The CopyKat - putting you in the picture?

Debate on Hong Kong's contentious copyright amendment bill was cut short in the Legislative Council not because of protests or opposition  – but because not enough members showed up. The premature adjournment came a day after the commerce minister said he was optimistic that there would be enough time for discussion, despite the nearing Lunar New Year holiday and sessions for scrutinising the chief executive’s policy address and the financial secretary’s budget speech. All but one Pan-democrats were absent when the last quorum bell rang on Friday. House committee chairman Andrew Leung Kwan-yuen, who chaired the meeting in the absence of the ill president Jasper Tsang Yok-sing, said he regretted the adjournment. More on the SCMP here.

The BBC tell us that a breach of copyright claim against the Welsh government over photographs used of Dylan Thomas in a tourism drive has been thrown out by a court in Ireland. Visit Wales used photos taken in the 1930s to help promote the 100th anniversary of the poet's birth. But the judge said that if the case was to proceed, Pablo Star Ltd, which owns the copyright. would have to bring the action in a court in Wales or England. Interstingly The Welsh government claimed it has sovereign immunity. But there was worse yet to come for a Mr Haydn Price, who owns Pablo Star Limited. The BBC again tell us that Mr Price has just lost a libel action against 93 year old Gwen Watkins, whose husband Vernon took the Dylan Thomas photos. It seems Mr Price persuaded Mrs Watkins to sell him the copyright in several of the photos for the princely sum of £1,000. The Judge in the libel case, Judge Raymond Groarke, the told Dublin's Circuit Court that he was dismissing the claim as there was no evidence that a latter from Mrs Watkins to Mr Price saying he was a 'bad man' had ever been published: The BBC report that Judge Groarke added "I am not going to go so far as to say Mr Price took advantage of Mrs Watkins but he certainly should have been a lot more careful with the way he dealt with an elderly person."  Mr Price reportedly has a “zero tolerance” approach to copyright infringement and has had some success in other actions. In the current case against the Welsh Government, it was reported that Mr Price was claiming €3,000 for every use of the photos.

Mark Towle,who made replica Batmobiles until being enjoined, has petitioned the US Supreme Court to review his dispute with  DC Comics. He argues that the Batmobile doesn't deserve copyright protection as its a 'useful article'. In february 2013 the District Court held that the “The ‘functional elements’ – e.g., the fictional torpedo launchers, the Bat-scope, and anti-fire systems – are only ‘functional’ to the extent that they helped Batman fight crime in the fictional Batman television series and movies. Thus, the Batmobile’s usefulness is a construct.”  Last September, the 9th Circuit Court of Appeals agreed. Towle had argued that the replicas were fully functioning automobile. In her opinion, 9th Circuit judge Sandra Ikuta disagreed saying the car also has "character" with "physical as well as conceptual qualities," and "sufficiently delineated" to be recognizable whenever and wherever it appears. More on the Hollywood Reporter here. The CopyKat doubts the SCOTUS will take on the case. A final knockout blow for Towle. 

Sheep on Top - and yes, (C) 2015 Ben Challis

As photography is my new hobby (and yes, I am  published!), but still reeling from that French Jimi Hendrix decision, the CopyKat was a little horrified to read that  photojournalists in Serbia have had to appeal to lawmakers to reject a proposal by the ruling party to define their work as the result of a “routine mechanical act” and therefore not worthy of copyright protection. Not worthy!!!!! Photojournalists in Serbia (and quite honestly elsewhere) frequently complain that newspapers and Internet portals publish their pictures without payment, and are happy to "risk being sued in Serbia’s overloaded, inefficient and sometimes corrupt courts." The Serbian Progressive Party’s latest proposals to parliament "would legalise such theft", photojournalists warned.

And finally, we've just been alerted to a new online music platform, Wefre, which TorrentFeak  says is clearly 'inspired' by Spotify, but which claims to use officially available APIs from licensed sources to provide 'free unlimited music' to fans. TorrentFreak says experts believe that borrows its music from YouTube's API feed and its song/album database from Spotify. A Kickstarter fundraiser is underway to help build iOS and Android apps - but we expect rapid attention from the major and leading independent record labels in the very near future. TorrentFreak says: Not only does this beautiful YouTube / Spotify mashup out-perform the recently defunct Aurous in every way, Wefre uses officially available APIs from already licensed sources. Legal? We might not have to wait long to find out.  UPDATE (30.01.16) : A two week old music streaming site, Wefre, has announced that until further legal research is done, it will close access to its music streaming platform. "Initially, the Spanish-based team didn't think that they were breaking any laws because they were providing the service through YouTube's and Spotify's official APIs for developers. Wefre claimed that they created the service whilst fulfilling the terms of use of those APIs." The team of three students behind Wefre wrote "We want to point [out] that we haven't received any official warning from Google or Spotify, we never wanted to profit at the expense of the artists and, before making a huge mistake, we want to seek advice in a smarter way."

The Owl, the CopyKat - and the Tiger: All at (C) in beautiful EC boat

Owl City singer Adam Young has cleared up reports suggesting the band had lost a plagiarism lawsuit over his 2012 collaboration with Carly Rae Jepsen - "Good Time" - after TMZ reported that singer songwriter Ally Burnett had won a six-figure sum for copyright infringement claiming Good Time heavily sampled her 2010 tune, "Ah, It's a Love Song", taking the "unique vocal motif" and hook of her song. Burnett filed her lawsuit against Jepsen and Owl City in 2012, also naming the co-writers on the song Brian Lee and Matt Thiessen, plus publishers Universal Music, Songs Music Publishing, Schoolboy Records and all the US collecting societies, ASCAP, SESAC and BMI, as defendants.  It seems the sums in question - $804,156 - were pending royalties which were placed in escrow by Young's collection society BMI until the case is resolved - enabling BMI to be removed as defendants in the action.

A big cat

Keeping with music, Survivor are the latest band to go legal over the payment of royalties for downloads, mainly in relation to their 1982 'Rocky III' soundtrack epic hit 'Eye Of The Tiger'. Founding Survivor members Jim Peterik and Frankie Sullivan, the latter still performing with the band, have sued Sony Music for a 'licensing' cut of the revenue generated by their recordings, which they say should be 50% of the income. The  lawsuit also claims that the major still owes the duo money stemming from settlements the American record industry reached with the big file-sharing platforms of old like Kazaa, and also alleges a number if other accounting irregularities including improper deductions. According to Billboard: "A Sony representative threatened that in the event Survivor persisted in its objection, Sony would exercise what it termed 'the nuclear option' - removal of the Survivor masters from the songs licensed to iTunes for download by consumers, thereby wiping out that revenue stream altogether. By threatening 'the nuclear option', Sony has conceded that its transaction with iTunes is a license subject to termination, and not a sale of the Survivor masters to iTunes. If it was a sale, Sony would have no right to demand return of the songs".

Still with music (well, it is the CopyKat's thing after all), MEPs have strongly backed a new bill that will allow music download sites to secure single music rights licences from collective management organisations that are valid across the EU, voting 640-18 in favour of adopting the Collective Rights Management Directive . Organisations managing authors' works will be required to prove that they can process data from service providers showing when music is downloaded or streamed online, and that they can match this data to the music by their clients. MEPs say the law should stimulate the development of EU-wide online music services and that lower licensing costs will mean cheaper prices and greater access for consumers. Meanwhile, collective rights societies will be required to pay artists within nine months of the end of each financial year to ensure that artists' performing rights are paid out faster. The EU recorded music market was worth around €4.1 billion in 2012, while the industry is also responsible for an estimated 6.7 million jobs. The European Commission, which proposed the law, says this should facilitate the rolling out of new online services and Single Market Commissioner Michel Barnier described the bill as "a cornerstone of the digital single market," adding that it would "contribute to wider availability and better choice of offers of online music in Europe." The new Directive, due to come into force in 2016, now needs the final sign off from The European Council, expected to happen within the next couple of weeks. There are currently more than 250 collective management organizations in the E.U.

Last Saturday (1 February) the internet was flooded with tather funny and creative user-generated content ridiculing, in real time, the actions of the populist Serbian Deputy Prime Minister Aleksandar Vučić. Vučić visited a site in the north of Serbia where hundreds of motorists and their passengers were stuck in a snow storm, joining the armed forces in their efforts to evacuate them. Serbian Radio Television (RTS) filmed a bare-headed Vučić in action, including a sequence where he carried a boy through the deep snow, stumbled, fell, but then stood up again and delivered the boy to another man. Many saw Vučić’s actions as a public relations exercise undertaken with an eye on the Serbian parliamentary elections scheduled for mid-March (Vučić’s Serbian Progressive Party, already the dominant partner in the current coalition government, is expected to win most votes.) An anonymous satirist added subtitles to the RTS recording, creating a fictitious narrative in which Vučić orders his subordinates to find him a boy “up to 20 kilos”, and five minutes later a boy – a bit heavier than that – is brought from a warm house nearby where he was innocently watching cartoons. The boy’s protestations annoy Vučić greatly. The person to whom Vučić  surrenders the boy to assures the latter that he would not be put in the helicopter and evacuated, because the entire scene is for cameras only, and the cameras would be switched off shortly. BUT - the question is: did the montage infringe copyright (i.e. the “neighbouring right” of the producer of a videogram, if one uses the categories found in the Serbian copyright law)? well it seems this depends on the applicable substantive law — and also on whether the later work is qualified as a satire or a parody. Bogdan Ivanišević (Head of IP Practice, BDK Advokati/Attorneys at Law, Belgrade) tells all in fascinating and well written article on the IP Kat Mockery via use of someone else’s footage: parody or satire, and does the difference matter?.

Tom Cruise is reportedly being sued for £610million ($1billion) by screenwriter Timothy Patrick McLanahan who claims the Top Gun star stole his idea for Mission Impossible: Ghost Protocol. McLanahan claims he came up with the concept for the 2011 box office smash in his own script for a film titled Head On in 1998. He is now seeking damages from Cruise, Paramount Pictures and various production companies after filing a lawsuit in December. And in a federal lawsuit seeking $1 million in damages and injunctive relief, writers Bernard Hiller and Gabriel Bologna claim Mexican filmmaker Luis Mandoki, who was hired to direct their screenplay "Brundibar", "swiped" the gist of a screenplay set in a Nazi concentration camp to develop a competing story of his own. The writers say that whilst their story is based on historical events and characters, they created original material which has been infringed.  Mandoki, Informant Media, it's partner and producer Judy Cairo, and producer and actress Athena Ashburn are all listed as defendants.

Quentin Tarantino

And still on films - director Quentin Tarantino, well known for title such as Pulp Fiction, Inglorious Bastards and Kill Bill  has filed a suit against the popular media and gossip blog, Gawker, and an anonymous file-sharing website, AnonFiles.  The Complaint, filed in the United States District Court for the Central District of California, Western Division, states a claim for copyright infringement against AnonFiles, and a claim for contributory copyright infringement against Gawker.  Tarantino alleges that the websites promoted and disseminated unauthorized downloadable copies of an unreleased screenplay for a Western that Tarantino wrote entitled, “The Hateful Eight.” The screenplay was allegedly leaked after Tarantino gave it to only six people, including three actors. He subsequently scrapped the film, a planned sequel to Django Unchained.

And OK - nowt to do with the law - BUT it is the CopyKat's day job and he is a bit proud - The BBC's coverage of Glastonbury 2013, including the fab Arctic Monkeys, the Rolling Stones and Mumford & Sons, picked up a prestigious Broadcast Award at a ceremony hosted by Alexander Armstrong at the Grosvenor House Hotel in London last night. The judges commented that the BBC's coverage on TV, radio, red button, on demand and live web streaming made it "feel as if you were right there" and was "ambitious in scale and executed brilliantly".  The Glastonbury coverage beat off strong challenges from The Mercury Music Prize Sessions (Channel 4), Later With Jools (BBC2) and Bollywood Carmen Live (BBC/Asian Network). Other winners in the night included Mr Stink (Best Children's programme), Ant & Dec's Saturday Night Takeaway (Best Entertainment Programme), Coronation Street (Best Soap), The Ryder Cup (Best Sports Programmes), Educating Yorkshire (Best Documentary Series),  Broadchurch (Best Drama Series) and Googlebox (Best Original Programmes).

Exit Festival and Foreign Producers of Phonograms: New Challenge for O.F.P.S.

Bogdan Ivanišević, Head of IP Practice Group at BDK Advokati in Serbia brings us news of a recent challenge to the recoded music collection society in Serbia, by one of Serbia’s biggest live events, the Exit Festival. 

Bogdan explains that back in May 2012, The Serbian Commercial Appellate Court denied a request by the Organization of Phonogram Producers of Serbia (O.F.P.S.) to collect royalties for communication to the public of Italian sound recordings in a Belgrade restaurant. A few months later, the same court issued a decision in an ongoing case that might again be the cause of a headache to the collecting society and this time much larger financial stakes are involved because the party opposing O.F.P.S. is the well known “Exit” Festival in Serbia. 

Exit Festival, 2008

The annual Exit music festival in Novi Sad was first staged in 2000 at the picturesque Petrovaradin fortress on the banks of the Danube, and the festival is now well known internationally and attracts tens of thousands of fans from all over Europe.  The list of celebrities who have played live at the “Exit” festival includes Pet Shop Boys, Morrissey, Billy Idol, The Cult, Guns N' Roses, Franz Ferdinand, Stereo MC's, Iggy Pop, Massive Attack, Beastie Boys, Snoop Dogg, The Prodigy, Moby, Patti Smith, Chemical Brothers, and numerous others. The setting at the amazing Petrovaradin fortress only adds to the appeal. Little wonder then that huge crowds gather every summer to enjoy the music, the sights, and the company of fans with whom they feel culturally close.

O.F.P.S. claimed that the organisers of Exit owed almost 350,000 Euros in unpaid royalties from the use of Serbian and foreign sound recordings during the two festivals held in 2007 and 2008. 

In March 2001, the Commercial Court in Novi Sad granted one half of the requested sum to O.F.P.S. but on 20 September 2012 the Commercial Appellate Court annulled the verdict and ordered a retrial. Similar to the previous case (see http://www.bdklegal.com/code/navigate.php?Id=283&bid=90) where the Commercial Appellate Court ruled that O.F.P.S. had no valid claim to royalties for communication to the public of Italian sound recordings in a Belgrade restaurant. O.F.P.S. did not provide any evidence that it had entered into an agreement with a corresponding collecting society in Italy, by virtue of which it could collect royalties. 

The Commercial Appellate Court again demanded that O.F.P.S. should prove it had standing to sue – or otherwise they would lose the case. 

O.F.P.S. sought to collect royalties from “Exit” for the use of recorded music before concerts, during breaks, and after concerts, as well as royalties for the use of recorded music played (communicated to the public) at the various stages independent of any concerts. For O.F.P.S. to lawfully act on behalf of the foreign producers of phonograms and collect royalties for them, it has to prove that in the relevant period (2007 and 2008) it had concluded appropriate agreements with the relevant foreign collecting societies. 

The court of Novi Sad inferred the existence of such agreements from the grant on 12 April 2005 of a general authorization for O.F.P.S. to operate. The Serbian Intellectual Property Bureau (IP Bureau), which issued the authorization, referred, in the April 2005 decision, to a report submitted by the O.F.P.S. as part of the application, listing bilateral agreements which the organization had concluded up to that date. As the court in Novi Sad read it, with the decision in April 2005 the IP Bureau renewed the authorization to O.F.P.S. first granted in 2002. 

The Commercial Appellate Court differently interpreted the general authorization granted by the IP Bureau in April 2005. The appellate body concluded that in 2005 O.F.P.S. applied for issuance – afresh – of a general authorization, rather than for a renewal of the earlier authorization. Here, the wording of the Commercial Appellate Court’s decision becomes fuzzy (as, unfortunately, it often is in decisions issued by courts in Serbia), but a plausible reading of what the court says is that any prior agreements between O.F.P.S.and foreign collecting societies cannot be deemed to have carried into the new authorization granted by the IP Bureau. In the court’s words: 

"The fact that after the first authorization from 2002, another authorization was issued does not mean that what occurred was a renewal in relation to which the fulfilment of the condition concerning agreements with foreign organizations is to be assessed. Therefore, with respect to the period of validity of the first authorization the plaintiff has to prove that it has standing to sue for compensation for the use of phonograms the rights of which are held by foreign persons, because the statutory presumption [that an organization for the collective management of copyright or related rights is authorized to act on behalf of the rights’ holders] does not apply vis-à-vis foreign rights’ holders. " 

What is not in doubt is that the Commercial Appellate Court does not consider it proved that O.F.P.S. was authorized in 2007 and 2008 to collect royalties on behalf of foreign producers of phonograms. The renewal of O.F.P.S’ general authorization to operate, from April 2005, is not proof. In a closing paragraph, the court instructed the Commercial Court in Novi Sad to establish in the retrial which phonograms were used at the “Exit” festivals in 2007 and 2008, whether those were domestic or foreign phonograms, and whether the plaintiff was authorized to claim legal protection on behalf of the foreign rights’ holders. 

It remains to be seen if O.F.P.S. will be able to provide the requested agreements with the relevant foreign collecting societies as evidence. If that proves impossible, O.F.P.S.will be left only with the statutory presumption of the authorization to act on behalf of producers of phonograms. Here, O.F.P.S. may run into another difficulty. The first-instance court said in the quashed judgment that “drawing an expert report on the share of the use of phonograms in comparison to the rest of the festival program would be almost impossible, i.e. unreasonably burdensome, having in mind that the festivals in 2007 and 2008 lasted four days each, with tens of thousands of different songs performed at different stages”. The task of establishing which portion of the phonograms communicated to the public in 2007 and 2008 was produced domestically would be, if anything, even more daunting. 

Bogdan  Ivanišević JD LLM 

The copyright in this blog remains with BDK Advokati (c) 2012

http://www.bdklegal.com/code/navigate.php?Id=2

OFPS http://ofps.org.rs/

On a personal note I should make it clear that I advise Yourope, the European festivals association, and the Exit Festival is a member of Yourope. Although I am in no way involved in this matter, I have even been to the festival in 2007 - and what a great event!

Big sums at stake in Serbia

On 27 July 2010, the Belgrade Commercial Court issued a first instance decision in which it ordered the public broadcaster Radio Television of Serbia (RTS) to pay Serbian copyright organization SOKOJ the not insubstantial sum of EUR 1,293,739 (US$ 1,653,614) for broadcasting music without paying royalties to its composers.

This is apparently just a skirmish in a very long battle between SOKOJ and RTS, with the prospect of an appeal in the offing. According to SOKOJ, this is "the most important decision ever made in the field of copyright protection" [presumably in Serbia, at any rate] and that it makes it clear that the legislation in this area must be respected. There's plenty of money at stake as well as principle: if the decision becomes final. RTS will have to pay SOKOJ nearly EUR 2 million (US$ 2,556,334) after the addition of interest. These sums are very large if one takes into account the cost of living in Serbia.

The 1709 Blog hopes to find out more about this dispute and, in particular, about the grounds of any defences.

Source: PETOSEVIC newsletter here.