The CopyKat - please take notice!

Torrentfreak has released details from a report from the Motion Picture Association Of America which says that the US movie industry is unconvinced by the USA's graduated response programme for combating online piracy saying that it is having limited results, though the MPAA continues to endorse the so called Copyright Alert System and feel it is yet to reach an appropriate scale. The system sees ISPs send warning letters to suspected file-sharers identified by content ownesr. The programme launched in early 2013 - with increasing sanctions if users fail to comply in a 'six strikes' programme. Despite the lack of impact overall, the report says that there is evidence a substantial number of  file-sharers sent warning letters do  appear to stop using monitored file-sharing networks, though it is not sure if that's because those users are opting for licensing content services instead, or if they then switch to file-sharing platforms that are more difficult to monitor.

Rightscorp are back in the news -  but this time its not from one of their own press releases - its a lot of angry Canadians who don't like the fact that with Canada's 'Notice and Notice' system just two weeks old, the  U.S.-based anti-piracy firm "has been using the system to send notifications to subscribers that misstate Canadian law, citing inapplicable U.S. damage awards and the possibility of Internet termination to sow fear among Canadians so that they might pay a settlement fee." Torrentfreak reports that the letter to Canadians asks for a $20 settlement with the threat of a U.S. style $150,000 damages liability for each infringement. But the Canadian 'notice' approach does not feature any legal penalties for end users - no fines or damages, no internet slow down or suspension. Rather the notices are designed as educational tools to raise awareness of infringement allegations. what's more, when an ISP sends a notice, the personal information of subscribers is not disclosed to any third party. Of course if a copyright owner wants to proceed with further legal action they have the option of going to court to obtain an order requiring the Internet provider to reveal the identity of the subscriber but Canadian law now also limits potential liability for Internet users for non-commercial infringement, capping damages at C$5,000 for all infringements - although in an article in Billboard Michael Geist points to a loophole in the law that Rightscorp may be using - the 'notice and notice' scheme was launched in a bit of a rush - without accompanying (detailed) regulations. The Canadian Government seems less than impressed with Rightscorp and spokesman for Industry Minister James Moore said "These notices are misleading and companies cannot use them to demand money from Canadians”. That said, as CMU Daily opines "Rights owners might argue that it’s more than likely that recipients of these forms have indeed infringed, that a $20 fine is a fair deal, and that rights owners should be allowed to at least recoup the costs of running an anti-piracy programme" but adds "Though they still ought not bully that money out of alleged infringers by citing the wrong country’s law".

The International Federation of the Phonographic Industry (IFPI) says it is preparing to have several "infringing sites" blocked at the ISP level in Singapore. The move, which will target The Pirate Bay should it come back online, follows new legislation introduced last year aimed at smoothing the way for High Court injunctions.

The U.S. Supreme Court has asked the Obama administration to comment in on the huge copyright battle between Google and Oracle, which could develop into a major exploration of the legal boundaries of software protection. In an order the court asked the U.S. Solicitor General to submit a brief in the case, a common practice when the justices seek the federal government’s legal views in cases with national implications. Oracle has claimed Google’s Android operating system violated copyright protections by improperly incorporating parts of its Java technology. A federal judge initially found after a trial that the Java components in dispute (the so called APIs) could not be covered by copyright law, but the U.S. Federal Circuit Court of Appeals last year concluded that the technology could be protected.

The operators of Glasgow's now closed Avalon Bar in Glasgow have been ordered by the Court of Session to pay Sky more than £73,000 for unlawfully showing football matches. This copyright infringement award was described by Sky's lawyers as the largest award ever made against a pub landlord in actions of this kind. The Court of Session ruled in February 2014 that the pub owner was in breach of Sky’s copyright by showing a Celtic v Ross County game without a commercial agreement. The pub then flouted an injunction preventing them showing Sky Sports by playing the Scotland versus Belgium match in September 2013.
Sky Business deputy managing director Alison Dolan said: "Copyright infringement creates an uneven playing field for thousands of hardworking licensees who legitimately invest in Sky Sports, which is why we are committed to visiting thousands of pubs, as well as investigating suppliers, to protect our customers and ensure they are not left short-changed by illegal activity. The court awarded £10,000 damages and combined court fines of £7,000 in respect of the charge of contempt of court. The remaining £56,328.32 was awarded as costs. 

The Copyright Clearance Center has announced its findings from Open Access roundtable discussions with UK Institutions and Publishers - perhaps unsurprisingly the independent report finds a shared desire to simplify and standardise payment and tracking of article processing charges. The meeting was held at University College in London, and attendees examined a number of issues related to fragmentation, approach and processes, including ways vendors can play an expanded role in addressing the challenges. CCC published the group’s findings in a report written by Rob Johnson, Founder and Director of Research Consulting. More here.

A New York federal judge has largely rejected Sirius XM Holdings Inc’s request to reconsider her Nov. 14 decision in favour of members of the 1960s band The Turtles over the payment of royalties for songs made before 1972. U.S. District Judge Colleen McMahon rejected Sirius’ arguments that Flo & Eddie Inc, controlled by founding band members Howard Kaylan and Mark Volman, did not own copyrights in The Turtles’ recordings such as “Happy Together,” or gave it an “implied” license to play Turtles songs. Judge McMahon did, however, agree with the New York-based satellite radio company that Flo & Eddie could recover damages for copyright infringement only for the three years before it sued on Aug. 16, 2013, not six years as she had previously suggested. More here.

And finally, actor-director Steven Soderbergh has been getting a great deal of attention recently for posting his newly-edited versions of three classic films:  Psycho, Raiders of the Lost Ark, and, most recently, 2001: A Space Odyssey.  "Interesting and creative stuff, indeed".  But as a number of commentators have pointed out, Soderbergh has been a prominent supporter of copyright in the past, testifying before Congress on behalf of the Director’s Guild of America in favour of the “three strikes and you’re out” policy for online copyright infringers and litigating against an unauthorised alterations and edits to his own work in  Soderbergh et al v. Clean Flicks of Colorado et al. David Post has an interesting take here as does Mike Masnick on Techdirt here.

Portuguese pub ruling: no need for licence for extra speakers

From our friend Pedro Malaquias comes news of a Portuguese Supreme Court of Justice decision which, in brief established that the transmission of broadcasts containing protected works in cafés and pubs was not a “communication to the public". Pedro writes:

Portuguese Conspiracy? Not
quite: this pub's in London 

"This decision (Supreme Court of Justice Ruling no. 15/2013, File no. 124/11.9GAPVL.G1 -A.S1, 3rd Section) is dated 13 November 2013, but was only published on 16 December 2013. Importantly, it is an “Acórdão de Fixação de Jurisprudência” (a decision aimed at resolving conflicting decisions of the appeal courts by establishing the interpretation of the Supreme Court.  This decision does not bind lower courts, but the likelihood of lower courts deciding against it in the future is reduced and require extensive substantiations. Decisions that run contrary to such a ruling will always be appealed to the Supreme Court of Justice, which may simply apply its previous decision.

Background

The case is a criminal one. It started on 6 March 2011, following a police inspection of a cafe/pub, in which there were 10 customers. In this place, a television music channel transmission was being reproduced through a TV set connected to three speakers spread through the premises. Since the owner of the establishment had not obtained an authorisation from the collection societies to broadcast protected works, the equipment was seized and criminal proceedings were brought against the owner of the premises.

No information is provided in relation to the first instance decision, but the appeal court (the Tribunal da Relação de Guimarães) decided that this behaviour was not punishable, as the use of speakers did not constitute a retransmission of the signal and therefore did not require the copyright holders’ authorisation.

As this decision directly contradicted another one issued by the same court, the Public Attorney filed an appeal against it (no other appeal had been filed). In this decision it was stated that, if the owner of the establishment had not connected any speakers to the TV set, no criminal offence existed.

The Supreme Court ruling

The Supreme Court of Justice opened by stating that the question in issue is simply that of ascertaining if the connection of speakers to a television, with the objective of spreading/ amplifying its output in public premises, requires an authorisation, in the absence of which the person responsible for the act commits the criminal offence of usurpation, under Article 195(1) of the Author’s Right and Related Rights Code (unless otherwise stated, all provisions cited here are from this Code).

Following some references to the exclusive rights held by an author under the Code (with references to 11bis of the Berne Convention), the Court asked if the listening to or watching of television channels in cafés, restaurants, bars, and other establishments open to the general public determines the need for their owners to obtain an authorisation from the authors of the transmitted works.

In order to decide this question, the court stated that a distinction must be drawn between reception and communication: “reception is the capture by appropriate devices of sound and image signals broadcast by a transmitter. The reception is the terminus of the transmission process and that alone solely justifies it: transmissions are made (broadcast) to the receiver”. The broadcast requires author’s authorisation. But once such authorisation has been granted, the reception is free, that is, the receiver can organise it at its will. What is essential is that it is maintained within the scope of reception.

According to the court, this was different from a work being reused, which occurs when the transmission adds, modifies, or innovates the work. Only in those cases would the author be entitled to a new remuneration. Examples are provided:

- That will usually be the case when the reception is converted itself into a show, organized in public places, around sporting or musical events, whether or not with paid admissions, but publicized, possibly with a special decoration or arrangement of space, all with the view to capture a wider audience, at least wider than the one usually present at the establishment. In this case, the mere reception plan would be abandoned to enter into the plan of creating a show, although one based on the reception of a television show. There is an organisation and a “scenario” that change the normal reception of the show. In this case, we are already under a communication to the public.

- The same solution shall be accepted when dealing with a multiplied reception, as occurs in hotels, in which the reception is communicated to the bedrooms and common areas, which results, further to an exponential amplification of the broadcast signal, in an extra service provided by the hotel to its guests, capable of attracting customers, and, as a result, profits, and, therefore, susceptible of being considered a reuse of the work, entitling the author to a remuneration.

However, that is not the case when the signals are simply received in cafes or pubs, which are open to the public, without an entry fee, in which the reception of television shows will not constitute a particular appeal. Connecting speakers to improve the sound quality or volume throughout the premises does not result in a different legal solution, as long as it does not result in a recreation of the transmitted show.

Based on the above, it was decided that connection to a television set of devices for the amplification of sound, broadcast by a TV channel, in commercial premises, does not constitute a new use of the broadcast work. As a result, its use does not require permission from its author and, therefore, it shall not be capable of resulting in criminal offence provided for in Articles 149, 195 and 197 of the Code.

No mention is made in the entire decision of any EU directives. The only reference to EU case law is made in relation to hotels, in a footnote reference to Case C‑162/10 Phonographic Performance (Ireland) Limited v Ireland; no reference is made to FAPL v QC Leisure.

SPA – Sociedade Portuguesa de Autores –  Portugual's most relevant author’s collecting society, is far from happy with this result, having released public statements in the past few days claiming that this decision goes against both Portuguese and EU law. As a result, it stated that it will keep on collecting royalties in these cases and will make every available political and judicial effort to overturn this decision and to make the Portuguese state liable for it.

According to a 3 January SPA statement, CISAC, STEF (Iceland), TONO (Norway), SABAM (Belgium), SUISA (Swiss), AEPI (Greece), ARTISJUS (Hungry), PRS (UK), ZAIKS (Poland), TEOSTO (Finland), AKM (Austria) and IMRO (Ireland) have expressed support for SPA’s position"

Thanks so much, Pedro!