Same old Directive, new number

Do you remember Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs? The Directive which requires EU members to protect computer programs as literary works and to provide for interoperability, decompilation and the making of back-up copies? Well, it is being repealed and re-enacted in consolidated form because a sufficient number of amendments have been made to it. It has now become Directive 2009/24/EC of 23 April 2009 on the legal protection of computer programs.

You can read the new version in full on the OJ website, where it was published here this morning. It comes into force 20 days after its publication in the Official Journal of the European Union.

Affordable Legal Route for Victims of Infringement?

This is more of a question than a statement: but, in advising predominantly creators, many at the early stages of their career, I often find that, on occasions where creators' rights as owners have been infringed, legal redress is out of their reach financially. The question equally applies where an SME has acquired rights by contract. It occurs that there may be an opportunity for such victims to seek justice or recompense in the UK via the provisions of the Copyright, Designs and Patents Act (CDPA) regarding secondary infringement (CDPA ss 107-110) and the criminal liability that attaches to the making of or dealing in infringing articles. Being a matter of criminal law, with the standard of proof being beyond all reasonable doubt, this option would, of course, only be open where ownership was not at issue and there is clear evidence of infringement. Yes, one has the option of making a complaint to the Crown Prosecution Service or Trading Standards, but there is no guarantee that these bodies will instigate proceedings.

However, the Prosecution of Offences Act 1985 enables anyone to stand in the name of the Queen - so in theory surely the victim of infringement can take the faster (and cheaper) route of instituting a private prosecution of the infringing culprit? The CDPA penalties of imprisonment and a fine (with the potential, also, for an award of compensation) imposed by a Magistrates or Crown Court would , I imagine, act as a powerful wake up call. Limited companies could be challenged using this route as well as the individuals who control them. Section 110 CDPA states that, where an offence is committed, with the "consent or connivance of a director, manager, secretary or other similar officer of the body ... he as well as the body corporate is guilty of the offence". So the way is open (in the words of the most erotically charged principle in company law) to "pierce the veil of incorporation". And, any conviction would follow such an individual around! To paraphrase Dr Johnson (above, right), "[d]epend upon it, Sir, when a man knows he [is facing a summons for copyright infringement], it concentrates his mind wonderfully" (Life, Vol 3 19 September 1777).

What would be interesting to know is whether readers have tried this -- has it been successful?

A crime to buy pirate DVDs -- does Maharashtra have the power?

In a post on the excellent Spicy IP weblog, Prashant Reddy ("Beware Mumbaikars: The Slumlord's Act could detain you for a year for simply buying a pirated DVD") discusses provisions enacted by the Western Indian state of Maharashtra  -- which includes copyright-rich Mumbai -- that render not only the sale of pirate product a criminal offence but also the purchase of those items. After discussing whether the amended Copyright Act 1957 as amended already makes provision to the same effect, given the generous definition of "computer programme" under s.2 of that Act which may well cover the sophisticated modern DVD, he then asks whether India's states have power to legislate over copyright:

"...   the law related to copyright and other intellectual property is a subject of the Union List which means that only [India's] Parliament is competent to pass such a legislation in regards pirated DVDs. The State may try to argue that the pith and substance of the legislation is actually in regards 'law and order' which falls under the State List but I think that will be quite a weak argument ...".

This recalls distant memories of the Federal preemption rulings of the US Supreme Court in Sears, Roebuck v Stiffel and Compco v Day-Brite-- but those rulings dealt with the preemption of state power to prevent the copying of subject matter that Congress chose not to protect under Federal IP laws. Here, the "weak argument" of legislation to enforce law and order may carry the day on grounds of efficacy, whatever the merits of the pure legality of the situation.

301 Watch List on both sides of the fence

Yesterday (April 30th) the US Trade Representative (USTR) released its 2009 Special 301 Report, the annual survey of the “adequacy and effectiveness" of IP protection for the US’s trading partners. Ambassador Ron Kirk launched this year’s Report identifying it as the critical US Government tool that identifies “urgent problems that undermine one of America’s great strengths in the global economy – our innovation and creativity”.

Right: Canada -- a country to list, and to watch ...

Twelve countries feature on this year’s Priority Watch List: China, Russia, Algeria, Argentina, Canada, Chile, India, Indonesia, Israel, Pakistan, Thailand and Venezuela. No surprises for the continued featuring of China and Russia, despite some improvements over the past year in the enforcement and protection. Algeria and Indonesia have been added this year along with ... Canada, the nation’s first appearance.

Canada’s failings in its IP protection regime similarly featured in an earlier industry report from IIPA, The IIPA Special 301 Recommendations filed with the USTR in February. The International Intellectual Property Alliance, a grouping of seven trade associations from the US copyright industries, had made recommendations to USTR based on their own statistical survey into trade losses due to piracy on 17th February 2009. The grouping, made up of the Association of American Publishers, the Business Software Alliance, the Entertainment Software Association, the Independent Film and Television Alliance, the Motion Picture Association of America, the National Music Publishers Association and the Record Industry Association of America, said of their Canadian cousins “Canada remains almost entirely out of compliance with the global minimum world standards embodied in the Treaties”.

Those readers anxious to review the ground on both sides of the fence, and working on the basis that, for the creative industries, the audience is a key factor in the creative process, may wish to cast their eyes over the IP Watch List report 2009 from Consumers International’s Access to Knowledge Network project.

Sixteen countries are ranked from “best” ie most consumer-friendly to “worst” ie most hostile to consumer interests. Canada was not surveyed, so a lost opportunity there for the nation to feature near the top of an international list but in a “good” way. The outright “winner” was India with the somewhat disingenuous comment:

“India's Copyright Act is a relatively balanced instrument that recognises the interests of consumers through its broad private use exception, and by facilitating the compulsory licensing of works that would otherwise be unavailable. Neither has India rushed to accede to WIPO Copyright Treaty, which would expose India's consumers to the same problems experienced in other jurisdictions which have prohibited the use of circumvention devices to gain access to legally-acquired copyright material. It is true that copyright infringement, particularly in the form of physical media, is widespread in India. However this must be taken in the context that India, although fast-growing, remains one of the poorest countries in the world. Although India's cultural productivity over the centuries and to the present day has been rich and prodigious, its citizens are economically disadvantaged as consumers of the culture to which they have contributed.”

UK is bottom of the list (“[I]t is generally very restrictive”), Australia 9th (“strongly favour[s] copyright owners over consumers”) and the USA 4th:

“Amongst all the countries surveyed in this Watch List, the United States is the most obvious anomaly, in that whilst its own copyright regime remains amongst the most liberal in the world - almost entirely due to its broad "fair use" exception - it is the most unremitting in its demands for higher levels of copyright protection from other countries, all of which are net importers of copyright content from the USA. Having said that, the United States copyright regime is far from a paragon. For one matter, its heavy reliance on the discretionary doctrine of fair use to provide flexibilities to content users may cause confusion and uncertainty as to exactly what is permitted and what is not; a state of affairs of which some content owners have taken full and unfair advantage.

For another matter, its terms of copyright protection have been ratcheted up time and again, now peaking at 120 years from the date of creation for works of corporate authorship. Also, the US copyright regime betrays much partiality to copyright owners in matters of enforcement, particularly in the DMCA amendments which prohibited the circumvention of Technological Protection Measures (TPMs) even for fair-use purposes, and streamlined the removal of content from the Internet by IP owners without court order. For better or worse, the United States effectively sets the global benchmark for intellectual property protection worldwide, through the norm-setting activities of its trade representatives and private sector lobbyists. Thus other countries can at least be thankful that the relatively balanced and equitable treatment shown to consumers in US law throws its one-sided foreign policy on IP into stark relief.”

Handy little country-by-country summaries of the regimes surveyed will benefit law students, cunningly demonstrate consumers’ concerns through the nature of the questions posed and, perhaps, may suggest to pro-IP lobbyists areas in their arguments that may need attention if
they want to demonstrate real concerns for the rights of the audience or consumer.

Comment by Canadian copyright expert Howard Knopf (Excess Copyright) here

Posted by Jeremy for Amanda Harcourt

Santangelo case finally comes to a close

One of the longest-running and highest profile fileswapping lawsuits pursued by the Recording Industry Association of America (RIAA) has reached its final conclusion – probably to the relief of the RIAA whose former high profile campaign against individual file swappers has led to criticism and ridicule from consumers, industry commentators and musicians alike.

The case is actually two cases, the first an action against Patricia Santangelo in 2005 after discovering that unlicensed music had been uploaded to a file-sharing network via her computer. Ms Santangelo defended herself in court and made it clear that she didn’t use the computer in question in any way. Attention then moved to Santangelo's two children, Michelle and Robert, and eventually it became clear that it was they who did the file sharing via the internet connection registered in their mother's name, although at one time a friend of the children was blamed. After asking the court to find Patricia Santangelo liable for the action’s of her then under-eighteen year old children (a plea rejected by the court) the case was dismissed.

The RIAA then began proceedings against Michelle and Robert. Michelle failed to respond to the lawsuit against her, and so a judge found in the RIAA's favour by default and ordered her to pay $30,000 in damages – although this was overturned on appeal. Robert Santangelo, meanwhile, defended the case but following a testimony by a friend of Robert's to the effect that Robert used Kazaa on an "almost daily" basis to access illegal sources of music, and a deposition by Michelle in which she admitted to accessing music via P2P, a settlement has finally been reached in the region of US$7,000.

The RIAA have now brought to an end their actions against individual file swappers although a number of cases remain in the pipeline, including the case against postgraduate student Joel Tennenbaum who is being defended by a team of Harvard law students and their professor Charles Nesson - here the RIAA had to appeal to the First Circuit Court of Appeals to prevent the preliminary hearings in the trial being webcast live (something the trial judge, Judge Nancy Gertner, was minded to allow). In the new world of the internet this blogger feels that, whilst he doesn’t quite know what to do to protect copyrights in the future, this and other high profile cases brought by the RIAA mean that he certainly knows what not to do.

Read more at

http://www.mp3newswire.net/stories/9002/santangelo-done.html
http://en.wikipedia.org/wiki/Santangelo_v._RIAA
http://arstechnica.com/tech-policy/news/2009/04/appeals-court-no-webcast-for-joel-tenenbaum.ars

OurStage or Outrage? The case of copyright and community values

I've just been reading the Community Values page on music discovery site OurStage.com (see Wikipedia entry here) and I'm trying to work out how it works.  It's definitely something to do with symbiosis between bands and artists who want to be rich, famous or just listened to, on the one hand, and a spectrum of music consumers who extend from the discerning talent-spotter at one end to the load-all-you-can track-grabber at the other. Anyway, I soon found myself reading the OurStage.com Community Values page.  It reads, in relevant parts, as follows: 

"OurStage.com is an online community serving passionate music & video fans and artists who have come together for the purpose of collaboratively selecting the best in emerging music & video.

Through active involvement at our site, we will come to know each other as friend and fan, a connection of like-minded individuals interested in sharing thoughts and ideas about music & video. As a whole we are creating a priceless environment for the industry to use as a resource for selecting the best talent for their needs, while also providing a discovery resource for fans to embrace new artists and artists to earn the support of new fans.

Artist Community Values:

We seek to facilitate strong relationships that enable artists to earn the support of new fans and introduce them to new art.
Your art remains yours, forever – we demand no rights. [Not even a licence to make it available?]
There’s no sharing, sending, giving or stealing of your property. [I get the gist, but I'm not clear what the full implications of this are] If you want to sell your work, that’s your business.
For the sake of the fans’ listening experience, content in a channel must adhere to our posted channel descriptions.
The site is for you to discover new fans, not just solicit votes. Please check out other artists you like, and introduce yourself to their friends and fans.
We like to think we’re in this together, meaning we provide the platform to showcase your talent, but we need artists’ help too. Keep your profile updated, keep uploading into our channels, make friends, recruit fans—help us help you.
We are here to see you advance your career. If you have ideas to make this site better, tell us. We’ll respond in kind.
Because this site is about music and video, we want users to engage in conversation via email or other means with members who share your interests and welcome your viewpoints. Please don’t spam friends or other fans with off-topic messages.
Share your thoughts and ideas about OurStage with us. We are here for you and value your opinions.
We do not condone, support or tolerate those who write disparaging, negative or slanderous comments about Artists or Fans and then broadcast those views to other OurStage members via blogs, OurStage email, chat or any OurStage communication mechanism. Concerns about other members should be communicated to the OurStage team directly and exclusively. We will address any issue raised privately and discreetly. [there's no mention of anything to do with copyright in the list of non-condoned activities  - not just in its economic guise but in terms of moral rights]

The opportunities we offer artists for career advancement and promotional placements are for all genres and never does one take precedent over another.
Fan Community Values:

OurStage is here to help fans discover great music & film. We encourage all fans to vote often, vote for the best talents and vote fairly. Every participant is a contributing member of this collective taste-making venture.

Share your comments, thoughts and accolades with your favorite artists—let them know you love them. We encourage it and value it, as do the artists.

Fans are invited to flag off-topic, copyrighted [Is this an attempt to avoid or at any rate discourage liability, or what? There's no suggestion of a take-down policy here] or offensive content, but please, not artists’ uploads simply because you don’t like them.

Help your favorite artists by spreading the word about OurStage to other music & film lovers. We’re here to support artists, but most importantly, to empower you the fans to take music & film back from the Man and give it to its rightful owners – its creators and patrons.

Be a presence on OurStage. Show your face, make favorites, playlists. The more active you are, the happier the fans and artists will be – us too.

Because OurStage is about music & video, we want users to engage in conversation via email or other means with members who share your interests and welcome your viewpoints. Please don’t spam friends or other fans with off-topic messages.
What do you think of our Community Values? One value we have is that we want your feedback. So please share!"

I'm curious to know how OurStage functions as an environment in which a relaxed attitude towards intellectual property is cultivated, given that there are no express rights waivers, no indemnities, no warnings and no explicit guidance to community members. Can any readers enlighten me?

Faustian Fudge

Legislators around the world now shaping the new laws concerning digital copyright infringment are considering not only how to catch infringers and what penalties they should face, but who should impose those penalties. The EU has been debating this last issue.

The European Parliament’s second reading of the ‘Telecoms Package’ is due next Tuesday. The Telecoms Package consists of numerous amendments to existing EU telecommunications directives and they are hotly opposed by some, such as Blackout Europe. Amendment 46, to the 2002 Framework Directive, has been subject to some radical last-minute rewriting. The ITRE Committee (for Industry, Research and Energy) voted on it last week, adopting this wording: ‘no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities’. So, for example, a court order would be required before cutting off internet access. Yesterday (29 April), the formulation of what IpTegrity terms a ‘Faustian pact’, was agreed instead:

Measures taken regarding end-users' access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, including in relation to privacy, freedom of expression and access to information and the right to a judgment by an independent and impartial tribunal established by law and acting in respect of due process in accordance with Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Hardly a step in the direction of clarity. The words ‘judicial authorities’ and ‘prior ruling’ have been struck through, replaced by ‘respecting rights including in relation to the right to a judgment’. So you’ve got a right but is it now up to you to appeal to a court after access has been cut? France had opposed the previous wording - their intended new law is to be administered by HADOPI, a non-judicial body, but it is unclear whether HADOPI fits the tribunal described above. The UK government may also be pleased: the recent proposals for handling copyright infringement have envisaged roles for a variety of non-judicial bodies, including ISPs, a Digital Rights Agency and Ofcom, potentially taking action before a court ruling.

If you think this is Faustian or simply a fudge, there is still time to contact your MEP….

“I tawt I taw a puddy tat!”

Lawrence Lessig twitters that Warner Music has issued a takedown notice for a presentation on YouTube, says techdirt. Can Tweety Pie’s fair use evade Sylvester’s clutches?

30 April update - more info here.