-inspired pop song "Blurred Lines" too closely mirrored Gaye’s 1977 single "Got to Give It Up". It's no secret that this writer believes the decision to be fundamentally wrong: whilst the recordings share a very similar 'vibe' - the songs are quite different - and this case was all about the alleged copying of a song. Grammy winner John Legend was one of many in the creative industries concerned that the  verdict could set a worying precedent for artists creating music inspired by others. Howard E King, The lawyer for Thicke, WIlliams and co-writer rapper TI, said the decision set a "horrible precedent for music and creativity going forward". An appeal followed later in the year. The IP Court of Venice held that a work created by a lawyer for their client in the provision of legal services was protected by copyright law. The court found that the piece in question, a review of anti-counterfeit regulations, “possesses a creative quality, epitomised by originality and novelty” because the work was "“the result of a personal, original, new and creative elaboration of legal concepts and industry practices and of the experiences of the author”. Pirate Party MEP Julia Reda, who was then leading the European Parliaments review into the harmonisation of EU copyright law, highlighted her view that geo-blocking within the EU was a threat to European culture. Would she be successful in promoting her view? Readers should now know the answer but scroll down if you don't! The European Parliament's shadow rapporteur Dietmar Köster said "The reform of copyright also concerns linguistic precision - a distinction should be made between Anglo-American copyright and continental European authors' rights. With copyright exploitation rights not necessary reserved for the creator". WikiLeaks released  the "Investment Chapter" from the secret negotiations for the TPP (Trans-Pacific Partnership) agreement. The document added to the previous WikiLeaks publications of the chapters for Intellectual Property Rights (November 2013) and the Environment (January 2014). And finally Eleonora updated on the CJEU's decision in Case C-279/13 C More Entertainment where the CJEU said that live broadcasts are not communication to the public within InfoSoc Directive, but Member States can protect them: "[The Information Society] [D]irective provides that broadcasting organizations may prohibit the provision to the public fixations of their broadcasts, so that everyone can access them from a place and at a time chosen individually." 

April began with an ominous warning for online music streaming service Grooveshark when a US judge ruled ahead of a trial that Grooveshark's copyright violations on nearly 5,000 songs were "wilful" and made "in bad faith." In September 2014 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. In Russia, owners of 'pirate' sites were given a final warning by the government. that amendments to the countries copyright law which would come into force May 1st would not only protect more content than ever before, but also contain provisions to "permanently block sites that continually make unauthorized content available. And HBO 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.  Creators from all creative sectors and geographic regions addressed the perceived shortcomings of Pirate Party MEP Julia Reda's draft report on the adaptation of the Copyright Directive.  As the life of the current UK Parliament ended, it was announced that Mike Weatherley MP was stepping down as a Member of Parliament, but Mike published a final Discussion Paper on copyright. Safe harbour provisions and online service providers which concluded "It does appear to me that the scope of the E-Commerce Directive today is much broader than was envisaged at the time by those drafting it. I would urge the next UK Government to enter into a dialogue with the Digital Single Market team at the EU Commission with a view to considering whether the balance remains fit for purpose." Our (then) newest blogger Andy Johnstone gave us the first of his interesting updates on orphan works in the UK which showed that  at the end of the first six months of the Orphan Works Register, 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) were for still images, of which 202 concerned photographs and the remainder for paintings. The next highest area of interest was written works, with 34 applications, and 19 licences granted. Fourteen sound recordings have been subject to applications, but so far no licences had been granted in that category. Trailing way behind in popularity were scripts and choreographic works (1 application awaiting further information), musical notation (1 licence granted) and moving images (no applications). And finally in April we reported on the slightly confusing headline "Woman forced to copyright breasts to fight revenge porn" in our article Revenge porn - the need to legislate between privacy and copyright? which concluded that whilst it may be useful in certain circumstances, copyright was not the best tool to protect privacy. Marie-Andrée Weiss added to this with her article Right of Publicity and Freedom of Speech Clash in Manhattan

Jimi Hendrix by Gered Mankowitz
May May May: The month began with the news that the music-sharing service Grooveshark had shut down after 10 years. A full eleven strong panel ('en banc') of judges of the Ninth Circuit reversed the earlier (and somewhat controversial) decision of the Appeals Court in Garcia v Google now denying Cindy Garcia any copyright in her acting performance. What's more the court was fairly critical of Judge Alex Kozinski's earlier decision. In particular they were critical of Kozinski's readiness to grant an injunction against Google, despite the fact that this action appears to have constituted prior restraint contrary to the First Amendment. Kozinski, who was also one of the eleven en banc panel of judges, did not take this criticism with a shrug of the shoulders, but instead launched into a robustly worded dissent. Also in the US, the Obama administration sided against Google and said the U.S. Supreme Court should not hear the company's appeal in a case against Oracle, in a case which had wide implications for the technology industry. The case involved how far copyright protection could extend to Java programming language.  In a new case for Sherlock Holmes we reported on yet another attempt by the Estate of Sir Arthur Conan Doyle, author of the Sherlock Holmes detective dramas, to protect the character of Sherlock Holmes, this time claiming that the plot of the new film "Mr Holmes" infringes on the Conan Doyle's short story, "The Adventure of the Blanched Soldier" published in 1926 in Strand magazine. This claim seemed to have more legs than previous ill judged attempts to protect the characters of Holmes and Watson, as this case reflected on similarities between the new film and the book it is based on,  "A Slight Trick of the Mind" by Mitch Cullins, and later (and still copyrighted) works by Conan Doyle. US District Judge Philip Gutierrez sitting in California allowed a class action lawsuit to proceed against satellite-radio company Sirius XM Holdings Inc over the payment of royalties for pre-1972 tracks. The US National Music Publishers' Association (NMPA) filed a lawsuit in the US District Court for the Southern District of New York, alleging copyright infringement against Wolfgang’s Vault, which hosts many thousands of hours of live concert recordings which it disseminates on websites such as YouTube, Music Vault, Concert Vault and Daytrotter. The NMPA claims the online live concert audio and video platform does not have proper licensing in place for the content it hosts. The NMPA says "Hopefully, this lawsuit will bring publishers and many iconic songwriters the revenue they deserve for the use of their music.” And finally and in a decision that certainly alarmed the photographic community,  the Paris Tribunal de Grande Instance ruled that a iconic photograph of Jimi Hendrix taken in, with Hendrix 1967 wearing a military jacket, holding a cigarette and puffing a cloud of smoke while looking at photographer Gered Mankowitz, lacked the originality necessary for its protection by French law, and that “the failure of the description of the characteristic elements of the alleged originality also constitutes a violation of the principle of defence rights.” The TGI thus concluded that Mr. Mankowitz had no intellectual property rights over the photograph. Marie-Andrée  opined that, as such, this ruling should give pause to French IP practitioners defending the rights of a photographer, as they must now prove why the author chose the different elements of a photograph and how these choices reflect his personality in such a way that the work is original. However, the case will be appealed, and so the debate on what is an original work, and how to prove, it is still ongoing in France.

Those Turtles
In June in Australia, Green party senator Scott Ludlam branded the government’s controversial website blocking bill a "lazy and dangerous" piece of legislation that wouldn’t be happening if the Labor government “hadn’t gone completely missing". The Australian Parliament had begun debating the Copyright Amendment (Online infringement) Bill 2015 which would enable rights holders to apply to the Federal Court for an injunction to force ISPs to block its customers from accessing a website. The legislation was enacted. China's Sword Campaign - the now annual nationwide special enforcement crackdown on online piracy and copyright infringement - began. The campaign is jointly operated by the National Copyright Administration of China (NCAC), Ministry of Industry and Information Technology (MIIT), Ministry of Public Security (MPS) and Cyberspace Administration of China (CAC). In 2015 the campaign focussed on music, film and TV, online literature and mobile applications. In London the  British Academy of Songwriters, Composers and Authors (BASCA), the Musicians’ Union (MU) and UK Music successfully challenged the UK Government's new exception to copyright for private copying. In BASCA v Secretary of State for Business, Innovation and Skills the High Court agreed the October 2014 regulations were unlawful because the decision not to provide fair compensation was based on wholly inadequate evidence.  Whilst the music industry welcomed the move, and to this blogger it is certainly a correct interpretation of the law, the decision was widely criticised as being simply out of touch with the reality of what consumers actually do. A pyrrhic victory at best.  Ongoing EU copyright reform prompted Andy to ponder on the 'Freedom of Panorama' and the quite different approaches taken in member states as to whether a photographer, videographer or artist may freely record and then exploit images of sculptures or buildings which are visible in public places, And what of those reformsFollowing a vote by the European Parliament’s Legal Affairs Committee, the amended version of its report on the implementation of the EU’s 2001 InfoSoc/Copyright Directive went forward for for a vote a by the full European Parliament in July and the revised draft report (amongst other things) called for: an impact assessment in relation to any single European copyright title proposal;  looking at issues arising from geo-blocking of access to certain content services within the EU; mandatory adoption of some copyright exceptions and limitations - whilst recognising that some difference may be justified on the grounds of specific cultural and economic interests; an assessment of proposed new exceptions to allow (for example) libraries to lend e-books; and text and data mining; and revisiting 'safe harvour' provisions. US satellite broadcaster Sirius XM had a mixed month. SiriusXM won a rare victory in Florida over its use of pre-1972 recorded music in the satellite radio broadcasters' ongoing battle with Flo & Eddie. Judge Darrin Gayles decided to rule in favor of SiriusXM's summary judgment motion. The judge said he understood why his judicial colleagues in other states had ruled differently, noting that California and New York are creative centres of culture, and laws have been enacted there to protect artistic rights, and there have been prior cases that have touched upon the present controversy. But Judge Gayle said that "Florida is different"  saying "There is no specific Florida legislation covering sound recording property rights, nor is there a bevy of case law interpreting common law copyright related to the arts." But that was the last of the 'good' news. As the month ended Sirius reached a settlement with the three major record labels  over that long-rumbling pre-1972 copyright dispute in the US. The recording Industry Association of America (RIAA) claim settlement also includes ABKCO – the owner of classic Rolling Stones copyrights – and the claimants were awarded $210m as part of a settlement with Sirius. In a statement, Sirius said: “The settlement resolves all past claims as to our use of pre-1972 recordings owned or controlled by the plaintiffs and enables us, without any additional payment, to reproduce, perform and broadcast such recordings in the United States through December 31, 2017.

In July, the month started with what looked like the makings of a PR disaster for Universal and Prince in the 'Dancing Toddler' case - which revolved around a twenty second home movie featuring a toddler dancing to Prince's "Lets Go Crazy" which Universal Music forced off YouTube back in 2007. As the case reached the Ninth Circuit Court of Appeals, US Circuit Judge Milan Smith said somewhat ominously that the concept of fair use is an integral part of the language of the DMCA, criticising the music company saying: "I struggle with how anyone looking at this from Universal's perspective would doubt that little children playing and dancing around to music by the artist known as Prince could view it as anything other than a fair use." The Estate of the Nazi propaganda minister Joseph Goebbels won its lawsuit against Random House publishing company over claims that a new biography by Peter Longerich, Professor of Modern German History at Royal Holloway College at the University of London, which quoted extensively from Goebbels' diaries, infringed the rights of Goebbel's heirs. Goebbels committed suicide in May 1945 and his work will enter the public domain on the 1st January 2016. The UK's Intellectual Property Office (IPO) released data that showed that the number of UK consumers accessing digital content through legal download or streaming platforms has risen 10% since 2013 - but that one in five consumers continued  to access music, movie, TV or gaming goodies from unlicensed sources online. The IPO survey says that 15.6 million UK internet users now access music online, with twelve million streaming and 10.5 million downloading. Spotify and Amazon were amongst the most used streaming music platforms in the UK, but 54% of online music was consumed via YouTube - which whilst a licensed service certainly for songs via its licence with PRS for Music - is not seen as a primary revenue source by record labels and music publishers as it still relies on safe harbour provisions to function - without the need to obtain licences from record labels and others. The IPO also launched a consultation on whether the maximum term of imprisonment for online criminal infringement should be raised from the current 2 years to a maximum of 10 years. In China. the the National Copyright Administration updated its policies on music streaming, updating saying online streaming services must stop providing unlicensed music to users. Service providers were required to remove unlicensed music by the end of July . The NCA said in a statement that the move was in line with China's copyright law and regulations. The NCA said those who do not follow the order would be 'seriously punished'. In Japan,  negotiators moved to cancel wartime copyright extensions in favour of the USA as part of Trans-Pacific Partnership multilateral free trade talks. In talks with the United States, Japan is demanding that the special post WWII arrangements be scrapped if the period of protection for copyrighted works were extended under the TPP. Like many others, the CopyKat questioned USA's position in seeking greater copyright protection and terms, but not seeking to extend the wide protection of U.S. "fair use" to other signatory jurisdictions. In the Blurred Lines case, U.S. District Judge John Kronstadt rejected a new trial but 'trimmed' the damages awarded against Robin Thicke and Pharrell Williams to $5.3 Million (from $7.3 million), whist accepting the  Gaye family's contention that record labels including UMG Recordings, Interscope and Star Trak Entertainment should be held liable for their distribution of the song that was found to be a copy of Gaye's "Got to Give It Up"; Clifford "T.I." Harris Jr., the rapper who contributed a verse on the blockbuster "Blurred Lines" song was also found to be potentially liable.  Sony found out that is was  being sued by 19 Recordings Ltd (which represents a number of artists from the American Idol series, including Kelly Clarkson and Carrie Underwood) over claims that Sony has acted in bad faith in taking a financial stake in Spotify and benefiting from general advertising revenue without passing on a share to the artists. Sony defended its activities by saying it is not required to share its general profits with its artists. Fair? Reasonable? Probably not. And the Berklee Institute for Creative Entrepreneurship released an in-depth study focused on promoting fairness and transparency within the music industry. Finally,  and in the wake of the Jimi Hendrix decision at the Paris Tribunal, 1709 Blog friend and PhD researcher, Mathilde Pavis (University of Exeter), gave us her answers to the question "What is the approach to originality in French courts?

August: And the Trans Pacific Partnership Agreement (TPP) was back in the news as the latest leaks revealed 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 then Australian Attorney-General George Brandis commissioned a cost-benefit analysis of proposed digital copyright reform, which will encompass an economic analysis into the Australian Law Reform Commissions's (ALRC) recommendation to adopt a flexible fair use provision in regards to digital copyright in Australian law, seemingly as the the AG was concerned about the costs to both rights holders and rights users.  A federal judge in Los Angeles told the city of Inglewood that it could not silence a critic of Mayor James T. Butts Jr. by asserting copyrights over the official videos of City Council meetings. US District Judge Michael W. Fitzgerald's decision made it clear that the the state legislature had severely limited the ability of local governments and other public entities to copyright the materials they create - and - even if Inglewood could copyright the videos, the use by local resident Joseph Teixeira criticising the Mayor would be covered by fair use. Ashley Madison, the website that allowed married people to have secret liasons tried to prevent dissemination of its stolen database and other information by sending DCMA copyright takedown notices to social networks and file-sharing sites. It was only partially successful - not least as there were 33m user records available to be posted online - a huge volume. Some takedowns worked - but some failed - because platforms such as Twitter resisted some DCMA claims.  As the month ended, in the UK, PRS for Music wrote to it's members saying it is beginning legal action against online music streaming platform SoundCloud after "five years of unsuccessful negotiations". And John Enser updated us on the European Commission latest consultation arising out of its Digital Single Market initiative: This time, the topic on the card was 1993's SatCab Directive, or to give it its full title "Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission"

September began with news that the "Happy Birthday" saga was moving towards the end game: in a summary judgment US District Judge George H. King held that the song's original copyright, assigned  Clayton F. Summy, who copyrighted and published them in a book titled "Song Stories for the Kindergarten" was now free of copyright claims, two years  after Good Morning To You Productions challenged the copyright owned by Warner/Chappell, arguing that the song should be "dedicated to public use and in the public domain." In Japan, Kenjiro Sano's design for the Tokyo Olympic's official logo was dropped after a claim by the Belgian designer Olivier Debie who argued that the design was very similar to one he created for the Theatre De Liege, Mr Sano also admitted that a range of promotional bags produced for brewer Suntory contained copied images, blaming staff at his studio. A zoo is Nagoya was also reportedly checking similarities between its own Sano designed logo and the logo of a museum in Costa Rica. Animal rights charity PETA filed a  federal lawsuit in San Francisco seeking to vest copyright in that infamous 'Monkey Selfie' in the crested black macaque who snapped the image,with photographer David Slater's unattended camera.  PETA (People for the Ethical Treatment of Animals) sued on behalf of the macaque, dubbed Naturo, claiming he was the author of the selfies, thus allowing Peta to administer all revenues from the photos for the benefit of the monkey, and other crested macaques living in a reserve on the Indonesian island of Sulaw. Holy haberdashery, Batman! The 9th U.S. Circuit Court of Appeals confirmed a 2012 District Court judgment that held that the Batmobile's bat-like appearance and other distinct attributes, including its high-tech weaponry, attract copyright protection that can't be replicated without permission from owners DC Comics. Benjamin Allison, the attorney for the Arthur Conan Doyle Estate,  told The Wrap that it has reached a settlement in principle with the producers of Mr Holmes which stars Sir Ian McKellen: The terms of the settlement were not made public, but Mitch Cullin’s novel, on which the film was based,  will cite the use of Conan Doyle's still copyrighted material moving forward. Adult movie studio Malibu Media received a slap on the wrist from New York federal judge Katherine Forrest. The company, often criticised as a copyright 'troll', had asked the court permission to interrogate the neighbours and spouse of an accused downloader - but this was a tactic that the court equated to harassment with Judge Forrest saying "Plaintiff may not subpoena neighbors or Defendant’s significant other based on the current record. As to the neighbors, Plaintiff would be engaged in a fishing expedition and/or harassment of defendant (by way of causing embarrassment/humiliation)".  In an important decision, and one which will undoubtedly have an impact on how content owners deal with what they consider is infringing content on the likes of YouTube, Universal Music Group  were told by the U. appellate court that they should have considered whether a woman’s 29-second video of her two kids dancing to Prince’s “Let’s Go Crazy” was fair use before issuing a takedown notice to YouTube. In Australia Attorney-General George Brandis lost his position as Minister of Arts as well as his responsibilities for copyright and content classification - which moved from his office to that of newly appointed Communication Minister Mitch Fifield. The Australian government was urged on to stop the process of implementing an ISP copyright code.  The Internet users rights group Electronic Frontiers Australia confirmed it wanted the process to be halted. And finally, Russian social network vKontakte (VK) was ordered by a Russian court to use effective technology to prevent copyright infringement of the recordings of two record companies. The IFPI said the ruling, handed down in the Saint Petersburg & Leningradsky Region Arbitration Court, is a significant judgment which, when implemented, should improve the environment for developing a thriving licensed music business in Russia.

So what's on the menu in October? In the USA  The US Court of Appeals for the 2nd Circuit delivered its judgment, and confirmed the decision of Judge Chin in the 'Google Books' case and that the scanning activities of Google within its Library Project are to be considered a fair use of copyright worksIn February this year we reported on the case of Tomaydo-Tomahhdo LLC et al v. George Vozary et al where.a federal judge told a Cleveland restaurateur that food recipes can't be protected by copyright law where Judge Patricia A Gaughan said "The identification of ingredients necessary for the preparation of food is a statement of facts. There is no expressive element deserving copyright protection in each listing." In a similar case, an appellate court held now found that neither a chicken sandwich recipe nor its name is eligible for copyright protection in the US. In Colón-Lorenzana v. South American Rest. Corp. the claimant, a worker at a fast-food restaurant, suggested a concept for a new chicken sandwich, complete with his own recipe and a name - the “Pechu Sandwich": This consisted of a fried chicken breast patty, lettuce, tomato, American cheese, and garlic mayonnaise on a bun - but the claims were dismissed by the First Circuit -  neither the recipe nor the trade name fell into any of the eight enumerated categories of works available for copyright protection. Would a court in Europe take the same approach? Keep reading! 
Senators Grassley and Leahy, the Chairman and Ranking Member of the Committee on the Judiciary, succeeded in persuading the US Copyright Office that “software-enabled devices” (such as cars, phones, drones, appliances, and many more products with embedded computer systems) could be modified and altered by users who did not need to go to the expense of taking cars and tractors to authorised dealers. Aerosmith lead singer Steven Tyler had become the third musician to hit Republican presidential candidate Donald Trump with a cease-and-desist letter for his use of music on the campaign trail. joining R.E.M. bassist Mike Mills and Neil Young, who both asked Trump to stop using their music. Yoga was back in the CopyKat's paws after the Indian-American yoga guru Bikram Choudhury lost a case asking for copyright protection for yoga poses and breathing exercises he developed. The Court of Appeals for the Ninth Circuit ruled in favour of Evolation Yoga, against whom Choudhury had filed a lawsuit in 2011, saying that copyright was not appropriate for Choudhury's Bikram Yoga sequences because "it was an idea, process, or system designed to improve health, rather than an expression of an idea" adding it was also ineligible for copyright protection as a compilation or choreographic work. Comments on a leaked 'IP' chapter of the final Trans-Pacific Partnership (TPP) Agreement noted that signatories not already in line with the USA will have to adopt a number of 'Americanised' changes to alter their copyright laws. The intellectual property chapter covers a broad range of issues including extended copyright terms, ISP liability and the criminalisation of non-commercial piracy - the copyright term of signatories will be set to the life of the author plus 70 years. This is already the case in the United States, but Canada for example will have to extend it's current term by 20 years. But still no fair use! Our FrenchKat Asim told us that The Lille High Court rendered  a judgment on September 24th ordering champagne house Vranken Pommery to pay €133,500 by way of damages to the artist Anita Molinero after the company had the latter’s sculpture incinerated without her knowledge or consent. And in the wake of a number of decisions by the CJEU, Eleonora treated us to her extremely useful table which seeks to clarify the answer to the question whether linking falls under the scope of the right of communication to the public as per Article 3 of the InfoSoc Directive (until the next CJEU decision ......):

In November Andy updated us on second six months of the UK IPO's Orphan Works Register.  This period had seen much less activity: Only 31 new applications had been received, taking the total to 294 for the whole year. However the proportion of successful applications has stayed the same at 83%. As was noted at the six month point, the vast majority of applications had been for still images (229) with written works (47) in second place. However the success rate for written works is much lower at 55%. Sound recordings come in third place (14 of which 12 were granted licences) and musical notation, scripts & choreography, and moving images only having one or two applications for each category.  the IPO also announced that it was abandoning the UK's private-copying exception which was introduced in October 2014, and which was effectively declared illegal by the High Court in July of this year - not least because of the ruling of the CJEU in Case C‑572/13, Hewlett-Packard Belgium SPRL v Reprobel SCRL, intervener Epson Europe BV ("Reprobel"). A Czech man, Jakub F, struck a novel deal to avoid penalties for copyright infringement. Admitting “I had to start this site, because I spent eight years spreading pirated software and got caught”, he set up a website set up to promote a YouTube video in which he apologised for his behaviour. If the video reaches 200,00 views, he will pay only a faction of a hefty damages bill, after he was found guilty of copyright infringement.  The Court of Justice of the European Union (CJEU) gave its ruling in Case C‑325/14, SBS Belgium NV v Belgische Vereniging van Auteurs, Componisten en Uitgevers (SABAM), on a reference for a preliminary ruling from the hof van beroep te Brussel (Brussels Court of Appeal, Belgium) holding that a transmission not accessible to the public is "not a communication to the public". The Anne Frank Fonds, set up in 1963 by Anne’s father, Otto, said that the 'Diary' we all know was still in copyright despite Anne's death in 1945. Why ? Well it seems the Diary is an edited compilation of two earlier works by Anne Frank, and that edited version was put together by her father, Otto, and first published in 1947 - but as the copyright term will run from Otto's death in 1980, the Foundation say this work is still protected by copyright in Europe and will be until 2050.  The Foundation also said that two original versions by Frank, and various later translations, were not published until 1986, and so again the Trust says these remain in copyright, as do the versions edited by the German writer Mirjam Pressler, who is still alive (and is credited as a co-author with Otto of the 'definitive edition'). The Diary was first translated in English in 1952 by Barbara Mooyaart, who is now 96. In the United States, the diary’s copyright will still end in 2047, 95 years after the first publication of the book in 1952. We had only noted the rise of music platform 'Aurous' in September, but by the end of November the writing was on the wall for the alleged " flagrant example of a business model powered by copyright theft on a massive scale" and its founder Andrew Sampson as the Recording Industry Association of America launched an action. And finally our leader, inspiration and blogmeister Jeremy Phillips retired - we already miss him!

So our final month, December. As the month began, the European Commission issued a proposal for a regulation on the cross-border portability of online content services in the internal market and released a new Communication - Towards a modern, more European copyright framework, in which it anticipated that policy and legislative action would be taken in Europe in respect of: (a) exceptions and limitations; (b) exclusive rights (including both clarifying issues facing linking and considering whether any action specific to news aggregators is needed); and (c) enforcement (including Follow the Money strategies, commercial-scale infringements, application of provisional and precautionary measures, and injunctions and their cross-border effect); Thirdly the EC launched a public consultation on the evaluation and modernisation of the legal framework for the enforcement of intellectual property rights. Elsewhere, in Germany, the Federal Supreme Court of Justice (BGH) has upheld a legal ruling that effectively obliges Internet service providers to block access to copyright infringing websites in instances where the site's operators and hosts are unidentifiable. German collection society GEMA immediately welcomed what it called a "long overdue landmark decision" that "points the way forward for protecting the rights of authors in the digital music market" adding "Finally we have legal clarity on the permissibility of blocking access to websites illegally offering copyrighted music works on a massive scale. This is a major step forward in the fight against Internet piracy".  A two-year-old lawsuit over the ownership of the copyright of 'Happy Birthday' came to a close, as publisher Warner/Chappell settled with the plaintiffs who kicked off the dispute. The "most important outcome": once the settlement process has been approved, 'Happy Birthday' will be in the "public domain" (and yes I know I was criticised for using this phrase before. But whatever, this is clearly not an ideal outcome for Warner/Chappell, who had previously been generating around $2m in royalties from the song annually.  As the month ended, 1709 Blog friends Margherita Bariè and Marco Annoni updated us on the potential protection of both culinary recipes and photographs of dishes under Italian law: noting that the photography of food would be protected where they display sufficient originality, we learned of the interesting decision by the Court of Milan to afford protection to recipes saying this protection is based "not on the contents of the recipes of the various kinds of preserved meats or of the instruction to the various preparation steps, but rather on the form of expression that needs to be regarded as relevant for the purposes of the requested protection". And in the world of music, sharing the digital pie and copyright reform, MBW reminded us of the ‘Four Pillars for Fairness’ proposed by the the global umbrella for artists (the IAO) as part of the European copyright review, asking for (i) Transparency in value chain so artistes can see where the money goes (ii) a Duty of Care – an enhanced legal duty of care from intermediaries to artists ensuring artists are protected when intermediaries own or license their work (iii) a Fair Share of Value and (iv) proper Remuneration Rights in digital age.  Andy also took a look at royalties with his very interesting article "Can we always trust copyright licensing?" opining "the good intentions of the EU [CMO management] Directive and the IPO's secondary legislation are laudable but until we can have genuine trust in the vast machinery which monetises copyright, all talk about reforming other parts of copyright is rather like building a house on sand." CISAC reported that for 2014, the total revenue collected by its members worldwide was €7.9 billion (£5.8 Billion). As the copyright year closed, PRS for Music settled with online platform SoundCloud after five years of fruitless negotiation and that recently launched legal action, with CEO Robert Ashcroft saying the deal had resulted "in a licence under which our members are fairly rewarded for the use of their music" adding "The safe harbours in current legislation still present ambiguity, and obstruct the efficient licensing of online services, but our agreement with SoundCloud is a step in the right direction towards a more level playing field for the online marketplace" and that Europe needs to rebalance how safe harbour provisions work saying "We’ve called on the European Commission to examine the boundaries of who can benefit from the hosting defence under safe harbour legislation and who cannot." As the year ended, the US Copyright Office announced a review of ‘section 512’, which contains the safe harbours in American copyright law. And finally back down under: it seems the Australian government is planning more copyright laws changes, publishing draft amendments to the Copyright Act 1968 for 'safe harbour' protection as well as an exception for people with disabilities, simplifying educational licences,allowing preservation copies for libraries and greater clarity for cultural institutions. Comments on the draft amendments can be submitted until 12 February 2016. The Second U.S. Circuit Court of Appeals ruled that the rights to the familiar Christmas tune “Santa Claus is Comin’ to Town” will revert to the original artist’s heirs in 2016.  The Second U.S. Circuit Court of Appeals ruled that the rights to the familiar Christmas tune “Santa Claus is Comin’ to Town” will revert to the original artist’s heirs in 2016. And let's end with some Christmas 'bah humbug': The decision from Justice Perram in Australia in Dallas Buyers Club LLC v iiNet Limited (No 5) [2015] FCA 1437 will not have cheered the movie industry, and Jani Ihalainen explains all on the IPKat here, but just to cheer up the content industries, a New Zealand judge ruled that MegaUpload boss Kim Dotcom and three of his colleagues could be extradited to the United States to face criminal copyright charges. Unsurprisingly Dotcom's lawyers said they would appeal. 

You can catch up with Eleonora's 2015 Copyright Awards on the IPKat here

As ever - readers will have their own views on what should (or perhaps should not) be in their copyright year. The CopyKat writes from a UK/US, music industry and 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!

Tuesday 22 December 2015

New edition of Richard Arnold's Performers' Rights out NOW

Are you looking for some last-minute Christmas present for a special person? 

Then here's the perfect idea. 

The 1709 Blog has in fact just found out that the 5th edition of the most authoritative work on Performers' Rights has finally been released. 

The author, The Hon Mr Justice Arnold, requires no introduction.

According to the publisher's website, this essential handbook for practitioners advising performers, their representatives, exploiters of performers’ rights and their representatives provides an in-depth treatment of performers’ statutory rights under Part II of the 1988 Copyright, Designs and Patents Act and subsequent legislation, together with broad coverage of the legal position of performers more generally.

Overall, Performers' Rights:

·        Explains the nature and duration of performers’ rights, including the key case law
·        Sets out the key definitions, including “performers”, “ownership” and “broadcasting”, as well as the categories of live performance
·        Explains the relationship between performers’ rights and recording rights
·        Discusses each type of infringement of performers’ rights – and the available defences
·        Explains proceedings – who can sue, who can be sued, and where – and the different remedies available
·        Covers moral rights as they apply to performers
·        Explains the various criminal offences
·        Analyses the contracts available to protect rights, including assignment and licences
·        Covers other protections, such as authorship, copyright in sound recordings and films, and passing off
·        Sets out the protection in key countries, including Australia, Canada, Hong Kong, India, Israel, Jamaica, Kenya, New Zealand, Nigeria, Pakistan, Singapore, South Africa and USA
·        Reproduces the relevant parts of legislation, rules, regulations, treaties, conventions and agreements

Classic reaction when your
child does NOT receive
a copyright book at Christmas
What has happened since the 4th edition was released?

·        The case law of the Court of Justice of the European Union concerning communication to the public
·        The case law of the Court of Justice of the EU concerning exceptions and limitations
·        Domestic case law including Henderson v All Around the World Recordings [here]

Can we always trust copyright licensing?

The 1709's knowledgeable readership will be well aware that royalties are the lifeblood of the copyright 'promise'. In exchange for cultural enrichment, society grants authors, artists and musicians a legally enforceable set of rights which constrain how the works they create may be exploited. Very few of these creators receive just a single lump sum in exchange for releasing these rights, and indeed the whole idea of the lifetime plus 70 years duration of these rights in predicated upon a steady stream of royalties making up the lion's share of a successful author or artist's income. Behind this relatively simple concept lies a truly labyrinthine web of organisations which are responsible for assessing, collecting, apportioning and generally administering these various fees, royalties and other disbursements. Of course many copyright holders are large or SME companies, who generally have gained their rights through section 11(2) CDPA which covers works made by individuals in the course of their employment. For various reasons, including the fact that these companies are, or should be, resourced to administer their rights in a businesslike manner, this article does not consider this group of rightholders further.

Be it tiny fractions of a penny for each Spotify download, or seemingly generous advance fees running to many thousands of pounds paid to best-selling authors, the money comes almost by magic, from a veritable alphabet soup of abbreviations, acronyms and occasionally organisations with real names. Among these are the CMOs or Collective Management Organisations, often referred to as Copyright Collecting Societies. Each creative discipline has its own CMO, or for instance like the music industry, several. These are generally not-for-profit limited companies. Added to these are many other intermediary bodies, such as publishers (literary and music), agents, management, record companies, and even government sponsored bodies such as the Public Lending Right Office (PLR is not technically a copyright issue, but it works in a very similar manner to a CMO) and of course the IPO itself falls under this heading because it collects fees in respect of orphan works. And if the UK ever embraces a private copying levy, that strand will also need to be added to the existing skein - although skein perhaps implies an order which is wholly absent from the vast range of intermediaries who service the copyright 'industry'. Organisations and companies in this second, non-CMO, group which are manifestly run for profit are termed independent management entities (IMEs) in the jargon, and this distinction becomes significant when we look later at some of the legislative initiatives in this area.

The whole system runs on trust. There are few true audits, and most importantly, the author or artist who lies at the far end of this chain of beneficence has virtually no means of verifying that the amounts he or she receives are the correct ones. Even in the world of highly detailed contracts such as in the music business, what the artist receives in royalties is virtually impossible to confirm independently, given the complexity of the supply chains, including the reciprocal links between various CMOs worldwide. This is one of the reasons for bodies which represent the interests of their particular creative groupings, such the Musicians Union, the Society of Authors, the Featured Artists Coalition, the Association of Photographers and many others. Like the more traditional labour unions, these bodies advocate on behalf of their members and attempt to get improvements in their income. But even they have to assume a certain amount of trust that the system is working both efficiently and honestly. And at a time when so many other institutions have proved unworthy of the trust placed in them, be it banks or sport governing bodies, pharmaceutical giants, motor manufacturers or high street supermarkets, it would be wise to be a little sceptical about all this when it comes to copyright revenues. Whether it's cockup or conspiracy, the opportunities for the money which rightly belongs to the creators to go astray are enormous. As are the sums involved. The International Confederation of Societies of Authors and Composers (CISAC) reported that for 2014, the total revenue collected by its members worldwide was €7.9 billion (£5.8 Billion), while the figure for the UK alone was €635M (£470M).

These figures underline the need for financial probity, especially where the recipients of these sums (after administrative expenses have been deducted) are by definition self-employed individuals (albeit possibly registered companies for tax efficiency purposes) who have neither the time nor the expertise to hold their paymasters to account. This is the fundamental reason for the EU Directive 2014/26 EU on collective rights management, which required member states, inter alia, to supervise the running of CMOs and introduce a code of practice to apply best practice and provide greater transparency for rightholders. The UK Statutory Instrument (SI 2014/898) which transposes the Directive into UK law is not yet fully in force. However the SI lays out the criteria for the CMOs to incorporate into their codes of practice, which if they are judged to be inadequate, can result in a more suitable code being imposed on the society concerned. And there are financial penalties for CMOs which fail to abide by their own or an imposed code.

So with all that in mind, what are we to make of a serious breakdown in the system which goes to the very heart of the trust which it relies on? This autumn a body which represents some photographers, EPUK, discovered that someone at the previously well-respected picture agency, Rex Features, had been forging the signatures of photographers on mandate forms in order to claim a share in the payouts from the Payback scheme run by the CMO Design and Artists Copyright Society (DACS). EPUK estimate that the Payback scheme would have paid around £400,000 to Rex during 2014, although how much of this was based on the fraudulent mandates is not known at this stage. Readers are invited to read both the EPUK press release, and the DACS release, in order to get more details on the matter. What is clear is that if the system can break down in this way once, what are the chances that something similar is going on elsewhere, as yet undetected? As far as is known, the fake mandates related to real people, who in fact got payments they weren't expecting (albeit after Rex appears to have taken out an unjustified administration fee), however exactly the same process could have been used to divert funds to bogus individuals. So how will the EU Directive and the UK implementation of it, prevent this kind of behaviour in the future? It remains to be seen, but what is significant about this allegation is that Rex is not a CMO, but an IME as explained in paragraph 2 above. Thus vast chunks of the EU Directive do not apply to them as an IME and under the SI as it stands, while IMEs appear to be included under the heading of 'relevant licensing body', the criteria for the codes of practice fail to include anything on the integrity of the staff, or on safeguards against outright fraud (I don't think "act in the best interests of its members" really covers it with sufficient vigour). This incident therefore should act as a wake up call that more is still required to bolster trust.

The good intentions of the EU Directive and the IPO's secondary legislation are laudable but until we can have genuine trust in the vast machinery which monetises copyright, all talk about reforming other parts of copyright is rather like building a house on sand.