Friday 30 September 2016

Une astreinte, c’est quoi? The Ninth Circuit has an answer

On September 26, 2016, the Ninth Circuit held that courts have the right under Federal Rule of Civil Procedure 44.1 on determining Foreign Law to consider foreign legal materials at the pleading stage, including expert testimony and declarations. This allowed the Court to conclude that the French astreinte is not a fine or an award of damages, which now clears the way for the French Plaintiffs to receive compensation for copyright infringement. The case is Sicre de Fontbrune v. Wofsy, 3:13-cv-05957.

The case may be more of interest to federal procedure buffs than copyright buffs, but I offer it to your attention anyway as being one of the longest copyright infringement cases ever.

Pablo Picasso had a close relationship with photographer Christian Zervos and allowed him to take many pictures of his works. This led to the publication of the complete catalogue raisonné, published by Cahier d’Art, a publishing company owned by Christian Zervos, then by his heirs. Twenty-two volumes were published from 1932 to 1970, when Picasso was still alive, and eleven more volumes were published after his death. The thirty-three volumes reproduce some 16,000 of Picasso’s works and are regarded as the ultimate reference of Picasso’s work.

Yves Sicre de Fontbrune, now deceased and represented by the representatives of his estate, bought Cahier d’Art’s publisher  stock in 1979, thus acquiring the intellectual property right in the Zervos catalogue raisonné. Alan Wofsy is an American art editor who reproduced some of Zervos’ photographs in two volumes about Picasso, which he presented in 1996 at the annual Salon du Livre (book fair) in Paris. Mr. Sicre de Fontbrune found this use to be infringing and filed suit in 1996. The Paris Court of appeals ruled in his favor in 2001, awarding him an astreinte and forbidding Alan Wofsy “to use in any way whatsoever [the Zervos photographs] under an astreinte of 10,000 francs per infringement.

« Fait défense à Monsieur Alan WOFSY et à la société ALAN WOFSY & ASSOCIATES de faire usage de quelque manière que ce soit des photographies susvisées sous astreinte de 10.000 francs par infraction constatée, dans les 8 jours suivant signification de la présente décision. »

Under French law, an astreinte is a tool given to the judge so that she can insure that the court’s ecision will be executed. It is independent from damages, as stated by article 34-1 of the July 9, 1991 law, now abolished and replaced by article L. 131-2 of the Code des procedures civiles d’exécution which states the same.

Mr. Sicre de Fontbrune filed a claim at the Paris Court of first instance (TGI) to enforce the astreinte. The Court ruled in his favor in 2012 and ordered Alan Wofsy to pay him 2 million euros in astreinte. Mr. Sicre de Fontbrune then filed a suit in California to enforce the astreinte under the California Uniform Foreign-Court Monetary Judgment Recognition Act (CUFCMJRA), which governs the enforcement of foreign-country judgments which are final and enforceable, and which grant or deny monetary recovery.

Translation of astreinte leads to legal discussion

The English versions of both 2001 Paris Court of appeals judgment and the 2012 Paris TGI’s judgment had translated astreinte as an award of damages. Mr. Wofsy moved to dismiss, arguing that an astreinte is a “fine or other penalty” and that therefore the CUFCMJRA does not apply, as it does not apply to foreign judgments granting a “fine or other penalty.” The District Court granted his motion to dismiss, after having considered the declarations of the experts of both parties on the nature of astreinte in French law. The Ninth Circuit reversed and remanded, as it found an astreinte not to be a “fine or other penalty” under the CUFCMJRA.

Federal Rule of Civil Procedure 44.1 on determining Foreign Law

Federal Rule of Civil Procedure 44.1 on determining Foreign Law gives power to a federal court to “consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence [when determining foreign law]. The court's determination must be treated as a ruling on a question of law.”

The Ninth Circuit found that Rule 44.1 gives the courts a “broad mandate” and that “foreign legal materials-including expert declarations on foreign law can be considered in ruling on a motion to dismiss where foreign law provides the basis for the claim.”

The California Uniform Foreign-Court Monetary Judgment Recognition Act

The Ninth Circuit then undertook the study of the nature of the astreinte in the French legal system, in general, and in particular in this case. To do so, the Court considered the French judgment against Wofsy, the expert declarations of both parties, and materials on astreinte submitted by both parties. It also undertook its own research into American and French law. It concluded that the astreinte was not a fine or an award of damages and thus fell within the scope of the CUFCMJRA.
An easy method to transfer money internationally

The case is interesting as it specifically states that courts may undertake independent judicial research, including research on foreign law, beyond the parties’ submissions (see p. 15). U.S. courts are slowly warming up to the idea of considering foreign law. Justice Stephen Breyer, from the U.S. Supreme Court, published about a year ago a book about the foreign laws which the U.S. Supreme Court Justices have had to consider in the past, which was probably read by many U.S judges.

P.S. The Ninth circuit quoted the United States v. 594,464 Pounds of Salmon, More or Less case, which must be one the best names ever for a case. If any reader knows about a case with a better name, please share it in the comments.

Image of the flags courtesy of Flickr user Pierre Augustin under a CC BY-NC-ND 2.0 license.

Image of money courtesy of Flickr user Devon D’Ewart under a CC BY-NC-ND 2.0 license.  

Tuesday 27 September 2016

A wonderful future for EU copyright ... or not? An event reminder

Image result for cute fingers
What happens
when copyright enthusiasts meet
As reported by this blog a few days ago, further to the release by the EU Commission of its new copyright package, I am organising two new events to discuss the relevant implications for our favourite IP right, including the feasibility (and desirability as such) of proposed Commission action.

The first event will take place on 5 October 2016 at the beautiful Tower Bridge offices of RPC. Places are limited (with some tickets available for full time students), to provide everybody with the opportunity to discuss fully the present and future of EU copyright. You can find further details and register here.

The second event will be streamed on YouTube on 6 October 2016: participants can decide to follow it live or watch it at any later time of their choice. This second option is for those who are unable to attend the event on 5 October 2016, eg because based outside London. You can find further details and register here.

Monday 26 September 2016

Ladies [and Gentlemen] Now Let’s Get [IP] [“INFORMATION”]

Matthew Fulks, an independent filmmaker, had filed a copyright infringement suit against Beyoncé on June 8, 2016, claiming that the trailer (the Trailer) for her “Lemonade” movie (the Movie), which accompanied the April 2016 release of her Lemonade album, infringed on his copyright in the short movie Palinoia. Fulks created the seven-minute Palinoia movie in 2014, which the Seconded Amended Complaint (SAC) describes as “carefully selected but seemingly unrelated visuals in a rapid montage, with the recitation of a poem used as voiceover against a distinctive audio soundtrack.” The short movie “depict[s] the pain of a tumultuous relationship.”

On September 12, 2016, Judge Rakoff from the Southern District of New York (SDNY) granted Beyoncé’s motion to dismiss, writing a thoughtful and entertaining opinion, where Voltaire, Oscar Wilde, the Beatles, Tchaikovsky, Andy Warhol and Taylor Swift all made an appearance. The case is Matthew Fulks v. Beyoncé Giselle Carter-Knowles, Sony Music Entertainment and al., 1:16-cv-04278-JSR.
Judge Rakoff's Opinion is Hot Stuff

Elements of a Copyright Infringement Suit

If there is no direct evidence of copying, then plaintiff in a copyright infringement suit must prove that the defendant had access to the protected work and that there are substantial similarities of protectable material in the two works.

Plaintiff claimed that Defendants had access to his movie, as Plaintiff had submitted Palinoia to Defendant Sony/Columbia in July 2015, as part of an application for a directing job, and its receipt was acknowledged by email. Defendants did not deny this.

Plaintiff further alleged in the SAC that the Lemonade Trailer was substantially similar to Palinoia, including, but not limited to its “visual and auditory elements, visual and auditory sequences, themes, format, mood, setting, plot, and pace, all of which create a protectable total concept and feel” and that it was an unauthorized derivative work.

Judge Rakoff quoted the Second Circuit Yurman Design, Inc. v. PAJ, Inc. case, which defined substantially similar works as works which an "ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same,” and the Second Circuit  Peter F. Gaito Architecture case, which explained that the courts apply the substantial similarity test by "compar[ing] the contested design's total concept and overall feel with that of the allegedly infringed work… as instructed by our good eyes and common sense."

No Substantial Similarity in the Visual Elements

Plaintiff alleged that the Trailer contained nine visual elements substantially similar to Palinoia’s visual elements. These elements are (1) a head down near a graffiti wall; (2) red persons with eyes obscured; (3) parking garage; (4) stairwell; (5) black and white eyes; (6) title cards screen; (7) grass scene; (8) feet on street; and (9) side-lit ominous figures. The SAC has side-to-side screenshots from both works illustrating the allegations.

Judge Rakoff engaged in an analysis of these nine elements, but was not convinced that the Trailer infringed Palinoia. Instead, “[o]nce stripped of unprotected elements and scenes a faire, these scenes from Palinoia and the Trailer and Film have very little in common.”

Not the Same Aesthetic Feel

Judge Rakoff was not convinced as “Plaintiff's alleged similarities consist almost entirely of clearly defined ideas not original to plaintiff and of stock elements with which even a casual observer would be familiar. Moreover, to the very limited extent that there are even any superficial similarities, these are overwhelmed by the works' vastly different creative choices and overall aesthetic feel.”

Judge Rakoff quoted the SDNY LaChapelle v. Fenty case, where the court explained that “[o]riginality in rendition may reside in the photographer's selection of lighting, shade, lens, angle, depth of field, composition, and other choices that have an aesthetic effect on the final work." In other words, you can have the idea of filming a parking garage, a grass scene or a distressed person heads down near a graffiti wall, but it is the expression of this idea which is protected, not the idea itself. As both works had been expressed in different ways, there were not similar.

For example, as explained by Judge Rakoff, when analyzing the first visual element claimed as original by plaintiff, a person seen head down near a graffiti wall, the concept of a "state of distress" is an unprotected idea, and it “flows naturally and necessarily that a distressed character would be leaning (as opposed to dancing) against something stable (as opposed to delicate) and that his or her head would be down (as opposed to up.)” Instead, what was essential as to whether there was infringement is the comparison of the way the two scenes were filmed. Because the scenes were aesthetically different, there was no infringement.

Judge Rakoff analyzed all the nine visual elements in turn, and found that none of them had the same aesthetic than the Trailer. Therefore, he found them not similar with the Lemonade Trailer scenes.

No Substantial Similarity in the Auditory Elements

Plaintiff also alleged in his SAC that both works included “the voiceover of a narrator reciting poetry over the sounds in the background” and that the audio sequences of both works were substantially similar, as they both followed “a similar pattern in which harsh noises are separated by calmer sounds in a substantially similar time table” and both included “crescendos and decrescendos.”

But for Judge Rakoff, “no reasonable jury, properly instructed, could find infringement based on plaintiff's… alleged similarities… [in] the works' audio… The idea of juxtaposing poetry and disharmonious sound is not protectable.” Plaintiff must prove instead that the way he expressed this idea, such as his choice of poetry and sound, has been copied. However, Plaintiff did not prove this in this case.

Not the Same Total Concept and Overall Feel

For Plaintiff, the mood, setting, pace, and themes of both works were substantially similar which contributed “to the overwhelming similarity of total concept and feel.” Both moods were “heavy, dark, and angst-laden.’” Both settings included similar environments, such as an empty dark parking garage, grass field, and a stairwell. The pace of both works was “a rapid procession of short scenes or montage, interspersed with notable intermittent pauses through exaggeratedly slow scenes.” Also, both works had different themes “destruction, alienation, heartbreak, and chaos versus order.”

But Judge Rakoff noted, somewhat ironically, that:

“[a]pparently intent on exploring the boundary between idea and expression, plaintiff alleges that the works share the same narrative theme ("a struggle of a relationship") and the same aesthetic mood and pace ("a pattern of successive montage of abstract scenes, with unknown or unclear meanings, pieced together in 'short takes'"). These alleged similarities fall firmly on the side of unprotected ideas. The "struggle of a relationship" is a concept familiar to us all, and plaintiff is not the first individual - or artist - to comment on it. See, e.g., R. Hart-Davis, The Letters of Oscar Wilde 621 (1962) ("[H]earts are made to be broken"); Taylor Swift, "I Knew You Were Trouble"(2012).”

Plaintiff argued that the "race of the characters in the [Film] is irrelevant to the total concept and feel of a film about relationships.… Judge Rakoff wrote that the Lemonade Movie is not just about relationships, but instead:

“depicts the protagonist's journey from a particular perspective: that of an African-American woman in a predominantly African-American community… The Film repeatedly references and dramatizes generations of African-American women, and in the background of one scene, the observer hears an excerpt from a speech by Malcolm X to the effect that the Black woman is the most "neglected" person in America…. This all takes place against what defendants accurately characterize as a "Southern Gothic feel."… The settings transition between areas of New Orleans, the abandoned Fort Macomb, and an Antebellum plantation. These significant differences in characters, mood, and setting further distinguish the total concept and feel in the [Lemonade] Film from that in Palinoia.”

Plaintiff also argued that both works "portray a struggle of a relationship; the reasons for such struggle are unclear and irrelevant." But for Judge Rakoff, “[t]his is like saying that Casablanca, Sleepless in Seattle, and Ghostbusters are substantially similar despite the different motivating forces behind the struggles there portrayed (Nazis, capitalism, and ghosts, respectively).”

Trailer, Movie, Album

Judge Rakoff remarked “that the differences in total concept and feel are initially more pronounced between Palinoia and the [Lemonade] Film than between Palinoia and the [Lemonade] Trailer” but that “the difference in overall concept and feel between Palinoia and the [Lemonade] Trailer still overwhelms any superficial similarities.”

I was surprised to read that Plaintiff claimed that the Trailer for the Lemonade Movie had infringed his own short movie, as it was meant to be a teaser announcement for both the Movie and the Lemonade album. As noted by Judge Rakoff, the Lemonade Movie “marks the protagonist's progression through thematic headings, and narrates it with songs from the Lemonade album.” The Trailer shows scenes of the 58-minute Lemonade Movie, which itself follows the sequence of the Lemonade album, which itself narrates a story, from one song to another. There are several layers of creation behind the trailer, the originality of which stems from both the originality of the Lemonade Movie and the Lemonade album. The hurdles of proving substantial similarities between the trailer, a derivative work of an original work featuring another original work, and the short film, an original work in itself, was therefore very high.

Image of hot sauce is courtesy of Flicker user Joe King under a CC BY 2.0 license.

Sunday 25 September 2016

The CopyKat

A photograph of the Northern Lights sparkling above a village in Belarus (right) has no artistic merit whatsoever according to a recent court ruling in a copyright dispute between a well-known photographer and Belarus's state-run television network.
Belteleradiocompany, which ran a feature using photographer Anton Motolko's work that compared the hues in his photos to the red and green Belarusian flag. The television channel did not pay or credit Motolko, and had not asked permission to use the pictures.  The unauthorized use of their work is something photographers have become accustomed to in Belarus, Motolko told RFE/RL. "They [the television network] do it all the time." Motolko decided to sue. "I was asking for about 1,000 euros ($1,100)," he said. But as the case wore on, he decided to drop the amount in damages he sought to just one kopek -- less than a cent. "I wanted to be clear that this wasn't about the money, that I just wanted professional respect." But the snapper failed - key to the television network's case was testimony from an expert (paid for by Motolko) who said that Motolko's photographs did not have "any signs of creative freshness, originality, uniqueness, or exceptionality" and were simply a record of a "social event," and therefore copyright protection did not apply - that despite thet fact he drove some 60km North of his home in Minsk to find the perfect location, framed the image and used his skill and judgment editing the shot. But the decision is certainly not that out of step with decisions in some other European nations - the  French decision to deny copyright protection to the iconic image of Jimi Hendrix by Gered Mankowitz springs to mind. An appeal is planned. (Radio Free Europe/Radio Liberty).

So you thought copyright law for libraries was the same across the world. It isn’t! There’s a patchwork quilt of differing interpretations and applicable rights and exceptions, and this applies even within the EU!. Dr Kenneth Crews, on behalf of WIPO, has compiled a Study on Copyright Limitations and Exceptions for Libraries and Archives that brings together information that relates to the activities of libraries and archives from 188 countries. The study shows that whilst some 66 countries have amended or updated their copyright laws in the past 6 years, many countries still have no provision for library activity within their domestic law! Nearly half do not even explicitly allow libraries to make copies for research or study. As for adapting to the fast paced changes driven by the internet and digital activities some countries are incredibly slow to make their laws fit for purpose. Teresa Hackett, writing CILIP blog about this also points the reader to a EIFL Core Library Exceptions Checklist which is based on the findings and provides a way to assess what you think about your laws (and perhaps identify areas where you need to find more information) in relation to library activity. It’s described as ‘a practical and, we hope, a fun way to help librarians’ and those interested in this area. Image by Marcus Hansson. 

In its much awaited judgment in the Delhi University photocopying case (The Chancellor Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services), the Delhi High Court has dismissed the copyright infringement claim initiated in August 2012 by three publishers (Oxford, Cambridge and Taylor & Francis) against a photocopy shop located in the premises of Delhi University. The publishers argued that the creation of course packs and the photocopying of academic material amounted to an infringement of the exclusive copyright of the authors and publishers, the defendants argued that the reproduction of materials for educational purposes fell within the exceptions to copyright under Section 52(1)(i) of the Indian Copyright Act - and prevailed with the court noting changes in both technology and student approaches to studying, and saying: "Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public." An excellent report fro Lawrence Liang on Hindu,com here and comment on Forbes here and TechDirt here who add that the court also noted the hypocrisy of lawyers who regularly photocopy things "now complaining about students doing the same". Image courtesy of Solomon203.

And finally - whilst there have been some dark mutterings in Europe from songwriters and self composing performers about the activities of CMOs, including Buma-Stemra and GEMA, who have been offering established concert promoters 'discounts' or 'kickbacks'  on published public performance tariffs - and indeed in Spain the Supreme Court ruled that SGAE's tariff was abusive and ordered the CMO to scrap the rate and set up a new fair tariff - in Macedonia things have gone a lot further: Local music CMO ZAMP, previously the sole music copyright collection organization for Macedonia, has withdrawn ALL broadcast licences because Macedonia's culture ministry allowed the formation of a second collection group alongside new rules governing how much money ZAMP can deduct from its members for its administration services.  ZAMP has informed Macedonia's broadcasters that they may not play any music created by Macedonian artists, whom ZAMP claims to represent with ZAMP saying “Their goal is to divide the authors and to put a hand on the money collected by ZAMP. Thus the new association, SOKOM MAP, has become an instrument in the culture ministry’s hands,” SOKOM MAP says it is an independent non-profit group representing songwriters.

Wednesday 21 September 2016

GEMA: EU Copyright Modernisation: First steps towards a fair and balanced relationship between authors and online platforms

COPYRIGHT: As we know, the EU Commission has presented its plans for a modernisation of copyright. GEMA have now responded, and this is their take on how things are deveolping:

"The position of authors should be reinforced with a focus on improving how they assert their rights vis-a-vis online platforms. In addition, access to creative contents in the online sector should be improved by a simplified rights clearance in Europe. GEMA considers the Commission’s efforts as an important first step in order to establish fair conditions for creative content on the digital common market."

GEMA CEO Dr Harald Heker says: “With its proposal for a copyright review, the EU Commission is sending an important signal that the value transfer of creatives towards platform operators in Europe can no longer be tolerated. For fair conditions regarding digital usage of creative content, there must be no ambiguity left that platforms such as YouTube are actively involved in making content protected by copyright publicly available. Legal safeguards have to be established so that these platforms can no longer hide behind privileged positions regarding the liability for host providers, which are intended for purely passive service providers.”

Internet platforms generate substantial economic gains by exploiting creative content. The main benefactors are the platform operators which take recourse to an unclear legal situation in order to not pay creatives at all or below value. At the same, platform providers such as YouTube are competing with licensed online services such as Spotify or Deezer. This impedes the development of a common market which is characterised by cultural diversity and fair competition. The EU Commission is now planning to correct this aberration referred to as “transfer of value” or “value gap”.

More than 22,000 creatives had recently signed a Europe-wide petition and called on the EU Commission to close “economic and legal backdoors” for online platforms in the course of the impending review.  The signatories include many GEMA members such as Klaus Meine (Scorpions), Wolfgang Niedecken and Smudo (Die Fantastischen Vier) as well as artists such as Charles Aznavour, Andrea Bocelli and David Guetta.

The copyright ‘packet’ also comprises the proposal to introduce a new regulation to improve the access to TV and radio programmes in Europe. Dr Harald Heker comments: “We are pleased that the important role of collective rights management via collective management organisations is being strengthened. A technology-neutral reform of the existing regulations on cable re-transmission is going to significantly simplify the rights clearance process for new providers and therefore also improve the access to the relevant contents for consumers.”

GEMA represents the copyrights of more than 70,000 members (composers, lyricists and music publishers) in Germany, and more than two million copyright owners globally. It is one of the largest societies for authors of musical works in the world. Since 2007, GEMA has been represented in Brussels via a liaison office.

Tuesday 20 September 2016

Cheering for a much-anticipated Supreme Court opinion on conceptual separatibility

The Supreme Court of the United States will hear next month the arguments of both parties in the Star Athletica, LLC v. Varsity Brands, Inc. case, which is closely monitored by copyright attorneys, but also by fashion designers, as its outcome may help, or hinder, their ability to protect their designs.

The case is about cheerleading uniforms, which the two parties, Star Athletica and Varsity both manufacture and sell. Varsity alleged that Star Athletica had copied some of its designs and sued its competitor for copyright infringement. The District Court held in favor of Star Athletica, finding Varsity's designs not copyrightable because their graphic elements were not physically or conceptually separable from the utilitarian function of a cheerleading uniform. For the court, the colors, stripes, and chevrons featured on the designs are usually associated with cheerleading uniforms. Therefore, they are what makes the uniforms recognizable as a cheerleading uniforms.

Hold on… Conceptual separatibility? What is it?

A “useful article” is not protected by U.S. copyright, 17 U.S.C. § 101. Clothes are useful articles, and therefore, are not protected by copyright. However, a useful article may be protected if it “incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article,” 17 U.S.C. § 101. If a particular feature of a useful article is physically separatable, or “conceptually separable” from its utilitarian aspect, then it is protected by copyright.

While physical separatability is easily understandable (see Copyright Office Compendium 924.2[A]), conceptual separability is not easily defined. Federal courts have each their own “conceptual separatibility” test.

In our case, the Sixth Circuit reversed and created its own five-part conceptual separability test to reach the conclusion that the designs created by Varsity to adorn the uniforms were conceptually separable from its utilitarian function. The Sixth Circuit test asks five questions: (1) is the design is a pictorial, graphic or sculptural work, (2) is the design a useful article, (3) what are the utilitarian aspects of the useful article, (4) can the viewer of the design identify the pictorial, graphic or sculptural features separately from the utilitarian aspects of the useful article, and (5) whether the design features exist independently of the utilitarian aspects of the useful article. The Sixth Circuit concluded that the designs of the uniform are “wholly unnecessary to the performance of the garment’s ability to cover the body, permit free movement and wick moisture” and thus the graphic features of Varsity's cheerleading-uniform designs exists independently from this utilitarian aspect.

Judge McKeague dissented. While agreeing with the Sixth Circuit’s general approach of first defining what is the function of the work, then finding out whether the elements claimed as being copyrightable can be identified separately from that function, or can exist independently of it, Judge McKeague disagreed on in what is the function of the cheearleading uniforms. For Judge McKeague, the function of a cheerleading uniform is to identify its wearer as a member of a group, and thus its design is indeed functional.

Star Athletica filed a petition for a writ of certiorari in January 2016, which was granted by the Supreme Court. The Court will now answer this question: “What is the appropriate test to determine when a feature of a useful article is protectable under § 101 of the Copyright Act?” (This page of the SCOTUS blog lists all the briefs filed in this case, including amicus curiae briefs.)  

Respondent Varsity has filed its brief on September 14. It argues that two-dimensional artwork on useful articles “easily satisfy” the separability test (p.26). For Varsity, the functions of two-dimensional artwork are “purely decorative or communicative, not utilitarian, which makes such artwork inherently separatable from [the utilitarian aspects of a useful article]” (p.26).

The Supreme Court now has the opportunity to unify the conceptual-separability test. It will probably specify the instances when a particular garment can indeed be protected by copyright. We will keep you posted.

Friday 16 September 2016

International Copyright Law 2016

Who knows what
will happen to copyright?
Quite a lot has been happening in the copyright world lately, whether at the national, regional (eg EU) and international levels.

The 1709 Blog has learned that also this year (on 28 and 29 November 2016, to be more specific) 'International Copyright Law' returns to London, with a special discount for 1709 Blog readers.

As explained by the organisers: 

"International Copyright Law is the only conference of its kind which deals with International Copyright law policies and cases in a two-day event format.

Punchy, comprehensive and entertaining.... you won’t find a better standard of conference. We pride ourselves on being THE forum for you to meet your peers, hear the latest in this fast paced and often complex area and enjoy a higher level of debate to really challenge the accepted industry norms!

All of the latest hot topics covered - key sessions include:

·        Intermediary Liability on the Internet
·        Copyright Infringement Remedies
·        The Digital Single Market
·        Recent UK and CJEU Decisions
·        Fighting Online Piracy
·        The UK & EU Landscape post Brexit
·        UK, US & Asia Focus
·        Copyright & Competition Law
·        WIPO International Developments

PLUS, are you prepared for the Digital Single Market and Brexit?

The European Commission has just released its proposed initiatives on EU copyright reform as part of the Digital Single Market strategy. With the legal implications of Brexit on everybody's radar, it is vital to keep on top of the latest issues and developments.

Join us at International Copyright Law 2016 to ensure you are fully equipped and to tackle the Digital Single Market and Brexit head on.

Benefit from the insights of Copyright experts from leading international organisations and law firms including:
·        Sony/ATV Music Publishing
·        Wiggin
·        Endemol UK Limited
·        USPTO
·        BSKYB
·        Taylor Wessing
·        Serle Court, London
·        Wilmerhale
·        The Educational Recording Agency

Learn more, view the latest agenda and speaker line-up and register today at - quote VIP code FKW82677SON to save 10% courtesy of 1709 Blog."

Thursday 15 September 2016

The problem with “the pursuit of financial gain” in GS Media

Britt Dekker for Playboy
Last week's GS Media decision [hereherehere] has generated a lot of interest, and raised a number of issues.

The 1709 Blog is delighted to host a guest contribution by Kristof Neefs (Altius) on a specific point of the judgment, ie the profit-making nature of the communication at hand.

Here's what Kristof writes:

"In GS Media (C-160/15)the EU Court of Justice held that hyperlinking to content placed online elsewhere is a communication to the public of that content if the hyperlinker had (or should have had) knowledge that the content was posted online without the consent of the copyright holder (§49).  

In my opinion – and I believe this is uncontroversial – Directive 2001/29 provides no verbatim basis for this subjective criterion. It is therefore up for debate whether it was within the Court’s discretion to introduce this subjective criterion in the EU copyright acquis. In the United States, the late Justice Scalia would probably have said no. A legalist tradition opposes judicial law-making. In contrast, judge Posner argues for pragmatism in How Judges Think (2008)This leaves more room for a law-making court. In any case, the judgment is out and it is what it is.

According to the judgment, the Court had freedom of expression and information in mind with its ruling (§31). By requiring knowledge of the illegal nature of the content referred to, internet users linking to it in good faith are meant to be protected. To balance things out, however, the Court also held in §51 that knowledge that the content the link refers to is illegal must be presumed iuris tantum (i.e. until rebutted) if the posting of hyperlinks “is carried out for profit”:

“Furthermore, when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.”

This presumption provides copyright holders with the benefit of doubt when the hyperlink is posted for financial gain. In those cases, it will be up to the hyperlinker to provide evidence that he or she did not know (or should have known) that the content was initially posted online without the consent of the copyright holder.  

The Court has, however, not elaborated on the criterion of profit and financial gain. In particular, it does not seem to consider online advertising. A great deal of blogs and websites feature per-click or per-impression advertisements to ‘monetize’ content on their blog or website. Monetize is a big word here, because in reality the income generated by these ads is just enough to cover the costs of running the blog. Do such advertisements then automatically imply that any hyperlink on the website is posted for financial gain?

I predict that this is an argument that may be run by some copyright holders, because it relieves them of the burden of proof. Some EU courts may accept this argument, especially if those copyright holders are clever in the selection of cases they will initially pursue. I also predict that the blogger who uses web advertising to finance the costs to keep a blog online (and even those that make a small profit out of it) may not have the means to escalate his or her case to the Court of Justice to obtain clarity over the criterion of “financial gain” in GS Media. That is, unless a web advertisement service operator with deep pockets would decide to lend a helping hand.

In GS Media, the Court has provided us with the means to create flowcharts or tables to determine whether a hyperlink is a copyright infringement. However, it seems that the Court has provided an answer that raises a new question: what is the meaning of the “pursuit of financial gain” in the internet context? Perhaps the phrase “commercial activity with a view to economic advantage and not as a private matter” from the Court’s judgment in Arsenal / Reed (C-206/01, §40), a trade mark case, could be helpful. Another, somewhat more vague means of interpretation could be the Recital 14 in the preamble to the Enforcement Directive 2004/48, defining acts carried out on a commercial scale as those “carried out for direct or indirect economic or commercial advantage; this would normally exclude acts carried out by end consumers acting in good faith.”

If the “pursuit of financial gain” is interpreted more broadly to cover all websites that somehow benefit financially from online advertising, I believe the Court may have missed the mark in its attempt to balance freedom of expression and the interests of copyright holders."  

EU copyright reforms - some responses

EU copyright reforms to strip likes of YouTube of legal protection. Video-hosting websites would have to shoulder more responsibility for rooting out infringements. Financial Times.

Why Europe's New Copyright Proposals Are Bad News for the Internet. The proposals aren’t just bad for Google, but for everyone. There’s a lot to like about the copyright proposals that the European Commission unveiled Wednesday—easier access to video across the EU’s internal borders, more copyright exceptions for researchers, and more access to books for blind people. However, two elements in particular could be disastrous if carried out as proposed. One would make it more difficult for small news publications to be able to challenge legacy media giants, and the other would threaten the existence of user-generated content platformsFortune

Film, TV Industry Sounds Red Alert Over New E.U. Copyright Proposals. Trade body FIAPF warns measures will lead to ‘reduced investment’ and reduced consumer choice Europe and Hollywood industries are expressing their alarm at a proposed overhaul of European copyright law that they fear will further erode the territorial licensing system their businesses count on for revenue. Variety.

EU digital copyright reform proposals slammed as regressive. The European Commission’s proposals to reform the region’s copyright rules, published in draft form today, have been criticized by tech companies and digital rights groups as regressive and a missed opportunity to modernize hopelessly outdated rules. The Open Rights Group accused the EC of ignoring EU citizens responses to an earlier consultation on the reform, and trying to bring in regressive rules that will force private companies to police the Internet. TechCrunch

The EU tried to craft a sane 21st century copyright and failed miserably. The European Commission's "Copyright Modernisation" effort has wrapped up, and it's terrible. All of the promising proposals mooted for a better, saner copyright for the 21st century that would protect and benefit individual creators have been thrown out, and in their place, the EC has settled on systems that will allow giant corporations more control over culture and conversation, with sweeping surveillance and censorship powers. BoingBoing

EU Executive Proposes New Copyright, Communications Laws. Backers say new rules are needed to bring regulatory frameworks up to speed with the internet age. Wall Street Journal

Copyright shift would put Europe ahead in ‘future of research’ data mining. Horizon.

YouTube ordered to pay more for music by Europe. Video sites such as YouTube will be forced to pay more to musicians and record companies under plans to reform European copyright laws. The draft directive will also require publishers and producers to tell performers or authors what profits their works have generated. More than 1,000 artists, including Lady Gaga and Coldplay, signed a letter earlier this year calling on the Commission to take steps to address the "value gap". It said sites such as YouTube were "unfairly siphoning value away from the music community and its artists and songwriters".  BBC.

European copyright: there's a better way. You can find Google's response here  from Caroline Atkinson, Vice President, Global Policy.

Wednesday 14 September 2016

PRS for Music Chief Executive responds to EU copyright reform plans

The European Commission has today published their Digital Single Market copyright reform proposals, including a Directive of the European Parliament and Council on copyright in the Digital Single Market’.

The proposed Directive, alongside the ‘Regulation of the European Parliament and Council laying down rules on the exercise of copyright and related rights applicable to certain online transmission of broadcasting organisations and the retransmission of television and radio programmes’, represent the European Commission’s efforts to modernise the copyright framework in order to further realise the European Digital Single Market.

These - among other things - include proposals for a new directive on copyright in the Digital Single Market and a regulation on certain online transmissions of broadcasting organisations and retransmissions. Both instruments, if adopted in their current form, will have a deep impact on the EU copyright framework, particularly with regard to online uses of copyright works, responsibilities of hosting providers, users’ freedoms, and authors’ contracts.

In announcing this morning’s publications President Junker (who had earlier given his annual state of the union address to MEPs in Strasbourg) said: “Artists and creators are our [Europe’s] crown jewels” going on to say “I want journalists, publishers and authors to be paid fairly for their work.”

PRS for Music has championed the case for copyright reform to address the ‘transfer of value’ resulting from the ambiguity in the current legal framework. This ambiguity is enabling some online platforms, specifically user upload services, to generate vast revenues without fairly remunerating the creators, upon whose works their services depend. And its good news for songwriters and publishers - Recital 38 of the actual proposal requires any hosting providers that give access to large amounts of copyright works to "take appropriate and proportionate measures to ensure protection of works or other subject-matter, such as implementing effective technologies. This obligation should also apply when the information society service providers are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC." 

In response to today’s publications, PRS for Music Chief Executive, Robert Ashcroft, said: “PRS for Music welcomes the Commission’s recognition of the critical ‘transfer of value’ issue and we acknowledge the clear intention to redress the current imbalance of interests between user upload platforms and rightsholders. The law must clearly establish that those user upload platforms that provide search and other functionality, as distinct from being mere hosts of content, require a license from rightsholders. The European Commission’s proposed new copyright Directive provides the framework for this essential legal clarity.” 

Robert Ashcroft added, “Europe is our largest export market and, even outside of the European Union, its copyright framework will directly impact UK creator’s earnings. Therefore, we hope that the EU Parliament and Council will grasp this opportunity to establish a functioning, digital single market - as this is in the interests of all concerned: creators, consumers and platforms, new and established.”

In relation to the new press publishers' right [Article 11], while the version leaked a few days ago spoke of 'news publications', the actual proposal prefers the apparently broader term 'press publications'.