Thursday 28 April 2016

The CopyKat.

The decade-long legal fight over Google’s effort to create a digital library of millions of books is finally over ... the Supreme Court has declined to hear a challenge from authors who had argued that the tech giant’s project was ‘brazen violation of copyright law’ — effectively ending the legal battle in Google’s favour. Without the Supreme Court taking up the case, a federal appeals court ruling from October, which found that the book-scanning program fell under the umbrella of fair use, will stand.” More here

Getty Images has filed a formal antitrust complaint with the European Commission about Google image search. According to reports, Getty claims that high-resolution Google image search results, “scraped” from its customers’ sites, are “siphoning traffic and profits from photographers.” Getty argues, because people can view high-quality versions of its photos in image search results, consumers don’t need to click through to publisher sites, and traffic and revenues are suffering accordingly.  Google and Getty Images had been in talks for some time over Getty’s concerns about high-resolution images in Google image search. However, Getty says that Google ultimately told the company to “accept the new image format or opt out of image search”. According to the Financial Times Getty said it felt coerced by Google’s market power into participating. Something it clearly now regrets doing. More here.

According to the IFPI's head of anti-piracy, calling illegal downloading "piracy" has become somewhat of a negative. The problem is that the concept of piracy is, well, just too 'romantic' and exciting. What's not to like about Pirates of the Caribbean (well quite a lot BUT the franchise got Keef in it). Graeme Grant is suggesting a name change -  but can simply changing the name of something really change the beast?

Baroness Lucy Neville-Rolfe, the UK's Minister for Intellectual Property, has confirmed that the British government is leaning toward the idea of increasing the sentence for online piracy,  to bring it into line with that for physical infringement: “Last year the government consulted on increasing the maximum term to 10 years. We received over a thousand responses, which have played a significant part in helping to shape the discussion” she said.

Baidu, China’s largest search engine, has signed a formal agreement with the United Kingdom concerning the platform's management of intellectual property rights. There are no clear details of the new Memorandum of Understanding about IP infringement, except that the signing was witnessed by Dr Ros Lynch, Director of Copyright and Enforcement at the UK Intellectual Property Office, who is currently in China to promote UK-China copyright week, and that also attending were Baidu president Ya-Qin Zhang and Robin Li, Baidu’s co-founder, chairman and CEO of Baidu. The MoU concerns ‘Copyright Protection Collaboration’. We await details in the next IPO China newsletter! More here!

Republican Congressman Bob Goodlatte has put out a statement and a video claiming that the House Judiciary Committee which he chairs is finally ready to start releasing some proposals in response to US Copyright Registrar Maria Pallante's call for Congress to create the "next great Copyright Act". Goodlatte says he is currently focussing on reforms where there is consensus, saying: "In the weeks ahead, we will identify areas where there is a likelihood of potential consensus and circulate outlines of potential reforms in those areas. Then we will convene stakeholders for further work on these potential reforms.  And you have my personal commitment that as the review shifts to more focused work on potential reforms, the process will be transparent and the Committee will continue to ensure that all interested parties have the opportunity to weigh in on issues of concern to them. Our copyright system deserves no less." and " is critical that Congress understand the overall impact of any changes in copyright law before proceeding with formally introduced legislation. It is also clear that neither a solely copyright owner focused bill, nor a copyright user focused bill, could be enacted by Congress today, nor should they be. Goodlatte said that the review of the country’s copyright law, which included 20 formal hearings as well as public roundtables in Nashville, Santa Clara and Los Angeles, helped "develop a comprehensive record of the issues facing the American copyright system today.” TechDirt has its own opinion here and more on MusicWeek here.

Friday 22 April 2016

Richard Hooper to stand down as Chairman of the Copyright Hub

The 1709 Blog has just learned that Richard Hooper, currently the Chairman of the Copyright Hub, has decided to leave his position.

According to the relevant press release:

"Today, at the WIPO conference The Global Digital Content Market in Geneva, Richard Hooper CBE announced that with effect from 1 May 2016 he will stand down as Chairman of the Copyright Hub Foundation after nearly 5 years. He will hand over the rôle to Mark Bide who is currently an adviser to the Foundation’s Board.

This marks the transition of the Copyright Hub Foundation to the next phase of its development, in which its principal focus will be on building trust in the market place and effective self-regulation; as well as continuing to facilitate the roll-out of applications and sister hubs. Mark Bide has previously led the governance work strand on behalf of the Foundation’s board. 

In recognition of his standing as the founding father of the concept of a digital copyright hub, the Foundation Board has invited Richard Hooper to become Honorary President of the Copyright Hub Foundation an invitation he has accepted. The idea of a hub with the capability of linking copyright owners and users at effectively no transactional cost was first set out in his report for the UK government entitled Copyright Works: streamlining copyright licensing for the digital age.

Richard Hooper
Richard Hooper said: “It has been an extraordinary time leading the Copyright Hub Foundation as it has built the foundation of a technology platform that will [will? Shouldn't this have happened already?] make licensing easier and cheaper for all creators and rights holders. I want to thank all our many supporters and funders in the UK and around the world: this is a truly global project as relevant to creators and creativity in developing economies as to Western countries like the UK.   A big thank you also to Dominic Young who brought a precise technology vision to the Hub, building on existing initiatives such as the Linked Content Coalition. I am delighted to remain engaged with the Foundation as its President and look forward to supporting its work as it moves into new and exciting times.”

Mark Bide added: “I am honoured to have been asked by the Board of the Copyright Hub Foundation to take the chair of the organisation at this critical moment in its development.  Succeeding Richard will be no easy task. I very much look forward to working with Dominic Young, the other members of the staff and the Board of the Foundation. Together, we will be working to ensure the delivery of the objectives of the Copyright Hub Foundation and its technology platform of simplifying and extending copyright licensing by providing a trusted market place in the digital environment.”

Dominic Young, CEO of the Copyright Hub, said: “It has been a pleasure to work with Richard over the past few years to get the Copyright Hub to the position it is in today. I think I can speak for the whole team in saluting the energy, enthusiasm and sheer determination that Richard has put into the creation and work of the Hub. I am delighted that he will continue to be involved in the future.” 

Thursday 21 April 2016

Are Languages Created by One Single Homo sapiens Protected by Copyright?

You may remember that Paramount Pictures and CBS Studios are suing Axanar Productions and its principal Alec Peters over the short movie Prelude to Axanar (see here and here). Plaintiff claims the movie is an unauthorized derivative work, and that it infringes their copyright in Star Trek. Plaintiff filed an amended complaint last month, which details further what they consider to be infringement.

The complaint alleges that one of the infringing elements of Prelude to Axanar is the character of Garth of Izar, the legendary Starfleet captain who won the battle of Axanar, and later became insane, as shown in one of the original Star Trek episodes, Whom Gods Destroy. The Complaint also alleges infringement in the characters of Soral, a Vulcan ambassador, Starfleet captain Richard Robau, and historian John Gill.

Plaintiffs also claim copyright infringement in the Klingon race (a “warrior race”) and their appearance, and in the Vulcans, which “are a humanoid race with pointy ears from the planet Vulcan that are responsible in a large part for the founding of the Federation” and their appearance. Plaintiffs also claim copyright infringement in the Andorians, the Tellarites, and the Romulans, the last a species from the planets Romulus and Remus.

Plaintiffs also claim copyright in the costumes worn by the Enterprise crew, the Vulcan robes, the cowl neck and Starfleet command insignia, and triangular medals on uniform. If a court would recognize such infringements, it would set a precedent for fashion designers to claim copyright in their own works. However, this is highly unlikely, and claiming copyright in a cowl neck, especially, takes gumption, to say the least.

Can an Invented Language be Protected by Copyright?

The list of the claims goes on, and it is an interesting read. I would like to concentrate in this post on the claim in the Klingon Language, “Klingonese or Klingon, the native language of Qo’noS” (p.31). Can an invented language be protected by copyright?

I read online this interesting post by Cory Doctorow about the issue, wich provides links to other interesting articles on the Klingon language. Cory Doctorow does not believe it can be protected by copyright. I learned reading the post and its linked articles that the Klingon language was created by linguist Marc Okrand, and is a combination of Hindi, Arabic, Yiddish, Turkish, and Mohawk. It has its own dictionary.

There is no doubt that a natural language cannot be protected by copyright. A language is a combination of signs, which have meanings, and the language is organized using a syntax. Natural language evolve over time, and are created by member of particular tribes of the human species, following an organic process. As such, natural languages can be described as “procedure, process, system, method of operation, concept, principle, or discovery” which are not protected by copyright (§ 102. 2 of the Copyright Act).

But what about a language which is “created”? Cory Doctorow argues that the Klingon language “admittedly borrows phonemes from Hindi, Arabic, Tlingit, and Yiddish and grammar from Japanese, Turkish, and Mohawk” which makes claiming a copyright in it dubious.

However, the Supreme Court explained in 1879, in its Trade-Marks case, that “[t]he writings which are to be protected [by copyright] are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like.” That does not mean that mere “sweat of the brow” is enough to claim protection of a compilation by copyright, as explained by the Supreme Court in Feist Publications, Inc. v. Rural Telephone Service Co. The Supreme Court ruled in this case that a compilation of facts may be protected by copyright only if such selection, coordination and arrangement is original enough. However, a modicum of originally suffices.

Is the Klingon Language an Original Compilation of Facts?

Feist could be cited by Plaintiffs to argue that the Klingon language is protected by copyright. Is the Klingon language merely an unoriginal combination of data? In that case, it would not be protected by copyright under Feist. But the Klingon language is original, and original work is protectable by copyright. The Supreme Court defined originality in Feist as meaning “that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity” (at 345). It can easily be argued that this is the case with the Klingon language.

Even if one argues that the Klingon language is merely a combination of natural languages, it can still be protected by copyright under Feist, as the Supreme Court explained in this case that factual compilation may be protected by copyright:

Factual compilations… may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws” (Feist at 348).

In our case, it could be argued that Marc Okrand compiled facts, the natural languages, and decided in which order to place them, and how to arrange them. This work certainly entailed a minimal degree of creativity. I would say that the Klingon language may be protected by copyright.

Klingon is Not the Only Original Language Ever Created

The issue of whether a language which has been created is protected is topical: the television series “Game of Thrones” features its own language, the Valyrian, which was created by David Peterson and has even a high and a low level of language (hear them here). David Peterson wrote a book named “The Art of Language Invention” (he speaks about it here) and has created several other languages for the movie industry.

Mark Okrand himself has been asked if the Klingon language is protected by copyright and he answered that he does not own the copyright, as he created it as a work for hire, but that he is not sure if Paramount owns it either. And you, what do you think?

Picture of the Klingon Dictionary courtesy of Flickr user geraldford under a CC BY-SA 2.0 license.

Picture of Sign courtesy of Flickr user Aaron Gustafson under a CC BY-SA 2.0 license.

Monday 18 April 2016

The CopyKat

It been eight years since the publisher John Wiley & Sons sued Supap Kirtsaeng for re-selling Asian market textbooks in the USA - and now despite his ultimate win in the Supreme Court under the 'first sale' doctrine, his textbook business is shuttered and he has moved into academia - BUT in his first print interview he makes clear his conviction that he wasn’t doing anything wrong by reselling those textbooks, and that the lawyers who helped him prove it are entitled to be paid for their work because he found counsel willing to represent a student and small business owner against a global company with billions of dollars in annual revenue. So he now wants almost $2 million from John Wiley - but so far he has been knocked back by the trial court and the 2nd U.S. Circuit Court of Appeals. Now the Supreme Court will hear Kirtsaeng’s second petition for certiorari, this time to resolve uncertainty among the federal appellate courts on the appropriate standard for fee-shifting in Copyright Act litigation. 

The song that inspired one of America’s greatest freedom fights is now the subject of a battle over its own. A California non for profit organisation has filed a class-action lawsuit against Richmond Organization and Ludlow Music over the copyright to “We Shall Overcome,” a song the Library of Congress calls “the most powerful song of the 20th century.” “It’s an important part of our political and social history and we certainly see the irony in the fact that this song, which has represented the civil rights movement, needs to be emancipated itself,” says Mark Rifkin, an attorney and partner with Wolf Haldenstein Adler Freeman & Herz, who is representing the We Shall Overcome Foundation in the suit who will argue that “The basic story is the song was written well before anybody copyrighted anything” - that " the song belongs in the public domain", and seeks a return of "unlawful licensing fees" from the publishers. Could be fun!

Justin Bieber’s 2010 hit song ‘Somebody To Love’ faced a claim back in 2013 when he and his producer Usher, were accused of copyright infringement.  The lawsuit was brought forward by singer De Rico and songwriter Mareio Overton.  De Rico and Overton’s track was also titled ‘Somebody To Love,’ from their similarly-titled album, My Story II. In 2014 the court dismissed the case finding significant differences in the songs. However, in June of 2015, the US Court of Appeals in Virginia re-opened the lawsuit and since then, the case has been ongoing. But Bieber keeps failing to show up to depositions and having cancelled twice said he was ‘unable to sit for deposition’. As a result, the singer has now been ordered to pay over a whopping $10 million and the court has scheduled discovery to be completed by April 18th. Errrrrr, that's TODAY JUSTIN!

With a retrial scheduled for May, Oracle and Google have failed to settle the copyright lawsuit over Android operating system. Reports said that the CEO of global software major Oracle, Safra Catz and Google Chief Executive Sundar Pichai met for six hours on April 15 in a court-ordered settlement conference before a U.S. magistrate in San Jose, California, in an attempt to stave off retrial in May. U.S. Magistrate Judge Paul Grewal, who mediated the talks issued a statement saying the talks were unsuccessful.

And finally: Universal Music Australia, Warner Music Australia, Sony Music Entertainment Australia and Albert Music have combined in an effort to combat offshore site Kickass Torrents, filing an application in the Federal Court of Australia to have Kickass blocked from local access. The action is under Section 115A of the Australian Copyright Act 1968 and the companies are seeking to have Kickass Torrents and its affiliated proxy sites blocked by Australian ISPs in an effort to tackle local and global music piracy.

Thursday 14 April 2016

Some copyright events of interest

Our friends at the IPKat and Queen Mary Journal of Intellectual Property Law regularly update their lists of IP events, in which also 1709 Blog readers will find something of interest.

Among the forthcoming copyright events, here's something for our readers:

Self-Portraits of Robert Mapplethorpe? Portraits of Robert Mapplethorpe?

On April 6, 2016, artist and photographer James Miller, professionally known as Bobby Miller, filed a copyright infringement suit against The Robert Mapplethorpe Foundation (RMF), Sean Kelly Gallery, Skarstedt Gallery, the Guggenheim Foundation and the Whitney Museum. The case is Miller v. The Mapplethorpe Foundation, 16-CV-2510.

Mr. Miller is a photographer, writer, performance poet, actor and is also a make-up artist. He has published several books of his photographs and his works have been exhibited in the U.S. Robert Mapplethorpe was a renowned photographer in the Seventies and Eighties before his death in 1989. His work is still regularly shown around the world.

Source: The Robert Mapplethorpe Foundation 
Miller alleges that he is the author of four of Mapplethorpe’s photographs. Picture it, New York, 1979. Miller spent the evening of November 22 with Mapplethorpe in his loft on Bond Street, in downtown Manhattan, along with a friend. Miller interviewed Mapplethorpe and recorded the interview. After the three men had dinner outside, they came back to the loft. Miller then persuaded Mapplethorpe to let him put feminine make-up and accessories on him and to style Mapplethorpe’s hair, so he would look like a woman. According to the complaint, Miller then took several pictures of Mapplethorpe dressed and made-up by Miller, in Mapplethorpe’s studio, after Miller adjusted the lighting himself. Miller left Mapplethorpe’s studio without taking the roll of film. Instead, Mapplethorpe told him he would develop it and send him the pictures, but he never did so.

Miller alleges that Mapplethorpe later presented himself as the author of these photographs, as self-portraits. They are Self Portrait, 1980, Self Portrait, 1980, Self Portrait, 1980, and Self-Portrait, 1980. They became quite famous and have been shown in several shows and exhibitions, such as the 2013 show Self Portraits organized by Defendant Skarstedt Gallery and the Robert Mapplethorpe Saints and Sinners exhibition organized by Defendant Sean Kelly Gallery.

Miller alleges that he has informed defendant RMF “several times” that the photographs were authored by him and not by Mapplethorpe, and claims that RMF has infringed his exclusive rights to reproduce, display and distribute the images. Miller also alleges that Sean Kelly Gallery infringed his exclusive right to display the images, that Defendant Skarstedt Gallery infringed his exclusive rights to distribute and to display the images, and that RMF contributorily and vicariously contributed to the alleged copyright infringement by Skarstedt Gallery and Sean Kelly Gallery. Miller also alleges that both the Guggenheim Museum and the Whitney Museum infringed his exclusive right to display his works.

Plaintiff is claiming that he should recover not less than 25 million dollars from RMF for copyright infringement, not less than 20 million for vicarious and contributory infringement, not less than 10 million dollars in damages from Sean Kelly Gallery and not less than 10 million dollars in damages from Skarstedt Gallery (yep, you read that right). Damages from The Guggenheim Museum and the Whitney Museum are to be awarded at trial.

Miller is also asking the court to declare that he is the author of the photographs and thus owns their copyrights, and to cancel any other copyright registration for them. Miller registered the copyright for these four images in March 2016. The basis for registration is listed as “unpublished collection.” Indeed, Miller claims that he has not published the images at stake. The court is also asked to order the delivery to Miller of all copies of these images and all media containing these images.

The main question, of course, is how Miller will prove that he is indeed the author of the photographs. If he is able to prove his allegations, he is the author, as he styled the photos and adjusted the lightning. Mapplethorpe created several Self Portraits during his too-short career, but the four pictures at stake are the only ones where he appeared made-up as a woman. This mere fact is not enough. Was Miller able to secure the testimony of the other man who was with them on November 22, 1979?

Also, the timing of the filing is puzzling, as Mapplethorpe died almost thirty years ago, and his work is still highly-regarded. He has not been out of the public eye since he became famous in the mid-Seventies. The exhibitions organized by the two galleries which are named as defendants in this case occurred in 2013 and 2014, in New York City, not too far away from where Miller lives, in Cape Cod. So, what gives? Did Miller find a proof of his authorship after all these years, make it decades? Stay tuned…

Tuesday 12 April 2016


The record labels' international trade body, the IFPI, has published its Global Music Report for 2016 with headline news that global recorded music revenues are up 3.2% as digital revenues overtake physical for the frst time. The report highlights: 

-       Digital revenues contribute 45 per cent of industry revenues, overtaking physical’s 39 per cent share

-       Streaming revenues up 45.2 per cent, helping to drive 3.2 per cent global growth

-       Music consumption is exploding globally, but the “value gap” is the biggest brake on sustainable revenue growth for artists and record labels

Downloads remain a significant offering, accounting for just 20 per cent of industry revenues.  Income was down 10.5 per cent to US$ 3.0 billion – a higher rate of decline than in 2014 (- 8.2 per cent).  Full album downloads are still a major part of the music fans’ experience and were worth US$1.4 billion.  This is higher than the level of sales in 2010 (US$983 million) and 2011 (US$1.3 billion).

Performance rights revenue grew. Revenue generated through the use of recorded music by broadcasters and public venues increased 4.4 per cent to US$2.1 billion and remains one of the most consistent growing revenue sources. This revenue stream now accounts for 14 per cent of the industry’s overall global revenue, up from 10 per cent in 2011.

Revenues from physical formats declined, albeit at a slower rate than in previous years, falling by 4.5 per cent compared to 8.5 per cent in 2014 and 10.6 per cent in 2013.  The sector still accounts for 39 per cent of overall global income and remains the format of choice for consumers in a number of major markets worldwide including Japan (75 per cent), Germany (60 per cent), and France (42 per cent).

IFPI’s Global Music Report 2016 also reported a 10.2 per cent rise in digital revenues to US$ 6.7 billion, with a 45.2 per cent increase in streaming revenue more than offsetting the decline in downloads and physical formats.

Total industry revenues grew 3.2 per cent to US$ 15.0 billion, leading to the industry’s first significant year-on-year growth in nearly two decades.  Digital revenues now account for more than half the recorded music market in 19 markets.  

However, the IFPI say that there is a fundamental weakness underlying this recovery. "Music is being consumed at record levels, but this explosion in consumption is not returning a fair remuneration to artists and record labels.   This is because of a market distortion resulting in a “value gap” which is depriving artists and labels of a fair return for their work."

IFPI Chief Executive Frances Moore said: “After two decades of almost uninterrupted decline, 2015 witnessed key milestones for recorded music:  measurable revenue growth globally; consumption of music exploding everywhere; and digital revenues overtaking income from physical formats for the first time. They reflect an industry that has adapted to the digital age and emerged stronger and smarter.

“This should be great news for music creators, investors and consumers. But there is good reason why the celebrations are muted: it is simply that the revenues, vital in funding future investment, are not being fairly returned to rights holders.  The message is clear and it comes from a united music community: the value gap is the biggest constraint to revenue growth for artists, record labels and all music rights holders. Change is needed - and it is to policy makers that the music sector looks to effect change.” 

The IFPI say that the “value gap” arises because some major digital services are able to circumvent the normal rules that apply to music licensing.  User upload services claim they do not need to negotiate licences for the music available on their platforms, or conclude licences at artificially low rates, claiming protection from so-called “safe harbour” rules that were introduced in the early days of the internet and established in both US and European legislation. Its clearly a dig at YouTube who many feel hide behind the DMCA 'safe harbor' provisions - and have an unfair advantage over competitors.

Recently some 400 recording artists, songwriters and groups including the Recording Industry Association of America (RIAA) are calling on Congress to reform existing US copyright law saying that the Digital Millenium Copyright Act (DMCA) is obsolete, dysfunctional and harmful,  and calling for stronger measures against the ongoing piracy troubles they face. The DCMA was signed into law by President Bill Clinton in 1998 and aimed to ready copyright law for the digital age. Christina Aguilera, Katy Perry, Steve Tyler, Lionel Richie and Garth Brooks are just some of music’s biggest names who want to make it harder to pirate music online. The musicians are asking lawmakers to make “drastic reforms” to the Act.

In September 2015 Cary Sherman, the chairman and CEO of the Recording Industry Association of America, has some choice words about the current state of US copyright law. He said that the provisions of the Act were 'largely useless' to combat music piracy and  that under the Digital Millennium Copyright Act, rightsholders had to play a game of whack-a-mole with Internet companies to get them to remove infringing content. But that "never-ending game" has allowed piracy to run amok and has cheapened the legal demand for music. Sure, many Internet companies remove links under the DMCA's "notice-and-takedown" regime. But the DMCA grants these companies, such as Google, a so-called "safe harbor"—meaning companies only have to remove infringing content upon notice from rightsholders.

The IFPI say that the safe harbour rules are being misapplied: "They were intended to protect truly passive online intermediaries from copyright liability.  They were not designed to exempt companies that actively engage in the distribution of music online from playing by the same rules as other online music services. The effect is a distorted market, unfair competition and artists and labels deprived of a fair return for their work."

"Rights holders from across the music community and wider creative sector are committed to changing this legislative anomaly.  They say there is no case for digital platforms that have built major businesses on the back of music and other creative content, to be allowed to seek “safe harbour” refuge while they profit from making music available on the internet."

YouTube’s deals with Universal Music Group, Sony Music and Warner Music have either expired or will this year, the Financial Times reported on Sunday. 

Monday 11 April 2016

French State Ordered to Compensate Bouygues Telecom for HADOPI-related Costs

On April 4th, the French Conseil d'Etat (Supreme Court in administrative law matters) ordered the State to pay Bouygues Telecom (recently the target of an aborted merger with Orange) €900,000 by way of comepnsation for the costs incurred in the implementation of the HADOPI three strikes' regime.

Readers will recall that the regulatory framework surrounding the HADOPI regime adopted in 2009 called for a decree to be adopted by the government that would allow the ISPs tasked with collecting and transmitting  the wrongdoers' IP addresses to seek and obtain suitable compensation from the State for the associated costs.  However, the government never got aroud to actually promulgating the decree, with the result that in December 2015 the Conseil d'Etat formally ordered it to do so, holdng that the "reasonable delay" for so doing had long since expired.

Last week's ruling by the Conseil d'Etat was therefore the logical extension of its December 2015 decision.  It awarded the ISP €900,000 (which works out to 37.5 euro cents per IP address).

This is a decision sure to be noticed by all French ISPs, who have to date borne these costs.

It is interesting to contrast this ruling with the recent decision handed down by the Paris Court of Appeals in the Allostreaming case, where the Court held that the costs incurred in connection with the implementation of a blocking order were to be borne not by the rightsholders but by the ISPs.  One of the points made by the Appeals Court in its ruling was that, unlike other situations where the ISP was mandated by the public authorities (such as HADOPI), this was a private enforcement case.

Link to April 4 Conseil d'Etat ruling (in French) here

Post on Allostreaming decision here

Events this week

Professor Martin Kreschmer of Glasgow University has asked us to mention two events taking place this week.

First, is a public seminar relating to CJEU copyright jurisprudence:

Public seminar: CREATe and BLACA
Old Library, Garrod Building, Whitechapel Campus, Queen Mary University of London Wednesday 13 April, 18:00-19:30

Marcella Favale (Bournemouth University), Martin Kretschmer (Glasgow University), Paul Torremans (Nottingham University) “Is There a EU Copyright Jurisprudence? An Empirical Analysis of the Workings of the European Court of Justice”
[published in Modern Law Review (2016) 79(1)] MLR 31-75]

The Court of Justice of the European Union (ECJ) has been suspected of carrying out a harmonising agenda over and beyond the conventional law-interpreting function of the judiciary. This study aims to investigate empirically two theories in relation to the development of EU copyright law: (i) that the Court has failed to develop a coherent copyright jurisprudence (lacking domain expertise, copyright specific reasoning, and predictability); (ii) that the Court has pursued an activist, harmonising agenda (resorting to teleological interpretation of European law rather than – less discretionary – semantic and systematic legal approaches).

We have collected two data sets relating to all ECJ copyright and database cases up to Svensson (February 2014): (1) Statistics about the allocation of cases to chambers, the composition of chambers, the Judge Rapporteur, and Advocate General (including coding of the professional background of the personnel); (2) Content analysis of argumentative patterns in the decisions themselves, using a qualitative coding technique. Studying the relationship between (1) and (2) allows us to identify links between certain Chambers/ Court members and legal approaches, over time, and by subject. These shed light on the internal workings of the court, and also enable us to explore theories about the nature of ECJ jurisprudence.

The analysis shows that private law and in particular intellectual property law expertise is almost entirely missing from the Court. However, we find that the Court has developed a mechanism for enabling judicial learning through the systematic assignment of cases to certain Judges and AGs. We also find that the Court has developed a “fair balance” topos linked to Judge Malenovský (rapporteur on 24 out of 40 copyright cases) that does not predict an agenda of upward harmonisation, with about half of judgments narrowing rather than widening the scope of copyright protection

(The project raised enormous interest among scholars, policy makers and practitioners at the Court. While the MLR study explored the way the Court works, a follow-on paper will investigate the directions taken by the Court and the impact of the submissions of the various parties on these directions. The central research question will be to what extent the jurisprudence of the ECJ is open to capture.)

Second, is a workshop taking place later this week relating to knowledge exchange in IP research. Further details below.

CREATe Litigation Research: a Knowledge Exchange Workshop
13/14 April 2016, Queen Mary University of London

This workshop covers research on litigation of intellectual property rights in the UK. The main focus is on litigation of copyright and patent related cases. Presenters are associated with the RCUK Centre for Copyright and New Business Models in the Creative Economy (CREATe) and an ongoing Knowledge Exchange project Assessing the Unitary Patent and the Unified Patent Court. 

The workshop will consist of a mix of presentations and discussions of recent research on copyright and patent litigation as well as ongoing work to create a database of copyright litigation cases and a Wiki summarising copyright related evidence, both of which will be hosted on CREATe’s internet platform.

You can download details of this workshop here, including the full programme and venue information (PDF format, 552 KB).

Tuesday 5 April 2016

Artistes call for major reforms of take down policies and the 'largely useless' DMCA

Some 400 recording artists, songwriters and groups including the Recording Industry Association of America (RIAA) are calling on Congress to reform existing US copyright law saying that the Digital Millenium Copyright Act (DMCA) is obsolete, dysfunctional and harmful,  and calling for stronger measures against the ongoing piracy troubles they face. The DCMA was signed into law by President Bill Clinton in 1998 and aimed to ready copyright law for the digital age. Christina Aguilera, Katy Perry, Steve Tyler, Lionel Richie and Garth Brooks are just some of music’s biggest names want to make it harder to pirate music online. The musicians are asking lawmakers to make “drastic reforms” to the Act.

"Artists spanning a variety of genres and generations are submitting comments to the federal government’s U.S. Copyright Office .... demanding reforms to the antiquated DMCA which forces creators to police the entire Internet for instances of theft, placing an undue burden on these artists and unfairly favoring technology companies and rogue pirate sites," says a statement issued by the Recording Industry Association of America: Recording artistes including deadmau5, Tony Bennett, Pearl Jam and Bette Midler have filed petitions to the U.S. Copyright Office detailing their struggles with the “antiquated policies” and demanding reform to better “protect the future of the music industry, recording artists and songwriters,” according to a statement from the RIAA.

The filings include three letters — one from music managers, one from creators, and one from artists and songwriters — that ”detail how the out-dated DMCA and its faulty notice-and-takedown system allows some tech companies such as Google, YouTube, Tumblr, just to name a few, to build multi-billion dollar businesses off their content without compensation and drag down the value of their hard work into fractional digital pennies",

In September 2015 Cary Sherman, the chairman and CEO of the Recording Industry Association of America, has some choice words about the current state of US copyright law. He said that the provisions of the Act were 'largely useless' to combat music piracy and  that under the Digital Millennium Copyright Act, rightsholders had to play a game of whack-a-mole with Internet companies to get them to remove infringing content. But that "never-ending game" has allowed piracy to run amok and has cheapened the legal demand for music. Sure, many Internet companies remove links under the DMCA's "notice-and-takedown" regime. But the DMCA grants these companies, such as Google, a so-called "safe harbor"—meaning companies only have to remove infringing content upon notice from rightsholders.

Across the pond over the Easter weekend, the UK’s BPI issued its 200 millionth take down request to Google – every one, it says, targeting a searchable link which infringed on an owned copyright. As a result, BPI CEO Geoff Taylor publicly called on Google to change its infringement policy to ‘notice and stay down’; effectively ensuring that any infringing link removed from Google’s search results doesn’t then creep its way back online.

Google responded by telling MBW that it had already tweaked its algorithm to demote infringing sites, and that it had actually reviewed more than 80m links to pirated content in the past month alone. Google then added  “Search is not the primary problem – all traffic from major search engines accounts for less than 16% of traffic to sites like The Pirate Bay” prompting a clearly frustrated BPI to respond “It is disappointing that Google continues to downplay the role its search engine plays in guiding millions of consumers to illegal sites" and the BPI (and other music rights-holders) clearly now want the UK Government to take further action against Google if it continues to refuse to take more steps to help with their search takedown headache.

And an interesting take on the DMCA - and Google's lobbying - on The Register here:

"Copyright owners (it's hard to believe today) were once enormously powerful, while internet companies were fledglings. The balance struck allowed the ordinary Joe to remove material from intermediaries without having to consult a lawyer; a one-click, five-minute procedure.

Back then, there were no content ID robots to help automate the business of identifying material, and the burden of checking every envelope and package passing through the postal system would have been so onerous, nobody would have ever wanted to start a better post office.

But power has shifted radically over 20 years. The power now lies with the vast Silicon Valley plantation owners, who have aggregated wealth by ensuring you don't have any control over your own digital goods.

It's not surprising that this super-elite don't want to hand anything resembling "ownership" back to us. Their fortunes have come from monetizing an individual's work – amateur and professional – and selling ads against it. Whether it's Instagram "monetizing" your photos, or Google "monetizing" music on YouTube, it's a business that has worked at scale, and with the minimum of effort and engagement from Google or Facebook."

And ..... "Google's strategy more closely resembles that vintage "business model": the protection racket."


The CopyKat

A U.S. District Court judge has again looked at a case brought by three publishers against Georgia State University's e-reserve and ruled that, in 41 of 48 cases, no copyright infringement took place. The 220 page ruling applies the four-part fair-use test that the Eleventh Circuit Court of Appeal directed Judge Evans to use to each on each of the 48 cases - and in particular to look at (i) the purpose and character of the use — which will favour fair use when that purpose is non-profit and educational, and (iv) the potential impact of the use on the market for or value of the original. But the case is seen by copyright experts as a complicated decision that won't be of much help to universities in determining fair use. Excellent comment by Kevin Smith JD on the Duke Universities Library blog here

In China the National Anti-pornography and Anti-illegal Publications Office, the National Copyright Administrative of China (NCAC) and several other government ministries have announced a special enforcement campaign against small photocopying shops that operate on and around university campuses. Many copy shops are suspected of illegally reprinting textbooks and other written works. The campaign – given the operation name “Autumn Wind” – will run from February to September and cover 40 cities. More here (in Chinese).
Also in China the UK's ever useful IPO China IP newsletter tells us that Deputy Chief Judge of the Supreme People’s Court Tao Kaiyuan has called for the establishment of one single, specialist IP appeals court to hear cases from across the country. Currently appeals are heard in provincial-level High People’s Courts. And Shanghai Vice-Mayor Zhao Wen  has again called for the unification of patents, designs, trade marks and copyright into one Ministry-level department.

Three American copyright scholars have released a study into the impact of copyright takedowns on free expression in America: Notice and Takedown in Everyday Practice, by Jennifer Urban (UC Berkeley), Joe Karaganis (Columbia), and Brianna L. Schofiel (UC Berkeley) uses detailed surveys and interviews and a random sample from over 100,000,000 takedown notices to analyze the proportion of fraudulent, malformed or otherwise incorrect acts of censorship undertaken in copyright's name, using the Digital Millennium Copyright Act's takedown procedure. The findings suggest that whether notice and takedown “works” is highly dependent on who is using it and how it is practiced, though all respondents agreed that the Section 512 safe harbors remain fundamental to the online ecosystem. Perhaps surprisingly in light of large-scale online infringement, a large portion of OSPs still receive relatively few notices and process them by hand. For some major players, however, the scale of online infringement has led to automated, “bot”-based systems that leave little room for human review or discretion, and in a few cases notice and takedown has been abandoned in favor of techniques such as content filtering. The second and third studies revealed surprisingly high percentages of notices of questionable validity, with mistakes made by both "bots" and humans. TechDirts take is somewhat evident from the headline DMCA's Notice And Takedown Procedure Is A Total Mess, And It's Mainly Because Of Bogus Automated Takedowns

Canadian-based Cirque du Soleil is suing American pop superstar Justin Timberlake, alleging that his hit song "Don't Hold the Wall" illegally borrows from one of the troupe's original musical compositions. A 10-page complaint filed in New York alleges that Timberlake illegally used parts of the song "Steel Dream," taken from Cirque du Soleil's 1997 album "Quidam." More here.

TorrentFreak reports that anti-piracy outfit Rightscorp says that it's working on a new method to "extract cash settlements from suspected Internet pirates". The company says new technology will lock users' browsers and prevent Internet access until they pay a fine. To encourage ISPs to play along, TorrentFreak rather sarcastically points out that Rightscorp says the system could help to limit liability for copyright infringement.

Sweden’s supreme Court has held Wikimedia  guilty of violating copyright laws by providing free access to its database of photographs of artwork - without the artists’ consent. Wikimedia, part of the not-for-profit foundation which oversees Wikipedia, had a database of royalty-free photographs that could be used by the public, for educational purposes or the tourism industry. The Visual Copyright Society in Sweden (BUS), which represents painters, photographers, illustrators and designers among others, too legal action against Wikimedia Sweden for making photographs of their artwork displayed in public places available in its database, without their consent. The photographs were actually portraits of works of art. Whilst the court acknowledged that members of the public were permitted to photograph artwork on display in public spaces, it was “an entirely different matter” to make the photographs available in a database for free and unlimited use: “Such a database can be assumed to have a commercial value that is not insignificant. The court finds that the artists are entitled to that value” and said "It is not relevant whether or not Wikimedia has a commercial aim.”  Damages will be set at a later date. More on the Local here. Image of 'Poundland Jubilee Flag Maker' (2012) by Banksy by Duncan Hull. 

And finally, and again from TorrentFreak - an interesting look at the activities of a London company called Hatton and Berkeley - whose website you can see here and which features a picture of Robert Croucher (Hatton & Berkeley, described as "Managing Director of Hatton & Berkeley, Pro-Copyright advocate, Executive Producer and Film Financier") with  Patrick Achache, "the talented young tech entrepreneur who turned his hand to developing software that tackles digital piracy for the film and TV industries". The UK's Intellectual Property Office has now issued guidance on how copyright trolls operate and how people should handle them.  More here.

Sunday 3 April 2016

The Full Montis

At the end of last month the CJEU heard an interesting case which has been little reported to date. The case is C-169/15 Montis Design and was referred to the CJEU by the Benelux Gerechtshof.
Like all good referrals, the background to the case is complicated, as is the law which the CJEU has been asked to consider. I am grateful to the EU Law Radar website for their analysis of the case.
There are a number of 'pivot' points in the case, not least of which is the relationship between copyright and design right. For that reason, this article is rather more about the world of designs rights than is normally the case with the 1709 blog. But there is a stripe of copyright running through the centre.
The Montis Design case concerns a dining chair named Chaplin which was created by the Dutch designer Gerard van den Berg some time in the late 1980s, and the design was registered using the system set up by the Uniform Benelux Law on Designs and Models. Mr van den Berg then sold his rights to a Dutch furniture manufacturer, Montis Design, who made chairs to the Van den Berg design. However they failed to renew the registration when it became due in 1993, thus apparently leaving it open to other companies to manufacture chairs to the van den Berg design, which duly happened.
Montis then sued for infringement and the matter went as far as the Dutch Supreme Court which ruled, somewhat bizarrely, that the formalities set out in the Benelux Law on Designs were contrary to Article 5(2) of the Berne Convention on copyright. However the Supreme Court's finding did not mean that the Montis design right was re-activated. Montis Design returned to the fray in 2013, this time in the Benelux Gerechtshof, using the argument that since Article 17 of the EU Designs Directive 98/71/EC [1998] stated that a registered design "shall also be eligible for protection under the law of copyright", the Chaplin design was being infringed as a matter of copyright law. Article 17 is qualified by saying "The extent to which, and the conditions under which, such a protection is conferred, including the level of originality required, shall be determined by each Member State". However the Chaplin design had been created and registered before the Designs Directive came into force, and so it was argued, this provision did not have the effect of either reviving the lapsed design right or of retrospectively affording copyright protection to the design, because neither Dutch domestic law nor the Benelux Design Law implemented Article 17 retroactively.
The Gerechtshof examined this argument in the light of the CJEU's earlier decision in Flos. Flos (Jeremy posted a piece on this case here) had involved some similarity in that it concerned the design of a piece of furniture (a lamp) which had apparently entered the public domain (although in the Flos case the design had never been registered) under Italiy's Intellectual Property Code. The Second Chamber of the CJEU in that case had to consider whether the margin of appreciation afforded to member states by the sentence quoted above, would allow a country not provide the element of copyright protection at all. In other words does 'shall be eligible for' mean 'shall be given' or 'may be given'? The CJEU ruled that a member state could not exclude a registered design from also enjoying copyright protection. However being the CJEU, they had to say so in the most convoluted way possible:
1. Article 17 of Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs must be interpreted as precluding legislation of a Member State which excludes from copyright protection in that Member State designs which were protected by a design right registered in or in respect of a Member State and which entered the public domain before the date of entry into force of that legislation, although they meet all the requirements to be eligible for copyright protection.
Despite the Flos ruling the Gerechtshof were still concerned about the retroactive aspect of Montis's argument invoking Article 17 of the Design Directive. For reasons that are not clear from the commentaries, the court felt it was necessary to seek clarification on whether Article 10 of the Copyright Term Directive 93/98/EEC meant that copyright might be revived in this case. This appears to arise because without the Article 17 provision, in some member states copyright will only subsist in a design if it meets some aesthetic criterion. I can find no mention in either of the Montis cases of it being argued that Mr van den Berg's design also met the originality criteria for copyright per se. A further clue to this lies in the wording of the second question of the referral shown below, which speaks about copyright in a work of applied art. From this I have to assume that perhaps Dutch copyright law (like the not-yet-repealed Section 52 of the Copyright Designs and Patents Act 1988) provides such works with a much shorter term than to other artistic works. Perhaps one of our readers can confirm this. The court's train of reasoning may have been: Art 17 only confers copyright protection on designs which have registered, but in the Montis case that registration had lapsed before Art 17 came into force therefore since it was not registered at the time, the design could not enjoy copyright protection.
Anyway the upshot was that in April 2015 the Benelux Gerechtshof referred the following questions to the CJEU:
1. Is the term of protection referred to in Article 10, in conjunction with Article 13(1), of Directive 93/98/EEC (the Term of Protection Directive) […] applicable to rights of copyright that were originally protected by national copyright law but which lapsed before 1 July 1995 on the ground that a formal condition had not been satisfied (in due time), more specifically because a maintenance declaration, as referred to in Article 21(3) of the Uniform Benelux Law on Designs and Models (old version), had not been filed (in due time)?
2. If the answer to Question 1 is in the affirmative:
Must the Term of Protection Directive be construed as precluding a rule of national legislation under which the copyright in a work of applied art that lapsed before 1 July 1995 on the ground that a formal condition had not been satisfied is deemed to have lapsed permanently?
If the answer to Question 2 is in the affirmative:
3. If, under national legislation, the copyright in question is to be considered to revive or to be revived at a certain time, from what date does such revival occur?
So far the Curia website does not indicate when we might expect to see the CJEU's decision.