THE COPYKAT is dancing and singing at the copyright hop

The Board of CISAC (the International Confederation of Societies of Authors and Composers) has decided to implement its sanctions process against SGAE, which could result in the Spanish collection society’s expulsion. SGAE (Sociedad General de Autores y Editores) has been repeatedly in the news since June 2017, when police raided its offices in search of documentation relating to an alleged scam dubbed ‘the Wheel’ (‘la Rueda’), in which a small number of SGAE members and TV execs allegedly conspired to create “low-quality music” – often reworked versions of songs in the public domain – then broadcast on late-night TV, generating performance royalties collected by SGAE. In a 65-page report published in May, CISAC found “serious concerns” relating to “distorted and inequitable distribution of royalties” at SGAE, and ordered the society to overhaul the way it does business. In July, four major music publishers - Warner/Chappell, Sony/ATV, Universal Music Publishing and BMG along with Peermusic, wrote to the society requesting to pull their international catalogues.

Rapper 2 Milly has filed a US copyright infringement and right of publicity lawsuit against the makers of the Fortnite video game claiming that they are violating his rights to a dance move that he created in the very popular video game. The Brooklyn-based rapper, whose real name is Terrence Ferguson, alleges that Fortnite-maker Epic Games is misappropriating his dance moves without permission, compensation, or credit. The dance move at the centre of the controversy was featured in 2 Milly’s 2014 music video for 'Milly Rock' and is "a simple, two-step dance in which the arms circle while the hips swing from side to side".The video for the song had widespread attention, and many other celebrities including Rihanna, Chris Brown, and Wiz Khalifa posted videos on social media of themselves performing the dance. “I don’t feel it’s appropriate that my art (dance), which is a big part of culture, is basically stolen," 2 Milly told the video game news site Kotaku. "The appropriate thing to do is compensate me with a fair amount for my addition to the game.” More on Lexology here and Wired here. The dance is here. 

According to China.org.cn, Blockchain technology will be integral to protecting works circulating online - and evidence based on blockchain will be able to be used as evidence in courts in China if necessary. Previously, writers had to rely on screenshots and downloaded content as evidence. Wang Jiangqiao, a judge at the Hangzhou Internet Court said  that the court “behave[s] as an ‘incubator’ for Internet space governance, a ‘test field’ for Internet judicial rules, a ‘leader’ for diversified Internet disputes, and a ‘first mover’ for the transformation of Internet trials” with China having “set up three Internet courts in Hangzhou, Beijing and Guangzhou.” The Internet Courts are considered a normal court with the only difference being that it only handles cases relating to the internet. Additionally, it allows cases to be filed through the internet.

Too busy licking his paws after a delicious lunch, the CopyKat almost missed this (well spotted CMU Daily) The European Commission has published its first Counterfeit And Piracy Watch List, which aims to highlight all those naughty boys and girls out there in the  ether who have their wicked cyberlockers, stream-ripping sites, P2P services, unlicensed download stores and illegal streaming sites - and which looks suspiciously like the the existing US Notorious Markets list, which is published annually. Its not a copy as its got a different name so that's OK then. 

The 'Blurred Lines' saga has drawn to a close after the deadline passed for Pharrell Williams and Robin Thicke to take the case to US Supreme Court. With the 9th Court of Appeal having declined to re-hear the case 'en-banc' that seems to be it to the case that saw a victory for the Marvin Gaye Estate who will now be paid some $5 million in damages for the somewhat jury decision that found the infringement of Gaye's 'Got to Give It Up'  and the Estate will also receive 50% of any future royalties generated by the song.

Advocate General Maciej Szpunar has issued an opinion for the European Union's Court Of Justice in long running legal battle between Kraftwerk and rapper Moses Pelham that concludes that using a two second sample of a sound recording without permission does indeed constitute copyright infringement. Kraftwerk's Ralf Hutter sued Pelham in the early 2000s over a 1990s track that the latter had made with the rapper Sabrina Setlur called 'Nur Mir' which used a short sample from Kraftwerk's track 'Metal On Metal' on a loop. Germany's Federal Court found for Kraftwerk, in part on the basis that Pelham could have easily recreated the sound he sampled but  four years later the German Constitutional Court overturned that judgement, finding that Pelham's "artistic freedom". outweighed Kraftwerk's copyright claim. As each sound recording is fixed in a particular form - there seems to be no room for manoeuvre for samplers - although of course they can always make their own sound recording. In the UDS the rule seemed clear for a while - if you want to sample a sound recording - how ever briefly - get a licence. This has been watered down of late but Szpunar has taken a hardline approach more consistent with the US 2004 case of  Westbound Records and Bridgeport Music v No Limit Films and Szpunar writes: "Artists must be particularly aware of the limits and restrictions that life imposes on creative freedom where they concern the rights and fundamental freedoms of others, in particular their right to property, including intellectual property. In such cases, the balancing of different rights and interests is a particularly complex exercise and there is rarely a 'one size fits all' solution". He adds "That balancing exercise must, in a democratic society, be undertaken first of all by the legislature, which embodies the general interest". The nub of it this:  "taking an extract of a phonogram for the purpose of using it in another phonogram (sampling) infringes the exclusive right of the producer of the first phonogram", and that "the exclusive right of phonogram producers ... to authorise or prohibit reproduction, in part, of their phonogram in the event of its use for sampling purposes is not contrary to the freedom of the arts as enshrined in article thirteen of the Charter Of Fundamental Rights Of The European Union".

And finally - it's back to the planned reforms to EU Copyright law and in particular that pesky Article 13 which if implemented as it stands would mean user upload platforms might be liable for infringements by their users in a change to safe harbour provisions. Notably YouTube and Google are up in arms about this. Now in the trilogue phase between the  EU Council, European Parliament and the European Commission, it seems the tech sectors constant lobbying might have paid off not least as the proposed final draft of the new European Copyright Directive has failed to find agreement, with each of the three constituents having it's own version - with the European Parliament's closest to what Google wants  and the Commission offering a compromise - and so this will now be pushed back into January 2019. A consortium of companies and trade groups speaking for the copyright industries has now published an open letter expressing concerns about any Article 13 compromise saying "As we reach the very final stages of this process, and negotiators seek to finalise a compromise text, we urge you to remember that the overall aim of the original European Commission proposal was to correct the distortion of the digital market place caused by user-upload content services, which enable users to upload content onto their sites and then profit from the availability of creative content without returning fair revenues to rightsholders, who create and invest in such content" and that only the safe harbour restrictions outlined in existing drafts of the directive will "meaningfully address" this issue. In the US, America's Computer & Communications Industry Association has taken u the tech sectors baton when responding to a call for submissions by the US Trade Representative on the latest round of talks about a possible trade agreement between the US and the EU,  again criticising Article 13 saying "The proposed copyright directive disrupts settled law protecting [internet] intermediaries by weakening established protections ... and by imposing an unworkable filtering mandate on hosting providers that would require automated 'notice-and-stay-down' for a wide variety of copyrighted works. If adopted, the directive would dramatically weaken these long-standing liability protections which suggests that most modern service providers may be ineligible for its protections".

The CopyKat - Big Brother IS watching YOU

The EFF tell us that Senators Grassley and Leahy, the Chairman and Ranking Member of the Committee on the Judiciary, have published a letter to the Copyright Office asking it to analyse the impact of copyright law on “software-enabled devices” (such as cars, phones, drones, appliances, and many more products with embedded computer systems). This issue is "crucial because technology and the law have evolved in a way that no one could have intended when Congress wrote the present copyright laws, and that evolution has restricted customers’ freedoms to repair, understand, and improve on the devices they buy". And the Library of Congress has just agreed with the fair use advocates who argued that vehicle owners are entitled to modify their cars, which often involves altering software. Car makers including General Motors and other vehicle manufacturers such as tractor maker Deere & Co had opposed the ruling. They said vehicle owners could visit authorised repair shops for changes they may need to undertake - much to the annoyance of drivers and farmers - and somewhat hypocritically it seems to the CopyKat - given the recent VW diesel emissions scandal. More here and from Wired here.

Talking of hypocrisy (or here perceived hypocrisy), according to Torrent Freak, a man called Josh Hadley who was attempting to sell T-shirts featuring the phrase “1984 is already here” has been contacted by the London based Estate of writer George Orwell, author of the dystopian nightmare "1984",  for infringing their copyright and right of publicity. Hadley has taken the T-shirts off the original website, but has said he plans to still sell them in his own online store. Big Brother is indeed watching us all. Calling the Estate's actions 'Orwellian', TorrentFreak says "Ironically, the estate itself has gained a reputation for exerting tight control of copyrights and trademarks, surveilling the Internet for possible offenses.". 

Beyonce by Denis O'Regan

Husband Jay Z may have garnered all the publicity in his 'Big Pimpin' win, but wife Beyonce was also victorious the same day in a case brought against her by Ahmad Javon Lane, who claimed that Beyonce's song "XO" infringed on his song "XOXO."  TechDirt tells us "Except, it didn't. Not by a long shot. While both songs have "XO" in the title, that appears to be about where the similarities end":  The Court, after listening to both songs and reviewing their lyrics "finds that no reasonable jury could find the lyrics of XO and XOXO substantially similar. Indeed, aside from the fact that both songs’ lyrics use the letters “X” and “O,” there is virtually nothing common to the two songs’ lyrics." A representative for Lane issued a statement to ET, saying that the singer "is disappointed with the judge's ruling and is considering fighting his case with an appeal." Interestingly and somewhat confusingly Judge Engelmayer also took the time to ascribe different moods to the tracks, writing, "The two songs also have a different feel -- an appreciative fan would term Lane's track seductive and personal, and Beyonce's track joyous and uplifting." But surely its about the lyrics being copied ..... not the 'feel' being copied? The copyKat felt strange memories of Blurred Lines rising ......

YouTube claims to have paid more than $2bn to music rights-holders in the past few years. The news broke in a comment given by the service as it announced a global licensing agreement with Kobalt-owned collection society AMRA. Music Business Worldwide have done an interesting comparison with two other leading streaming platforms - Spotify and Vevo - saying the figure for YouTube works out very roughly, at $50m being paid by YouTube to music rightsholders a month. But based on recent figures, Spotify’s payouts to rights-holders would have been  $142m per month and in a very rough (and now slightly outdated) monthly payment from Vevo to music rightsholders of $12.5m. Which rightsholders were paid is another very interesting question. YouTube has asked video content rightsholders (here we presume record labels) to sign a new licensing deal, covering both YouTube Red and its traditional ad-supported version of the platform. This contract stipulates, amongst other things, that rights-holders will receive 55% of net revenues from video and display advertising.

After sending thousands of settlement demands to alleged pirates since last summer, a law firm in Finland, Hedman Partners,  is making good on its threats to sue. After initially being asked to pay between 600 and 3000 euros per offence, those targeted by the lawfirm now face demands of up to 10,000 euros plus court costs. Hedman Partners acts on behalf of a number of film, adult content and TV companies and has, perhaps unsurprisingly but perhaps unfairly, been labelled a 'copyright troll'. 

In our last CopyKat we noted that Aerosmith lead singer Steven Tyler had become the third musician to hit Republican presidential candidate Donald Trump with a cease-and-desist letter for his use of music on the campaign trail. joining R.E.M. bassist Mike Mills and Neil Young, who both asked Trump to stop using their music. The Republicans have a long history of using songs they fit their political agenda without permission, and Law Street provide a useful analysis of both the annoyed musicians and the legal context here. 

Over 50 websites have been blocked by internet service providers in Portugal as a result of a voluntary agreement reached between government, the entertainment industry and the net sector's trade body, the Association Of Telecommunication Operators. In the Ukraine, legislation is being planned to introduce web-blocking laws alongside new financial penalties for companies who do not comply with anti-piracy efforts. 

CISAC, the global umbrella for collection societies has announced full year figures for 2014 from collections for songs - music, lyrics and compositions: collections were up 2.8% on 2013 - a 5% increase had exchange rates not changed - to 7.9 billion euros. Songs account for 87% of collected monies, and that income was up 2.4% year-on-year. Mechanical rights income, primarily from the sale of CDs and downloads, was down 9% year-on-year, but performing rights revenues were up 3.8% (streams are usually classified as exploiting both mechanical and performing rights). Societies in Europe accounted for 61.3% of collected revenue, while North America accounted for nearly 17%. The five BRICS emerging markets accounted for 5% of the monies collected.

It's clearly time for coalitions and comment - as copyright reform looms on both sides of the Atlantic

Along with the U.S., Japan, Canada and Australia (amongst many others), the European Union is currently looking to reform its copyright laws and in January 2014 launched a public consultation. And there is MUCH to ralk about and many stakeholders want to have their say. 

In the USA, Torrentfreak recently exposed what they say is the MPAA's true position on "fair use" which was that it was "extremely controversial," and the MPAA didn't want it included in various trade agreements such as the Trans Pacific Partnership Agreement. Fair use in the USA - but not elsewhere then. Now fair use fans in the U.S. have formed a new coalition, Re:Create, to advocate for "balanced" copyright laws, which means ones that do not "encroach" on creativity and speech by being overly protective of those copyrights. Coalition members include the Consumer Electronics Association, the Computer & Communications Industry Association and the American Library Association and other members of the group include the Association of Research Libraries, Center for Democracy & Technology, Electronic Frontier Foundation, Media Democracy Fund, New America’s Open Technology Institute, Public Knowledge, and the R Street Institute. Sherwin Siy, VP of legal affairs at Public Knowledge said "We and the other members of the Re:Create coalition want to make sure that our laws account for these realities of today’s connected environment, and help bring a pre-VCR regime into a post-Meerkat world." The EFF said "After decades of increasingly draconian statutes and judicial decisions, our copyright system has veered far away from its original purpose. To help get copyright back on track, EFF is joining forces with a variety of groups—including libraries, industry associations, and public interest advocates—to launch a new coalition focused on promoting smart, balanced copyright policy: Re:create" adding "Restoring a sense of balance, fairness, and rationality to the copyright system has never been more urgent. Copyright is supposed to promote creativity, but too often we’ve seen it used to shut down innovation, new creative expression, and even everyday activities like tinkering with your car. When a farmer needs to ask the Librarian of Congress for permission to fix her tractor, it’s not just the tractor that’s broken."

Recently the U.S. Register of Copyrights, Maria A. Pallante, said: “Few would dispute that music is culturally essential and economically important to the world we live in, but the reality is that both music creators and the innovators who support them are increasingly doing business in legal quicksand. As this report makes clear, this state of affairs neither furthers the copyright law nor befits a nation as creative as the United States.” Pallante also said that it was "indefensible" and "bad policy" that US did not have public performance right for sound recordings. She labelled the recently introduced Fair Play, Fair Pay Act, which calls for a performance right for recordings, "an excellent legislative framework." She also backed the Songwriters' Equity Act which aims at introducing new mechanisms to fix royalty rates for songwriters and publishers. She also touched upon the need for changes in the structure of the Copyright Office to meet with the new challenges. saying "A faster and more nimble Copyright Office is a priority".

And in the EU, Internal Market and Services Commissioner Michel Barnier said his vision of copyright was of a modern and effective tool that supported creation and innovation, enables access to quality content, including across borders, encourages investment and strengthens cultural diversity saying “Our EU copyright policy must keep up with the times”. With many (the CopyKat included) starting to question whether US and European 'safe harbour' (or 'safe harbor' if you prefer) provisions are 'fit for purpose' after the passing of more than a decade, and with increasing focus on the role of content licensing - reform is clearly on the cards - at the moment much of which is driven by legislators and content owners. PRS for Music's CEO, Robert Ashcroft, recently named current ‘safe harbour’ hosting provisions within EU copyright legislation as the music industry’s ‘elephant in the room’, saying the provisions were damaging creators and the wider cultural industries, and needed to be addressed. The EU Commission has its own Digital Single Market Strategy, which includes plans to reform EU copyright. A draft version of this document has already been leaked and it would appear that areas for legislative intervention in the area of copyright are likely to encompass geo-blocking, exceptions and limitations, civil enforcement, and the role of internet service providers.  Pirate Party MEP Juliet Reda is also currently looking at copyright reform in her draft report on the adaptation of the Copyright Directive, including some challenging (and challenged!) views on copyright exceptions and term if copyrights as well as criticising geo-blocking in Europe - itself a view later criticised by a group of 20 leading film makers who said Reda’s proposals could seriously damage film production, and that the EU should focus on battling piracy. More arguing here!

Now Amazon, Google and a host of US trade bodies representing digital firms, broadcasters and other licensees of music have launched a new organisation - yes, another coalition (just like London buses, you wait for one for ages, then two come along at the same time) -  calling itself the MIC Coalition, calling itself "a coalition of companies, associations, consumer groups, venue owners and artist advocates". In its mission statement, the MIC Coalition says it is "committed to a rational, sustainable and transparent system that will drive the future of music and ensure that consumers and consumer-serving businesses, such as retailers, restaurants and hotels, have continued access to play music at affordable prices" and "This is a critical period for the future of music and the policies that govern it. Issues are being considered that will significantly impact how and where music is played and what users and consumers pay for it" and says that “for [the] music ecosystem to continue to grow and thrive, we must create a predictable, balanced and transparent music marketplace.”

In Australia, film, music and television producers have told a Senate inquiry they've been battling a decades long assault on their intellectual property. The copyright owners say that's why they're backing proposed legislation which will allow them to ask a court to block websites that are using pirated content. the copyright creators and owners have put on a united front to legislators in Sydney in their campaign against illegal downloaders. Brett Cottle from the Australasian Performing Right Association says musicians and artists have been bled dry by pirates.

Equally recently, and in a bid for what were argued to be fair copyright laws that might benefit citizens and researchers across Europe, organisations including the Wellcome Trust, the National Library of Scotland, the National Library of Wales, the Open Rights Group and indeed the Chartered Institute of Library & Information Professionals called for reforms. Their London Manifesto calls for fair copyright for libraries and archives across Europe. The Manifesto outlines suggested reforms that the supporters say would better support research, innovation and growth and might help create a digital single market. 

And finally, speaking at the United Nations on behalf of CISAC, composer-songwriter Eddie Schwartz, Co-Chair of Music Creators North America and President of the Songwriters Association of Canada, said that songwriters, composers and lyricists have seen the value of their works diminish over the past decade and their remuneration erode due to market imbalances. Sharing some personal experience, Schwartz added: “In the physical world of the 20th century, a million sales would have enabled someone like me, with a series of hits, to live with a comfortable middle class income. Today, in the digital era of the 21st century, one million streams earn me 35$, the price of a pizza."  Schwartz said that one way to address this issue was to develop Fair Trade Music schemes, in reference to the movement launched last year by a global coalition of creators. "Fair Trade Music is about fairness in the way creators are remunerated in the digital world," explained Schwartz. "We must adopt an ethical, equitable and sustainable system in order to develop this new value chain so that the works of those who devote their lives to creating are not valued near zero." CISAC have also criticised Julia Reda's report in an open letter saying "We agree that there needs to be a balance achieved between rights holders and the public. But this balance should not be struck at the expense of the increasingly fragile community of creators".

CISAC sends open letter to MEP Reda

Creators from all creative sectors and geographic regions have addressed the shortcomings in Pirate Party MEP Julia Reda's draft report on the adaptation of the Copyright Directive. The Report that was published in January 2015, tackled a number of sensitive issues in copyright reform, several of which directly impact creators.

CISAC creators outlined their views on the Report in a letter addressed to Reda and copied to all Members of the European Parliament, on the eve of its discussion by the Parliament. The letter was signed by CISAC’s President Jean Michel Jarre and Vice Presidents Angélique Kidjo, Javed Akhtar, Marcelo Piñeyro and Ousmane Sow on behalf of the nearly four million creators that the Confederation represents. The letter highlights the CISAC's position that Report fails to address market realities for creators and underlines the need for a more balanced system that would take into account the rights of creators and provide fair remuneration for the use of their works.

"We agree that there needs to be a balance achieved between rights holders and the public. But this balance should not be struck at the expense of the increasingly fragile community of creators," wrote the signatories.

The letter questions some of the key proposals, in particular the approach to copyright exceptions and limitations solely from the perspective of user benefits, without considering the impact of so-called "free access" on the economic and moral interests of creators. On the issue of the copyright term, CISAC rejects  Reda’s call for “a duration that does not exceed the current international standards,” effectively meaning a downward harmonisation to a term shorter than what is already available across Europe.

"We would be very interested in seeing the evidence upon which this policy recommendation is based," says the letter.

"Now that digital technologies can help facilitate access to, and preserve our works, forever, an extension seems more justified than ever."

In their conclusion, creators urged Ms. Reda "to do what’s right" by ensuring the future of creators in Europe and supporting "a fairer digital market for creators."     

The letter was sent to MEP Julia Reda and copied to all MEPs who participate in the JURI committee.

That committee is due to commence its discussions on the Report today.

http://www.cisac.org/Newsroom/Articles/Creators-React-to-MEP-Reda-s-Draft-Report-on-Copyright-Calling-for-a-Fairer-Digital-Market-for-Authors

CISAC goes East, opens in Beijing

A media release entitled "CISAC sets up new Regional Office in China" was received not once but twice this morning by this blogger, which announces the following:

In a move to boost the promotion and protection of creators’ interests in the region, CISAC, the International Confederation of Authors and Composers Societies, announced the opening of its new Asia-Pacific office in Beijing. An official ceremony to celebrate the event took place this week with the participation of famous creators, high-level government official and industry executives from across the region. ...

CISAC ... has officially launched its new Regional Asia-Pacific office ... after successfully obtaining the support of Chinese authorities. The office will coordinate the protection and promotion of authors’ interests throughout the region.

CISAC Director General, Olivier Hinnewinkel, said:

“We are pleased to announce that we have received the full support of the National Copyright Administration of China (NCAC) to set up our office in Beijing. China is a vibrant artistic market and it is vital to CISAC that the rights of creators, in all repertoires, are recognised and protected in this country and throughout the region.

The NCAC is a valuable partner for CISAC to achieve this goal and we truly appreciate the Chinese government’s support. We are proud to celebrate the opening of our new home in Asia by bringing the creative community to the vibrant Beijing, a city blessed with creators and creativity. Our opening ceremony and the seminar that follows mark the beginning of a new era for us and our 3-million strong creators’ community in the region.”

The opening ceremony ... was followed by a seminar on the future of copyright and collective management in the region, focusing on the essential role that it plays in the lives of creators and commercial users.

This blogger is curious to see what the impact of CISAC's initiative might be in investing time, effort and money in opening this office.  Presumably the interests of its 227 members and, by implication, its members' members, are too precious (or possibly too amorphous) to allow them to be outsourced locally.  He also notes that there was no room in the media release for any mention of MCSC, the Music Copyright Society of China, which is the only Chinese member of CISAC.

The CopyKat - fascinating furballs of fun

The City of London Police working, with the National Fraud Intelligence Bureau and representatives of the film and record industries, have started contacting websites believed to be profiting by providing access to infringing content, threatening the site operators with prosecution for criminal charges, which ultimately could result in jail sentences. The City of London Police have previously worked with the International Federation Of The Phonographic Industry (IFPI) to pressure credit card firms to stop taking monies sites believed to be involved in providing unlicensed content, while the UK's Serious Organised Crime Agency has previously targeted pirate sites operating.

CISAC, The global organisation that brings together the world's song rights collecting societies plus creators from various artistic disciplines, has launched a new forum for individual intellectual property creators to be called LINK. The new initiative was launched at CISAC's World Creators Summit in Washington which we mentioned in our last CopyKat update.  Also at the World Creators Summit in Washington, DC, the US Register of Copyrights, Maria Pallante, has confirmed that she's looking to "provide a full public performance right for sound recordings" in the USA in a move which will cheer record labels and recording artistes.  

Some blurry photos of Red Square have been sold for £50,000  at Sotheby's in London on June 5th. The reason they made big money was because they were taken by a chimpanzee. The chimp, called Miki, took the snaps under the 'direction' of two Russian conceptual artists. He has since passed on to the great jungle in the sky. The story me reminded of the excellent and much commented blog by Aurelia, posted here on the 1709  back in July 2011 - on the very relevant topic of who owned the copyright in monkey snapped images  http://the1709blog.blogspot.co.uk/2011/07/monkey-see-monkey-do-monkey-get.html

Polish pianist Krystian Zimerman has stormed off stage at the Ruhr Piano Festival in Germany after spotting an audience member filming his performance on a smartphone: No doubt presuming the said recording would be up on YouTube in the blink of an eyelid, on returning to the stage pianist told his audience "The destruction of music because of YouTube is enormous". Although he did complete his concert, Zimerman declined to perform an encore and cancelled a post-concert reception. Other performers such as the Yeah Yeah Yeahs and the Stone Roses have recently expressed their dismay at seeing audience watching live shows through smart device screens, and of course actors have become increasingly vocal in berating texting, web surfing and even talking audience members. One commentator added "I saw Jack White at Brixton last year. The compere came on stage to announce the immiment arrival of Mr White, and said something along the lines of "don't watch the gig through a 4 inch screen. We've got professional cameramen in the audience, they'll take all the pictures you need, and you can go on the website tomorrow morning, and download as many as you want for free". The CopyKat can only agree - and iPads are the worst! Why does anyone think it's appropriate to hold up an iPad (or indeed any tablet - or even a PC or Mac!) and film a concert - that is being filmed anyway!

As news breaks that the IPO in the UK has launched a Technical Review of draft legislation for exceptions to copyright, Eleonora has posted up a very interesting blog on the IP Kat that explains radical moves in Australia to introduce a new 'fair use' regime - with a new new Discussion Paper launched on the 6th June by the Australian Law Reform Committee which certainly has some interesting conclusions. More here http://www.alrc.gov.au/publications/copyright-and-digital-economy-dp-79 and here http://ipkitten.blogspot.co.uk/2013/06/australia-wants-fair-use-and-so-will-you.html

Laurie Kaye has posted a blog on his website about Kindle Worlds, which is important both as regards fan fiction and, more generally, about the world of derivative works. In light of mooted Australian and UK changes in copyright law, it's a timely read and can be accessed by clicking here . 

A Teeside University student has apologised to his university and Sony for leaking sensitive gaming data onto the internet. Johnathan Waring, 23, described as “technically gifted, but naive and immature”, was speaking after leaving court with a suspended prison sentence after advertising  a posting on a computer hackers’ website, potentially compromising anti-piracy packages for Play Station 3 games. Imposing a one year prison sentence, suspended for a year, The Northern Echo reports that Judge Christopher Prince told Waring: “You uploaded the intellectual property of Sony causing it potential damage and inconvenience" adding “It also damaged and breached the trust of your university and fellow students.” http://www.thenorthernecho.co.uk/news/10472124.Student_walks_free_from_court_despite_causing_copyright_scare/

In the USA, The Republic reports that a 32-year-old man who fled to Pakistan shortly before being indicted on software copyright infringement charges has been sentenced to 7 years in prison. Naveed Sheikh, was also ordered to forfeit $4 million, the value of the infringed software programs, at sentencing Thursday in federal court in Baltimore. According to his guilty plea, Sheikh reproduced and distributed more than 1,000 copyrighted commercial software programs, including Microsoft Office and Adobe Photoshop. Prosecutors say he sold the software through several websites. Sheikh fled to Pakistan in November 2010. He was arrested in January 2012 at Dulles Airport. Fair sentence or 'utter madness'? Comment - which looks at similar sentences given to violent criminals, drug dealers and child pornographers on TorrentFreak here

And finally, in what looks like a fascinating new book, Without Copyrights (Oxford University Press), University of Tulsa law professor Robert Spoo examines am interesting chapter USA cultural history - how 19th and early 20th century U.S. copyright laws created a vast public domain of non domestic works which were not ptotected by US copyright  - and with prices fixed by publishers too -  upon which the USA's literary culture and modern publishing industry was built - and suggests that this "public domain–driven" effort laid the foundation for an American creative economy that now leads the world. An Interview with the author - which also touches on the current e-books competition case in the USA and the recent Kirtsaeng case on the first sale doctrine   - can be found on Publishers Weekly here http://www.publishersweekly.com/pw/by-topic/authors/interviews/article/57721-ala-2013-the-golden-age-of-piracy-pw-talks-with-robert-spoo.html

Breaking news: CISAC, others, gain partial cancellation of Commission decision

The General Court (Sixth Chamber) of the European Union has just given its keenly-awaited judgment in Case T‑442/08 International Confederation of Societies of Authors and Composers (CISAC), supported by European Broadcasting Union (EBU) v European Commission. According to the Curia media release:

The General Court partially annuls the Commission decision finding anti-competitive conduct on the part of copyright collecting societies

The International Confederation of Societies of Authors and Composers (CISAC) is a non-profit non-governmental organisation which represents, in over a hundred countries, collecting societies managing copyright relating to, inter alia, musical works.

The collecting societies acquire the management of those rights either by direct transfer from the authors or by transmission from another collecting society managing the same categories of rights in another country. They grant exploitation licences to commercial users, such as broadcasting undertakings or organisers of live shows. The prices of those licences are the source of the royalties that the authors receive, after the management expenses of those collecting societies have been deducted.

In 1936, CISAC drew up a model contract for reciprocal representation agreements between its members. That contract serves as a non-binding model for reciprocal representation agreements concluded between its members for the purposes of conferring licences covering public performance rights of musical works. Each collecting society agrees, reciprocally, to confer the rights over its repertoire to all of the other collecting societies for the purposes of their exploitation in the respective territories of those collecting societies. Because of the network created by all of those reciprocal representation agreements, each collecting society can propose a worldwide portfolio of musical works to commercial users, but only for use in its own territory. In 2000, RTL lodged a complaint with the Commission against a member of CISAC concerning its refusal to grant it a Community-wide licence for its music broadcasting activities. In 2003, Music Choice Europe, which provides radio and television broadcasting services on the internet, lodged a second complaint against CISAC concerning its model contract.

By its decision of 16 July 20081, the Commission prohibited 24 European collecting societies from restricting competition, in particular by limiting their ability to offer their services to authors and commercial users outside their domestic territory. The Commission decision, which concerns solely the exploitation of copyright via the internet, satellite and cable retransmission, does not call into question the very existence of reciprocal representation agreements. It does, however, prohibit: - membership clauses: clauses in the model contract which restrict authors’ ability to affiliate freely to the collecting society of their choice;

- exclusivity clauses: clauses in the model contract which have the effect of providing all collecting societies, in the territory in which they are established, with absolute territorial protection vis-à-vis other collecting societies as regards the grant of licences to commercial users;

- a concerted practice which was found to exist between the collecting societies and by which each collecting society limits, in the reciprocal representation agreements, the right to grant licences relating to its repertoire in the territory of another collecting society party to the agreement.

The Commission did not impose fines on the collecting societies but did require that they remove the clauses in question from the model contract and bring an end to the concerted practice. Most of the collecting societies concerned and CISAC brought an action before the General Court of the European Union against the Commission’s decision.

By today’s judgments, the General Court annuls, for CISAC and for 20 of the collecting societies concerned, the Commission’s decision in respect of the finding of the concerted practice [nb At the end of the media release, but not reproduced here, is a list of the outcomes of all 22 actions consolidated in this action, together with a 'scorecard' indicating the outcome. In that respect, the General Court considers that the Commission has not provided sufficient evidence. The Commission, first, did not have documents proving the existence of concertation between the collecting societies as regards the territorial scope of the mandates which they grant each other and, secondly, did not render implausible the applicants’ explanation that the parallel conduct of the collecting societies at issue was not the result of concertation, but rather of the need to fight effectively against the unauthorised use of musical works.

The General Court rejected the applications in so far as they sought the annulment of the Commission decision in respect of the membership and exclusivity clauses.

As regards the Stim case, the General Court rejected all of the arguments put forward by that collecting society, which had not raised in sufficient time the issue of the lack of proof of the concerted practice.

The thorny issue of competition in the music industry

Sony and UMG - big fishes in a small pond?

Three news items caught my eye this week, all of which made me think about the impending sale of EMI's recorded music division to the Universal Music Group, creating a super music major with a near 50% share of the market in the creation and supply of recorded music in some territories.

The first story concerned reports that a Nielsen survey showed that ownership of smartphones amongst young teenagers (13-17 years old) in the USA had reached nearly 60%, and a whopping 73% of the 25-34 year old sector own smartphones. Overall across all age groups the rise of the smartphone has resulted in a 55% market penetration - and these are users who want content, and they want it now. and they WILL get it, legally or otherwise. Everything is just one click away.

Secondly was a report in the US press that showed that cinema attendance levels in the USA last weekend had reached their lowest level for two decades. The figures have reinforced Hollywood's fears that it is losing its allure to the internet, to competition from video games and of course to internet piracy. Its a situation the music industry faced some time ago and many commentators will just say that the film studios should have seen this coming and should have put in place new business models fit for the broadband era years ago.

Neelie Kroes

Thirdly was a report on the IPKat about comments made by EU Digital Agenda Commissioner Neelie Kroes at the 2012 Intellectual Property and Innovation Summit where Kroes compared the fragmented EU market with the American market - one territory governed by one federal copyright law - asking whether the European system was "consistent and relevant within the real world" adding that in an assessment of whether more changes were necessary to promote growth and stimulate innovation she was open to ideas, saying "Each day we fail to respond, we are missing out. Consumers miss out on easy legal access to their favourite products. The creative sector misses out on new markets, new innovations, new opportunities.  We miss out on new ways to share, recognise and appreciate our cultural heritage. And our economy misses out on the chance of new growth". Kroes had previously said that "too many barriers still block the free flow of online services across national borders" and resolved to rectify that within the EU.

The rhetoric echoes claims from new market entrants that the complexity of licensing for digital start ups is maddening and frustrating, sometime terminally. These are global businesses having to seek content licences on a country by country basis - even within the EU's 'single market'. 

In the EU and elsewhere, the recorded music sector and the allied music publishing sector are interesting examples of the tension between the need to establish business models fit for the 'real world' and the fear that ever ongoing consolidation is a real risk to diversity, and will result in a real lack of competition - to the detriment of consumers, artists and innovative new businesses. The fact remains that for a new digital start up in the European Union wanting to enter the music market, they will usually need to deal with collection societies in all 27 member nations, which are organised on a national basis, and that's just for Europe. The EU have looked long and hard at how collection societies operate and the Commission has brought an action before the European Court of Justice to determine the legality of the collection societies business methods and reciprocal representation mandates, and whether these constitute concerted unlawful practice which would fall foul of EU competition law and are an unlawful partitioning of the single market (the 'CISAC case). A final judgment is still awaited. The architect of the UK's proposed Digital Copyright Exchange, Richard Hooper, noted in his final report that the EU has 30 plus potential music licensors and that the EU should attempt to make the licensing regime multi-territorial, reducing the number of licensing bodies to perhaps 6 -10, each offering different, competitive repertoire. But why not reduce it to just one collection society for music - and one for recorded music? Or just one!  Now that would be an effective 'one stop' shop!

A combined EMI-Universal would have a 37.8% market share (2011 figures) for recorded music - and the already approved Sony-EMI tie up has a 31.1% market share in music publishing. If  UMG and Sony were to work in tandem, they would control 58.7% of the recorded music sector and 53.3% of the music publishing market - and that is starting to look like a 'one stop' licensor one its own - and surely would fit the needs outlined by Neelie Kroes.

The $2.2 billion sale of EMI's music publishing business to a Sony led consortium was approved by both US and EC competition regulators with the latter saying that the fact that Sony music publishing (Sony-ATV) was already run as a partnership with Michael Jackson's estate, and the new investors who came on board as part of a consortium for the purchase, coupled with divestment of EMI's Famous Music and Virgin Music catalogues, allayed competition concerns. But just how relevant those factors are remains to be seen.

Whilst it might make licensing sense, there are real fears of anti competitive behaviour should UMG get permission to buy EMI. Unfortunately the major labels, Sony and UMG included, have a poor track record to, say the least. Back in 2004 the then five major record labels  and the then three leading music retailers in the USA agreed to a $143 million court settlement for fixing the price of CDs in the USA at artificially high levels - which is not good for consumers! And artistes have perhaps fared even worse, and even after repeated success in the UK courts on the grounds of unreasonable restraint of trade, recording industry contracts often remain appallingly one sided and unfair: the recent spate of claims brought by artistes over artificially reduced digital royalties and other long established business practices  have been further witness to this.

But what of the third fear - that working together Sony and UMG could block new entrants to the digital market. well again, there is history, and perhaps history the major labels would like us to forget. Back when the internet was a young thing, between them the majors created two services, PressPlay (Sony and UMG) and MusicNet (Warners, BMG and EMI) which they launched as the solution to the sale of music on the internet. More recently the majors have failed to have an anti-trust case (Starr v Sony) dismissed in the US appellate courts which charges the majors with an attempt to monopolise the distribution of digital music and fix the price and terms on which is was supplied through those two platforms. The case is ongoing. More interestingly one could look at at the ownership of two of the current 'big' players providing new music platforms - the streaming service Spotify and the video platform Vevo. Sony owns 5.8% and UMG 4% of the former, and jointly own the latter along with investment from the Abu Dhabi Media Company. 

The success of Apple's iTunes re-taught the majors the importance of ownership of distribution channels - they lost control to Apple - and now Vevo and Spotify are two of the most important new channels. It also taught the majors the importance music has in creating new value and new business. Until iTunes launched, Apple was a successful but still niche computer company. It's now the second most valuable company in the USA. One of the arguments put forward in support of allowing UMG and EMI to merge is that artistes now have many ways they can independently reach consumers without needing a record label - but that becomes more clouded when those 'independent' pathways are owned by .... the record labels. But there again, UMG and Sony are minnows when compared to Amazon, Google, Facebook and Apple ........ so what's the worry?

What we seem to have are competition regulators applying 'analogue' solutions to a 'digital' issue. I am not sure that requiring UMG to sell off catalogues makes any sense at all (Parlophone, Mute,Virgin and the Chrysalis catalogues have all been suggested) . Nor do I think that issues of ownership (rather than control) has much relevance now. Indeed, one could argue we should allow MORE mergers to proceed to facilitate easier end-use licensing. Is that what Neelie Kroes needs? 

I am giving a talk at the Reeperbahn Festival Campus in Hamburg next week exploring what should and could be done by competition regulators, not least to protect diversity in the music industry, but the underlying issue that remains is that with the internet we have a global market, whether we like it or not, and if new entrants are barred from entering that market because of licensing complexities and there is failure to provide compelling legal services, we will end up with compelling illegal services. Its as simple as that. But conversely, allowing one or two companies to completely dominate the supply chain from the creation of music to the distribution of music to the provision of music to consumers could effectively bar any new entrants from entering the market without their permission, as well as allowing the potential for monopolistic behaviour with both consumers and the creators of music and songs. If licensing copyrights is the key, then it's licensing copyrights that the regulators should focus on, not the divestment of catalogue. The question is how? What would stop the UMG-EMI merger impeding investment, innovation and competition in the future? What would stop UMG and Sony shaping the digital future to suit their own ends? A requirement on UMG and Sony to licence other digital businesses openly, transparently and fairly? Might that protect new market entrants and consumers? An obligation to withdraw from platforms that interface with consumers (eg the sale of shareholdings in Vevo and Spotify) and a bar against future ownership - would that deliver a competitive market open to all? Or would a future requirement that UMG and Sony owe a fiduciary duty to songwriters and recording artistes offer protection to the creators of copyrights, especially if backed with criminal sanctions and a bar on so called 'royalty reducers'? The Murphy case brought into sharp relief the tensions between copyright and competition - and they can be complex, and the solutions even more so.

In the UK, the Copyright Tribunal has been an effective regulator of copyright licensing schemes. In the European Union the EC can fulfil this function. But if we need 'global licensing' then we would need 'global regulation' and no such thing exists - nor do I know of any such  plans on any politician's agenda anywhere. One to ponder, but we will know soon enough about EMI and UMG in Europe at least, with an EU set deadline of September 27th for a decision.

Detail on the Reeperbahn Festival Campus sessions "Diversity at Risk?" here and here 

Image of Neelie Kroes: European Parliament Flickr photostream and more on her address here on this Blog .

"No magic wand", but CISAC praises new French law

It's no surprise that the International Federation of Societies of Authors and Composers (CISAC) has welcomed the adoption of the Loi Hadopi by the French Parliament. In a press release the organisation says:

"CISAC welcomes the adoption of the Law on the “Protection of Creation on the Internet” by the French Parliament. The 2.5 million creators and 222 authors’ societies represented by CISAC hail the determination of the French Government and Parliament to guarantee the future of creation and the creative industries in today’s digital world. The law introduces a “graduated response” to tackle piracy of creative works on the Internet through education and is accompanied by an encouragement to expand legitimate offerings of creative content. The text also reaffirms that authors’ rights continue to apply on the Internet and that creators should be remunerated for the use of their works.

Eric Baptiste, Director General of CISAC, the international organisation representing authors’ societies worldwide, declared: “This law is not going to solve everything with the wave of a magic wand. But one of the great virtues of the text lies in the awareness of the value of creative works and the economic system underpinning creation. Today, thousands of people work in the wake of creators and artists. Creative freedom and cultural diversity will have no future if the mass plundering of their works continues, depriving creators of their means of subsistence, the creative industries of their financing and, ultimately, depriving the public itself of new works without which culture is lifeless.”

This law is the result of a will to cooperate shared by the authorities representing creators, the creative industries and Internet service providers...".

CISAC is right about it being "no magic wand" --if this law is to produce the desired changes it will first need to overcome the attitudes and habits of thought of a generation of computer-literature consumers of culture who have so far proved resistant to traditional copyright notions. I also wonder: CISAC's constituent organisations represent 2.5 million creators. What proportion of them while pleased to belong to societies that fight for their copyright interests, are themselves unlawful file-sharers? It's a bit like speed limits on the roads: we all agree that they are a good thing for other people ...