Monday 25 November 2019

THE COPYKAT

In a curious turn of events, police in Thailand have now said that they will seek a warrant to arrest copyright agents who allegedly attempted to extort 50,000 baht from a 15 year old for copyright infringement. About 50 vendors in Korat are also said to be preparing to file criminal complaints against the same copyright agents. They had ordered krathongs decorated with cartoon characters from the teenage girl and had been threatened with 'fines' or they would face criminal charges. Korat provincial police chief Maj. Gen. Sujin Nitpanit said the investigation was almost complete and court warrants would be issued for copyright agents, whose names have been withheld by police: Police said they were in contact with the actual owners of the copyrights in the cartoon characters who were not involved in the attempts to.extort money from the teenage girl. Press reports say that Korat City police chief Col. Kachen Setaputta had been moved from his post after allegations that police officers under his command were colluding with the so called copyright agents. 

Hypebot reports that despite an acknowledgement that the the 1923 song “Yes! We Have No Bananas” by composers Irving Cohn and Frank Silver had slipped into the public domain, Universal Music stepped up to claim ownership. Glenn Fleishman had posted a video of the song to YouTube in celebration of it entering the public domain earlier this year. He even titled it “Yes! We Have No Bananas, now in the public domain.” The video is of him and his friends and family singing it at a New Year’s Eve Party: However, Hypebot says that video has now been “claimed” by Universal Music with a claim to “monetize” the video on YouTube  - despite them "literally having no rights to speak of". Hypebot say "What’s possibly troubling is that YouTube doesn’t even seem to offer up an option for you to point out that the work is in the public domain, and even if these entities might have once had a claim on the song". 

In a related update, reclaimthenet.org says that another YouTuber is struggling with the platform's harmful and often confusing copyright protection system. This time it's the turn of Kerbal Space Program game aficionado Matt Lowne, who has come under fire from copyright holders for using what he was sure was a royalty-free track in his videos. The creator, with a quarter-million subscribers and more than 55 million views, tried to navigate the system by carefully choosing a legal and copyright-unencumbered audio track – only to fail all the same with YouTube  informing him that the music featured in these videos – namely, “Dreams” – “may” be licensed or owned by music industry heavyweights like SonyATV, PeerMusic, Warner Chappell, Audiam and LatinAutor. 

The US The Supreme Court has agreed to hear the appeal by Google in the case where Oracle accused the tech giant of violating copyright laws when developing its Android mobile platform. The court's decision to hear the case comes more than a year and a half after the U.S. Court of Appeals for the Federal Circuit ruled against Google, saying the company's unauthorized use of 11,500 lines of code in Oracle's open-source Java application programming interface was not fair use, and will provide the final say in the 2013 claim accused Google of infringing the copyright on its Java APIs in the development of Google’s Android OS. Google denied any wrongdoing and has argued, in part, that software APIs cannot be protected under U.S. copyright law. 

Nirvana‘s 2018 lawsuit against Marc Jacobs will proceed. According to The Hollywood Reporter, a Californian judge has denied the motion to dismiss the band’s copyright complaint over the designer’s smiley face T-shirt which seems to bear an uncanny resemblance to Nirvana's own artwork.  he copyright infringement concerns Jacobs’ “Redux Grunge” collection, which Nirvana's representatives claim used the band’s smiley face logo created by Kurt Cobain in 1991. The Jacob's T-shirt features a similar coloration and font to Nirvana's original T-shirt, replacing the word Nirvana with “Heaven” and the smiley face’s X eyes with “M” and “J.”  iN MaRCH 2019 Marc Jacobs filed a motion to dismiss the complaint, arguing, among other things, that the band doesn't explain how or when Cobain transferred the rights in his design and that the two designs aren't sufficiently similar. U.S. District Judge John A. Kronstadt has denied the motion, finding the complaint sufficiently alleges Nirvana owns the copyright registration and that the only "discernible difference" in the faces is the use of "M" and "J" as eyes instead of two X's. Kronstadt found that the asymmetrical circle of the face, the relatively wide placement of the eyes, the distinctive squiggle of the mouth and the stuck-out tongue are enough to distinguish the happy face from a generic smiley saying "It is also noteworthy that the Accused Products have combined this protectable artwork with other distinctive elements of the Nirvana T-shirt, including through the use of yellow lines on black background and a similar type and placement for the text above the image on the clothing". The case is Nirvana LLC v Marc Jacobs International LLC et al. LA CV-18-10743 JAK. 

AsianAge reports that Hyderabad-based short-filmmaker Nandi Chinni Kumar has sent legal notices to the makers of forthcoming Hindi film "Jhund" and megastar Amitabh Bachchan, the lead actor of the movie, over alleged copyright infringement. At the heart of this seems to be a dispute over who owns the rights to the story of the life of Akhilesh Paul, a slum soccer player who was the Indian captain at the Homeless World Cup. 


Monday 11 November 2019

THE COPYKAT



USPTO brings in the all-important question of whether AI can create or infringe Copyrighted “Works”

Artificial Intelligence is a well discussed and debated topic in the realms of Copyright - since the advent of the concept of “Computer-generated works”, but with the recent advancement in the role of AI in curation of art-based copyrightable works, this debate has gained even more importance and is now the  subject of a number of major academic conferences and seminars, with the question surrounding the most appropriate path to be taken by lawmakers and courts.

The US Patent and Trademark Office has now launched a public consultation in this matter and The USPTO has issued a request for comments on IP protection of AI based innovation, on or before 16th December. The notice reads: “Artificial Intelligence (AI) technologies are increasingly becoming important across a diverse spectrum of technologies and businesses. AI poses unique challenges in the sphere of intellectual property law. At a January 31, 2019 conference on ‘‘Artificial Intelligence: Intellectual Property Policy Considerations,’’ USPTO explored a number of those challenges. On August 27, 2019, the USPTO published a request for comment regarding AI’s impacts on patent law and policy. As a continuation of this work, the USPTO is also considering the impact of AI on other intellectual property rights.” 

In lieu of the same, 13 specific question have been posed by the USPTO including concerns around a work produced by an AI, without the involvement of a natural person contribution expression, constituting a protectable work of authorship or not, kind of involvement of human which would be regarded as authorial, state of existing law in lieu of evolving AI technology, AI getting authorship as a separate legal entity or not etc. The whole list of questions posed can be found herein. Even in the UK, while evaluating a claim to inventorship, and identifying an inventor, the UK government has herein gone on to specify that “An AI inventor is not acceptable as this does not identify a “person” which is required by law.” Further, and importantly, as reported by the IPKAT, even in China, the Beijing internet Court in its decision in th case of Feilin v. Baidu has gone on to hold that for it to be a copyrightable “work”, it must be created by a natural person, which is a fundamental tenet of Copyright law. The court even held that neither the software developer nor the user and not even the software could be the Author of the work. The court further pointed towards the establishment of a sui generis right system (although indirectly) to protect the investment in the generation of the production. This is a core academic debate, and will be interesting to see how it takes shape in other jurisdictions.

Musicians urge for a similar regime to the EU Copyright Directive in the United States, to protect them against digital exploitation

CISAC recently saluted the EU Copyright system for its reform and fight against digital upload based services and has urged other jurisdictions including the United States to follow its example. With the digital market taking over the means of “communication” of content, the CISAC has urged for fairer norms, in light of a higher contribution of the digital market to these authorial royalties and revenues. The income from digital sources has substantially increased and is EUR 653 million more in 2018 than in 2014. Of course the International Confederation of Societies of Authors and Composers has at its core the aim to protect the rights and promote the interests of creators worldwide and is a known advocate for strong legal protection of copyright and authors' rights.  The EU Copyright Directive offers a stronger negotiating position for authors and composers against these distributing agencies and tech giants which display content and further holds them completely responsible for the content uploaded on their platform, in order to rapidly curb piracy. As reported by CISAC newsroom, Jean-Michel Jarre, CISAC President, said: “Digital is our future and revenues to creators are rising fast, but there is a dark side to digital, and it is caused by a fundamental flaw in the legal environment that continues to devalue creators and their works. That is why the European Copyright Directive is so momentous for creators everywhere. The Directive has sent an amazing, positive signal around the world, building a fairer balance between creators and the tech platforms.” A few highlights of this report as well as the full report released by CISAC can be accessed here. But a number of major tech companies, including Google, Facebook and Twitter are concerned about harmful copyright legislation being created around the world. 

Meanwhile TechDirt reports that tech industry groups are warning that these developments, including the EU Copyright Directive, will harm the interests of US companies, while conflicting with various free trade agreement. The Computer & Communications Industry Association (CCIA) and Internet Association have registered their unhappiness in submissions to the US Trade Representative in response to a call for opinions on foreign trade barriers. According to the CCIA, whose members include Amazon, Facebook, Google, Netflix, Pandora and Samsung, the EU’s directive “poses an immediate threat to Internet services and the obligations set out in the final text depart significantly from global norms”.

Important question of Jurisdiction in Copyright Infringement cases, resolved by the US Court of Appeals for the 6th Circuit

In a lawsuit involving a lack of proximity or territorial nexus of the infringing action to the venue wherein the suit was instituted, the court in the US dismissed a claim of Copyright infringement, This is the case of Parker v. Winwood (6th Circuit Sept. 17, 2019). The main question is this case was around the taking of a bass line from the plaintiff’s song “(Aint that) A lot of love” in their song “Gimme Some Lovin’” Due to Mervyn Winwood’s residence in the UK and his conduct of the subject matter of the suit (and the alleged infringement) taking place in the UK, the sixth circuit relying on the Supreme Court decision in Walden v Fiore where the forum of the act was given prominence, held that there is no personal jurisdiction to bring in the suit at Tennessee. Further, due to lack of evidence showing distribution of the infringing work in Tennessee, the steam of commerce argument was also rejected.  In the dissenting opinion however, justice Donald stated that “Plaintiffs could not properly assert personal jurisdiction over Mervyn because Plaintiffs did not set forth evidence or affidavits establishing jurisdiction . . . is incorrect, as Plaintiffs have submitted evidence supporting the district court’s ability to exercise personal jurisdiction over Mervyn.” Further, an evidence related to a nationwide distribution agreement was also accounted for, in support of personal jurisdiction, however the majority rejected the same. This judgment seems fallacious in relying on Walden v Fiore as this judgment doesn’t cover situations where the defendant has minimum contacts with the United States and any of the states within itself.  Read more here. The judgment can be accessed here.


Nigeria declares no tolerance policy on issues surrounding acts of Piracy

The West African Country has emphasized, via its Copyright Commission, a will to stamp out Piracy in totality. In a declaration by Vincent Oyefeso, the commision’s director of public affairs, as reported by Music in Africa. the Director said:

"The NCC is not just a compliance agency, it has the power to arrest and prosecute anybody caught pirating other people’s intellectual properties.” and “Copyright owners could institute civil suit against copyright offenders, apart from the criminal suit the commission normally institutes against such offenders.”

Further, there has also been a call to update Nigerian Copyright laws to come in line with the digital era. And to combat piracy, the commission has adopted surveillance, inspections, raids, investigations and diligent prosecutions of alleged and suspected offenders and infringers. This is all the more keeping in mind the agenda to bolster economic growth through the creative industries.

Even in South Africa, there have been concerns around the amendments surrounding authors and performers rights and the impact of the bill on rights of creators. There has been a formulation of a tribunal to address these issues concerning the same. The general consensus as reported by Music in Africa, is that the amendment bill supports users and multinational streaming company by providing them free content and going against the economic concerns of the rightful authors and composers including performers.  There is no punitive clause which provides for a remedy against infringing use. Read more here.

Claim against the Constitutionality of the Copyright Remedy Clarification Act, 1990 (United States), being heard in the Supreme Court

The case of Allen v. Cooper where the US Supreme Court is looking at a modern-day dispute involving the pirate Blackbeard's ship that went down off North Carolina's coast more than 300 years ago discusses the question of whether a limitation on state sovereign immunity in copyright claims via a statute (CRTA,1990) is constitutional. This case highlights the statute which abrogates sovereign immunity in claims of copyright infringement. The Supreme Court, in a similar claim to unconstitutionality concerning Sovereign Immunity being abrogated in Patent and Trademark cases, has already held it to be unconstitutional (Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank)which is generally used as a precedent by the lower courts even in Copyright Cases (concerning CRTA) to hold sovereign immunity applicable. 

The SC has peculiarly started hearing these claims with respect to this particular act since November 5, 2019, as reported by the Disruptive Competition Project. The core issue is whether there can be a distinction drawn from the treatment of this act with respect to the other ones which have already been held to be unconstitutional. In the Florida case, the core reasoning against such immunity being removed was that there needs to be a pattern of cases showing infringement by the State or constitutional violations, which weren’t established. The focus of the plaintiff in this case is on distinguishing the factual scenario and establishing that infringement by states is a growing problem which has also been identified in the study by the Copyright office and in the amicus brief filed by Ralph Oman, ex registrar of Copyrights, in favour of the plaintiff, .North Carolina-based Nautilus Productions who had for nearly two decades documented the ship's salvage. In the process, the company copyrighted photos and videos - which were then published by the state.  Nautilus sued in federal court, but the federal appeals court in Richmond, Virginia, ruled North Carolina could not be sued despite using the materials without permission. 

The plaintiff has also relied upon the dissenting opinions of Justice Ginsburg and Breyer and has firstly argued to overturn the Florida Prepaid case, but later in a second argument has also gone on to establish as to how the Florida prepaid case is not a valid precedent for the CRTA. States generally are protected from lawsuits in federal courts, and the justices in 1999 ruled out federal court cases against states over patent infringements. Patent and copyright protections come from the same constitutional provision that outlines Congress' powers.

As reported by Disruptive Competition ProjectJustices Alito and Kagan questioned the adequacy of the evidence of widespread copyright infringement when Congress adopted the CRCA. Florida Prepaid found the eight instances of patent infringement considered by Congress to be insufficient. Here, the Copyright Office study had identified sixteen instances of copyright infringement by state entities. So are sixteen infringements by 50 states enough to constitute a widespread pattern of constitutional harm, while eight are not?  Read more on this case here. 

"All that would be very persuasive if we didn't have the patent decision" Justice Ruth Bader Ginsburg said during the legal arguments.  Ginsburg dissented in the patent case.

This CopyKat from Akshat Agrawal