Sunday, 26 March 2017


This CopyKat from Tibbie McIntyre

The UK Copyright Officers survey – deadline 3rd April

If you work at a UK library and educational/cultural institution, your organisation is warmly invited to take part in a survey about copyright officers and copyright education here. The survey is available until 3rd April.

The UK Copyright Literacy page states that the research is regarding “copyright officers or similar specialists in UK libraries and educational / cultural institutions. We want to find out more about the value and status of these positions, the responsibilities that they entail and the ways in which copyright education is delivered. … The findings should be of interest to organisations wishing to benchmark the copyright training and advice services they currently offer.”

Even if your UK library and educational/cultural institution does not have a dedicated copyright officer, your organisation is still invited to participate, as there are questions designed to determine how copyright is managed in the absence of a designated copyright post.

If you have any questions about the survey, please contact

You can find the survey here until 3rd April.

Australia NOT to grant safe harbour to Google, Facebook, at al.

The Australian government had recently been seeking to extend its safe harbour provisions to online intermediaries (including Google and Facebook) that rely on user-generated content. The move would have given immunity to online intermediaries for infringing content uploaded onto platforms by users.

Across Europe and the U.S., online intermediaries already enjoy such a safe harbour (European legislation can be viewed here, American here). However, safe harbour provisions have generated much heated debate, with copyright holders arguing that it has led to the copyright ‘value gap’. For example, rights holders have argued that platforms that benefit from the safe harbour rule facilitate nearly half of all music consumption on the internet but represent only around 4% of the revenue generated by the industry.

Also, platforms are only under an obligation to remove infringing content when notification is given by the rights-holder. This leaves copyright holders in the position of eternally having to search YouTube, Facebook et al. for instances of infringement – an eternal game of ‘whack-a-mole’. This topic is coveredhere and here, and reports on controversial measures proposed by the EU to overcome the ‘value gap’ can be found here.

TorrentFreak reports that “Due to what some believe amounts to a drafting error in Australia’s implementation of the Australia – US Free Trade Agreement (AUSFTA), so-called safe harbor provisions only apply to commercial Internet service providers.” This means that platforms allowing the upload of user-generated content may be found liable for infringing content uploaded by 3rd parties.

Communications Minister Mitch Fifield confirmed in a statement that the amendment had been dropped: “Provisions relating to safe harbour were removed from the bill before its introduction to enable the government to further consider feedback received on this proposal whilst not delaying the passage of other important reforms”.  

Lobbying from a consortium on copyright holders to drop the safe harbour amendment has been intense. The Australian has published a series of articles against implementation of the safe harbour rule, arguing that Google et al. are “ruthlessly exploiting” safe harbour rules in the US and Europe (no links are available as the content is behind a paywall).

What are the implications for platforms that allow 3rd parties to upload content?

There is legal uncertainty – platforms may be found liable for any acts of infringement by their users. There are a number of options from which the platforms can choose;
1.      Run the risk of being found liable of copyright infringement because of the actions of 3rd party users, having to pay penalties to copyright holders.
2.      Enter into agreements with copyright holders on a pre-emptive basis, licensing content that 3rd party users might upload onto the platform.
3.      Implement filtering technology, identifying and blocking infringing content when it is uploaded. (This is also a live issue in Europe.)
4.      Exit the Australian market altogether.

The exemption from liability enjoyed by platforms is an important issue worldwide, and it should be interesting to observe how events unfold in Australia in the coming months.

There are more stairs? – Stairway to Heaven saga continues

This saga has previously been reported on the 1709 blog here and on the  IPKat here. This case deals with the potential infringement of a song by Spirit, ‘Taurus’, by Led Zeppelin in their ‘Stairway to Heaven’.

90 page brief was recently filed to the 9th Circuit Appeals court by the agent of Michael Skidmor, trustee of Spirit guitarist, Randy Woolfe (California). The brief asks the court to reverse the previous finding, where the jury found unanimously in favour of Led Zeppelin in June 2016. This brief also asks for remand for a new trial, including striking the bill of costs.

Copykat will issue updates as and when they come.

By Alf van Beem (Own work), via Wikimedia Commons
Compulsory Licences for “cable systems” do not apply to TV streamers

The 9th Circuit delivered its ruling in the Fox Television Stations v Aereokiller case on 21 March. The case relates to the TV streaming services provided by FilmOn.

FilmOn provides a service that uses antennas to capture over-the-air broadcast programming – much of it copyrighted – and then uses the internet to retransmit this programming, utilising both subscription and ad-based methods of revenue generation. Essentially, it enables you to watch TV on your computer.

The dispute centred on section 111 of the U.S. Copyright Act (17 U.S.C. § 111), which provides that a “cable system” is eligible for a compulsory license. Such a compulsory licence allows “cable systems” to retransmit “a performance or display of a work” originally broadcast by someone else without having to secure the consent of the copyright holder.

In order to maintain its compulsory licence, the “cable system” must pay a statutory fee to the Copyright Office – as well as complying with other regulations.

FilmOn contended that its services fall under the “cable system” definition and it should therefore be granted a compulsory licence.  

A group of broadcasters (including, inter alia, Fox, NBC Universal, ABC, CBS and Disney Enterprises Inc.) argued that the services provided by FilmOn do not fall under the definition of “cable system” as provided under § 111 and it should therefore not be granted a compulsory licence.

A statement on page 7 the ruling sheds further light on why this issue was so hotly contested by the parties:

“Compulsory licences are highly coveted, in no small part because, according to the Copyright Office, the royalty payments the Act requires cable companies to pay are “de minimis” when compared to the gross receipts and revenues the cable industry collects, a gap suggesting that the government-set rates fall well below market levels.”

Unfortunately, court found itself at an impasse: “The text of § 111 is written in broad terms, and both sides can make plausible arguments about the statute’s purposes and legislative history.”

The court goes on to state “that the meaning of § 111 is ambiguous on the precise question before us”.

To overcome this impasse, the decision hinged on arguments brought by the Copyright Office and the weight the court was willing to give those arguments. The court utilised the Skidmore framework (precedent that allows the court to rely on the arguments of a government agency in cases where there is no clear law).

The Copyright Office argued that FilmOn’s services do not fall under the definition of “cable systems”. Historic Copyright Office arguments have posited “that a provider of broadcast signals [must] be an inherently localized transmission media of limited availability to qualify as a cable system.” Significantly, Congress has for years been aware that the Copyright Office views internet-based retransmission services as not falling under the definition of “cable systems” and has never moved to amend or comment upon this view.

The arguments presented by the Copyright Office were therefore afforded significant deference in this case, since the statute was found to be ambiguous on the issues at stake and the Copyright Office proffered cogent arguments to address matters. The court noted that “To the extent the legislative history provides relevant evidence of § 111’s meaning, we would defer to the Copyright Office’s interpretation of it, seeing as the Copyright Office has a much more intimate relationship with Congress and is
institutionally better equipped than we are to sift through and to make sense of the vast and heterogeneous expanse that is the Act’s legislative history.

In summary, it was on the strength of the arguments brought by the Copyright Office, that court found that “a service that captures copyrighted works broadcast over the air, and then retransmits them to paying subscribers over the Internet without the consent of the copyright holders, is not a “cable system” eligible for a compulsory license under the Copyright Act.”

This story will continue, as FilmOn is arguing two similar cases at the D.C. Court of Appeals and the 7th Circuit Court of Appeal.

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