Thursday, 7 June 2018


Whilst everyone’s focus was on the implementation of GDPR, the Coreper (Council's permanent representatives’ committee) has agreed its position on a draft Directive on Copyright in the Digital Single Market [DSM Directive] (previously covered on IPKat here). The main objective of the Directive is to modernise the copyright framework and adapt it to the digital age. The compromise text of the Council would create a new right for press publishers for the online protection of their press publications, addresses the value gap between rightsholders and online platforms (covered previously on CopyKat), encourages collaboration between online content sharing services and rightsholders and seeks to create exceptions to copyright on text and data mining. (Full text of the agreed position is available here)

Nevertheless, there are many views which believe that rather than improving protection of the copyrighted material, the Directive will cause a lot of harm. One of them is MEP  Julia Reda (Pirate Party, Germany), who notes that the reform may require paying money (link tax) by “merely linking to a news site” and that concerns about how that might negatively impact the entire internet “are being woefully ignored”. Furthermore, she points out at the provision which will “make platforms directly liable for all copyright infringements by their users”. The platforms will be able to avoid “unreasonable liability if they can show they’ve done everything in their power to prevent copyrighted content from appearing online – namely, by deploying upload filters”. Such obligation will be particularly harmful to small and mid-size companies making it nearly impossible for many of them to function in the EU. The Directive, apart from the motivation to harmonise the laws across the EU, also aims to “level the playing field” between big international internet companies and traditional publishers. As observed by Sterling the introduction of new provisions rather than improving the situation of publishers, is likely to cause damage to both users and publishers interests. ‘Save your internet’ campaign believes that adoption of Article 13 of the Copyright Directive proposal, which requires online services to take ‘effective and proportionate’ action to prevent copyright infringements, will in fact, “impose widespread censorship of all the content you share online”. According to Centrum Cyfrowe, the “ongoing reform could be a chance to make life easier, work more productive and fun - well - more fun! Instead, the reform misses the right perspective on the future”. Therefore, many of the organisations still believe that the public should now reach out to MEPs before the reform becomes the law, in order to address the concerns related to proposed changes. The debate on the new DSM Directive is definitely going to be the one worth watching.  

Being currently one of the most popular games and attracting millions of players, Fortnite and PlayerUnknown's Battlegrounds (PUBG) relying on the concept of ‘last player standing’ online games, although being similar, so far have managed to co-exist together on the market. Nevertheless, recently the makers of PUBG have filed a lawsuit in South Korea against producers of Fortnite (Epic Games) for alleged copyright infringement. Although the report does not specifically mention the claims, PUBG accuses Epic Games of copying user interface and game items. PUBG makers have been quite active in chasing app developers who copied specific elements from their game, as well as, PUBG cheaters. Nonetheless, the lawsuit against Epic Games is surprising, given the number of active users playing the Fortnite game. TorrentFreak believes that the lawsuit will not cause an end to the Fortnite game, with a high possibility of a settlement, or a court order requiring to alter certain elements of the game.

The Michael Jackson estate has sued ABC, as well as its parent company Disney for using without their permission Jackson’s music videos, songs, live video footage from the concerts and also extracts from ‘This is It’ movie, in a documentary called ‘The Last Days of Michael Jackson’, which aired in May. As reported by CMU Daily, the estate has criticised the programme before the broadcast, given that they have not been consulted about the documentary. Howard Weitzman, representing the estate confirmed the lawsuit by saying that "Disney and ABC committed wilful and intentional copyright infringement when they used the estate's copyrighted materials without the estate's permission”. In response to the lawsuit, ABC has defended the broadcast by saying that the documentary “explored the life, career and legacy of Michael Jackson, who remains of great interest to people worldwide, and did not infringe on his estate’s rights”. Given that ABC was stating that the documentary will be a news programme and therefore its use of third-party materials is legal, it is believed that the defendants will rely on a ‘fair use’ defence.

The long-lasting battle between the family of late Egyptian film composer Baligh Hamdi and Jay-Z over the moral rights (previously discussed by CopyKat here) has now been decided by the US Court of Appeals for the Ninth Circuit. The family in its claim filed in 2007 has accused Jay-Z of sampling in his ‘Big Pimpin’’ track samples of the song ‘Khosara’ created by Hamdi. In its 2015 the District Court has ruled that the family lacked legal standing against Jay-Z given that in 2002, the family has transferred all of his economic rights to Egyptian individual Mohsen Jaber, including the right to create derivative works adapted from “Khosara”. In its ruling, the Ninth Court held that in order to “have standing to sue for copyright infringement alleged to have been done by Jay­Z’s adaptation of ‘Khosara’, [the family] must have retained the exclusive right to prepare derivative works of ‘Khosara’, such as Big Pimpin’”. In relation to the moral rights argument, the Court ruled that with the notion that an author’s work is “almost universally understood to be an extension of the author’s personhood”, moral rights aim to protect the creator’s “personal or moral interests” in the work. Therefore, moral rights are not transferable to another party. The appeals court has also agreed with the representatives of Jay-Z who brought an argument saying that the case was entirely about moral rights under the Egyptian law and therefore should not be pursued in the US court. The court has ruled that moral rights that the family retained by Egyptian law are not enforceable in a US federal court. Circuit Judge Carols Bea added that “even in Egypt, [the family’s] moral rights would be insufficient to win him anything but an injunction”. Attorney Christine Lepera representing Jay-Z said that this decision “provides an important road map regarding the distinction between moral rights which are not actionable in the United States, and the economic right in a copyright, which is". The decision, therefore, sets an important precedent regarding the moral rights of foreign creators in the US. (Law 360)

In 2015 Spotify was sued by musician David Lowery, who claimed that the music service had unlawfully reproduced and distributed songs without obtaining owner’s permission. A similar case was filed separately later by songwriter Melissa Ferrick. The two cases were consolidated and earlier this year the parties have agreed on a settlement fee. The proposed deal was however opposed by over 500 musicians and copyright owners, who called it as “grossly insufficient”. In its recent decision, District Judge Alison Nathan at the US District Court for the Southern District of New York overruled those objections and decided to approve the settlement between the parties. According to the settlement, Spotify will pay $43.45 million for past streaming, The settlement also provides a process for class members who had claimed relief to receive ongoing royalties for future streaming and will cover any copyright owner whose songs or musical compositions were made available between Dec. 28, 2012 and June 28, 2017. As noted in the settlement order, there are more than 535,000 potential Class Members. Together with ensuring payment of past and future compensation, the new settlement details a process where Spotify and the class counsel “will work collaboratively to improve the gathering and collecting of information about composition owners to help ensure those owners are paid their royalties in the future” (MusicWeek). As noted by District Judge Nathan, the objectors tend to focus on the value of the immediate payment while largely ignoring the future royalty payment programme and the non-monetary benefits that the settlement provides”. Therefore, it should be considered that “the amount of the settlement is not unreasonable”. In Nathan’s view, the settlement is “fair, reasonable and adequate”.

In the ongoing debate whether online platforms can be liable for copyright infringement, the Commercial Court in Vienna (Handelsgericht) has ruled this week that YouTube is not a neutral host provided and it must prevent third parties from uploading copyright infringing content. The preliminary decision of the Court, which is not yet legally binding, related to a suit filed in 2014 by Austrian commercial TV channel Puls 4 against YouTube, after the content from its channel, which was protected by copyright was uploaded to the platform. YouTube has argued that it provided a technical service and therefore fell under the scope of the ‘Safe Harbour’ exemption under the EU’s E-Commerce Act, which provides that intermediaries providing technical service are not liable for the content uploaded by their users. Handelsgericht has disagreed with this argument say that YouTube’s activity in “sorting, filtering and linking” content on its platform, “in particular by creating tables of contents according to predefined categories” helps determine the surfing behaviour of its users. If the decision is held up, it may have an enormous impact not only on YouTube but also on other services such as Facebook, which would be required to monitor the content that appears on their websites. Now both parties have four weeks to petition the court before the binding ruling is issued. It is also expected that if the ruling stands, YouTube will appeal.

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