Kiwi three strikes prompts cyber attack

The New Zealand government's new 'three strikes' anti-piracy proposals, which have finally moved into law and are due to come into effect in September (2011) have prompted a fresh wave of protests and the threat of cyber attacks on the Government’s websites.

The Copyright (Infringing File Sharing) Amendment Bill has caused immense controversy in New Zealand, particularly in the blogsphere, with many online commentators calling the bill ‘draconian’ and questioning why the bill was rushed through the New Zealand Parliament reportedly using emergency procedures invoked to help victims of the Christchurch earthquake for cover. In particular Section 92A which initially placed the onus on ISPs to disconnect repeat infringers met with fierce opposition when it was mooted two years ago and whilst it has been amended as it currently stands it does provide for a ‘three strikes’ system which ultimately allows for the disconnection of internet users for repeat infringements. However, whilst the ability of copyright owners to apply to have repeat offenders disconnected remains in the legislation, it will not come into effect unless after two years it is shown that other less severe sanctions are ineffective.” However what does remain is the requirement for ISPs to send warning letters to those suspected of infringement and the threat of disconnection for up to six months.

When the laws were passed, numerous NZ websites blacked out their home pages and in protest but now things look a tad more serious - internet activist group Anonymous is threatening to shut down the New Zealand Parliament’s website as a protest against the new copyright law. Anonymous previously threatened to take down internal affairs website and, in March, that site was indeed down for a few days. NZ Parliamentary Services says it is taking this new threat seriously and is now working to try to pre-empt any attack.

New Zealand joins France, South Korea, The UK and Taiwan who have all implemented various configirations of 'graduated response' or three strikes legislation to fight online piracy. France's law HADOPI allows for a graduated response to online infringement. rhe state funded scheme (under which ISPs must provide data) allows for fines and internet suspension for repeat infringers up to one year. Injunctive relief is available to those who could contribute to prevent / terminate infringement. Taiwan has a simlar scheme with judicial proceedings available to rights holders to take action against those who post or host infringing material alongside a "notice and takedown" procedure to have infringing material removed. This is coupled with a three strikes system against internet users who ignore warnings and download material illegally more than twice. A January 23rd poll in France indicated that 49% of French Internet users continue to illegally download music and videos.


http://www.zeropaid.com/news/93080/new-zealand-passes-three-strikes-law/

http://www.billboard.biz/bbbiz/content_display/industry/news/e3ib20649ac4d6059c216967baf5dfee28b

CLA launches Multinational Licence

Our friend and colleague Rebecca Dimaridis (Jeffrey Russell Green solicitors), who is making something of a name for herself in this area, writes:

Readers may recall my 2-part report on the 2010 Open Meeting of the Copyright Licensing Agency, see here and here, last October. On Friday, the CLA launched its Multinational Licence. Readers can find more details on the CLA website - but don't be fooled into thinking this is the only information about the licence on the website. Just click on the links available and you will travel down a different path of the website, and there is a fair bit of information - too much to get through on Easter Saturday, so I'm only going to give a brief report at this stage! Perhaps the good folk at the CLA will put all the information in PDF documents on the website at some stage, so we don't all have to worry about whether we've forgotten to click on some vitally important link. Or perhaps I'm just going to have to print off all the pages after the (extended-thanks to William & Kate) break... The Licence's big claim is that, other than for the "Excluded Categories and Works", one single Multinational Licence gives the same rights "to every colleague, in any country, without disrupting the workflow of your organisation". Excluded Categories and Works include music, maps and newspapers. There are several categories of licences, broadly for the business sector, public sector and education sector. A "law licence" application can be found under the "business" sector. The relevant page informs us that the terms of the licence are currently being revised, however the current terms apply to pre-15 January 2011 licences (what does this mean for licences between 15 January to the date the new terms are finalised?).
 For licences issued post-April 2011, there is a host of Multinational Licence support material, including an Application Form, an Explanatory Leaflet and Copying Guidelines. One thing that I found confirmed on the Copying Guidelines is a note that states that users can copy up to 5% of a publication, a single chapter of a book or single article from a periodical (whichever is the greater). Users can even undertake a Risk Assessment on this page. When I do review the documents in detail, I will be keeping in mind the the wish-list that Philip Ditchfield of Glaxo SmithKline PLC put forward last October, i.e. is the new Multinational Licence, easy to understand, user-friendly, up-to-date, comprehensive, and inclusive of all publishers (big and small) and all countries?
 For the time being however, there is finally a breeze coming through our flat, and for the first time I can remember in my almost-4 years (on the 25th!) in the UK there is a lightning storm going on outside. I really miss them so I'm off to watch!

DEA Judicial Review (largely) fails

Hot off the press is the news that BT and TalkTalk's judicial review application has been rejected on the four main grounds. Apparently, the only claim that was upheld was a small technical point relating to whether ISPs can be made to share certain of Ofcom's general costs in administering its obligations under the Act. As can be expected, rightsholders and the government were happy.

According to the FT, a spokesperson for the Department for Culture, Media and Sport said: “We are pleased that the court has recognised these measures as both lawful and proportionate. The government remains committed to tackling online piracy and so will set out the next steps for implementation of the Digital Economy Act shortly.”

Meanwhile, in a press release, Geoff Taylor of the BPI said “This judgment gives the green light for action to tackle illegal downloading in the UK. It confirms that the DEA is proportionate and consistent with European law. Shareholders and customers of BT and TalkTalk might ask why so much time and money has been spent challenging an act of parliament to help reduce the illegal traffic on their networks. It is now time for BT and TalkTalk to work constructively with government and with rights holders to implement the Digital Economy Act.”

It is now down to the Government and Ofcom to move the implementation process forwards.

AG advises ECJ ISPs can't be ordered to block file-sharing

Advocate General M. Pedro Cruz Villalon gave his Opinion today in Affaire C‑70/10 Scarlet Extended SA v Société belge des auteurs compositeurs et éditeurs (Sabam); Belgian Entertainement Association Video ASBL (BEA Video), Belgian Entertainement Association Music ASBL (BEA Music), Internet Service Provider Association ASBL (ISPA), a reference to the Court of Justice of the European Union from the cour d’appel de Bruxelles, Belgium. Remarkably, the Opinion is so far available only in French -- but Stephanie Bodoni (Bloomberg) has come to my aid with a media release, "Belgacom ISP Can t Be Told to Block File-Sharing, Aide Says". According to this report,

"Belgacom SA's Internet-service provider Scarlet can't be forced by a national court to block users from illegally sharing music and video files, an adviser to the European Union s highest tribunal said.  EU law precludes a national court from making an order, on the basis of the Belgian statutory provision, that requires an Internet-service provider to install a system for filtering communications, Advocate General Pedro Cruz Villalon of the EU Court of Justice said in a non-binding opinion today. The Luxembourg-based EU tribunal follows such advice in most cases. 

A Belgian court last year sought the EU top tribunal's guidance on whether forcing an ISP to stop illegal file sharing on its network is in line with the 27-nation bloc's rules. 

Belgian music-copyright group Sabam started the legal fight over the use of so-called peer-to-peer software for file sharing. 

Belgacom, the largest telephone company in Belgium, won antitrust approval to acquire Scarlet in 2008. Scarlet is appealing a June 2007 Belgian court order to make it impossible for users to breach copyright laws, saying it would entail breaching customers'  privacy rights. 

Sabam said once the court has ruled on the case it would be analyzed very carefully in all EU nations because it would impact other pending cases. The group, which represents authors and musicians, said ISPs aren't properly compensating artists while using their work to promote subscriptions. ...

In a case involving Telefonica SA's Internet unit, the EU court in 2008 ruled that ISPs may not have to reveal the identities of customers accused of illegal file sharing. The Belgian court said that ruling was not sufficient to settle Scarlet s appeal. 

The court adviser today said an obligation for ISPs to install such a filtering system entirely at their own expense and for an unlimited period is a restriction of the freedom of information under the Charter of Fundamental Rights that may be possible if it is in line with national law".

Thanks, Stephanie. We all look forward to finding out how the court will rule -- and some of us look forward to being able to read the Opinion too, without having to resort to online translations.

Copyright Term Directive: latest news

70 years ago, Glenn Miller recorded
String of Pearls and Chattanooga
Choo-Choo

In "A game plan against copyright extension", Pirate MEP Christian Engström provides some useful information on today's sudden activity in the European Parliament concerning the generally unpopular proposal to extend from 50 years to 70 the duration of copyright protection for sound recordings in the European Union (on which see yesterday's post here). Today Christian writes, in relevant part:

"We now have a game plan for how to try to stop the extension of the copyright term for neighbouring rights from 50 to 70 years. You can read about the background in yesterday’s blog post. What we want to achieve is to overturn a decision to extend the protection time that was taken by the European Parliament in April 2009, after heavy lobbying by the record companies. ...

According to Rule 59 of the Rules of Procedure of the European Parliament, the parliament can reopen a dossier that is still in first reading if a new parliament has been elected since the first reading position was adopted. Since a new European Parliament was elected in June 2009, this is the case.

If 40 or more MEPs (Members of the European Parliament) ask for it, the proposal for a renewed referral will be put to the vote in plenary.

If we get a majority there, the President (speaker) of the Parliament shall ask the Commission to refer its proposal again to the parliament. This means that the dossier is open again, and we can have a full discussion about the subject matter.

This would be the sensible thing to do. The previous Parliament’s decision to extend the time for the neighbouring rights was ill considered, and has been heavily criticised by legal and economic scholars. There is no reason for the present Parliament to be bound by it.

We will now start the process of collecting at least 40 MEP signatures on the following text:

Request for
RENEWED REFERRAL
to Parliament

pursuant to Rule 59 of the Rules of Procedure

of the proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE amending Directive 2006/116/EC of the European Parliament and of the Council on the term of protection of copyright and related rights (COM(2008)0464 – C6-0281/2008 – 2008/0157(COD)).

If we can collect 40+ signatures, we should be able to get the item on the agenda for the parliamentary session in May. Then we will need citizens to email their MEPs to explain the issue and urge them to vote in the right way. But more about that when the time comes".

Apart from the strange alliance of anti-term-extension forces, with various distinguished academics and other fairly pro-copyright people teaming up with the Pirate Party on this issue, what is notable is the fact that the Pirate Party is seeking to work within the law in seeking to achieve its aims -- a far cry from the stance of some of its past supporters.

New logo

We now have a new logo! The winning design, which appears both here and in our side bar, was submitted by David Brophy (FRKelly, Dublin), to whom our congratulations are due. The vote was 63 for David and 50 for James Legg (Abel & Imray), whom we also thank.

A couple of readers have asked for an explanation, so here it is: the logo represents a clock face with the hands in the position corresponding to nine minutes past five, i.e. "17:09".

Regular visitors to the blog may have spotted that it looks a little different.  We're trying out a different template for a change. If you have strong feelings one way or another, we're sure that you'll let us know!

Just when you thought sound recordings had gone quiet ...

The eventual duration of
copyright in sound recordings? 

"Copyright term extension: Back from the grave" is the title of this piece by Bournemouth University's Martin Kretschmer. He explains:

"Two years ago, on 23 April 2009, the last European Parliament voted in first reading for a proposed Directive, extending the term of copyright for sound recordings from currently 50 to 70 years. The Directive was then blocked on the Council of the European Union by a coalition of Benelux, and some Scandinavian and East European countries that took note of the empirical evidence mustered by independent academics from across Europe.

Since 2009, the world has changed. A new European Parliament and Commission are in place, and the focus of recent copyright initiatives has been on the opportunities offered by digitisation for cultural, social and commercial innovation. As Neelie Kroes, European Commission Vice-President for the Digital Agenda said in speech at Avignon on 5 November 2010: 

“Instead of a dysfunctional [copyright] system based on a series of cultural Berlin walls, I want a return to sense. A system where there is scope to create new opportunities for artists and creators, and new business models that better fit the digital age. We want to help you seize the opportunities of this age.“

So why has the Copyright Term Extension Directive suddenly re-appeared on the Agenda of the Legal Affairs Committee of the European Parliament (JURI), as a late addendum (at no. 31, and as of Monday 11 April, not on the website of the JURI committee)? [link here to Pirate Party MEP Christian Engström]

Music industry lobbyists have succeeded in overturning Danish and Czech opposition, picking off key members of parliament in these countries. The Danish government has now notified the Commission that it supports term extension, breaking the blocking minority on the Council. See press release of 24 February.

Prompted by the Internal Market Directorate of the Commission, the current Hungarian presidency of the European Union is now looking to fast track this stale piece of legislation through Parliament while preparing the Council for a vote before the end of its presidency in June.

The Directors of four leading European intellectual property research institutes have just written an open letter in order to raise attention of this matter. It is still possible that the European Parliament will ask for a proper second reading of the text, or that other countries on the Council will reform a blocking minority (including the UK which is currently reviewing her intellectual property laws for their contribution to innovation and growth: Hargreaves Review, due to report at the end of April)".

Further developments will be posted here, as they unfold, tomorrow.

As a relatively keen observer of IP developments, I'm not often taken by surprise -- but this certainly caught me out.  I'm also unaware of any new evidence having been unearthed in order to present a stronger case for extension than that which was previously rejected.  Has there been any? Can anyone tell me?

Thanks are due to Martin Kretschmer and Mike Lynd (Marks & Clerk) for keeping me informed.

Kookaburra still up the gum tree, but judge feels disquiet

In February, in "The kookaburra wins down under", Ben posted this note on the Australian ruling that Men at Work copied Larrikin Music’s song Kookaburra Sits in the Old Gum Tree, written by Marion Sinclair in 1934, in their composition and recording Down Under. There's a neat note here from Australian law firm Allens Arthur Robinson (here) on the dismissal of Men at Work's appeal by the Full Court of the Federal Court in EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47.

A case note from another Australian law firm, Davies Collison Cave, focuses on the following comment of Emmett J, in which he expressed some disquiet concerning the finding of infringement:

"If, as I have concluded, the relevant versions of Down Under involve an infringement of copyright, many years after the death of Ms Sinclair, and enforceable at the behest of an assignee, then some of the underlying concepts of modern copyright may require rethinking. While there are good policy reasons for encouraging the intellectual and artistic effort that produces literary, artistic and musical works, by rewarding the author or composer with some form of monopoly in relation to his or her work (see Ice TV at [24]), it may be that the extent of that monopoly, both in terms of time and extent of restriction, ought not necessarily be the same for every work…".