Wednesday 29 November 2017

[The IPKat] BREAKING: CJEU rules in that the making available of copies of TV programmes saved in the cloud must be authorised by rights owner

Further to the Opinion of Advocate General (AG) Szpunar [here], this morning the Court of Justice of the European Union (CJEU) delivered its judgment in VCAST, C-265/16.

This was a reference for a preliminary ruling from the Turin Court of First Instance (Italy), seeking guidance on the application of the private copying exception within Article 5(2)(b) of the InfoSoc Directive to cloud-based video recording services. 

More specifically: does EU law prohibit a commercial undertaking from providing - without the authorisation of the relevant copyright owner - private individuals with cloud computing services for the remote video recording of private copies of works protected by copyright, by means of that commercial undertaking’s active involvement in the recording?

The AG provided a sophisticated response to this question, substantially concluding that the exception - while being applicable also in instances involving  the intervention of a party other than the direct beneficiary - requires in any case that the user/beneficiary has lawful access to the work that he/she copies.

The CJEU judgment - which is not yet available on the Curia website - seems to side with the AG's conclusions. However it appears that the CJEU judgment focuses more extensively on the analysis of the right of communication/making available to the public within Article 3 of the InfoSoc Directive than what the AG Opinion does.

According to the press release:

"By today’s judgment, the Court finds that the service provided by VCAST has a dual functionality, consisting in ensuring both the reproduction and the making available of protected works.

To the extent that the service offered by VCAST consists in the making available of protected works, it falls within communication to the public. In that regard, the Court recalls that, according to the directive, any communication to the public, including the making available of a protected work or subject-matter, requires the rightholder’s consent, given that the right of communication of works to the public should be understood, in a broad sense, as covering any transmission or retransmission of a work to the public by wire or wireless means, including broadcasting.

The Court takes the view that the original transmission made by the broadcasting organisation, on the one hand, and that made by VCAST, on the other, are made under specific technical conditions, using a different means of transmission for the protected works, and each is intended for its public. 

The Court concludes that the (re)transmission made by VCAST constitutes a communication to a different public from that of the original transmission and must therefore receive the consent ofthe copyright owner or holder of related rights. Accordingly, such a remote recording service cannot fall within the private copying exception."

A more detailed analysis will be provided as soon as the judgment becomes available: stay tuned!

Monday 20 November 2017


A federal judge in California last week issued a preliminary injunction preventing Canada’s Supreme Court from forcing Google to de-list a website on its American search engine. The ruling greatly limits the reach of a Canadian judgement that was widely welcomed by the music community as a step forward in helping copyright owners tackle online infringement.

The dispute isn’t entirely resolved with last week’s injunction, and further legal wrangling is incoming. Though Davila’s ruling does seem to limit the reach of June’s Canadian judgement, which – of course – the music industry was so keen to welcome.

For its part, digital rights campaign group the Electronic Frontier Foundation welcomed last week’s ruling, but said more needs to be done to stop other courts from issuing wide-ranging internet injunctions, like that issued by the Canadian Supreme Court in June.

A US judge has ruled that world+dog must help block Sci-Hub, a publisher of scientific texts, which will likely result in protracted battles with Internet companies over their responsibility for copyright infringement.

The block order was handed down late last week by Judge Leonie Brinkema of the Eastern District Court of Virginia, in response to a case brought by the American Chemical Society (ACS).

Sci-Hub paints itself as a protest site against the academic publishing business model, which makes access to published material expensive. Academic publishers led by Elsevier see it as a pirate operation and have been pursuing both Sci-Hub and its operator, Alexandra Elbakyan, since 2015.

The production company that made The Cosby Show has sued the BBC (.pdf) over a documentary the British network aired about the rape allegations against Bill Cosby. Carsey-Werner, the production company that is the plaintiff in the case, says that the documentary is infringing its copyright because it uses eight audiovisual clips and two musical cues from The Cosby Show.

The documentary, titled Bill Cosby—Fall of an American Icon, was broadcast on a BBC channel in the United Kingdom on June 5 of this year. That was the same day that Cosby's prosecution for one assault began in Pennsylvania. (The trial ended in a hung jury.) The UK production company that made the documentary, Sugar Films, is also named as a defendant in the case.

The push and shove of a copyright battle.
Image Ben Challis (c) 2017
ResearchGate has moved at least 1.7 million articles to make them less easily available, according to a publishers' group that sent mass take-down notices against papers they said were in breach of copyright laws. At the beginning of October, the CRS, a group of five publishers including Elsevier, Wiley and Brill, issued a wave of take-down notices. Since then, 93 per cent of the CRS publishers' papers had been made less accessible, explained Dr Milne, so that instead of being instantly downloadable, users had to request a copy from the author.

CBS Corp. is at least one-third of the way back toward trial on whether it owes royalties under California law for streaming pre-1972 music over the internet.

Federal Circuit Judge Richard Linn, sitting as a visiting judge on the U.S. Court of Appeals for the Ninth Circuit, sounded extremely skeptical Thursday of the broadcaster’s defense that the process of digitally remastering hits from the ’60s and ’70s made them derivative works of the 1980s and therefore subject to post-1972 federal copyright law.

But Ninth Circuit Judges Marsha Berzon and Paul Watford sounded somewhat more open to CBS’s argument, which if it stands could shut down a campaign that’s produced tens if not hundreds of millions in settlements from other internet broadcasters.

We shall await eagerly any update from this case as it progresses.

It's been no secret that the MPAA has been sticking its nose in the copyright laws and enforcement of Australia for some time now. From pressuring government officials in the country to force ISPs to act as copyright police, to trying to keep Australian law as stuck in antiquity as it possibly could be, to trying to force the country to enforce American intellectual property law except the parts it doesn't like, the MPAA nearly seems to think of itself as an official branch of the Australian government. Given the group's nakedly hostile stance towards fair use, it should be no surprise that it doesn't want to see that sort of law exported to other countries and has worked to actively prevent its installation Down Under.

It seems these efforts are not working, however, as the Australian government is currently entertaining not only adopting American-style fair use laws, but also adding exceptions to geo-blocking as well. The MPAA, as you'll have already guessed, is not happy about this.

Also breaking at the time of writing this piece is the news that The NSW government is being sued for $7.5 million in copyright fees. We will update you once we know more on this.

Shani, the developer of the popular Kodi-addon ZemTV, is asking the public for help so he can defend a lawsuit filed by American satellite and broadcast provider Dish Network. A proper defense is needed to avoid a bad precedent, he stresses. "The fight is rigged against the little guy, they are trying to make something illegal that shouldn't be illegal."

The case is perhaps not as straightforward as either side presents it. However, it is in the best interests of the general public that both sides are properly heard. This is the first case against a Kodi-addon developer and the outcome will set an important precedent.

This CopyKat from Matthew Lingard (Walker Morris LLP)

Saturday 18 November 2017

Moral Rights, Unplugged

Does a decree aiming at protecting the health of our auditory systems by making it mandatory to lower the sound level of music a violation of the moral rights of the author of the music?  

The decree n° 2017-1244, of August 7, 2017 aims at preventing risks associated with noise and amplified sounds. It is applicable in France since October 1, 2017. It applies to public spaces hosting activities involving broadcasting amplified sounds which noise level is greater than the energy equivalent based on the value of 80 decibels over 8 hours.

The people in charge of operating such places are given the responsibility of making sure that the level of noise “never exceeds, at any time and in any place accessible to the public, the equivalent continuous sound pressure levels of 102 decibels weighted A over 15 minutes and of 118 decibels weighted C over 15 minutes.” The sound level must be even lower if children under 6 are in attendance.

This sounds at first view like a sensitive initiative to protect the health of French residents. Hold on.

An editorial published last month in the daily newspaper Libération, titled Faites du bruit pour sauver la musique, Make noise to save music, and signed by several personalities and musicians, including former Minister of Culture Jack Lang, claims that the decree distorts musical works and violates freedom of creation.

Festive and nocturnal musical places have always been the scene of beautiful encounters, singular sources of living experiences, emerging cultures. However, the Decree 2017-1244 of 7 August 2017 … risks, in the name of precautions yet legitimate, to narrow the scope of these sensations.”

The authors of this editorial claim that restricting amplified sound is an infringement of the moral right of the authors on their works, as it denatures their works. They ask: “[w]ho will want to pay to enter a place where the music will be reduced by the sound restriction, to be a distant echo of itself?”

French droit moral provides the author four different moral rights: right of disclosure, right of repentance or withdrawal, right to paternity, and right to respect for the work. These rights are perpetual and inalienable.

The moral right which could be violated by the Decree is the right to respect for the work. Article L121-1 of the French Intellectual Property Code does not provide a definition for this right, but article 6bis of the Berne Convention gives the author the right “to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”

If one admits that some music must be heard at a certain level of sound to be heard without being distorted or modified, then the Decree violates article L121-1. It is the author, however, not the listener, who has to right to state this.

The authors of the editorial fear the decree would endanger music festivals. They advocate for less rigid ways to protect the auditory health of the public. Will the French government hear their plea?

Sunday 12 November 2017

Icepops event is coming to Liverpool and is looking for attendees and ... speakers

The enthusiastic copyright duo Chris Morrison and Jane Secker, aka the UK Copyright Literacy team, is organising what looks like an exciting, fun and informative event at the University of Liverpool on 3 April 2018 to promote international copyright literacy: Icepops: International Copyright-Literacy Event with Playful Opportunities for Practitioners and Scholars.

According to the information available on the Icepops website, this 1-day event will be the first satellite event run as part of the LILAC conference, and is the result of a collaboration between the UK Copyright Literacy and CILIP Information Literacy Group.

The day will include keynote speakers, a world café, an opportunity to play copyright games including the Publishing Trap and a playful copyright hackathon. 

The topics addressed by the various speakers will include copyright education, games and play, creativity and the relationship of copyright literacy to information literacy and scholarly communication.

Registration and fees 

Registrations will open on 1 December 2017, and the fees will be:
  • £100 (inc VAT) for the day including all refreshments, lunch and an evening social
  • £80 for people attending LILAC and/or presenting 
  • £50 for LIS students (£50)

Call for speakers

Besides already confirmed speakers, the conference is looking to recruit additional speakers. As explained by the organisers:

"In the true spirit of creativity we are looking for a range of speakers with ideas, games, techniques or topics they’d like to discuss to get involved in shaping the day. Some ideas we have included involve: a games hack, a world cafe to showcase ideas and approaches, lightning talks or maybe something different such as a song or dance routine? Leave your inhibitions behind and come along prepared to experience something different to regular copyright events!
If you’d like to be part of Icepops 2018 then please complete the Contributor’s Form  before Monday 4th December and we will aim to get back to you by the 18th December 2017. Speakers will qualify for the reduced (£80) rate and be entered into the competition to qualify as the best idea, most creative approach to copyright education or copyright specialist of the year. Prizes will be awarded on the day!”

Further details are available here.

Does the Commercial Exploitation of France’s National Domain Violate the Constitution?

Article L. 621-42  of the French Code du patrimoine (heritage Code) authorizes using the image of a building belonging to France’s national domain for commercial purposes, in any medium, if such use has been authorized by the manager of the building, by unilateral act or contract, free of charge or with financial compensation. No authorization is, however, required, if “the image is used in the exercise of public service missions or for cultural, artistic, educational, teaching, research and information purposes and illustration of the news.”

This is a recent law, as this article was introduced by the July 7, 2016 law, no. 2016-925 about freedom to create, architecture and heritage) in order to provide buildings belonging to the national domain, such as the Louvre, Chambord, or Fontainebleau, an opportunity to financially gain from the commercial use of their image.

This law was enacted after the castle of Chambord unsuccessfully tried to prevent the commercial use of its image for advertising a beer. The image of the castle had also been used on a special edition of beer bottles.

Visiting castles can make you thirsty 


NGOs La Quadrature du Net and Wikimedia recently joined forces to challenge the constitutionality of the decree implementing article L. 621-42, which created article R.621-99 of the Code du patrimoine. This article gives power to the authority in charge of the national domain to negotiate the financial conditions for the commercial use of its image. From plaintiffs’ point of view, the buildings in France’s national domain are in the public domain, and thus free to be used, even for commercial purpose.

They argued that the access to culture is a human right, protected by article 14 of the European Convention on Human Rights, article 10 and 11 of the French Declaration of Human Rights,  and by the Preamble to the French Constitution, which guarantee equal access to culture for all, and that therefore article R.621-99 violated the Constitution.

They also argued that the public domain is protected by article 1 of Directive 2006/116/EC on the term of protection of copyright and certain related rights, which states that a literary or artistic work revert to the public domain 70 years after the death of the author, irrespective of the date when the work is lawfully made available to the public. As article 2 of the Berne Convention includes architecture in its definition of literary and artistic works, they concluded that works of architecture in France’s national domain are in the public domain, and that the lawmakers cannot “artificially revive exploitation rights.”

The Ministry of Culture argued in defense, rather surprisingly, that “[i]t has never been the intention of the lawmaker to establish a regime guaranteeing free exploitation of a work after the extinction of the economic rights of its owner.” Unless this refers to moral rights, which are perpetual and may sometimes impinge the commercial exploitation of a work, this argument denies a basic concept of French copyright.

On October 25, the French Council of State, France’s highest administrative court, agreed to their request to ask the Constitutional Council whether article R.621-99 violated the Constitution. The Constitutional Council will now decide within 3 months whether the commercial exploitation of buildings in the public domain, but belonging to France’s national domain, violates French Constitution. We’ll keep you informed.

Tuesday 7 November 2017

Two big decisions examine web blocking in the USA

In the space of under a week there have been two big cases in the USA looking at web blocking - and with differing results. 

First off, a federal judge in California has issued a preliminary injunction preventing Canada’s Supreme Court from forcing Google to de-list websites for Datalink on its American search engine. The Canadian Supreme Court (Google Inc v Equustek Solutions Inc, 2017 SCC 34) affirmed the decision from the Supreme Court in British Columbia and ordered Google to delist a tech company’s website(s) worldwide. The music industry trade body Music Canada welcomed the judgement saying it was “a crucial development given that the internet has largely dissolved boundaries between countries and allowed virtual wrongdoers to move from jurisdiction to jurisdiction in search of the weakest enforcement setting”.

The web giant responded by saying the ruling conflics with the right to a freedom of expression  contained within the First Amendment of the US Constitution, and that the Canadian Supreme Court had no right meddling with the American Constitution. Google’s argued “This is about whether a trial court in a foreign country can implement a law that is violative of the core values of this country … imagine if we got an order from North Korea that said we could not publish anything critical of Dear Leader. Imagine if Russia doesn’t like what people are saying about Putin. It would be very dangerous to deny relief in this instance”.

There were no representatives of either Equustek or the Canadian Supreme Court in attendance, and Judge Edward Davila agreed with Google’s request for a preliminary injunction in the United States District Court for the Northern District of California. He agreed that “by forcing intermediaries to remove links to third-party material, the Canadian order undermines the policy goals [of Section 230 of the Communications Decency Act] and threatens free speech on the global internet” adding that “Section 230 of the Communications Decency Act states that third-party internet hosts, such as Google, cannot be held liable for offensive or illegal material generated by other parties”.

Digital rights group the Electronic Frontier Foundation welcomed the ruling, but said more needs to be done to stop other courts from issuing wide-ranging internet injunctions, like that issued by the Canadian Supreme Court in June saying “The California ruling is a ray of hope on the horizon after years of litigation, but it is far from a satisfying outcome. While we’re glad to see the court in California recognise the rights afforded by Section 230 of the Communications Decency Act, most companies will not have the resources to mount this kind of international fight”.

So with Equustek, the music industry won in Canada but ultimately lost in the USA. But web-blocking remains a preferred anti-piracy tool for the film and music sectors and both will take heart from a ruling in a separate copyright dispute which involed Sci-Hub, the website sometimes dubbed the "Pirate Bay of science" which was sued by ther American Chemical Society for distributing academic papers it had published without permission. 

Last month, magistrate judge John Anderson in the District Court for the Eastern District of Virginia recommended that a default judgement shoud award ACS $5 million in statutory damages and that "internet search engines, web hosting and internet service providers" should be ordered to "cease facilitating" access to Sci-Hub.

After Anderson's decision the Computer And Communications Industry Association submitted a paper to the court which stated that: "[The] plaintiff is seeking - and the magistrate judge has recommended - a permanent injunction that would sweep in various neutral service providers, despite their having violated no laws and having no connection to this case" which went against the wishes of Congress. : "
Now Judge Leonie Brinkema has followed Anderson and issued the injunction, meaning US based registrars can't offer their services, and server farms can't host Sci-Hub. The order goes further, ordering “any person … including any Internet search engines, web hosting and Internet service providers, domain name registrars, and domain name registries, cease facilitating access to any or all domain names and websites through which Defendant Sci-Hub engages in unlawful access to, use, reproduction and distribution of the ACS [trade] marks or ACS's copyrighted works”.

The judge also ordered Sci-Hub's domains be placed on registryHold/serverHold to render their names/sites non-resolving. The decison imposed the maximum US$4.8 million to be paid to ACS as statutory damages.

Friday 3 November 2017


Safe as houses?
A new children’s book “Silent Days, Silent Dreams,” is billed as a fictional biography about James Castle, a self-taught artist whose works can be found in museums, art galleries and private collections all over the world. Written for children, the book contains about 150 illustrations by award-winning writer and illustrator Allen Say - but are those illustrations going to cause problems? They might do as the James Castle Collection and Archive (which has the largest privately held collection of Castle’s works) is suing Say and his publisher for copyright infringement in Boise federal court, alleging that many of Say’s illustrations “are intended to evoke and imitate the artistic style of James Castle but some two dozen of the illustrations “are far more than a tribute” and are “similar if not virtually identical copies” of Castle’s work (see left). An injunction is being sought

What a difference a decade makes! China's "core network copyright industry" has seen rapid growth over the past ten years, according to a recent industry report. In 2016, the scale of the industry exceeded 500 billion yuan (about $76.5 billion U.S. dollars), maintaining a growth rate of over 30 percent a year, according to a report by the country's Network Copyright Industry Research Centre. In 2006, the volume of the industry was just 16 billion yuan, the report said. The report focuses on China's "network industry," described as network gaming and online content, including video and music. Researcher Tian Xiaojun said "With the continuous increase of copyright protection in China and the upgrade of domestic consumption, China's network copyright industry will have huge market potential and is expected to contribute more to the country's economy growth".

Mike Palmedo and Sean Flynn have released the initial results of research based on  the Program on Information Justice and Intellectual Property of the American University Washington College of Law's Copyright User Rights Database. This research tool maps changes to copyright limitations and exceptions and other “user rights” from 1970 through 2016 in 21 countries of different development levels around the World. Palmedo and Flynn intend to continue adding data from additional countries, but feel that the current data allows us to begin demonstrating how differences in copyright user rights are associated with certain outcomes for innovative firms and researchers. The first results are based on tests of copyright limitation openness and although all countries are trending toward more open user rights, there is a clear gap between wealthy and developing countries. The research shows that developing countries in the sample are now at the level of openness that existed in the wealthy countries 30 years ago. Few countries, and almost no developing countries, have sufficient user rights most needed to support the digital economy, including for transformative use or text and datamining. The authors say "To date, there has been very little empirical work exploring how the structure of copyright limitations and other user rights shape outcomes in industries that rely upon them. One reason for this lack of empirical research on the impact of copyright user rights has been the absence of a tool to measure the key independent variable – changes in copyright user rights over time among a broad set of countries. We hope other researchers will find the Copyright User Rights database to be a useful tool for further empirical research on copyright user rights". More here. 

Last week, Motherboard discovered that one of Google's machine learning algorithms was biased against certain racial and religious groups, as well as LGBT people. The Cloud Natural Language API analyzes paragraphs of text and then determines whether they have a positive or negative "sentiment." The algorithm rated statements like "I'm a homosexual," and "I'm a gay black woman," as negative. After the story ran, Google apologised. Now Motherboard are posing the conundrum: "Copyright Law Makes Artificial Intelligence Bias Worse - But it could be used to help fix the problem too" adding "Copyright law has historically exacerbated bias in artificially intelligent algorithms, but it also has the capability to vastly improve them. If companies knew they were protected legally, they would also be more likely to release the data their products were trained on, allowing academics and journalists to do their jobs."

Broadcaster ESPN have been forced to face a trial that alleges copyright infringement after a Mississippi federal judge denied the sports giant's motion for summary judgment. The dispute centers on two documentaries about the life of college football player Chucky Mullins, who was paralyzed during a 1989 game between University of Mississippi and Vanderbilt University while tackling Brad Gaines. Mullins died as a result of complications from his injuries in 1991. Charles Smith Jr. and his production company 38 Films us now suing ESPN and others for breach of contract, fraudulent misrepresentation and copyright infringement, among other claims. They say the 2014 ESPN documentary "It's Time: The Story of Brad Gaines and Chucky Mullins" used his footage without paying an orally agreed upon license fee or giving appropriate credit. Smith claims he understood the ESPN documentary to be about Gaines and he agreed in an oral contract to license footage from his film at a rate of $3,000 per minute used and Ginn gave Yamano their entire archive of digital files. Meanwhile, the defendants say their film is about Gaines, not Mullins, and that they didn't use any footage actually featured in Undefeated or owned by 38 Films.

And news of developments in the legal battle going between photographer Jon Tannen and the giant online media company CBS. After being sued by the photographer for infringing his photo copyrights, CBS has responded by filing its own copyright infringement lawsuit against the photographer… for sharing 59-year-old TV show still frames on social media. More here.  This is the second time the photographer has accused CBS Interactive's 247 Sports senior writer Alex Gleitman of misusing photos in his articles, initially tweeting "To Alex Gleitman. You're violating copyright law. Photo Jon Tannen" and "@Alex Gleitman You've used my photos illegally again. REMOVE THEM NOW. Never asked by permission. Your own logo.Are you stupid? @jtanne". Glietman responded by saying that he has been give the images by the player featured, and had subsequently added a credit. 

And talking of all things American Football and copyright, Eleonora Rosati has posed the question "Can a tweet containing an unlicensed photograph amount to a copyright infringement by the person who embeds such tweet on their own site?" on the IPKat. European readers will of course be familiar with the less than clear judgments in BestWater and subsequent case law, notably GS Media - and in Europelinking can fall within the scope of the right of communication to the public within Article 3(1) of the InfoSoc Directive, although different considerations must be undertaken depending on the case at issue, including whether the link provider is aware of the unlicensed character of the content linked to and/or pursues a profit.  This very question is now being asked in the US, where a photographer working with Getty Images has raised issues of linking and copyright under US law: Justin Goldman, has sued a number of publishers over the unauthorised embedding, by their relevant publications, of a tweet containing an unlicensed image of American football quarterback Tom Brady that he had taken. Images from

Google is fighting on in the Equustek case, now in the US. Readers will remember that the Canadian Supreme Court in Google Inc v Equustek Solutions Inc, 2017 SCC 34 affirmed a decision from the Supreme Court in British Columbia and ordered Google to delist a tech company’s entire website worldwide. The web giant has now told a Californian court that that the ruling conflics with the freedom of expression rights contained within the First Amendment, and that the Canadian Supreme Court had no right meddling with the American constitution.  Google’s lawyer Margaret Caruso said “This is about whether a trial court in a foreign country can implement a law that is violative of the core values of this country … imagine if we got an order from North Korea that said we could not publish anything critical of Dear Leader. Imagine if Russia doesn’t like what people are saying about Putin. It would be very dangerous to deny relief in this instance”. Courthouse News says "Underscoring the bizarre nature of the proceedings, no attorneys for Equustek Solutions or the Canadian court system showed up, allowing Caruso to state her case to U.S. District Judge Edward Davila unopposed."

And finally, CMU Daily reports that "According to law firm RPC, the three leading claimants in the [UK's] High Court in the year up to 31 Mar 2017 were all in the business of copyright. And two of them music copyright." Leading the way with 106 cases to court was the UK's recorded music collecting society PPL, while its counterpart in music publishing, PRS, came in third with 27 cases. The Football Association is in second place having filed 39 cases, mainly seeking to protect its intellectual property rights against those illegally accessing or airing footage of football matches.