Remember remember the 1st of November - Term Extension ignites

The term of protection for sound recordings and performers' rights in the United Kingdom will be extended as of the 1st of November, to bring UK law into line with Europe, and implement Directive 2011/77/EU.

The Directive to extend the term of protection for performers and sound recordings to 70 years was adopted on the 12th September 2011. The aim of the Directive is to bring performers’ protection more in line with that already given to authors – 70 years after their death - and the Copyright and Duration of Rights in Performances Regulations 2013 will extend copyright term for sound recordings and performers' rights in sound recordings from 50 to 70 years. The extension of the term of protection will apply only to those sound recordings that are in copyright on 1 November 2013. The Regulations do not have the effect of bringing back into copyright those sound recordings whose copyright has expired.

Additional measures in the Directive, which will be implemented by the Regulations, include some of the issues raised earlier by the Music Managers Forum amongst others, when answering the question raised in the Gower's Review, which asked what "alternative arrangements" could accompany any extension of term. 

- that record producers set aside 20% of all revenues from the sales of sound recordings for a fund for session artists who will share equally in any revenues from both physical and digital sales (although as one of our readers noted - it will be interesting to see who administers this fund ...... and at what cost);

- that if a record label is not commercially releasing a track that is over 50 years old, then the performers can request that the rights in the performance revert to them - a 'use it or lose it' provision;

-a 'clean slate' provision that prevents the producer from deducting advance payments from royalties after 50 years;

- alignment of the term of protection for the music and lyrics in a musical composition. The Directive provides that where the music and lyrics in such a musical composition are written specifically for each other, the term of copyright in each shall last until 70 years following 
the death of the last surviving of both (or all) of the creators.

The IPO has published a User's Guide to the Directive  and more here. 

Collective Copyright Trolling?

Just over a week ago Australia elected a new Federal Government, and many people are watching closely to see how copyright policy will change under the new regime. It's a particularly sensitive time as the Australian Law Reform Commission is in the final stages of an inquiry into the adequacy and appropriateness of current exceptions and statutory licences, with its report due by late November.

Given this context, it's highly interesting that the Copyright Agency Ltd has gone on the front foot with an aggressive marketing campaign. CAL is "the peak Australian body for licensing the rights to copy and communicate published material", and apparently it would like to drum up some new business in the form of more licences - and more prosecutions.

These ads were published about a week ago in the broadsheet press, encouraging employees to anonymously dob in their bosses for copyright infringements:

Using the slogan, "it's easy to infringe - easier to be licenced" CAL notes that "most" workplaces are infringing copyright. There's no doubt that that's true. There's probably millions of infringements every year by businesses and employees who would likely be outraged to discover their activity is infringing.  Australian copyright law relies on a system of narrow purpose-based exceptions, and many surprising situations fall outside them. For example, operating a search engine from Australia would almost certainly involve wholesale infringement.  Consumers can copy music from a CD to their tablets - but not from DVDs. Mashups and remixes aren't permitted unless they happen to also fall within one of the purpose-based exceptions, such as the one permitting fair dealing for parody or satire. Libraries can make copies of a published work for the purposes of replacing a work…but only after that work has been lost or stolen. Australians had no right to time-shift television until 2006, and even now it doesn't extend to current-generation timeshifting technologies (as I've written about here). And it's OK for teachers to write a poem on a blackboard, but writing the same poem on an interactive whiteboard will incur a fee. (More examples can be found on the Australian Digital Alliance's Copywrong website. Disclosure: I'm a member of the ADA's board.)

In light of CAL's strongly-worded position in favour of new licences over new exceptions, it will be interesting to see whether drawing attention to the ease with which copyright can be infringed under the existing law was really the best strategy.

By the way, before you decide to dob in your employer, bear in mind that there's a few catches. Monetary rewards will only be offered if your tip leads to a successful prosecution or a new licence - and their amount and payment are solely at CAL's discretion.

Orphan works: have the British ERRed?

"The Orphan Works Provisions of the ERR Act: Are They Compatible with UK and EU Laws?" is the title of 1709 Blogger Eleonora Rosati's most recent article. A forthcoming publication in Sweet & Maxwell's monthly European Intellectual Property Review, this piece is already available online via SSRN: you can access it here. According to the abstract:

On 25 April 2013 the Enterprise and Regulatory Reform Act 2013 (ERR Act) received Royal Assent. The ERR Act contains a number of heterogeneous copyright provisions, including one – Section 77(3) – which confers a new power upon the Secretary of State to provide by regulations for the grant of licences in respect of orphan works.

This article analyses the legislative framework for orphan works as resulting from the ERR Act and compares it with the recently adopted Directive 2012/28/EU (the Orphan Works Directive, which the UK must implement – along with all other EU Member States – by 29 October 2014). Although the actual shape of UK orphan works legislation has yet to be fully defined – either under the ERR Act, or the Orphan Works Directive, – this contribution questions whether in principle the ERR Act is compatible with the Copyright and Designs Patents Act 1988, Directive 2001/29/EC (the Information Society or InfoSoc Directive), the Charter of Fundamental Rights of the European Union, and the Orphan Works Directive.

This requires consideration of the nature of the regimes embodied in the ERR Act (which purports to adopt a ‘licensing’ approach) and the Orphan Works Directive (which creates an exception), as well as the more general relationship between EU and national laws (in particular the principle of supremacy of EU law and the doctrine of EU pre-emption), so to establish whether, by adopting its orphan works provision in the ERR Act, the UK acted in breach of its obligations under EU law. In any case, it is submitted that the UK has rendered impossible any meaningful implementation of the Directive into its national law. As a matter of practice, there will be no significant advantages to claiming the benefit of the orphan works provisions under the Directive, rather than the parallel provisions under the ERR Act, at least for works that will be exploited within the UK territory.

Is Eleonora right? Do you agree with her analysis? Do let her know what you think!

The CopyKat: Games without frontiers, settlements without tears

We've already noted that numerous heritage recording artistes are are filing to reclaim the copyright to their recorded works in the USA, as the "magical" 35-year mark triggered by Section 203 of the US Copyright Act is finally arrived at in 2013 (for works created in 1978). And no doubt each passing year will bring with it another batch of recordings that artists can reclaim from their current and former labels - and the labels will resist - primarily claiming the copyrights are works made for hire and thus excluded! Now Dan Rogers at Gamasutra has pointed out that the next few years might see the same sort of defensive activity from video game companies as the termination date rolls up on some old classics - in the next five years titles including Asteroids, Galaxian, Frogger, Donkey Kong, Missile Command and Mario Brothers will all be over 35!

And on that very topic, Former Village People member Victor Willis (the 'policeman', right) who wrote the lyrics for many of the band's biggest hits, says that he is close to regaining control of his share of the copyright in the 33 songs he had reclaimed in 2011 under US law - having defeated arguments that the songs were written on a 'work for hire' basis.Willis told the Times: "I'm hoping that other artists will get a good lawyer and get back the works that a lot of us gave away when we were younger, before we knew what was going on. When you're young, you just want to get out there and aren't really paying attention to what's on paper. I never even read one contract they put in front of me, and that's a big mistake".  An appeal is expected, as is further litigation over the share of the copyrights Mr Wills is entitled to.

Harper Lee and  literary agent Samuel Pinkus have reached an “agreement in principle” to settle the copyright lawsuit the famed author of “To Kill a Mockingbird” brought against Pinkus in May. "The parties reached a mutually satisfactory resolution and everybody would like at this point to put it behind them,” said attorney Vincent Carissimi of the firm Pepper Hamilton, who acted for the defendants. Dismissal papers were seemingly filed in Manhattan federal court by Lee’s lawyer removing both journalist Gerald Posner and Lee Ann Winick, Pinkus’ wife and another defendant, of any liability in the matter except for their own legal costs. The claim by Harper Lee against Pinkus and the other defendants was that after Harper Lee's literary agent Eugene Winick of Mackintosh & Otis fell ill in 2002, his son-in-law (Pinkus) diverted several clients to a new company, formed with Posner, “and then engaged in a scheme to dupe Harper Lee, then 80 years old and with declining hearing and eyesight” into signing over her copyright for “no consideration.”


Marvel Comics has agreed to settle a lawsuit with Gary Friedrich who sued the publisher over the copyright to the flaming-skulled character Ghost Rider. The agreement, disclosed in a letter filed Friday in U.S. District Court in Manhattan, if finalized would resolve five-years of litigation brought by former Marvel freelancer Friedrich, who claimed he created the motorcycle-riding vigilante and that the rights to Ghost Rider automatically became his after the initial copyright term expired in 2000. 
The settlement follows the June decision by the 2nd U.S. Circuit Court of Appeals in New York to revive the lawsuit. A trial judge had previously dismissed the lawsuit, finding the rights to the character belonged to Marvel, owned by Walt Disney Co.

Fashion designer Jeremy Scott  has settled a case with NHS Inc., owner of the iconic Santa Cruz Skateboards graphics: Scott was accused by skaters of poaching artwork from the brand's famed father-and-son illustrators, Jim and Jimbo Phillips with Scott saying "I regret that certain pieces of my February 2013 Fall Winter fashion line incorporated imagery that was similar to images owned by NHS and Messrs. Phillips" adding  "I now recognize my mistake and out of respect to their work and their rights, the clothing and handbags at issue will not be produced or distributed."

Over on the IPKat Birgit reports that The Higher Regional Court of Karlsruhe (case reference: 6 U 72/12 of 3 June 2013) has recently confirmed that domestic premises, such as an apartment building, can attract the copyright protection under German law, saying that domestic premises can attract copyright protection, provided the building in question 'stands out' when compared to the majority of buildings. More here. 



And also on the IPKat you can catch up on where the French are with the demise of the HADOPI authority (Haute Autorité pour la diffusion des œuvres et la protection des droits sur internet), created in 2009 to fight against on-line piracy - and the transfer of its remaining powers to the Conseil Supérieur de l’Audiovisuel (CSA) - the French TV regulator. With internet piracy on the rise in France, TV, film and music company's remain concerned that a toothless regulator will do nothing so solve their problems - but the present French government remain equally convinced that suspension, throttling or termination of internet connections is disproportionate to the problem.

In the United Kingdom, a new report from Kantar Media for media regulator Ofcom shows that just under one fifth of internet users have accessed content online illegally, with 18% of television programmes viewed online being in breach of copyright laws. More than half of all internet users – 58% – downloaded or streamed at least one item of content over the year from May 2012 to May 2013. The report found that infringement was a “minor activity” during this period, with 17% of internet users consuming at least one item of “infringing content”. The report said this equated to around a third of all consumers of online content. In terms of volume, 22% of all content consumed online during the year was infringing. Of the TV shows watched online, 18% were done so illegal. 15% of filesharers would stop if they thought they would get sued - only 5% would stop if they were threatened with slower internet speeds when caught.  74% of copyright infringements were carried out by just 2% of internet users. However, the research also showed that those who pirate content were also likely to spend more money on legal downloads. Over a three month period pirates spent £26 on content compared to £16 from those who refrained from infringing copyright. Ofcom said that no single enforcement solution is likely to address online copyright infringement in isolation. Executive Summary here.


And finally - A federal judge in the USA has refused to dismiss a number of copyright claims against the Beastie Boys, relating to music they sampled in their first two hit albums in the 1980s.   In 2012 TufAmerica alleged that songs in "Licensed to Ill" and the 1989 follow-up album "Paul's Boutique" illegally sampled the music of R&B group Trouble Funk, whose rights TufAmerica owned. The defendants in the case, the band, Universal Music Publishing, Brooklyn Dust Music and Capitol Records moved to dismiss on the ground that TufAmerica had failed to make an actionable case but U.S. District Judge Alison Nathan has now said that judging the issue of copyright infringement first required a determination of how to compare the song samples saying  "The real question at this stage - more so than the question of how to label the relevant test - is whether (as to each sample) plaintiff has plausibly alleged that the sample is quantitatively and qualitatively important to the original work such that the fragmented similarity becomes sufficiently substantial for the use to become an infringement" holding that at least some of the claims could survive as the court could not conclude that the samples used in Beastie Boys tracks were "substantively insignificant" - or some of the samples were significant enough to survive the dismiss motion. Nicki Minaj is also facing claims that she used components of an underground record titled "Neu Chicago" on her 2012 chart topper  "Starships." Chicago artist Clive Tanaka has brought the claim.

Flash: No Connected Device Tax in France Before 2015

Readers may recall that one of the most radical ideas put forth in last May's Lescure report was a (1%) tax on connected devices (as a complement - and eventual substitute - to the levy for private copying). See here

The Minister of Culture announced today (Friday) that no such tax will be included in the 2014 Budget.  In other words, the connected device tax will not be a reality in France until 2015 (at the earliest).

UK Government launches public consultation on regulation of licensing bodies

Lovely friends, mouth-watering food and 
a 4-hour discussion on licensing bodies and 
UK Government consultation = THE perfect night

Are licensing bodies your favourite topic of conversation, even at social gatherings or dinner parties? Do you care about the way they operate and how this can be improved? 

Great: here's your chance to have your say!

You will remember that, back in 2011 the Hargreaves Review in the UK recommended that collecting societies "should be required by law to adopt codes of practice, approved by the IPO and the UK competition authorities, to ensure that they operate in a way that is consistent with the further development of efficient, open markets”. 

UK Government accepted this recommendation and, following a public consultation, in July 2012 it published a policy statement, in which it clarified its intention to bring forward legislation to regulate collecting societies.

The Government's policy intention was to strengthen confidence in the operation of collecting societies. To do this, it took a power in the recently adopted Enterprise and Regulatory Reform Act that requires collecting societies to self-regulate in the first instance. The power also allows the Government to make secondary legislation to correct and, where warranted, penalise failures in self-regulation. 

Today the the Government has launched a consultation on draft secondary legislation that will be known as The Copyright (Regulation of relevant licensing bodies) Regulations 2014 and will serve to remedy gaps in self-regulation by collecting societies. 

You have time until 7 October 2013 to submit "substantive comments" on the legal effectiveness of the Regulations (only these, as the policy itself is out of the scope of the consultation). Do let the IPO know what you think by filling out the relevant form.

Regulating the economy? No, economy in regulation

In case you missed it in the course of a sunny, sport-rich summer (as this blogger did), here's the ipsissima verba of clause 26 of the United Kingdom's Deregulation Bill 2013 which was published in July.

26 Repeal of power to make provision for blocking injunctions

In the Digital Economy Act 2010, omit sections 17 and 18 (which confer power on the Secretary of State to make regulations about the granting by courts of injunctions requiring the blocking of websites that infringe copyright).

But don't think that this provision has anything to do with the British government's attitude towards copyright; it's all about something quite different -- public money.  One of the functions of this Bill, outlined in the Foreword, is this:

"Publication of the draft Bill is the latest step in the Government’s ongoing drive to remove unnecessary bureaucracy that costs British businesses millions, slows down public services like schools and hospitals, and hinders millions of individuals in their daily lives".

Flash: No Internet Suspension for Internet User Found Guilty of Negligence

PCInpact is reporting (see here) that the penalty of a 15-day internet suspension handed down against a peer-to-peer user by a French court last summer will not actually be enforced.  After the judgment was rendered (for having failed to,properly secure his internet access after having received warnings pursuant to France's three-strike HADOPI statute) but before it actually became res judicata (due to the delay for appeals and the fact that it was a default judgment), the decree of July 8th 2013 (see here) was promulgated, eliminating the third strike of internet suspension.  As a result, in accordance with the pinciples of French criminal law, the penalty cannot be enforced.