Five stripes and you're nicked: copyright and Dutch police cars

A distinguished member of the intellctual property community has contacted this weblog with a question relating to Dutch copyright law. She writes:

"This Dutch opinion was brought to my attention but, because it's in Dutch, I am not quite sure what it says. I'm told that the design of stripes on a police car was considered a valid copyright work, which means that it has ramifications that extend far beyond trade mark law, i.e., stopping anyone else from using the same stripes anywhere. Can you explain it to us?"

Can one or more of our Dutch readers be of assistance? 

ISPs' six strikes enforcement plan in force next July

Six strikes and you're out ...
always disappointing

As our readers may remember, in summer last year some major US ISPs (AT&T, Cablevision, Comcast, Time Warner Cable and Verizon) entered an agreement with music and film industries to adopt and implement policies aimed at discouraging their customers from illegally downloading copyright-protected materials (see Ben's post here).

Since then, this agreement has been referred to as 'graduated response' or, as Ars Technica called it, 'six strikes' enforcement plan.

When entering the agreement, ISPs made it clear that they would protect their subscribers' privacy and not filter or monitor their own networks for infringement. In addition, it was agreed that ISPs would never terminate an Internet connection entirely, or otherwise interfere with subscribers' ability to receive phone calls and emails.

As explained in Time Magazine, this is how the six strikes policy would work: 

1) If a copyright owner complains to an ISP (presumably, based on sniffing out IP addresses through BitTorrent),then that service provider sends an online alert such as an email to the subscriber. The alert explains how to secure a wireless network, how to avoid copyright violations in the future and how to lawfully obtain content in the future.2) A second alert may follow if illicit file-sharing persists, or the ISP may move on to the next alert.3) With the third alert, there will be some kind of mechanism (like a pop-up notice or landing page) to ensure that the subscriber received the message.4) Another alert. Same drill as the last one.5) On the fifth alert, the ISP may take action, such as temporarily reducing connection speeds or requiring the user to review and respond to educational information on copyright. The ISP may also skip the mitigation measures and just issue another alert.6) By the sixth alert, all participating ISPs will either throttle the user or require educational measures. The entertainment industry doesn’t expect that many people will persist with copyright violations at this point.

Since the six strikes policy was adopted, however, the parties to the agreement have gone rather quiet … Until yesterday, at least.

It was not easy to find
skilled players to develop
an efficient six strikes
infrastructure

Indeed, during a panel discussion at the annual meeting of the Association of American Publishers, RIAA's CEO Cary Sherman announced that most of the participating ISPs are on track to begin implementing the program by next 12 July, as reported by CNET.

As explained by Sherman, this is because the six strikes policy would have taken a year to set up, in that "each ISP has to develop their infrastructure for automating the system". They need this "for establishing the database so they can keep track of repeat infringers, so they know that this is the first notice or the third notice. Every ISP has to do it differently depending on the architecture of its particular network. Some are nearing completion and others are a little further from completion."

It will be interesting to see the six strikes policy actually in force, especially now that proposed legislative initiatives such as SOPA and PIPA have never been least popular, both in the US and abroad.

Hotels are public; dentist waiting rooms are not.

Today, the ECJ (I am too old to call it the CJEU) handed down its decisions in two copyright cases.   In the first, Public Performance (Ireland) v Ireland, Attorney General (C-162/10), a reference from the Irish High Court, we learned that communications by hotels to hotel bedrooms are communications to the public - although we didn't really learn that as it had already been decided in the SGAE/Rafael Hoteles case.  We also learned that the ECJ did not think that Ireland was acting consistently with the Rental and Lending Directive Article 8(2) in exempting hotels from the right to equitable remuneration for the communication of sound recordings to the public.  The findings read:   

1.      A hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal is a ‘user’ making a ‘communication to the public’ of a phonogram which may be played in a broadcast for the purposes of Article 8(2) of Directive 2006/115 ...on rental right and lending right and on certain rights related to copyright in the field of intellectual property. 

2.      A hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal is obliged to pay equitable remuneration under Article 8(2) of Directive 2006/115 for the broadcast of a phonogram, in addition to that paid by the broadcaster. 

3.      A hotel operator which provides in guest bedrooms, not televisions and/or radios to which it distributes a broadcast signal, but other apparatus and phonograms in physical or digital form which may be played on or heard from such apparatus, is a ‘user’ making a ‘communication to the public’ of a phonogram within the meaning of Article 8(2) of Directive 2006/115 ... It is therefore obliged to pay ‘equitable remuneration’ under that provision for the transmission of those phonograms. 

4.      Article 10(1)(a) of Directive 2006/115, which provides for a limitation to the right to equitable remuneration provided for by Article 8(2) of that directive in the case of ‘private use’, does not allow Member States to exempt a hotel operator which makes a ‘communication to the public’ of a phonogram, within the meaning of Article 8(2) of that directive, from the obligation to pay such remuneration. 

In the second, SCF v Marco Del Corso (C-135/10), a reference from the Court of Appeal in Turin, the ECJ found that the playing of phonograms in dental surgeries was not such as to trigger the remuneration right, because it did not constitute a communication to the public for the purposes of the same equitable remuneration right.  It appears that the court found that the small number of people in the dentist waiting room at any one time, coupled with the fact that the clients could not choose which records they listened to and that the playing of records had no economic impact for the dentists concerned.  On first blush, it appears that this judgement may have significant adverse consequences for the public performance income of collecting societies across Europe.  However, ECJ judgements often don't have quite the far reaching effects as first appears.   The court also unsurprisingly found that the Rome Convention and TRIPS do not have direct effect.   The wording of the second judgement is:

1.      The provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights, ... approved by Council Decision 94/800 ...concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) and of the World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty ... are applicable in the legal order of the European Union. As the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations ... does not form part of the legal order of the European Union it is not applicable there; however, it has indirect effects within the European Union. Individuals may not rely directly either on that convention or on the agreement or the treaty mentioned above. The concept of ‘communication to the public’ which appears in Council Directive 92/100 ... on rental right and lending right and on certain rights related to copyright in the field of intellectual property and Directive 2001/29 ... on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted in the light of the equivalent concepts contained in the convention, the agreement and the treaty mentioned above and in such a way that it is compatible with those agreements, taking account of the context in which those concepts are found and the purpose of the relevant provisions of the agreements as regards intellectual property.  

2.      The concept of ‘communication to the public’ for the purposes of Article 8(2) of Directive 92/100 must be interpreted as meaning that it does not cover the broadcasting, free of charge, of phonograms within private dental practices engaged in professional economic activity, such as the one at issue in the main proceedings, for the benefit of patients of those practices and enjoyed by them without any active choice on their part. Therefore such an act of transmission does not entitle the phonogram producers to the payment of remuneration.    

Harmonisation by stealth: conversation or soliloquy?

Harmonisation by stealth: "I never
saw it coming ..."

From Dr Smita Kheria (Lecturer in Intellectual Property Law, University of Edinburgh) comes news of a forthcoming seminar, the third and final one in the University's "Conversations on Copyright" series. This is actually a cooperative venture, jointly organised by the University of Edinburgh, the University of Glasgow and the University of Strathclyde.

Star attraction is Professor Lionel Bently (Herchel Smith Professor of Intellectual Property law, Cambridge; Director of CIPIL), who will be speaking on the topic "Harmonization by Stealth? The ECJ and European Copyright Law". Smita hopes that this will be of interest to copyright enthusiasts located in and around Scotland. Its appeal is somewhat broader, so this blog hopes to pick up some of the conversation that Lionel will be having with himself and others.

The event takes place next Thursday, 22 March, from 5.30-7pm at Lecture Theatre 183, Old College Building, University of Edinburgh. It's free but, if you want to attend, do email Julie Fyffe first at j.fyffe@ed.ac.uk to let her know.

Code Wars reviewed

Code Wars: 10 years of P2P Software Litigation, by Rebecca Giblin, is reviewed here for the 12709 Blog by Stavroula Karapapa, Lecturer in Law at Brunel University.  This is what she has to say:

"Over the past ten years or so, P2P file-sharing represents one of the main challenges to copyright law and an area which has attracted intense scholarly attention. Rebecca Giblin's book represents a significant addition to this growing body of literature by providing a legal and technological account of the first decade of P2P legal discourse. The book takes off from the proposition that despite the attempts to combat file-sharing via litigation and legislation, and in spite of the legal successes from the right-holders’ front, the phenomenon of file-sharing persists. 

What clearly emerges from Giblin’s account of the so-called “Code Wars” is a rigorous insight of the inefficiencies of the current copyright norms in dealing with file-sharing technologies. Giblin identifies three such inefficiencies. First, technology progresses with its own logic and shapes its own law, which in Giblin’s words is an “anti-regulatory code”. Secondly, the software industry follows its own rules: most file-sharing software development lacks a profit motivation and, in this light, the principles that govern the hardcopy world cannot fully apply in the online context. Finally, the mentality of “sharing” is very widespread amongst file-sharing software innovators, who do not wish to enhance security against copying of their software. 

Based on her convincing diagnosis of the fundamental differences between the hardcopy and online worlds, Giblin puts aside the so-called “physical work assumptions” and lays down clear insights on possible ways of improving laws dealing with the liability of P2P software providers. Building upon the proposals set forth by Peter Menell and David Nimmer, Giblin's principal suggestion is to extend the tort law standard of “reasonable alternative design” to cases of P2P liability and, in the final chapter of her book, she actually develops a test that could apply to such cases. Promising, yet feasible, the application of this test in file-sharing cases could show the way forward".

Full details of this book can be found on its web page here.

News from the digital sphere

There are now a plethora of online services offering legal ways to listen to music, but I was interested to see the announcement that new music service Turntable.fm has reached a deal with all four of the major record labels (EMI, Sony-BMG, Universal and Warners) allowing it to “to leave the legal gray zone it had been operating in and expand into international markets”. One of the reasons I was interested is because Turntable offers a ‘twist’ on the usual music services, its not a streaming service like Pandora or Spotify, but really is a social platform, allowing users to create an online ‘room’ in which they can the programme and ‘DJ’ for other users - so the DJ actively picks his or her own music

Seth Goldstein, the company’s chairman, told his audiuence at the South by South West convention in Austin, Texas, “Basically this means we’re legitimate,” Mr. Goldstein said. “There are no eggshells, no wondering whether or not what we’re doing is viable as it relates to rights holders.” The company already had agreements with the main two US music publisher and songwriter collection societies, ASCAP and BMI Mr. Goldstein said Turntable’s audience had started gaining users and added that over the life of the service — which is only about nine months old — it had already serviced 130 million streams of music.

In other news from the digital sphere, it seems that the Canadian collection body SOCAN (Society of Composers, Authors and Music Publishers of Canada) is reviewing it's ‘blanket’ agreement with CBC which allows the Canadian national broadcaster to run 40 free genre specific online streaming music channels without having to pay a ‘per song’ royalty. The service, which has quickly attracted thousands of users, is being licensed under a deal similar to a broadcasting “flat rate” deal. However the deal with CBCMusic.ca has attracted criticism from songwriters and musicians for being unfair (to them) and Paul Spurgeon, vice-president of legal services at SOCAN, said the society was reviewing the ‘Tariff 22’ rate currently in place for CBC which relies on a formula that “factors in the number of page views the website receives”. Mr Spurgeon said the tariff was being used as a ‘default’ position.

Last but not least, I was fascinated to read about ongoing concerns about the legality of Pinterest – a service I had never heard of – which allows users to ‘pin’ images they have found on the web into a virtual scrapbook. With commentators asking if ‘Pinterest is the next Napster?’ it will be interesting to see how owners of copyrighted images such as Getty and others such as magazines and newspapers will react to the site when they find their content ‘pinned’ into consumer's scrapbooks. Particularly if reports about Pinterest's terms and conditions are to be believed. If lessons have been learned from the music industry’s mistakes, maybe they should be thought about now …….

http://news.yahoo.com/turntable-fm-bucks-legal-gray-area-licensing-deals-042209854.html

http://www.ottawacitizen.com/entertainment/royalties+under+review+music+site+sparks+debate/6297726/story.html

http://online.wsj.com/article/SB10001424052702304450004577279632967289676.html

Database Copyright in France

As database copyright seems to be in the air, I thought I'd take this opportunity to briefly summarize French law on the issue.

The operative provision is Section L.112-3 of the Intellectual Property Code, which deals with so-called derivative works (translations, adaptations, transformations, arrangements). Under this Section, a database is considered a species of the more general category of collections or compendia of works, data or other material.

As such, independently of the sui generis right which may attach where the required conditions are met, a copyright will subsist where there exists an intellectual creation as evidenced by the choice or layout of the material or data (in other words, where there is an original expression resulting from the choice or layout). Such copyright protection, which is independent of any copyright that may subsist in the constituent elements (i.e., the data), relates to the structure of the database.

It is interesting to note that when the provision was originally enacted, the requirement was that there be originality in the choice AND layout. It was not until 1996 that the law was changed to reflect the fact that the requisite originality could flow from the choice OR layout of the material.

In actual practice, such a right (copyright in the database) is rarely of much practical import. While the threshold for protection is not particularly high, the resultant protection is quite "thin" inasmuch as a showing of infringement requires proof that a third party has copied the structural elements of the database (the original expression in choice or layout). The sui generis right (where it exists) offers considerably more protection in this regard.

May rubber stamps student's extradition

Richard O’Dwyer, the British student facing extradition to the US to face criminal charges for copyright infringement over his ‘TVShack’ operation has lost another significant battle after Home Secretary Theresa May rubber stamped an application by American authorities to force the alleged infringer in front of the US courts. His mother was less than impressed with the Tory minister and the controversial 2003 Extradition Act, which many critics say puts far too low a burden of proof on the US authorities, making extradition to easy with O'Dwyer's mother saying "Today, yet another British citizen is being sold down the river by the British government. Richard's life – his studies, work opportunities, financial security – is being disrupted, for who knows how long, because the UK government has not introduced the much-needed changes to extradition law."

Concurrent with O’Dwyer’s predicament is the much publicised case of 65 year old British businessman Christopher Tappie who is being held in a US prison in New Mexico with 23 hour a day cell confinement whilst facing charges in connection with the alleged import and export batteries with an alleged end use in Iranian missiles.

http://www.independent.co.uk/news/uk/crime/christopher-tappins-son-urges-david-cameron-to-intervene-7566545.html