Tuesday, 30 July 2019


Unauthorised sampling - the CJEU adds some clarity

The core issue in this all important case between the German electronic music pioneers Kraftwerk and and hip-hop producers Moses Pelham and Martin Haas in 1999 over the Sabrina Setlur song “Nur Mir”, which revolves around thse sample a two-second snippet of Kratfwerk's “Metall auf Metall” used as a loop was whether a license is required for sampling and could non-pursual of the same violate the phonogram producers rights? The AG's opinion which was released in December and 2018 gave an affirmative view to the same arguing that the “reproduction in part” does not require copied portions to be original. The CJEU in its decision (according to IPKAT and the Press Release) has stated that the reproduction of a sound sample by a user even if a very short clip must be regarded as a reproduction in principle “in part” and falls in the realm of the exclusive ownership of the phonogram producer. However the court went on to add that a rational respect towards freedom of artiatic expression in music must be recognised when the sampled portion is creatively played with to the extent that it is unrecognisable to the ear in another phonogram. In that case it won’t be a reproduction.  So the CJEU has now said that sampling a sound recording, however short a snippet the sampler takes, needs approval from the copyright owner of the original track and in accordance with the same it held the German Legislation allowing for an exception in the case of sampling as incompatible with the EU law, and it imperative to harmonize this substantive phonogram producers exclusive right irrespective of the fundamental right grounds claimed by the national jurisdiction. 

5 Seconds of Summer accused of copying by Hungarian songwriters

Moving from sampling to allegations of plagiarism, A Texas court recently saw a case where the Aussie pop group Five Seconds of Summer had been accused of ripping off a 2018 hit called “Younghood” from a song composed by Hungary based musicians David Henderson, David Toth and Peter Ferencz called “White Shadows”. It has been alleged by the applicants that the success of this rip-off has substantially taken to band to new heights virtually single-handedly, as reported by Complete Music UpdateIt has been alleged that the first melodic phrase of “Youngblood” shares virtual identicality with the similarly placed phrase from “White Shadow” and are both repeated equal number of times in the songs i.e. 4 times. The lay-listener has been used to allege an infringement by the Hungarian composers. It has further been alleged that the worldwide acclaim and substantial revenue which has been garnered by virtue of Youngblood, is a result of exploitation and appropriation and the applicant’s deserve accreditation and compensation in lieu of the same.

Take a listen - with the Applicant’s song is here https://youtu.be/7zMzXQU5dkA and the allegedly infringing song here https://youtu.be/-RJSbO8UZVY . In a second major case, a jury has now ruled that the Katy Perry song Dark Horse does plagiarise a Christian rap song. After two days of deliberations, the jurors concluded that Perry's team had likely heard 2008 release 'Joyful Noise' before writing 'Dark Horse', and that the latter was sufficiently similar to the former to constitute copyright infringement.

Now NIKE sues Kawhi Leonard - claiming exclusive rights on its Logo!

Nike has filed a countersuit against NBA star Kawhi Leonard, arguing that it holds exclusive rights to the claw logo that its “talented team of designers” created and claims its distinct from the design that Leonard had sketched and provided to the company, his “Klaw” logo, which he had conceived and created in college drawing on his hands. Although it has been admitted by the NIKE legal representatives that  Kawhi Leonard had submitted a design, they have gone on to state that it is a false claim that the design was the “Claw” design, as reported in the Bulletin. In the form of a counter claim, NIKE has gone on to now allege copyright infringement and breach of contract. This has been done in lieu of the use of the claw design on non-Nike apparel in the NBA finals. Nike had already served notice to Leonard’s lawyers in lieu of the same which was responded with non-agreement and compliance. Nike has further argued as reported in NiceKicks.com that Leonard had on an earlier occasion claimed that “I drew up the rough draft and sent it over and they made it perfect. They refined it and made it look better than I thought it would ever be, and I’m extremely happy with the final version.” Further, Nike has produced the initial sketch in the court which was given by Leonard which looks like an amateur drawing as has been reported by the Bulletin. Also, Nike does not claim any ownership over this initial rough design, rather merely on the final refined version.

CASE Act passed by the Senate Judiciary Committee

As had been reported by PetaPixel, the long awaited CASE Act has been passed by the Senate Judiciary Committee - if passed, the bill will  go on to establish a small claims court for Copyright Infringement cases in the USA. There is yet to be a full vote on the Senate Floor. Currently, to defend one’s copyright, a direct action needs to be made before the Federal Court which is an expensive and an extremely formalistic procedure. However, this act if legislated successfully would establish a small claims tribunal within the US Copyright Office, simplifying defense of copyrights. The highest amount of damages which can be awarded by this court per infringed work would be $15,000 with the total being a maximum of $30,000. This definitely increases the efficiency and reduces a certain amount of burden on the Federal Court. It will involve the appointment of three full-time Copyright Claims Officers who will look after the same.

This bill has been extensively supported by the US photographers, illustrators, graphic artists, songwriters and authors as well as bloggers! Even the National Press Photographers Association went ahead to commend the pressing of this act in the Senate by saying ““This is a very positive step in addressing infringement issues, where previously individual creators felt they had a right with no remedy because of the high cost of copyright litigation”, as reported by PetaPixel. The only criticism which has been drawn however has been upon the unappealable nature of this tribunal and the high amount of $30,000 being involved as a punitive power. 

It will be interesting to see the voting view taken by the Senate floor.

DailyMotion denied safe harbour protection

Dailymotion has been ordered to pay €5.5m in damages to Italian broadcaster Mediaset with the Rome court saying that Dailymotion was “entirely aware” of copyright infringement. As reported by Complete Music Update, in a case brought in by the Italian TV company RTI against  Dailymotion, it was argued by the applicant that Dailymotion should be held liable for hosting copyright infringing content without a license, involving programmes of the applicant. The take-down commitments were fulfilled by Dailymotion, and upon serving a notice, it had taken down such alleged infringing material. However, the Rome Court, absolved the safe harbour protection available to such intermediaries like Dailymotion as it did not fulfil the criteria set out in the EU E-Commerce directive, which is the origin point of the EU Safe Harbour norms. It has been ruled to be an “Active Host”. For failing to have a filtering mechanism and a system to automatically remove all such infringing content, Dailymotion has been asked to pay 5.5 million euros in damages. This has greatly increased the responsibility of a user-upload based intermediary platform and has reduced the standard from actual knowledge to mere presence. The courts of Rome have further refused to involve the European Court to confirm and clarify the interpretation and applicability of the EC Directive. It has been held that the right holder did not have an obligation to provide URL’s for the content that the platform should remove in its take down request and a simple indication in the title of the video would be sufficient. This seems all the more as an absurd and a non-sustainable interpretation and it will be interesting to see how this case turns out in lieu of the pending cases on the interpretation of Article 14 of the EC Directive in the CJEU. Although, this decision has been hailed by Italian media Conglomerate wherein it has reportedly been stated by its Chief Executive that: “Today’s decision is therefore an authentic turning point in consolidated national and EU jurisprudence (repeatedly referred to by the Court in the judgment in question) aimed at protecting the work of publishers, which is under attack by diverse forms of online piracy: A phenomenon that destroys both economic value and jobs in journalism and publishing companies.” (Reported by IBC 365). More on this in the IPKAT.

The functionality doctrine revisited in the Lego’s Copyright dispute against its British Competitor

The world famous toy maker from Denmark, Lego, has successfully won a copyright infringement suit against a British competitor in the US District court for the District of Connecticut. This dispute was launched in 2011 when Lego had sued Best-Lock for producing and selling infringing minifigurines. It was alleged, as reported by World IP review, that Best Lock’s advertisements had highlighted the well-known interchangeability of its figures and body parts with Lego’s. The main argument of the defendant in this case was the elements of Lego’s copyrighted work being functional. The court after confirming access, went on to conclude that the fact that some elements of the work are functional doesn’t render the whole work as non-copyrightable. The court said: “A comparison of the works makes clear that Best-Lock has copied protectable, expressive elements that are original to Lego”  Remember the case of Broderbund Software v. Unison World?

Copyright Protection of Military Reports, of national importance

In a very important opinion issued by the CJEU on a reference made in context of litigation between the German Government and a newspaper over unauthorized publication of “Afghanistan papers” and certain confidential reports, wherein the question of interplay of Copyright and Freedom of Press was brought in before the CJEU. Basically, the question was can freedom of expression and information be a valid defense for copyright infringement? The AG opinion reflected reluctance in admitting copyrightability of military reports. However, the CJEU has gone on to rule that Freedom of Information and press are not justifiable grounds to derogate from rights of copyright holders beyond exceptions set out itself within the InfoSoc directive. The concept of external limitations is not viable in law. As on the question of whether military reports are copyrightable in the first place, the court went on to hold that it is upon the national courts to decide whether the conditions of copyrightability and intellectual creation showing free and creative choices are there in these reports or not. If fulfilling the criteria of being a “work”, no justification in the form of freedom of information is sustainable.

The court went on to finally hold that: “As is clear from the case-law of the European Court of Human Rights, for the purpose of striking a balance between copyright and the right to freedom of expression, that court has, in particular, referred to the need to take into account the fact that the nature of the ‘speech’ or information at issue is of particular importance, inter alia in political discourse and discourse concerning matters of the public interest. In those circumstances, having also underlined the way in which Funke Medien published the military status reports on the internet, the Court of Justice states that it is not inconceivable that such use may be covered by the exception concerning current events reporting provided for in the Copyright Directive.” More on this once the judgment is available  on IPKAT.

And finally - trolls get a bashing

A High Court Judge has torn apart a trolling application made against Virgin subscribers in the United Kingdom - Douglas Campbell QC's can be found on TorrentFreak and is well worth a read - here's a snippet: "I do not accept that I should simply assume that a 9 year old expert report remains up to date, particularly one given in the field of computer software,” the Judge commented, noting that the report also lacked the required “statement of truth” to comply with civil procedure rules  ..... . 

This Copykat by Akshat Agrawal

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