The CopyKat

A U.S. District Court judge has again looked at a case brought by three publishers against Georgia State University's e-reserve and ruled that, in 41 of 48 cases, no copyright infringement took place. The 220 page ruling applies the four-part fair-use test that the Eleventh Circuit Court of Appeal directed Judge Evans to use to each on each of the 48 cases - and in particular to look at (i) the purpose and character of the use — which will favour fair use when that purpose is non-profit and educational, and (iv) the potential impact of the use on the market for or value of the original. But the case is seen by copyright experts as a complicated decision that won't be of much help to universities in determining fair use. Excellent comment by Kevin Smith JD on the Duke Universities Library blog here. 

In China the National Anti-pornography and Anti-illegal Publications Office, the National Copyright Administrative of China (NCAC) and several other government ministries have announced a special enforcement campaign against small photocopying shops that operate on and around university campuses. Many copy shops are suspected of illegally reprinting textbooks and other written works. The campaign – given the operation name “Autumn Wind” – will run from February to September and cover 40 cities. More here (in Chinese).

Also in China the UK's ever useful IPO China IP newsletter tells us that Deputy Chief Judge of the Supreme People’s Court Tao Kaiyuan has called for the establishment of one single, specialist IP appeals court to hear cases from across the country. Currently appeals are heard in provincial-level High People’s Courts. And Shanghai Vice-Mayor Zhao Wen  has again called for the unification of patents, designs, trade marks and copyright into one Ministry-level department.

Three American copyright scholars have released a study into the impact of copyright takedowns on free expression in America: Notice and Takedown in Everyday Practice, by Jennifer Urban (UC Berkeley), Joe Karaganis (Columbia), and Brianna L. Schofiel (UC Berkeley) uses detailed surveys and interviews and a random sample from over 100,000,000 takedown notices to analyze the proportion of fraudulent, malformed or otherwise incorrect acts of censorship undertaken in copyright's name, using the Digital Millennium Copyright Act's takedown procedure. The findings suggest that whether notice and takedown “works” is highly dependent on who is using it and how it is practiced, though all respondents agreed that the Section 512 safe harbors remain fundamental to the online ecosystem. Perhaps surprisingly in light of large-scale online infringement, a large portion of OSPs still receive relatively few notices and process them by hand. For some major players, however, the scale of online infringement has led to automated, “bot”-based systems that leave little room for human review or discretion, and in a few cases notice and takedown has been abandoned in favor of techniques such as content filtering. The second and third studies revealed surprisingly high percentages of notices of questionable validity, with mistakes made by both "bots" and humans. TechDirts take is somewhat evident from the headline DMCA's Notice And Takedown Procedure Is A Total Mess, And It's Mainly Because Of Bogus Automated Takedowns. 

Canadian-based Cirque du Soleil is suing American pop superstar Justin Timberlake, alleging that his hit song "Don't Hold the Wall" illegally borrows from one of the troupe's original musical compositions. A 10-page complaint filed in New York alleges that Timberlake illegally used parts of the song "Steel Dream," taken from Cirque du Soleil's 1997 album "Quidam." More here.

TorrentFreak reports that anti-piracy outfit Rightscorp says that it's working on a new method to "extract cash settlements from suspected Internet pirates". The company says new technology will lock users' browsers and prevent Internet access until they pay a fine. To encourage ISPs to play along, TorrentFreak rather sarcastically points out that Rightscorp says the system could help to limit liability for copyright infringement.

Sweden’s supreme Court has held Wikimedia  guilty of violating copyright laws by providing free access to its database of photographs of artwork - without the artists’ consent. Wikimedia, part of the not-for-profit foundation which oversees Wikipedia, had a database of royalty-free photographs that could be used by the public, for educational purposes or the tourism industry. The Visual Copyright Society in Sweden (BUS), which represents painters, photographers, illustrators and designers among others, too legal action against Wikimedia Sweden for making photographs of their artwork displayed in public places available in its database, without their consent. The photographs were actually portraits of works of art. Whilst the court acknowledged that members of the public were permitted to photograph artwork on display in public spaces, it was “an entirely different matter” to make the photographs available in a database for free and unlimited use: “Such a database can be assumed to have a commercial value that is not insignificant. The court finds that the artists are entitled to that value” and said "It is not relevant whether or not Wikimedia has a commercial aim.”  Damages will be set at a later date. More on the Local here. Image of 'Poundland Jubilee Flag Maker' (2012) by Banksy by Duncan Hull. 

And finally, and again from TorrentFreak - an interesting look at the activities of a London company called Hatton and Berkeley - whose website you can see here and which features a picture of Robert Croucher (Hatton & Berkeley, described as "Managing Director of Hatton & Berkeley, Pro-Copyright advocate, Executive Producer and Film Financier") with  Patrick Achache, "the talented young tech entrepreneur who turned his hand to developing software that tackles digital piracy for the film and TV industries". The UK's Intellectual Property Office has now issued guidance on how copyright trolls operate and how people should handle them.  More here.

Fleck's Five: SCC ruling no.2 - Photocopies for Primary and Secondary School Instruction

From our very good friend, lawyer and fellow blogger Lorraine Fleck (Hoffer Adler LLP, Toronto) comes the second of her series of analyses of the handing down by the Supreme Court of Canada of five major decisions on fair dealing defences to an action for copyright infringement. The 1709 Blog is delighted to be able to share Lorraine's efforts with its own readers.

Supreme Court of Canada: Photocopies for Primary and Secondary School Instruction Constitutes Fair Dealing

This is the second in a series of five posts about the Supreme Court of Canada’s copyright decisions released on Thursday July 12, 2012.

On Thursday, July 12, 2012, the Supreme Court of Canada (SCC) issued its decision in Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37. The decision is significant because it clarifies the test to assess whether use of copyright materials for research and private study is "fair dealing". "Fair dealing” is an activity that allows users of copyright materials to engage in activities that might otherwise constitute copyright infringement. Research and private study are activities which may constitute fair dealing.

Background

Access Copyright represents authors and publishers of printed literary and artistic works. It filed a proposed tariff with Canada's Copyright Board for royalties to be paid on photocopies of printed literary and artistic works – mainly textbooks – for use in elementary and secondary schools in all Canadian provinces and territories except Quebec. The Board concluded that copies made at the teachers' request and which students were to read per the teachers' instruction were made for the purposes of research or private study. However, the Board found that the copies did not qualify as fair dealing – because they were made by the teachers for instructional purposes – and were therefore subject to a royalty. On appeal, the Federal Court of Appeal agreed with the Copyright Board. A coalition of provinces, territories and Ontario school boards (the “Coalition”) appealed to the SCC.

The Supreme Court’s Decision

The SCC, in a 5-4 split, allowed the appeal and remitted the matter back to the Copyright Board for reconsideration. The SCC found that the copies were fair dealing after applying its two-prong fair dealing test set out in CCH Canadian Ltd. v Law Society of Upper Canada. The fair dealing test has two steps:

Is the dealing for the purpose of either “research” or “private study” (the two fair dealing purposes allowed under the Copyright Act)?

Is the dealing “fair”? Factors in assessing fairness include: the purpose, character, and the amount of the dealing; the existence of any alternatives to the dealing; the nature of the work; and the effect of the dealing on the work.

Before the SCC, there was no dispute that the photocopies were made for the purpose of research or private study. Therefore, the appeal hinged on whether the dealing was “fair” – step 2 of the test.

The SCC disagreed with how the Board applied step 2 of the fair dealing test. The Board looked at the purpose of the copies as being from the perspective of the teachers, not the students, and therefore found the purpose of the copies was for instruction, not research or private study – reversing its finding in step 1 of the test. Because the copies no longer constituted fair dealing, they were not royalty free. The SCC’s view, however, was that the purpose of the copies in step 2 of the test should be looked at from the perspective of the user – in this case, the students. Given that the teachers’ had no ulterior or commercial motive for making the copies, and the teachers’ were there to facilitate the students’ research and private study and enable the students to obtain the material needed for their studies, the dealing was fair.

The SCC noted that while the purpose for making the copies should typically be examined from the user’s perspective, the copier’s perspective is not always irrelevant if the copier hides behind the user’s permitted copying in order to engage in activities that can make the dealing unfair. Such activities include commercial use.

In applying the rest of the fair dealing factors, the SCC found:

 That the Board was required to determine whether the proportion of each of the excerpts copied in relation to the whole work was fair. Examining the total number of copies was the incorrect approach.

 With respect to alternatives to the dealing, it was unrealistic to purchase books for every student as opposed to copying short excerpts to supplement student textbooks.

 Regarding the effect of the dealing on the works, there was no evidence of a link between photocopying short excerpts and declining textbook sales.

The SCC also noted that the word “private” in “private study” does not mean that users are to view the copyright works in isolation.

Significance

The SCC’s decision is significant in that it clarifies the test for analyzing fair dealing for the purposes of research and private study. The relevant perspective for assessing the purpose for the dealing is typically the user, not the copier, unless the copier is hiding behind the user’s dealing to make copies that would otherwise be infringing. The SCC’s decision – along with the Canadian copyright reform bill scheduled to become law this fall – also means that school boards will be able to photocopy reasonable excerpts from textbooks for educational purposes for the foreseeable future.

This post can also be found on Lorraine's IP Address blog, here.
Fleck's Five: SCC ruling no. 1 - Free Music Previews can be read here and here.