Friday 3 June 2016

The CopyKat

Star Trek franchise owners Paramount Pictures and CBS have revealed they're planning to drop their controversial copyright lawsuit against the makers of the ambitious fan film, Star Trek: Axanar. The news was announced by the producer of the new Star Trek Beyond JJ Abrams at a Trekkies fan event. Paramount/CBS lawyers told Buzzfeed's Adam Vary that they are in 'settlement' discussions and that they will draw up guidelines for fan film projects in the future, so that this sort of thing doesn't happen in the future.  But hang on - now we wont hear arguments about whether the Klingon language can be protected by copyright. This is a BIG SPOILER! You can see all 21 minutes of Prelude to Axanar here

A jury has ruled in favour of Google in the long-running legal dispute with Oracle over software used in many of the world’s smartphones. Oracle contended that Google used its Java copyrighted programming code in 11,000 of its 13 million lines of software code in Android, its mobile-phone operating system, and asked for $9 billion from Google. Google said it made fair use of the code. The victory for Google will cheer many other software developers,who use so-called open-source software. The decision was delivered in U.S. District Court in San Francisco. More here.

The Turtles may have done well in battering Sirius XM's attempts to avoid paying royalties for the use of pre-1972 copyrights, but now CBS has advanced an interesting new argument on the same topic - and a California judge has handed down a big ruling that could help "immunize" terrestrial radio operators and others from lawsuits and upend many preconceived notions about copyright. The decision from U.S. District Court Judge Percy Anderson comes in a dispute between ABS Entertainment, owner of recordings by Al Green and others, and CBS Radio, and was based on the concept that pre-1972 songs are protected under state law and can't be broadcast without permission. In reaction to the ABS lawsuit, CBS tried out a new argument - it was not performing the original analogue recordings, but rather NEW digitally remastered versions that came out after 1972. Under this argument, the specifically performed works aren't protected by state law, and CBS doesn't have to pay. And the court agreed. The labels are going to have a battle fighting this one, as they already file new copyrights for re-masters - which might extend the life of copyright for those gleaming new digital re-masters - but this plays into terrestrial broadcaster's hands. More on re-mixing and re-mastering here and here.

And over on the IPKat, two important recent decisions are reported. First off, Does an internet service provider (ISP) lose its safe harbour protection because, upon obtaining actual knowledge or awareness of third-party illegal content, it has not acted expeditiously to remove or disable access to such content? The Tribunale di Roma (Rome Court of First Instance) had such a case where an ISP had acted months after the request of the concerned rightholder.  The Tribunale issued an interesting decision on the liability of ISPs for third-party infringing acts, here in the context of proceedings brought by RTI - Reti Televisive Italiane (owned by broadcasting company Mediaset). This time the defendant was French video platform provider website Kit Digital France (now bankrupt, formerly Kewego). The court referred to a number of decisions of the Court of Justice of the European Union (CJEU). More specifically it recalled: L’Oréal and Google France in relation to what an ‘active role’ (such as to prevent safe harbour protection) of an ISP entails; Scarlet and Netlog in relation to the prohibition to impose on ISPs general filtering obligations;  Netlog and Telekabel to note that copyright protection (the protection of IP is mandated within the right to property in Article 17(2) of the Charter of Fundamental Rights of the European Union) must be balanced with other fundamental rights and freedoms, including ISPs’ freedom to conduct a business (Article 16 of the Charter) and users’ freedom of expression/information (Article 11 of the Charter). On the facts, the court concluded that Kewego should be liable for the damages caused to the claimant by such delay, but left their actual determination to a later stage.

And finally - back to that thorny issue of 'making available' and that 'new public'. The Court of Justice of the European Union (CJEU) had been asked to say whether the making available of TV broadcasts in rehabilitation centres should be regarded as an act of communication to the public in Reha Training, C-117/15 (a reference for a preliminary ruling from the Landgericht Köln (Regional Court, Cologne)) asking essentially whether the making available of TV broadcasts by means of TV sets on the premises of a rehabilitation centre falls within the scope of Article 3(1) of the InfoSoc Directive and Article 8(2) of the Rental and Lending Rights Directiveand the concept of ‘communication to the public’ for the purposes of those two provisions must be given a uniform interpretation. The Grand Chamber has now delivered a 67 paragraph judgment substantially confirming the Opinion of Advocate General Bot, although not relying on the four elements indicated therein. The Court highlighted that there are some differences between relevant provisions in the InfoSoc and Rental and Lending Rights directives. However, it concluded that there is no evidence that EU legislature intended the concepts of 'communication to the public' differently in these two pieces of legislation. Here the court found on the facts that: The operator of a rehabilitation centre deliberately transmits protected works to patients by means of TV sets installed in several places on his premises. As such, he is committing an 'act of communication' and; The patients of a rehabilitation centre constitute a 'public' that can enjoy the works broadcast by means of TV sets thanks to the indispensable intervention of the centre operator; This public is also 'new' in that it was not taken into account by the relevant. Eleonora's excellent analysis is here - but this blogger cant help but think that the court is getting itself into ever more difficult waters - and what the law is (or rather how it will be applied) is anyone's guess now. How would say the  use of a publicly available radio broadcast in  a staff canteen differ from say a dentist's surgey or waiting room, a spa, a hotel room (Rafael Hoteles), a tyre fitter's waiting area ? Apart from 'the can of worms opened by Svensson' - this writer is left with a nagging feeling that is reflected in the comments from one garage owner who said back in 2009 “The radio stations are paying to play the music and we have to pay to listen to it – they [the PRS] are taking with both hands". 

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