The Almost-Halloween Copycat!

Let’s start with an event!

“Crisis in Copyright Policy: How the digital monopolies have cornered culture and what it means for all of us”

With Jonathan Taplin, University of Southern California and author of Move Fast and Break Things, and Chaired by Professor Sir Robin Jacob

It’s on Monday, 27 November 2017, from 18:00 to 19:30, and it’s followed by a reception!

The place to be: UCL Cruciform Building, Gower Street, London WC1E 6BT

You can book your place here!

A Learned society is answering questions!

ALAI (Association Littéraire et Artistique Internationale, International Literary and Artistic Association) learned recently that EU Member States have been asking questions to the Legal Service of the Council regarding Article 13 and Recital 38 of the Commission Proposal for a Directive on copyright in the Digital Single Market.

 ALAI is answering four questions about this text. You can find their further reflections here!

The family of Albert Namatjira recover his copyrights after 30 years of battle!

It was an injustice, and it has been resolved more than 30 years after the beginning of the battle by the family of Albert Namatjira! In Australia, it was the longest copyright battle of the country!

The outstanding artist's has been denied any rights or revenue from the work of the Aboriginal painter for more than 30 years. The painter is recognised as Australia’s greatest indigenous painter, and the first to work in the western tradition.

One of Albert Namatjira’s extraordinary paintings

Small facts: one of its paintings was gifted to the Queen for her 21^st birthday in 1947, and he was the first indigenous artist to receive international acclaim.

Before he died, he sold part of the copyright to his friend John Brackenreg of Legend Press in 1957. Two years later, he died and gave the rest of his copyright to his wife Robina and his family. Thing is: its full copyright was sold to Legend Press for $8500 by the administration of his will was handed to the Northern Territory public trustee! And if it wasn’t enough, Legend Press put restrictions on the use of Namatjira’s paintings and images and the royalties to his family dried up!

Eight years ago, the family began the battle to recover Namatjira copyrights, and they even met the Queen!

Thanks to the good will of Dick Smith, a multimillionaire, who shared its connection with the family, which was able to rich one of the current owners of Legend Press. Surprise: after a 15 minutes’ chat, Mr Philip Brackenreg gave back the right to the Namatjira Legacy Trust for $1!

A horrific tale - but happy ending to this story!

Missing data: Spinrilla is trying to have copyright case dismissed!

Do you know Spinrilla? It’s an app where you can access thousands of free hip-hop mixtapes in your pocket. Doesn’t it sound cool?

Problem: the application allows people to upload and listen to unofficial mixtapes, which leads tooooo… yes, you got it, copyright infringement!

Thing is: they are infringing copyrights according to the US record industry! A lawsuit is filed against the hip-hop mixtape application by the US record industry, and things are going sour: Spinrilla has requested that the copyright infringement be dismissed on the basis that the major record company failed to hand over crucial data relating to the allegedly infringing tracks at the heart of the case. For Spinrilla, by not providing this data, the label hindered its ability to mount a defence, leaving the company “severely prejudiced”.

According to Spinrilla: “It is without exaggeration to say that by hiding the RIAA spreadsheets and that underlying data, defendants have been severely prejudiced. The complaint should be dismissed with prejudice and, if it is, plaintiffs can only blame themselves”

It seems a somewhat ambitious bid to have the record industry’s copyright case thrown out of court. But we’ll nevertheless await with interest to see how the judge overseeing the case responds.

This CopyKat from Lolita S.

"Copyright - to be or not to be"

The 2017 ALAI Congress which will take place in Copenhagen on May 18 and 19, 2017. 

ALAI, or 'Association Littéraire et Artistique Internationale' is the organisation which, under the chairmanship of its founder, Victor Hugo, initiated the series of international conferences that eventually led to the adoption of the Berne Convention in 1886. The theme of this year's Congress is "Copyright - to be or not to be". 

The program and further information is available on the Congress website at http://alai2017.org. The Congress is open to both members and non-members of ALAI. 

There is a favourable fee for 'early bird' registrations, but only until March 15.

"Making available" and hyperlinks: the ALAI position

Not the least interesting feature of the Report and Opinion on the making available and communication to the public in the internet environment – focus on linking techniques on the Internet, a ten-page document produced by ALAI, is the fact that it was adopted unanimously by ALAI's Executive Committee back on 16 September, and you don't need to be an expert on copyright to know how difficult it is to get copyright experts to agree anything unanimously in this notoriously fissiparous branch of intellectual property.

The content of this Report and Opinion can be fairly appreciated from its Executive Summary, which reads as follows (with hyperlinks added):

"The exclusive right of “making available” under the WCT and the implementing EU legislation covers the offering to the public of a work for individualized streaming or downloading; in addition, where it takes place, the actual transmission of a work to members of the public also is covered, both irrespective of the technical means used for making available. In essence, what matters is that the act (i) is performed by an individual person (ii) directly or indirectly has the distinct effect of addressing the public, irrespective of the tool used by the individual, and (iii) concerns subject matter protected by copyright or related rights.

As applied to hyperlinks, these findings lead to the following conclusions: (i) The making available right covers links that enable members of the public to access specific protected material; (ii) the making available right does not cover links that merely refer to a source from which a work may subsequently be accessed.

It is irrelevant whether the link takes the user to specific content on a third-party website, or whether the linking site retains a frame around the content, so that the user is not aware that she is accessing the content from a third-party website.

It is also irrelevant to the act of offering access whether the work made available through the link is itself infringing: it is the act of offering that triggers the making available right, and that act is the same whatever the copyright status of the work that is made available.

There is obviously no infringement of the “making available” right where the rightholder's decision whether and under which conditions the targeted content is made available on the internet is respected. In contrast, this means in particular that linking to targeted content infringes the “making available” right if (i) the content is initially made available without the rightholder’s consent, or (ii) technical protection measures have been circumvented or (iii) the availability of the content, even if initially disclosed over the Internet with consent, otherwise clashes with the declared or clearly implied will of the rightholder.

Accordingly, courts should not introduce a general presumption of the rightholder’s consent to further communication to the public of what initially has been posted on the Internet with the rightholder’s consent, since this would amount to introducing an exception or limitation to the right, while general exceptions to the scope of the “making available” right require legislative action. This finding does not exclude that a court may be inclined to infer such consent to permit the link based on the individual circumstances of a case".

The Report and Opinion is a thoughtful and carefully drafted document, which focuses closely on the current case law of the Court of Justice of the European Union as well as on the position in some EU Member States. For anyone seeking to appreciate the background and sources relating to the current debate over the "making available" right in Europe as it applies to hyperlinks, this paper provides a clear and helpful explanation.