Thursday 28 January 2016

The CopyKat - putting you in the picture?

Debate on Hong Kong's contentious copyright amendment bill was cut short in the Legislative Council not because of protests or opposition  – but because not enough members showed up. The premature adjournment came a day after the commerce minister said he was optimistic that there would be enough time for discussion, despite the nearing Lunar New Year holiday and sessions for scrutinising the chief executive’s policy address and the financial secretary’s budget speech. All but one Pan-democrats were absent when the last quorum bell rang on Friday. House committee chairman Andrew Leung Kwan-yuen, who chaired the meeting in the absence of the ill president Jasper Tsang Yok-sing, said he regretted the adjournment. More on the SCMP here.

The BBC tell us that a breach of copyright claim against the Welsh government over photographs used of Dylan Thomas in a tourism drive has been thrown out by a court in Ireland. Visit Wales used photos taken in the 1930s to help promote the 100th anniversary of the poet's birth. But the judge said that if the case was to proceed, Pablo Star Ltd, which owns the copyright. would have to bring the action in a court in Wales or England. Interstingly The Welsh government claimed it has sovereign immunity. But there was worse yet to come for a Mr Haydn Price, who owns Pablo Star Limited. The BBC again tell us that Mr Price has just lost a libel action against 93 year old Gwen Watkins, whose husband Vernon took the Dylan Thomas photos. It seems Mr Price persuaded Mrs Watkins to sell him the copyright in several of the photos for the princely sum of £1,000. The Judge in the libel case, Judge Raymond Groarke, the told Dublin's Circuit Court that he was dismissing the claim as there was no evidence that a latter from Mrs Watkins to Mr Price saying he was a 'bad man' had ever been published: The BBC report that Judge Groarke added "I am not going to go so far as to say Mr Price took advantage of Mrs Watkins but he certainly should have been a lot more careful with the way he dealt with an elderly person."  Mr Price reportedly has a “zero tolerance” approach to copyright infringement and has had some success in other actions. In the current case against the Welsh Government, it was reported that Mr Price was claiming €3,000 for every use of the photos.

Mark Towle,who made replica Batmobiles until being enjoined, has petitioned the US Supreme Court to review his dispute with  DC Comics. He argues that the Batmobile doesn't deserve copyright protection as its a 'useful article'. In february 2013 the District Court held that the “The ‘functional elements’ – e.g., the fictional torpedo launchers, the Bat-scope, and anti-fire systems – are only ‘functional’ to the extent that they helped Batman fight crime in the fictional Batman television series and movies. Thus, the Batmobile’s usefulness is a construct.”  Last September, the 9th Circuit Court of Appeals agreed. Towle had argued that the replicas were fully functioning automobile. In her opinion, 9th Circuit judge Sandra Ikuta disagreed saying the car also has "character" with "physical as well as conceptual qualities," and "sufficiently delineated" to be recognizable whenever and wherever it appears. More on the Hollywood Reporter here. The CopyKat doubts the SCOTUS will take on the case. A final knockout blow for Towle. 

Sheep on Top - and yes, (C) 2015 Ben Challis
As photography is my new hobby (and yes, I am  published!), but still reeling from that French Jimi Hendrix decision, the CopyKat was a little horrified to read that  photojournalists in Serbia have had to appeal to lawmakers to reject a proposal by the ruling party to define their work as the result of a “routine mechanical act” and therefore not worthy of copyright protection. Not worthy!!!!! Photojournalists in Serbia (and quite honestly elsewhere) frequently complain that newspapers and Internet portals publish their pictures without payment, and are happy to "risk being sued in Serbia’s overloaded, inefficient and sometimes corrupt courts." The Serbian Progressive Party’s latest proposals to parliament "would legalise such theft", photojournalists warned.

And finally, we've just been alerted to a new online music platform, Wefre, which TorrentFeak  says is clearly 'inspired' by Spotify, but which claims to use officially available APIs from licensed sources to provide 'free unlimited music' to fans. TorrentFreak says experts believe that borrows its music from YouTube's API feed and its song/album database from Spotify. A Kickstarter fundraiser is underway to help build iOS and Android apps - but we expect rapid attention from the major and leading independent record labels in the very near future. TorrentFreak says: Not only does this beautiful YouTube / Spotify mashup out-perform the recently defunct Aurous in every way, Wefre uses officially available APIs from already licensed sources. Legal? We might not have to wait long to find out.  UPDATE (30.01.16) : A two week old music streaming site, Wefre, has announced that until further legal research is done, it will close access to its music streaming platform. "Initially, the Spanish-based team didn't think that they were breaking any laws because they were providing the service through YouTube's and Spotify's official APIs for developers. Wefre claimed that they created the service whilst fulfilling the terms of use of those APIs." The team of three students behind Wefre wrote "We want to point [out] that we haven't received any official warning from Google or Spotify, we never wanted to profit at the expense of the artists and, before making a huge mistake, we want to seek advice in a smarter way."

Thursday 21 January 2016

The CopyKat - its no laughing matter

The Japan Times says that architects whose design for the original 2020 Tokyo Olympics stadium was scrapped due to ballooning costs say they have rejected a request to give up the copyright to their plans in return for an overdue final payment. U.K. based Zaha Hadid Architects (ZHA) was chosen in an international contest to build the main Tokyo stadium, but the much-criticized futuristic design was dropped last year. A design by Japanese architect Kengo Kuma with a price tag of ¥149 billion ($1.27 billion), as opposed to an estimated ¥252 billion for Hadid’s plans, was chosen last month instead.

A copyright suit filed against rapper 50 Cent over his 2007 hit “I Get Money” has been dismissed. The plaintiff, Tyrone Simmons (aka Young Caliber) filed papers against 50 and the song’s producer William Stanberry in 2010, claiming they had infringed on his rights to use the instrumental for “I Get Money”, reported Billboard. Simmons also named Universal Music Group, Interscope Records and Aftermath Entertainment as defendants.
Officials at the US Court of Appeals for the Second Circuit ruled the case was “time-barred” adding Simmons had waited beyond the allowed three years to file the suit. More here.

Beastie Boys have resolved their lawsuit that accused the energy drinks company Monster Beverage Corp of using excerpts from five of the hip-hop group’s songs without permission in a video promoting a Canadian snowboarding competition. Capitol Records and Universal-Polygram International Publishing  settled a related lawsuit against Monster over the same video. The terms were not disclosed. Orders dismissing the cases were filed in two Manhattan federal courts but it appears Monster dropped its appeal of a $1.7 million jury verdict and an award of $667,849 in legal fees which resulted from the Beastie Boys’ lawsuit.

Readers will no doubt remember the epic battle between Supap Kirtsaeng, who built a business on eBay buying textbooks in Asia and reselling them to students in the US, and academic publisher John Wiley & Sons who took action against him. The case went all the way to the Supreme Court who ruled in favour of Kirtsaeng under the first sale doctrine, but he's going back to the Supreme Court to try and get his attorney's fees paid by Wiley, having been rejected by both the district court and the US Court of Appeals for the 2nd Circuit. Why? Well Kirtsaeng's petition says this: "Had Kirtsaeng prevailed in the Ninth or Eleventh Circuit, he would have obtained his reasonable attorneys’ fees. Had he prevailed in the Fifth or Seventh Circuits, he would have had a rebuttable presumption in favor of obtaining his attorneys’ fees. Had he prevailed in the Third, Fourth, or Sixth Circuits, Kirtsaeng very likely would have obtained his attorneys’ fees. Unluckily for Kirtsaeng, Wiley sued him in the Southern District of New York, and so when Kirtsaeng prevailed, he prevailed in the Second Circuit, where Second Circuit precedent meant Kirtsaeng could not obtain his attorneys’ fees."

And finally, and this is no laughing matter, we have a very interesting article from US attorney Dylan Price on .... wait for it ...... the potential for the infringement of copyright in jokes. As Dylan says, the case in question is a surprisingly rare foray into humour by the courts, but he tells is that last summer, comedian Robert Kaseberg filed a copyright infringement suit against Conan O’Brien, among others, alleging that O’Brien incorporated four jokes written by Kaseberg in the opening monologues of his television show “Conan.” According to the complaint,  Kaseberg published each of the jokes – all of which were based on then-current events and news stories – on his personal blog and Twitter feed on various dates between January and June, 2015, only to have O’Brien feature the same jokes in his monologues on the same respective dates. The case has yet to get to court by Dylan gives us a thorough review of the position of jokes under copyright in US law - in particular the decision Foxworthy v. Customer Tees, Inc., 879 F.Supp. 1200 (N.D. Ga. 1995) and its well worth a read on the Sheppard Mullin IP Law Blog here.

Monday 18 January 2016

New CJEU reference on TV and radio broadcasts ... in hotel rooms

From hotel rooms ...
Will the Court of Justice of the European Union ever get tired of references for a preliminary ruling on the right of communication to the public?

It's probably not the right time to ask, as a brand new reference on this very topic has just been made from Austria (although this time not in relation to the InfoSoc Directive), as 1709 Blog friend Axel Paul Ringelhann (Ringlaw) explains.

Here's what Axel Paul writes:

"C-641/15 - Verwertungsgesellschaft Rundfunk (VGR) is yet another case before the CJEU concerning communication to the public. 

As can be inferred form the question referred to the CJEU it appears that VGR, the Austrian collecting society managing rights for broadcasting organisations, has taken legal action against an operator of a hotel for infringement of broadcasting rights.

On 2 December 2015 the Vienna Commercial Court lodged a request for a preliminary ruling with the CJEU concerning  interpretation of Article 8(3) of Directive 2006/115/EC on rental right and lending right and on certain rights related to copyright in the field of intellectual property (Rental and Lending Rights Directive). 

The referring court wants to know whether the criterion of ‘payment of an entrance fee’ within the meaning of Article 8(3) Rental and Lending Rights Directive is satisfied where

-        separate hotel rooms are equipped with TV-sets and the hotel operator distributes the signal of TV and radio programs, capable of being seen or heard by means of these apparatus (‘hotel room TV’), and

-        the hotel operator charges payment for rooms per night (‘room price’), which also includes the use of a TV-set and TV and radio programs, capable of being seen or heard by means of these apparatus.

... to spas ...
One might wonder why, once again, the CJEU has to deal with communication to the public and TV in hotels (think of the CJEU judgments in SGAEPPIOSA)

As opposed to former cases, which were either based on Article 3(1) InfoSoc Directive (SGAEOSA) or on Article 8(2) Rental and Lending Rights Directive (PPISCF), the case at hand addresses the question of communication to the public under the angle of the broadcaster’s signal right, as provided by Article 8(3) Rental and Lending Rights Directive (but see also Rome Convention Article 13(d)).

The broadcaster’s rights is a very contentious topic in Austrian copyright law. 

Unfortunately the recent copyright reform which entered into force on 1 October 2015 and established, inter alia, levies on storage media, open access clause for scientific papers, and further limitations and exceptions with regard to educational purposes, did not bring much legal certainty as regards this other area of law.

Here's the original version of the questions in German.
... and back to hotel rooms

Ist das Tatbestandsmerkmal „gegen Eintrittsgeld“ des Art 8 Abs. 3 der Richtlinie 2006/115/EG des Europäischen Parlaments und des Rates vom 12.12.2006 zum Vermiet- und Verleihrecht sowie zu bestimmten dem Urheberrecht verwandten Schutzrechten im Bereich des geistigen Eigentums erfüllt, wenn

- in den einzelnen Zimmern eines Hotels TV-Geräte bereitgestellt sind und vom Hotelbetreiber das Signal diverser Fernseh- und Hörfunkprogramme durch diese wahrnehmbar gemacht wird ("Hotelzimmer-TV"), und

- vom Hotelbetreiber für die Benutzung des Zimmers (mit "Hotelzimmer-TV") ein Entgelt für das Zimmer pro Nächtigung ("Zimmerpreis") verlangt wird, das auch die Nutzung des TV-Geräts und der dadurch wahrnehmbaren Fernseh- und Hörfunkprogramme mitumfasst?"

Thanks so much Axel Paul!

If you wish to comment on this case, then you have time until 28 January 2016 to let the UK Intellectual Property Office know what you think. You can email your views to

Friday 15 January 2016

The CopyKat

Marie-Andree tells us that photographer Donald Graham has filed a copyright infringement suit against notorious 'appropriation artist' Richard Prince, the Gagosian Gallery, and its owner Larry Gagosian. Graham claims that Prince used the “Rastafarian Smoking a Joint” photograph without permission in the New Portraits exhibition. Prince presented inkjet prints on canvases of images he had found on Instagram, complete with his own comments as @richardprince4nd. This did not fare well with several authors of the photographs, but so far Donald Graham is the only one who has taken legal action - despite the earlier mostly unsuccessful attempts by Patrick Cariou to claim infringement on a similar basis. TechDirt have a robust examination of the issues here including the view "The next we heard of Richard Prince -- who, it should be admitted, sounds like a real jerk -- he had set up an exhibit where he had printed out people's Instagram photos along with some fake "comment" text added by Prince himself, and was charging obscene amounts of money for them" ........

PETA, the not for profit organisation that campaigns to for animals' rights, has failed in its attempt to get copyright in the infamous monkey selfie transferred to the black macaque monkey Naruto, who too the snap.  US District Judge William Orrick ruled that the monkey, who borrowed British photographer David Slater's camera and took the selfies, cannot own the copyright in the pictures. During a brief hearing the judge, dismissing the suit, stated: "I'm not the person to weigh into this. This is an issue for Congress and the president. If they think animals should have the right of copyright they're free, I think, under the Constitution, to do that."  Works "produced by nature, animals, or plants" cannot be granted copyright protection, the US Copyright Office said in 2014. Slater's Motion to Dismiss said "A monkey, an animal rights organization and a primatologist walk into federal court to sue for infringement of the monkey's claimed copyright." .... "What seems like the setup for a punch line is really happening" adding "monkey see monkey sue is not good law".

BoingBoing tells us that Tommy Funderburk, who was previously was known as a "copyright troll" and whose company, Payartists, sent legal threats to people accused of copyright infringement, has ditched that business model and his new startup, Muzit, uses the same Bittorrent surveillance software and DMCA process to send letters on behalf of musicians, but these letters don't demand money - instead, they invite fans to collaborate with musicians, offering them membership in fan clubs and asking them to sign up for mailing lists. "Fans not Foes." is the new company's mantra it seems.

A group of German publishers has filed a civil complaint against Google. The group, constituted as VG Media, claims to be enforcing Germany’s “Ancillary Copyright” Law, passed in 2013. This is the latest episode in an ongoing dispute between German news publishers and Google.

And finally, a private company in China has been found to be unlawfully acting as a collecting society. The Jiangsu High People’s Court has ruled that Shenzhen Shengying Internet Technology Ltd had, since 2013, wrongfully collected license fees from karaoke bars and had filed lawsuits across the country to enforce its 'rights'. The company acted on behalf of record companies but was also alleged to have fraudulently obtained copyright certificates for other works. The Court reiterated that only the five collective management societies designated by the National Copyright Administration of China (NCAC) have legitimate authority to carry out collective rights management. More here (in Chinese).

Wednesday 13 January 2016

Enter the Matrix: the Effects of the CJEU's Case Law on Linking and Beyond

On 3 February, 13.00 -15.00, Dr Peter Mezei (University of Szeged, Hungary) will deliver the talk "Enter the Matrix: the Effects of the CJEU's Case Law on Linking and Beyond". You can find the abstract and Peter's bio at this link:

1.00pm - 3.00pmWednesday 3rd February 2016

The City University
Social Sciences Building
St John Street

United Kingdom

"The Court of Justice of the European Union has developed a significant case law on digital copyright law issues, including linking and streaming, in the previous few years. The CJEU has confirmed validity of the “new public theory” in the TVCatchup (Case C-607/11) and the Svensson rulings (Case C-466/12) with respect to hyperlinking and streaming. Later, the CJEU extended the Svensson ruling’s ratio on embedding of audiovisual contents in its BestWater order (Case C-348/13). These decisions follow a liberal approach in interpreting the activities of internet users. Indeed, separated from several other preliminary rulings of the CJEU, they seem to meet the needs of our modern age better than the conservative approach that declares any kind of linking or streaming as a relevant use of the exclusive economic rights of the authors and related right holders.

A closer look at other decisions of the CJEU in the ACI Adam (Case C-435/12), C-More Entertainment (Case C-279/13) and PPI v. Ireland (Case C-360/13) cases might reveal, however, the tensions of the CJEU’s liberal approach. Further, there might be some unforeseen consequences stemming from the above decisions. Two new references for preliminary rulings were submitted by Dutch courts recently in  GS Media BV v Sanoma Media Netherlands BV and Others (Case C-160/15) and Stichting Brein (Case C-527/15)]. At worst, these might lead to the questioning of the validity of streaming services."

The presentation aims to introduce the development of the matrix of the CJEU’s case law, and raises a very difficult question: which pill should the CJEU take for the future: the red or the blue one?

Péter Mezei is a full-time faculty of the Szeged Law School (Hungary), where he also functions as Associate Dean for Strategic Affairs. He was awarded an honorary adjunct professorship (dosentti) at the University of Turku (Finland) in December 2014, and he is a part-time faculty of the University of Toledo (United States). His courses and research focus mainly on comparative law, comparative copyright law, and digital copyright law. He is teaching both in Hungarian and English language at the Szeged Law School, and he has delivered lectures at universities in Finland, the United States, France, Germany and Russia, and presented papers on conferences in Hungary, Germany, Canada, United States, Austria, Finland, Indonesia and France. He is the author/editor of 9 books and author of 67 articles/book chapters. His main articles in English language are accessible via SSRN ( Besides his academic career he is working as a legal advisor specialized in the field of copyright law.

Wednesday 6 January 2016

Only Thing That Counts is… Fair Use?

Andy wrote a while ago on this blog about Richard Prince ‘repurposing’ once more photographs taken by third parties to create this time art presented in his New Portraits exhibition, and a rather lucrative art that is, both for him and for the gallery representing him.

Now, photographer Donald Graham has filed a copyright infringement suit against Prince, the Gagosian Gallery, and its owner Larry Gagosian (Thank you Mark Jaffe for posting the complaint!) Graham claims that Prince used the “Rastafarian Smoking a Joint” photograph without permission in the New Portraits exhibition. Prince presented inkjet prints on canvases of images he had found on Instagram, complete with his own comments as @richardprince4nd. This did not fare well with several authors of the photographs, but so far Donald Graham is the only one who has taken legal action.

It is not the first time that Richard Prince is been sued for copyright infringement. Patrick Cariou, the author of the Yes Rasta photography book, sued Prince after he had used some of the Yes Rasta photographs to create his Canal Zone series, also presented at the Gagosian Gallery. The Second Circuit found this use to be fair. Just like Cariou, Graham had traveled to Jamaica and taken black and white pictures of Rastafarians after gaining their trust. Does that insure that a court will find Prince’s use of Graham’s work to be fair?

This Time, It May Not Be Fair Use

Fair use is a defense to copyright infringement, but it is not fool-proof or automatic. Instead, judges use four non-exclusives factors to determine if a particular use of a work protected by copyright is fair: (1) purpose and character of the use, (2) nature of the copyrighted work, (3) amount and substantiality of the portion taken, and (4) effect of the use on the potential market.
Is Fair Use Once More Coming to Town? 
The second and the third factor are likely to favor Graham, as the work reproduced is artistic, and has been reproduced in its entirety. Therefore, the first and the fourth factor will probably decide whether the use is fair or not.

Graham had not posted himself a reproduction of his work on Instagram, but a third party did, without Graham’s authorization. Under the post, Prince added the comment ““Canal Zinian da lam jam”, which may allude to his Canal Zone series, deemed to be fair use, and printed the page featuring the Graham photograph and his comments.

In Cariou v. Prince, the Second Circuit noted that “Prince altered [the Cariou] photographs significantly” (at 699). Adding a nonsensical comment under a photograph, even if one chooses to describe it as poetry, is not a significant alteration of the original work. This point is likely to be debated by the parties, as the Supreme Court stared in Campbell v. Acuff-Rose Music, when explaining the first fair use factor, that “the more transformative the new work, the less will be the significance of other factors, like commercialism, that weigh against a finding of fair use" (at 579).

In Cariou, the Second Circuit explained:

These twenty-five of Prince's artworks manifest an entirely different aesthetic from Cariou's photographs. Where Cariou's serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince's crude and jarring works, on the other hand, are hectic and provocative.”

In our case, one would be at pain to describe Prince’s use of Graham’s photography as being “hectic and provocative. “ It may be considered a provocation, but this does still not make the work “provocative” for fair use purposes.

Prince knows how to provoke: he posted a comment about the Graham suit on Twitter: “U want fame? Take mine. Only thing that counts is good art. All the everything else is bullshit.” Interestingly, fair use protects art whether it is good or not, without the judges having to concern themselves about whether fair use is good art or not, or even if it is art at all, or whether the author of the work is famous or not .

As for the fourth factor, the effect on the use on the market, Graham does license his work, including the work at stake, which was not the case in Cariou, and so Prince’s use may be deemed to have an effect on the market.

A Lucrative Business, Thanks to Copyright

Graham posted on Instagram a view of the New Portraits exhibition, including the print reproducing his own work, and added the hashtag #PrinceofAppropriation. The complaint argues that Prince “has achieved notoriety in the “appropriation art” industry for his blatant disregard of copyright law” (at 23).

All the prints forming the New Portraits exhibition have been sold. The Gagosian Gallery has published a catalog of the exhibition, and, according to the Complaint (at 35) “a gigantic photograph of the Exhibition prominently featuring the Infringing Work on a billboard at 50th Street and West Side Highway in New York City for several months, until at least July 2015.

As noted in the complaint (at 28), the Gagosian Gallery is aware that copyright law prevents a third party to reproduce its inventory without permission (“All images are subject to copyright. Gallery approval must be granted prior to reproduction.” Therefore, Graham himself would have to ask permission to reproduce the unauthorized reproduction of this work by Prince reproducing the original unauthorized post on Instagram by a third party (dizzy yet?).

This case is on the watch list of every IP attorney in the US. Happy New Year!

Image is courtesy of Flickr user jpmueller99 under a CC BY 2.0 license.

Monday 4 January 2016

Publish and Be Damned

On two recent occasions I have been stunned by the ignorance of some BBC journalists about the law of copyright with regard to using other people's photographs without permission. Perhaps I shouldn't be. Even a leading guide on legal matters for journalists, McNae's Essential Law for Journalists, devotes several paragraphs to the public interest and ethical considerations of taking and using pictures from social media sites belonging to people who inadvertently find themselves in the news spotlight, but can only manage a single sentence elsewhere in the book to highlight the fact that using photographs is excluded from the fair dealing exception for news reporting, as shown in section 30(2) CDPA.

Clearly the majority of average users of social media will not think twice about the copyright implications of re-tweeting or otherwise re-publishing other people's comments or photographs, and in the main this is probably something which can be tolerated when no-one is being deprived of any actual financial benefit which might otherwise be due to them as authors. But this situation changes once the professional media become involved. Arguably this is where the Berne three step test becomes engaged. 
Too often the large news organisations rely on the ignorance of ordinary members of the public about their rights. By way of contrast however, try re-publishing anything substantial (say more than 11 words) from a news website without a licence and you can expect a bill from the Newspaper Licensing Agency. If nothing else, the Leveson Inquiry has taught us that many journalists operate to different ethical standards, and are not immune from gross hypocrisy. And it's not as if there isn't plenty of caselaw on the subject. The cases of Painer and Daniel Morel come to mind.

So what of the two stories which have prompted this article? The first concerns that dress which some people perceived as white and gold while others saw as black and blue. The background to the story, for those unfamiliar with it, can be found here on the BBC News website. My particular complaint lies in a Radio4 programme made by the BBC's Mukul Devichand (available here on iplayer for anyone located in the UK) in which he specifically defended his publication of the picture by reference to the fair dealing exception for news reporting, which of course does not apply to photographs. The authors of the original photograph have now engaged a solicitor to try and get recompense from those dozens of news outlets which have exploited this famous image for free.

The second instance involves another BBC journalist, Roland Hughes, and his story about his part in helping another 'lifted' photograph to go viral without the author's permission. You can read the story here, but while the photographer's moral right to be credited gets a mention, don't expect to see anything about infringement of copyright.

These are just two fairly recent examples of the particular problem faced by photographers, both amateur and professional. While the music and film industries have the resources to go after the infringers of their products, and get the offending websites blocked, individual photographers can face enormous difficulties in extracting fees from large news organisations who should know better, when they engage in similar piracy. Here's one example of the press's publish-and-take-the-consequences attitude. In addition to claiming that time pressures prevented the picture desk from getting permission, I have come across another national newspaper company whose picture desk defiantly refused to pay for using pictures it had taken from an urbex website, claiming that that they were allowed to do this by virtue section 30(1) because they were criticising the activities of Urbex explorers, notwithstanding the fact that s 30(1) only permits criticism of a copyright work, not an activity or the behaviour of the author. Their second line of ‘defence’ was that since the person who took the photographs must have been trespassing at the time he took them, this voided any copyright in the photographs. On another occasion, the Daily Mail hilariously accredited the 'Internet' as the copyright owner of a picture they had used without permission.

Having established that section 30(2) does not provide an exception for photographs to be used in connection with news reporting, and that section 30(1) will rarely justify using an image unless the purpose is just to criticise it, can there ever be a defence to using an image found on the internet, without permission? When it comes to text, the new exception (subsection 1ZA) added to section 30 for quotation would certainly seem to strengthen the hand of those who re-tweet comments, although invariably this 'defence' would fail because the original source has not been credited. But it is far from clear whether the quotation exception could apply to a photograph which was used other than in connection with news reporting; if it could, then where does that leave s30(2)? I suggest that quoting a photograph (or indeed any artistic work) might be possible for the purposes of something akin to criticism or review, but it will continue to remain outside the fair dealing rules for news reporting.
Then there is the reliance on a purported licence, such as creative commons, which may accompany an image found on, say, Flickr. Since copyright infringement is a matter of strict liability, a newspaper or other publisher would be unable to use as its defence the honest belief that the image had been made available under an open licence when in fact it had not, irrespective of the grounds for holding this view. And of course there’s the ultimate in ignorance of the law, believing that because something is placed on the internet, it is “in the public domain” and thus free for anyone to re-use, as advanced by the Irish Mail on Sunday.
“The photograph of Mrs Schregardus which we published to accompany this article came from Page 36 of this online magazine Like Mrs Schregardus’s blog, it had been put into the public domain by Mrs Schregardus herself.”
So that just leaves the public interest defence, apparently established, but not defined, by section 171(3) CDPA.
(3) Nothing in this Part affects any rule of law preventing or restricting the enforcement of copyright, on grounds of public interest or otherwise.
I say ‘apparently’ because the courts are not so sure that this establishes a defence at all. But first we need to find out what ‘public interest’ may mean in relation to copyright infringement.
It is significant that while there is quite a bit of caselaw on the subject of a public interest defence for copyright infringement, much is very old, but it generally falls into two separate groupings. Professor William Cornish put it quite elegantly when he said there are two kinds of policy grounds: those involving "the policy against legal protection" for instance because the copyright work itself is obscene, immoral or deceptive, and the "policy favouring dissemination" such as bringing a disreputable matter, for which the work is evidence, to public attention.

We need not dwell on it here, but the whole matter is made more complicated by a debate about whether s 171(3) complies with the Infosoc Directive, specifically Article 5(3)(e):
"Members States may provide for exceptions or limitations to the rights provide for in Articles 2 and 3 in the following cases: [...] use for the purpose of public security or to ensure the proper performance or reporting of administrative, parliamentary or judicial proceedings."
and the waters are muddied still further by the suggestion that both the InfoSoc Directive and the CDPA might be trumped by Article 10 (the right to freedom of expression) of the European Convention on Human Rights. Fortunately this particular matter has been considered and largely rejected by the UK courts (see Ashdown v Telegraph Group Ltd [2001] EWHC/Ch/25 )
As mentioned, there is quite a bit of case law on the public interest issue, and those interested in it may find it helpful to read a summary by Jacob J (as he then was) in his first instance hearing of Hyde Park Residence Ltd v Yelland case (see paras [24-34]). I will return to this case in a moment and look at how the Court of Appeal dealt with the issue, but first I want to look at a few examples of what Prof Cornish calls the policy against protection, that is to say, declining to enforce copyright where the work itself is disreputable. The first case is Glyn v Weston Feature Films Ltd which concerned public morality as the work was largely about an adulterous affair. For those who would like to read an in-depth analysis of the case, I can recommend an article in the European Intellectual Property Review written by someone called Jeremy Phillips (who ever he is). The next case I want to consider is Lion Laboratories v Evans, where the defendant published a report belonging to the claimant which showed that the public and the courts were being deceived about the accuracy of an intoximeter device made by the claimants. The case also involved breach of confidence, but on appeal the court held that it should not enforce copyright in this instance because to do so would deny members of the public who might have been convicted on the strength of faulty readings given by the intoximeter, the opportunity to challenge their convictions. The last case in this category I want to look at is the Spycatcher trial (HM Attorney General v Guardian Newspapers). The matter went all the way to the House of Lords and was about whether the injunction preventing publication in the UK of Peter Wright’s book Spycatcher should be lifted. By way of background, the book had been written in contravention of the duty of confidence owed by Peter Wright to his previous employers, the Crown, and the Law Lords held that the copyright in the book should not be enforced, since to do so would be to condone the breaking of the Official Secrets Act. 

Aside from these sorts of case where the claimant's own misbehaviour results in the public interest being used to decline to enforce copyright, the only significant pre-CDPA case involving the public interest of 'policy favouring dissemination' was Beloff v Pressdram Ltd [1973] FSR 33. It needs to be borne in mind that this case was tried under the 1956 Copyright Act which did not contain a reference to the public interest. In this case Nora Beloff, a political columnist on the Observer, sued Private Eye magazine for infringing copyright by publishing a private internal memo she had written to other members of the Observer's staff, about various manoeuvrings within the then Conservative government. The case failed, not least because Ms Beloff did not have standing to bring the claim as she was not the owner of the copyright, which vested in her employer. Notwithstanding this finding the court went on to say that the public interest defence advanced by Private Eye also failed, albeit the judge's remarks were deemed to be obiter and have since been criticised.

So now it is time to return to the Hyde Park Residence case. This and the Ashdown case, also mentioned earlier, are the only significant cases in recent times to look at the public interest where the policy issue was one favouring dissemination. Readers may recall that this case was about the publication in the Sun newspaper of still images taken from CCTV installed at Mohamed Al Fayed's Paris residence known as Villa Windsor, several months after the death of Princess Diana in August 1997. It is worth pointing out that at first instance the court was dealing with an application to dismiss the claim against the Sun and was not a trial on the actual issue of copyright infringement. Jacob J found that the Sun did have reasonable chance of success with its defence based on fair dealing (section 30(1)) and public interest. This decision went to the Court of Appeal where, in theory, they were only looking at the judge's application of the law in arriving at his conclusions, and they also were not addressing the underlying infringement claim itself. Nonetheless, Mance and Aldous LJJ (with whom Stuart-Smith LJ agreed) made some significant negative remarks about, inter alia, the public interest defence. The CA also looked at the Section 30(2) defence put forward by the Sun but that is not relevant here. The gist of the case was that some months after the fatal crash, Mr Al Fayed senior arranged to have published a book entitled Death of a Princess containing his version of events, which it was alleged, grossly falsified significant facts including what had happened at Villa Windsor in the hours before the death of Princess Diana and Dodi Fayed. The Sun's case was that it was necessary to publish the still images to establish the truth about the timings of the couple's arrival and departure from the Villa, which showed Mr Al Fayed’s assertions to be false, and this then undermined many of his other fanciful claims in the book. Hyde Park Residence Ltd (representing, in effect Mr Al Fayed) countered that the Sun's sole purpose in its articles was to attack Mr Al Fayed personally, and this was in no way justified in the public interest. In the event the Court of Appeal unanimously allowed the appeal and rejected the Sun’s fair dealing and the public interest defences. The matter of infringement of copyright never went to full trial.

And so as things stand today, it is fair to say, the courts do not think much of the public interest defence when it comes to matters which may interest the public, but which involve little or no public policy. However I doubt that it will stop people's Facebook and Twitter accounts from continuing to be raided for the amusement and titillation of the newspaper-buying public.

French Government Ordered to Adopt Decree providing for ISP Compensation

In 2009 France adopted the so-called three-strikes graduated response to the scourge of illegal peer-to-peer file sharing.  Overseeing the system was Hadopi (Haute Autorité pour la diffusion des œuvres et la protection des droits sur Internet);  This administrative authority was responsible for sending the warning letters to infringers.  Identifying the infringers was the task of rightsholders and ISPs, with the latter bearing substantial costs in so doing.  The original statute provided for a decree that would compensate them for the specific costs incurred in carrying out this government-mandated task.  However the decree was never adopted.

Fed up with the situation, one ISP Bouygues Télécom (currently the subject-matter of a rumoured takeover by Orange; see here), took the government to court (State Council) arguing that its failure to adopt the decree was unlawful.

On 23 December last, it won its case against the government (see here).  The State Council opined that while the statutory provisions (Section L. 34-1, par. III of the Code of Post and Electronic Communication) could not, in light of their generality, be applied directly in the absence of a decree, such provisions do not leave any discretion for the Prime Minister in the adoption of such a decree.  The Council further held that the reasonable delay to do so had expired and, accordingly, annulled the French government’s implied decision to refuse to adopt the regulatory measures and directed the governement to take necessary regulatory measures within 6 months from the date of notification of the decision, failing which, a fine (astreinte) of 100 euros per day of delay would apply.

Given the relatively modest amount of the fine, it remains to be seen whether/when the government will actually comply and adopt the long-awaited decree.