Tuesday 31 July 2018

The CopyKat

The summer is now in full swing but it was not that long ago, namely in February, where in the case concerning NFL player Tom Brady, the US Federal Court in New York ruled that it is possible to infringe the copyright by a simple act of embedding a tweet on a website. Now, the 2nd Circuit Court of Appeals has denied an immediate appeal in the case that could have a huge significance for all producers of digital content. Back in February, U.S. District Court Judge Katherine Forrest refused to apply the ‘server test’, where the liability for copyright infringement of a website publisher depends on “whether the image is hosted on the publisher's own server or is embedded or linked from a third-party server”. Breitbart, Heavy Inc., Time Inc., Yahoo, Vox Media, Gannett Company, Herald Media, Boston Globe Media Partners and New England Sports Network, who were defendants in the lawsuit, have warned following the court’s ruling that the decision would "cause a tremendous chilling effect on the core functionality of the web". Given that Judge Forrest had allowed the defendants to file a motion for appeal it seemed that the 2nd Circuit would also agree to consider the case, which was described as by Judge Forrest as "high-impact copyright case". The 2nd Circuit has decided the opposite and the case will now proceed back to the district level. The case may be subject to appeal at the later stage, provided that the parties will not settle the case at any stage before.

Should Musicians Facing Copyright Infringement Actions for Taking Small Parts of Old Songs Argue for a ‘Fair Use’ Defence?

In the aftermath of decision in ‘Blurred Lines’, where the Court had ruled against Pharrell Williams and Robin Thicke for infringing copyright in Marvin Gaye's "Got to Give It Up" and an increasing number of actions against songs topping music charts from rightholders owning rights in songs created in the past for taking parts of their songs, some musicians believe that the decision constitutes a threat to creativity. In the amicus curiae brief 212 songwriters, composers and musicians supporting the appellants [Williams and Thicke] shared the view that "[t]he verdict in this case, threatens to punish songwriters for creating new music that is inspired by prior works." As argued by musicians, given that the number of musical notes is limited and the same applies to harmonious combinations of notes borrowing in music compositions becomes common and plays a great role in the development of music. Nevertheless, following the decision in ‘Blurred Lines’, songwriters may fear that “copyrights can be asserted against them even if there's only a slight similarity between their song and another song”. In his article, Edward Lee proposes that one of the solutions of the copyright system in such cases can be Fair Use doctrine, which enables people in certain conditions to use copyrighted works in various ways without permission from the copyright owner. Although the solution is not perfect and does not provide certainty, as it is assessed on a case-by-case basis there is “no other doctrine in copyright law [which] provides creators [with] the same kind of safety valve that allows them to borrow from prior works” and create a new work that will add “something new, with a further purpose or different character, altering the first with new expression, meaning, or message". So far, however, the fair use doctrine adoption in music cases has been only limited to works involving parodies. Lack of precedent does not mean that fair use does not exist in music and it remains to be seen whether musicians will begin to invoke fair use. Given that more and more of songwriters face copyright lawsuits against them filed by owners of older musical works who assert copyright over short combination of notes, where many of them decide to settle and pay substantial royalties, giving songwriting credit to another artist – the use of fair use doctrine can bring a solution to avoid such actions.

New Proposal for Fair Use Right in South Africa

The ability of authors to assert a fair use right and use exceptions to copyright does not only play a big role in the US. With the growth of the digital environment, copyright laws all over the world are under pressure to reform to fit with the new (digital) reality. With the ease and amount with which users can share copyrighted materials, exceptions play a significant role in many common practices for them not to be considered as illegal. South Africa is currently aiming to create a new ‘hybrid’ exception which “contains both a set of modern specific exceptions for various purposes”, as well as, an open general exception “that can be used to assess any use not specifically authorized”. The new Bill particularly aims that the exceptions will be open to all works, uses and users. Furthermore, apart from specific exceptions the Bill contains a general exception for ‘fair use’ with an addition of ‘such as’ before the list of purposes that is covered by the right, which makes “the provision applicable to a use for any purpose, as long as that use is fair to the author”. The provision is also helpful for users by addition of the clarifications which reflect global trends in interpretation. For example, while evaluating the purpose and character of the use, the provision helpfully instructs consideration of the core of a ‘transformative use’ test. The provision also permits for commercial uses to be considered as fair and focuses on market harm by assessing the ‘substitution effect of a given use in the market’. Many scholars believe that this proposal fits well with the current digital environment and that the new provisions should become a model which would be adopted by other countries wishing to modernise their copyright laws.

Will the Music Modernization Act Survive a New Proposal to the Bill?

The new Music Modernisation act (MMA), which aims to update the US copyright legislation that would improve royalty payments for songwriters and artists, as the CopyKat has previously covered has gained a wide support of both Houses and right across the music industry and even with some end users. If the bill were to be enacted in its current form, the digital royalty pay-outs will be improved, artists and songwriters who created their songs before 1972 will start receiving digital royalties, and a new licensing collective will be created to oversee digital mechanical licensing. However, just before the final full vote in the Senate, private equity firm Blackstone, which owns performance rights organisation SESAC, submitted a proposal that is considered by many to upset “the fundamental structure of the bill to benefit its private company at the expense of the entire music industry”. SESAC argues that a new licensing collective would make companies that administer such licenses obsolete. The new MMA would cause a huge harm to SESAC’s investment as in 2015 when it acquired the near 100-year-old Harry Fox Agency (HFA), the rights management and collection entity that acted “as a hub” for administrating and distributing mechanical license fees on behalf of music publishers. Therefore, SESAC has argued that by allowing multiple vendors that would administer licences and royalty payments there will be a fair competition on the market. The proposal has been negatively received by other music business organisations and players, which believe that SESAC’s action will act as a ‘poison pill’ and such proposed mechanism would not be efficient. Ben Herbison, executive director of Nashville Songwriters Association International (NSAI) argues with the late proposal SESAC is “trying to kill the bill” and said that “those who crafted the legislation would rather no bill pass than the amended version that SESAC has pitched to Senate”. In response to the comments, SESAC has stated that it “wholeheartedly supports the goals of the Music Modernization Act and wants those goals made law — just like you do. […] We’ve suggested a simple amendment to improve competition so we can continue to ensure that ALL songwriter and publisher royalties continue to grow. Any assertion to the contrary is simply dishonest”.

German Bundesgerichtshof ruled that WiFi Operators are not Liable for Copyright Infringement on their Networks

Last week, German Federal Court of Justice (Bundesgerichtshof) ruled in the case involving an illegal download of a game ‘dead zombie’ that under the new German Telemedia Act, internet providers are not liable for copyright infringement via file sharing conducted by third parties on their network. In the past under the legal principle of Störerhaftung, operators of internet hotspots were subject to fines and legal actions in case someone using their network has downloaded copyrighted content illegally. This situation has caused a fear among many businesses to provide their customers with free WiFi and most of the networks were protected by passwords.

The amendment to the Telemedia Act is a result of the CJEU’s ruling in Tobias Mc Fadden v Sony Music Entertainment Germany GmbH, where in the case involving Sony suing a shop owner for illegal download of music through an unsecured hotspot, the Court has ruled that while wireless network providers should not be liable for violations by third parties, "a court or a national authority can issue an order against a wireless network provider to prevent the repetition of an infringement”.

The ruling of Bundesgerichtshof is in the opinion of Joseph Fesenmair is a “bad news” for rights owners as private WiFi operators will no longer be required to set passwords to avoid liability intermediaries for third-party infringement. However, the operators may still be required to install blocking measures in cases of misuse and in the opinion of Jan Hassold, they can be held liable where they fail to fulfil blocking requests. Max Kinkeldey and Mark Peters believe that more clarity is still needed “over what ‘adequate measures’ WiFi operators need to employ to block access to illegal content”.

Nintendo has decided to take action and filed a lawsuit against a popular console ROM websites LoveROMS.com and LoveRETRO.co, which according to Nintendo are considered as one of the most notorious sites for piracy games. These websites have enabled their users to play particularly retro games on platforms other than consoles that they were intended for, through the emulators and numerous tools. Nintendo was not fond of this practice and has decided to sue the owners of both websites for copyright and trademark infringement by filing a complaint at a Federal Court in Arizona. In its complaint, Nintendo has asserted that “[t]hrough the LoveROMs and LoveRETRO websites, Defendants reproduce, distribute, publicly perform and display a staggering number of unauthorized copies of Nintendo’s video games, all without Nintendo’s permission”. Apart from copyrighted games, the websites have made available software and used trademarks owned by Nintendo. In its complaint, the company requests statutory damages of $150,000 per infringement of a game and up to $2,000,000 for each trademark infringement. As reported by TorrentFreak, “with more than 140 copyrighted titles and 40 trademarks on the record, theoretical damages could go up to a staggering $100 million”. As a result of Nintendo’s actions, LoveRETRO website has been shut down by its owners and LoveROMs decided to remove all of Nintendo’s titles.

Thursday 19 July 2018

Artificial cosmoi and the law

Artificial cosmoi and the law (2nd edition)


A conference organised by
UCL Centre for Law, Economics & Society


Monday 30 July 2018 

9am - 5pm
at History Museum of Athens, 5 Tholou Street, Plaka, 10556 Athens, Greece


Book Now

About this event

Transformative general-purpose technologies have resulted in the “fourth industrial revolution”: Blockchain, Big Data and Data Science, gene editing through CRISPR, Artificial Intelligence and machine learning. Robots are leading to rapid changes in the way services are offered, products are manufactured, and commerce is made, leading to the emergence of new industries/spheres of economic activity.  Data collection is very extensive. There are legitimate concerns on privacy violations, and a need to a regulatory solution to guard privacy without killing the benefits of digital platforms. A new key area of business activity, platforms, bring together disparate sets of users, such as cardholder and merchants in a credit card platform or drivers and customers in Uber. Currently, the five most valuable firms in the world (Amazon, Apple, Facebook, Google, and Microsoft) are platforms. The development of blockchain and decentralised ledger technology may challenge the dominance of digital platforms and lead to a more decentralised economic system. “Winner-take-most” competition with the emergence of “superstar firms” may raise competition concerns but has also arguably led to a decline in labour’s share. Automation may relieve humans from certain tasks, so that they can spend time on more valuable work, or it can lead to the splitting up of activity previously exercised by humans in various activities, some of which may be automated. It can eventually replace an entire job once performed by a human, thus having important implications on employment in certain economic sectors and/or social inclusion.
Legal systems have been conspicuously slow in adapting to the needs of society and to the development of new technologies. When, even with delay, law reacts to societal changes, it usually has just a restricting function: it prohibits rather than enables certain types of activities. Thus, the law is a rather poor instrument in dealing with the cataclysmic changes brought by the very rapid developments in technology. These touch upon all aspects of social life, ranging from issues of employment and intellectual creation, or more generally the creation of resources, to new modes of data and AI-driven governance, affecting multiple environments, reaching from the streets and hospitals to the financial system and the battlefield. For the law to remain relevant, it will have to rapidly adapt to these challenges, so it can remain at the epicenter rather than the periphery of social and business activity. It is also important that technology entrepreneurs be cognizant of the crucial importance of the legal system and of the necessity of adaptive changes to it when designing their business models, since ignoring the role of the law may jeopardize their innovative efforts and disruptive innovations. The second edition of the "Artificial cosmoi and the Law" conference aims to explore the interactions between law and new general purpose technologies, such as blockchain, Artificial Intelligence and gene-editing, but also more broadly to reflect on the legal construction of digital capitalism.


  • Emilios Avgouleas, Chair in International Banking Law and Finance, University of Endiburgh
  • George Dimitropoulos, Assistant Professor, HBKU
  • Nick Economides, Professor at NYU Stern Business School
  • Hamid Ekbia, Professor of informatics, Indiana University Bloomington
  • George Flouris, Foundation for Research and Technology - Hellas (FO.R.T.H.)- Institute of Computer Science (I.C.S.)
  • Sotiris Georganas, Reader in Behavioural Economics City University London
  • Carsten Gerner Beurle, Professor of Commercial Law, UCL
  • Yiannis Golias, Rector, National Technical University of Athens
  • David Grewal, Professor of Law, Yale Law School
  • Christos Hadjiemmanuil, Professor of International and European Monetary and Financial Institutions at the University of Piraeus & Visiting Professor, Department of Law, LSE
  • Alexey Ivanov, Director, HSE Skolkovo Institute for Law & Development
  • Michael Jacobides, Professor of Strategy and Entrepreneurship; Sir Donald Gordon Associate Professor of Entrepreneurship and Innovation, London Business School
  • Aggelos Kiayias, Chair in Cyber Security and Privacy and director of the Blockchain Technology Laboratory at the University of Edinburgh
  • Mihalis Kritikos, Policy Analyst, European Parliament
  • Ioannis Lianos, Chair in global competition law and public policy, Director of the Centre for Law, Economics and Society, UCL
  • Bjorn Lundqvist, Associate professor of Law, University of Stockholm
  • Manos Mastromanolis, Assistant Professor of Commercial Law at the Faculty of Law of the University of Athens
  • Alexandra Mikroulea, Associate Professor in the Faculty of Law at the Athens University
  • Greg Pelecanos, Partner, Ballas, Pelecanos LLP
  • Alexandros Seretakis, Assistant Professor, Trinity College Dublin
  • Kostantinos Stylianou, Lecturer in Competition Law and Regulation, University of Leeds
  • Dimitris Tzouganatos, Professor of Competition Law at the University of Athens, Faculty of Law
  • Nikos Vettas, General Director of the Foundation for Economic and Industrial Research IOBE & Professor of Economics, Athens University of Economics & Business
  • Alexandros Varveris, Special Laboratory Educational Staff and Deputy Director of the Lab of Law and Informatics, Law School, UoA,
  • Angela Walch, Associate Professor at St. Mary’s University School of Law
  • Georgios Yannopoulos, Assistant Professor for IT Law and Legal Informatics, Director of the Lab of Law and Informatics, Law School, UoA


£60 standard ticket

Tuesday 17 July 2018

The COPYKAT: "Faceswap" for the Statue of Liberty, trade wars, and embezzlement

It's been an exciting few weeks for copyright around the world. This CopyKat takes a look at three "David vs Goliath" disputes, in which parties (respectively) include the US Government, Fifa and an 8 year-old boy, and one of Africa's largest telecoms companies. Also in the news: YouTube rolls out its anticipated Copyright Match tool, copyright collecting societies in Kenya continue to struggle with accountability, and China launches an IPR awareness campaign.

Lady Liberty "faceswap" will cost the United States Postal Service $3.5M

Between 2011 and 2014, the United States Postal Service (USPS) used an image of the Statue of Liberty for its Forever Stamp series (a type of First Class postage stamp). Unfortunately for the USPS, the image they chose was not actually of the famous statue that towers over New York Harbor designed by French sculptor Frédéric Auguste Bartholdi in 1886. Instead, the image they chose was actually Robert S. Davidson's replica Statue of Liberty which looks over the New York-New York Hotel & Casino in Las Vegas. Davidson sued for – and won – nearly $3.5 (£2.6) million in royalties, plus interest.

As reported by Artsy, an eagle eyed stamp collector identified the mix-up in 2011. The USPS was made aware of the goof in 2013, but went on to print another 1.13 billion stamps with the replica’s image. For context, the judgement cited that the USPS made some $70 million in revenue resulting from sales of this Lady Liberty stamp alone.

The statues in NYC (left) and Las Vegas (right).

The Post Office purchased the photo used on the stamp from the image service Getty for $1,500 (£1,140). However, the license only covered the rights to Getty's photograph of the statue — and not the statue itself. The USPS neglected to seek permission from Davidson, likely because they simply assumed what it was using was in the public domain.

In its defense, the USPS asserted that the statue is a replica and accordingly, contains no truly original work. If true, this would render Davidson’s copyright claim invalid, and the government would owe nothing for its use of the replica statue’s image.

Davidson was therefore tasked with proving that his copyright in the statue was valid, which under US law requires only a showing of “some minimal degree of creativity” and that it was his own “independent creation” of those original elements.

By way of reminder, the focus is on the expression of an original idea and not the idea itself (Oracle Am., Inc. v. Google Inc., 2014). As such, Davidson’s statue did not need to be wholly original, but rather a “new and original expression” of some previous work or idea – namely, the famous Bartholdi statue.

Davidson argued in his lawsuit that he wasn't trying to create a replica of the original, but rather to craft a fresher, more feminine version. As was later quoted in the ruling, he “envisioned his mother-in-law as inspiration ... and viewed her picture every night during the construction of the face of the statue."

The Court examined photographs and was satisfied that Davidson “succeeded in making the statue his own creation, particularly the face.  A comparison of the two faces unmistakably shows that they are different.” Ultimately, the Court agreed that Davidson’s statue “evokes a softer and more feminine appeal.  The eyes are different, the jaw line is less massive and the whole face is more rounded. “

The USPS’s defense that the stamp fell under the fair use exemption was rejected by the Court. As the USPS printed “billions of copies and selling them to the public as part of a business enterprise … so overwhelmingly favors a finding of infringement that no fair use can be found.”

In case you’re wondering how the USPS – which is a US government agency – can be successfully sued for copyright infringement, 28 U.S.C. § 1498(b) waives sovereign immunity for claims of copyright infringement against the federal government “for the recovery of his reasonable and entire compensation as damages for such infringement.”

YouTube's "Copyright Match" offers enhanced screening technology (for a selected few)

As the CopyKat mentioned last month, YouTube has been beta testing a feature called Copyright Match, designed to find re-uploads of content on other channels. The tool will point content uploaders (creators) to instances where their work has been stolen, and allow them to request that YouTube delete the guilty party’s video on the grounds of copyright infringement. Last week, YouTube channels with more than 100,000 subscribers received access to the new tool.

When a creator uploads a video to the Copyright Match tool for review, other video uploads on different channels will then be scanned to detect similar content has been uploaded. Fabio Magagna, the product manager for the Copyright Match Tool, explained on the YouTube Creators blog that “when there is a match, it will appear in the ‘matches’ tab in the tool and you can decide what to do next”.

Although YouTube already offers an automated copyright-flagging system called Content ID, Copyright Match is different because it’s designed especially for YouTube creators who have problems with unauthorized re-uploads.

By YouTube’s own admission, the Copyright Match is “a powerful feature,” which will be monitored closely in its early stages. Magagna noted that the software will continue to expand over the coming months, “with the long-term goal of making it available to every creator in the YouTube Partner program.” The company insists that takedown requests will be reviewed to make sure they comply with YouTube’s copyright policies.

The introduction of Copyright Match comes at a time of intense debate surrounding user-uploaded content on social media platforms such as YouTube. In particular, The European Parliament recently voted to reject a new copyright directive.  At the heart of controversy for many was Article 13, a section of the proposed directive that focuses on the use of copyrighted material uploaded by users.

And yes, in case you’re wondering: new YouTube video reviews of Copyright Match are already available to watch.

Fifa takes down celebratory World Cup dance video: is this a step too far?

The World Cup is the largest single sporting event on Earth, with nearly half the world’s population tuning in. With England’s (somewhat surprisingly!) good run up to the Semi-Finals, fans of the Three Lions were especially eager to show their support.

When England’s captain Harry Kane scored a goal against Tunisia, a mother filmed her 7-year old boy celebrating the moment. She subsequently posted the short 5-second clip of him dancing in the living room on Twitter. However, FIFA - Football's ruling body - ordered the clip removed from Twitter. FIFA claimed the clip infringed their copyright, as viewers could see blurred football action from the family's TV in the background.

Speaking to the Mirror, Kathryn Conn explained that her son “is a massive Spurs fan and he absolutely worships Harry Kane so he started dancing around in the living room. All you can see on the TV in the background is a really blurry replay of the goal. It's hardly visible."
England captain Harry Kane won the Golden Boot for most goals scored in the tournament.

According to Conn’s tweet on the subject, the copyright notice from Twitter was brought under the US Digital Millennium Copyright Act. Several sources including iNews report that Fifa issued a letter stating: “On behalf of Fifa, we hereby assert that your making available and/or promoting of the protected content on your platform is not authorised by Fifa, its agent nor the law and that your activities in this regard serve as a serious infringement of Fifa’s exclusive rights.”

By way of background, Fifa reports on its finances page that around 95% of its revenues come from the sale of television broadcasting, marketing, and licensing rights related to the FIFA World Cup.
From the 2014 World Cup in Brazil, Fifa hauled in $4.8 billion in revenue, which turned a $2.6 billion profit for the association (which is then re-invested into development projects). Compared to ticket sales earned $527 million, Fifa’s broadcast revenue topped $2.43 billion, while sponsorship fees brought in $1.6 billion.

To date, Fifa’s intellectual property portfolio contains 14,000 trade mark registrations, about 300 registered designs, and 150 copyright registrations covering 157 jurisdictions overall. As is made clear in its 30-plus pages of official guidance on brand protection, Fifa has millions of reasons to be protective of its intellectual property.

Fifa engages in active surveillance and brand protection, which includes court proceedings to halt an infringing situation and seek financial compensation for any damages suffered. However, sharing official content belonging to FIFA by fans without any commercial benefit is expressly permitted, as per the branding guidance. Curious by nature, this CopyKat’s therefore wonders why an account with barely 200 followers was singled out in this instance.

Did Safaricom steal Songa app from former employee?

Web developer Evans Gikunda has sued Radio Africa and Safaricom, accusing them of infringing his copyright when they launched a mobile app, Songa by Safaricom several weeks ago. Safaricom is a leading mobile network operator in Kenya, and its Songa music app enables subscribers “to get their local and international songs in one place and keep them consistently entertained and updated.”
Gikunda claims that he created the music app between 2012 and 2016. In 2013, while working as a developer at Radio Africa, the Chief Executive at Radio Africa Patrick Quarcoo “persuaded Gikunda to partner with him to ensure that the product gets to market” (IPKenya). According to Gikunda, Quarcoo proposed that that once Radio Africa’s Board of Directors sanctioned its participation in his app, they would share out the ownership of the app. The ownership was proposed at Radio Africa – 40%; Gikunda- 30%; Quarcoo- 20%; and the remaining 10% to a strategic partner.
In 2016 Gikunda left Radio Africa (under less than favourable circumstances) and says that after his resignation, Quarcoo sold the app to Safaricom without consulting him. Gikunda had not been “involved in the process at any stage, and neither has he benefited from it; despite the claims he created the platform” (innova8tiv). As with most intellectual property disputes arising between (former) employees and their bosses, establishing the ownership of the copyright subsisting in the Songa app lies at the heart of this matter. Gikunda is asking the High Court to compel Safaricom and Radio Africa to reveal how much money they have made from ‘Songa by Safaricom’ and is seeking damages.

To be successful in his claim, Gikunda will need to establish that he created his app outside the scope of his employment with Radio Africa, and that the app currently used by Safaricom is a reproduction or adaptation of his original app. To complicate matters, Gikunda’s app has been known under a variety of other names, including ‘NakedGroove’, ‘The Platform’, ‘The Music Platform’ and ‘RAMP’ – the latter being an abbreviation of either ‘Radio Africa Music Player’. Additionally, neither Gikunda nor Radio Africa obtained copyright registration, which further confuses the evidence.
This calls into question whether or not Gikunda made the program as part of his employment with Radio Africa (see also the work-for-hire doctrine), as well as the enforceability of moral rights for digital works. To achieve an injunction against the companies, which Gikunda is also seeking, he will need to prove that damages alone are an insufficient remedy.

Copyright woes continue for Kenyan collecting societies

Kenya's High Court

Elsewhere in Kenya, the complicated saga of the copyright collecting societies continues. Most recently, the High Court (pictured) ordered the Music Copyright Society of Kenya (MCSK) to account for the money it has collected as royalties and licence fees since January 1st 2017. Justices RN Sitati, DS Majanja and TW Cherere have given the MSCK thirty days to comply with the order (The Star).
In 2015, it was noted that MCSK's disbursement of royalties to artists has been decreasing for several years. The Kenya Copyright Board (KECOBO), the government organisation tasked with enforcing copyright in Kenya, established a minimum standard of 70% of revenue to be given back to artists. However, MCSK’s disbursement rates to musicians has fallen to 58.9% of collected revenue. Although MCSK was once Kenya’s largest royalty-collecting body, KECOBO revoked its licence in February of 2017 when MCSK failed to provide audited financial statements. The move came amidst allegations from local artistes over embezzlement of their royalties by MSCK.

As the CopyKat discovered back in May, Kenya is not the only African country to be experiencing problems with copyright collecting societies: power struggles with the Copyright Society of Nigeria (COSON) and the Nigerian Copyright Commission continue. 

Copyright awareness comes to China 

China has launched a four-month campaign to protect the intellectual property rights: you can visit the campaign website here. First announced in September, the campaign is seen by many as an attempt to alleviate major concerns among foreign investors, including those in the United States. 

China’s lack of strong intellectual property rights protection measures “frequently draw complaints from foreign investors and have been a long-standing focus of attention at annual talks with the US and Europe” (South China Morning Post). The Trump administration has officially launched a probe into alleged Chinese intellectual property theft which, amongst other things, led the United States to impose punitive tariffs on Chinese products. 

The campaign, which will last for at least four months, has been jointly launched by the National Copyright Administration of China (NCAC), the Cyberspace Administration, the Ministry of Industry and Information Technology and the Ministry of Public Security.

It will target key areas including unauthorized republication of news and plagiarism on social media, unauthorized broadcasting of copyrighted content on short video sharing apps, and copyright violations by setting up overseas servers. The campaign will also push service providers to enhance their internal supervision systems (China Daily).
Chairman Mao Memorial Hall in Beijing
In 2012, an article on Forbes argued that “IP protection will always be an uphill struggle in China and for companies doing business there,” as individual rights – including intellectual property rights – may be in some instances at odds with traditional Chinese society. 

A more recent Reuters article from April of this year explained that while Chinese IP protection laws are comparable to U.S. and European legal standards, the weakness lies in implementation, with high levels of bureaucracy. In particular, “court decisions applying on a provincial level rather than nationally, and judges often having different interpretations of the laws.”

In China, many consider that “even the education system works against an embrace of IP protection,” and until IP infringement is seen as an immediate threat to economic success, “few will really care.” Will a potential trade war be the impetus China needs to close the gap?

Tuesday 10 July 2018

The CopyKat - Copyright in DSM Directive Vote and Copyright Infringement Actions

Proposal for Copyright in the DSM Directive – Where are we Heading Now?

Following the vote of EU Parliament’s Legal Affairs Committee (JURI) in favour of the Directive for Copyright in the Digital Single Market (known as Copyright Directive) last week the plenary session of the European Parliament has rejected the proposal that aimed at updating the rules for the digital age [reported here]. After a number of protests from the internet platforms, including Wikipedia blocking access to its websites, and opponents who believed that the Directive, if adopted in such shape, would limit internet freedom and creativity, MEPs have decided that the proposed changes require further debate. The rejected bill aimed to strengthen the enforcement of copyright rules online, wit the new provisions in Article 13 requiring internet intermediaries to monitor their platforms anc put filtering mechanisms in place which would detect copyright infringement and block the infringing content. Article 11, known as ‘link tax’ planned to require online platforms such as Google and Facebook to buy licences from media and news companies before providing links to their stories. This, opponents argued, could prohibit anyone from providing commercial service to use snippets from online articles without obtaining a licence from publishers. In the letter addressed to MEPs 70 internet leaders shared concern over the proposal saying that the proposed changes would take “an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users”. On the other hand, artists and music industry strongly supported enactment of new copyright rules. Sir Paul McCartney urged MEPs in a letter to “uphold the mandate on Copyright and Article 13” and wrote that the proposed Directive would address the value gap and ensure “a sustainable future for the music ecosystem and its creators, fans and digital music services alike”. Michael Dugher, UK Music CEO believed that the changes could “end an injustice that has seen Google’s YouTube and other big tech firms ripping off creators for far too long”. The body had previously accused Google of spending €31 million on lobbying operation that was aimed at issues related to the digital copyright reforms. It's not over yet - and the rejection mans that  proposals will now be further considered after a rarely invoked Parliament procedure was used, and now MEPs will have a month to propose their amendments with a new vote likely to take place in September. Until then the increasingly raucous debate, which already brought a lot of attention, is likely to get even more heated.

While most of the eyes were focused on the vote in the European Parliament, the Regional Court of Hamburg has ruled in favour of German Collecting Society GEMA regarding the liabilities of the UseNeXT platform. According to GEMA, UseNeXT together with its owner Aviteo should be liable for copyrights of its users who shared unlicensed music and movie content through the Usenet platform. In the view of the Court, under German law internet platforms such as UseNeXT may be liable for copyright infringement of its users, where the business model promotes in a certain way, the uploading and distribution of copyrighted material that is unlicensed. The Court also considered that Aviteo is liable for the infringement in this case on the basis that it provides tools that aim to seek out music and movie files. Dr Tobias Holzmüller from GEMA believes that this case is a great success for the songwriters and publishers that are gathered in the society and creates “an important precedent for claims for damages in the field of internet piracy,” where online platforms “cannot hide behind legal principles.” Although the ruling is favourable for GEMA it is not yet binding as Aviteo can bring an appeal.

The US District Court in Dallas has ruled that Facebook-owned Oculus which specialised in the development of VR devices is required to pay $250 million for using ZeniMax’s computer code in its virtual reality headset, which is popular among video gamers. After the acquisition of Oculus by Facebook in 2014, ZeniMax brought a lawsuit which alleged that when one of its employees had left the firm and stolen ZeniMax’s intellectual property. Judge Ed Kinkeade has affirmed the jury’s decision awarding ZeniMax $200 million for breach of contract and $50 million for copyright infringement. The judge, however, decided not to award an additional $250 million which was claimed against Oculus co-founders. Additionally, ZeniMax’s request to ban sales of Octopus headsets was rejected. According to ZeniMax, Oculus continuously infringes its copyright and therefore “a permanent injunction is the only way to stop it.” Oculus viewed the infringement of copying seven lines of the code as insignificant given that the software consisted of over 42 billion lines.

Ed Sheeran has been hit with another copyright infringement lawsuit. Having settled a conflict in relation to ‘Photograph’ [more details here], this time he has been accused by the heirs of Marvin Gaye of copying ‘Let’s Get It On’ song in his ‘Thinking Out Loud’ composition. The lawsuit was brought by Structured Asset Sales (SAS) and follows a failed attempt by SAS to join the previous Townsend (Gaye’s heir) action, which was turned down on 11 June 2018. Now SAS has filed the lawsuit itself and seeks $100 million in damages for the portion of Gaye’s song that they own. As argued by the owners in their action against Ed Sheeran and co-writer of the song, Amy Wadge, ‘Thinking Out Loud’ takes many elements from Gaye’s song, such as “the melody, rhythms, harmonies, drums, bass line, backing chorus, tempo, syncopation and looping.” 1709 readers will no doubt remember that in 2015 the owners of Gaye’s song catalogue filed and ten won a successful (if somewhat controversial) suit against Robin Thicke and Pharell Williams’ “Blurred Lines” hit and accused them of copying ‘Got to Give it Up’  song.

YouTube’s Content ID system aims at ensuring that copyrighted content is not used without the author’s permission. The system has, however, some limitations and there are situations where it makes mistakes that result in the wrong content being taken down and demonetised [previously reported here]. This time, Paul Davids, who is a Dutch YouTuber known for his videos where he plays various famous guitar riff, last month has received a copyright infringement notice from the Content ID system for one of his videos. As he claims it turned out to be his own video that he had infringed upon. The author was particularly shocked when he found out that someone else took his original track, “added vocals and guitar to make their own track, and uploaded it to YouTube”. As a result of the notice, all the money which were earned from the video rather than to the original author were directed to the person who has copied his content. Following the appeal procedure, YouTube has resolved the matter in favour of the original author.

Last year, following a use of a piece of library music called ‘Eminem-esque’ in their 2014 election campaign advert, a Wellington High Court in New Zealand has found that the music used by the National Party had substantially copied the Eminem’s song ‘Lose Yourself’ [discussed here]. Accordingly, the Court has ordered the National Party to pay NZ$600,000 as the "hypothetical licence fee that would have been charged” had the publisher given permission to use the copyrighted work. Now, the political party has appealed to the Court of Appeal aiming to lower the amount that they have to pay in damages for their copyright infringement. In the opinion of the Nationals’ lawyer, the Court relied on the advice of an expert who had no relevant experience in New Zealand and the if fact the ad campaign only ran for 11 days. Therefore, no premium prices should be charged. As reported by NewsHub, the decision is reserved, meaning that the outcome a decision may be known in several weeks or months. Conversely, the rights owners believe the damages are insufficient!

Thursday 5 July 2018

BREAKING NEWS - EU Copyright Reforms Stalled

European MEPs who voted on the Copyright Directive in Strasbourg today have failed (by a small majority) to move the legislative process forwards whereby the European Union Council, Commission and Parliament could have negotiated a final text for passage into law. The vote was close, with 278 in favour, 318 against and 31 abstentions. The outcome rejects the earlier Legal Committee decision to approve the draft law, which will now be sent back to parliament for further discussion.

The battle to update the EU’s copyright laws, the first since 2001, has sparked fierce lobbying from opponents to the  led by internet giants such as Google and free speech advocates (see our previous post), with the backing of celebrities such as Stephen Fry and Tim Berners-Lee, and those in favour of the plans such as film companies and record labels and artistes who included the former Beatle, sir Paul McCartney and James Blunt.

The cultural and creative sectors, and rights owners will be more than disappointed. Anders Lassen, president of the European Grouping of Societies of Authors and Composers who backed the rule changes, said the vote was a “missed opportunity”, and PRS for Music’s Chief Executive, Robert Ashcroft said this

 “It is perhaps unsurprising considering the unprecedented level of lobbying and the comprehensive campaign of misinformation which has accompanied this vote that MEPs want more time to consider the proposals. The vote showed that many MEPs across the various European political parties understand the importance of fixing the transfer of value and of a well-functioning market for copyright. We appreciate their support and hope that as we move forward to the Plenary debate in September, more MEPs will recognise the unique opportunity to secure the EU’s creative industries.

“From the outset our primary focus of this legislation has been concerned with whether or not the internet functions as a fair and efficient marketplace – and currently, for artists and authors, it doesn’t. They want their creative works to be heard, they embrace technology, but they want to be paid fairly. We will continue to fight for what we believe is their freedom and a fair use of their creative works.”

MEPs will now have to go back to the drawing board this summer before the proposals are voted on again in September.