PRS for Music basically happy with independent code review

"PRS for Music welcomes Independent Code Review music licensing recommendations" is the very positive headline response, issued yesterday, to the publication of the Independent Code Review by Walter Merricks, CBE [for some background see earlier 1709 Blogpost here]. That's not to say, however, that the review has been accepted in its entirety: PRS for Music doesn't like being called a "quasi public body".  According to PRS for Music:

Walter Merricks was appointed last year as part of a self-regulatory process put in place by the UK's Collective Management Organisations (CMOs) to ensure Codes of Conduct were fit for purpose. Walter Merricks launched a consultation programme in November to collect evidence from the Ombudsman, the Intellectual Property Office (IPO), the BCC, collective rights management organisations (CMOs), PRS for Music members, copyright users and their representative bodies.

The report [49 pages: you can read it in full here; the review also has its own code review website here] finds that PRS for Music was compliant with its own Code of Conduct and with government standards for CMOs. The report also makes a number of recommendations that PRS for Music welcomes as part of its ambition to set best practice across all areas of its membership and domestic licensing activity:

• PRS for Music and PPL to include a commitment to cooperate in their codes of conduct;
• PRS, MCPS and PPL to establish a small business users’ panel;
• PRS, MCPS and PPL to establish a broadcast music licensing consultative panel.

The report, however, makes the claim that collecting societies are "quasi public bodies". As a private organisation, owned by its membership, PRS for Music is not a beneficiary of government funding, and does not have privileged status afforded by law. PRS for Music therefore, deems the follow-on recommendations, including publishing commercial plans, as inappropriate.

Robert Ashcroft, Chief Executive of PRS for Music said: "We are generally pleased with Walter Merricks’ Code Review and welcome the opportunity to work with our stakeholders in the coming months to implement his recommendations across the business.

PRS for Music was the first British collecting society to put in place a Code of Conduct. We strive to listen to and build strong relationships with licensees and fairly represent our members through our commitment to transparency in all operations. Although the report shows a lack of understanding about the commercial nature of our business, it serves as an important checkpoint to ensure that we are on course to provide the highest possible service to members and licensees alike."

The recommendations within this report will also be considered in light of the implementation of the Collective Rights Management Directive [on which, click here]. The CRM Directive sets out ensure all collective rights management organisations operating in Europe meet minimum standards of transparency and governance.

This blogger's impression is that PRS for Music is far better placed than most to align itself with the provisions of the Directive, the contents of which are not subjected to analysis in the Code Review.

Not a secret: new wave of Regulations helps deregulate UK copyright from today

An excited media release has been received from the UK's Department of Business, Innovation and Skills.  It looks something like this.  There may be a reason why this news has been strictly embargoed and marked "not for publication or broadcast until 00.01 on Sunday 1st June 2014", but it's not apparent to this blogger.  So far as he can tell, all the information contained in it is already well known to the British copyright community and accessible to the public -- and there's nothing earthshaking or ground-breaking in the Minister's words, no shock announcement of free beer for all collective management societies or the long-overdue introduction of a statutory "bloggers' right" ...

STRICTLY EMBARGOED: NOT FOR PUBLICATION OR BROADCAST UNTIL 00.01 SUNDAY 1ST JUNE 2014

NEW EXCEPTIONS TO COPYRIGHT REFLECT DIGITAL AGE

Reforms to copyright law come into force today bringing estimated benefits of at least £250 million to the UK economy over the next 10 years [Not complaining, but that's a disappointingly low sum. Even Simon Cowell is valued at more than that.  You could buy a house, though ...].

The reforms will give a number of sectors a legal framework fit for the digital age, removing the burden of unnecessary regulations and helping the UK better preserve and use copyright material.

Changes from today include the removal of copyright barriers to Text and Data Mining ['data mining' is a tricky term, since it seems to mean different things to different people -- but it does sound good] for non-commercial research. This important analytic technique helps the UK’s scientific and academic community to deliver new advances in medicine, technology and research. Other essential changes will help organisations from charities to museums and archives both use and protect their own material.

Intellectual Property Minister Lord Younger said:

“These common sense reforms will update the UK’s copyright system for the digital age, and help to build and maintain public confidence and respect for copyright.

These changes bring an end to many instances where people carrying out minor, reasonable acts of copying could have found themselves on the wrong side of the law.

The text and data mining exception is a particularly important step forward for researchers in the UK and will ensure they have the tools that they need to maintain their competitive edge in an increasingly global marketplace.”

The exceptions coming into force today will bring a range of benefits to a wide range of groups:

Disabled people and disability groups can now make accessible copies of copyright material (e.g. music, film, books) when no commercial alternative exists.

Researchers will benefit from the introduction of the new text and data mining exception for non-commercial research, as well as the reforms to existing exceptions that will enable limited copying of all types of copyright works for non-commercial research and private study.

Schools, colleges and universities can now use copyright material on interactive whiteboards and in presentations, and as long as they have a licence, they will not need to worry about accidentally infringing copyright.

Libraries, archives and museums will now be better able to protect our cultural heritage and preserve their collections. The existing preservation exception has been expanded to cover all types of copyright work, and now applies to museums and galleries as well as libraries and archives. Removing the barriers to preservation will save cultural institutions up to £26m per year.

Public bodies can now publish online the material they hold for public inspection, reducing costs and administrative burden of having to issues paper copies or requiring people to come to their offices.

The Government is also committed to introducing exceptions for private copying and parody and quotation once they have been approved by Parliament.

For the record, the pieces of legislation in question (which have the potential to bring a good deal of benefit, much of it financially unquantifiable, to a lot of people) are

• The Copyright and Rights in Performances (Disability) Regulations 2014 
• The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014
• The Copyright (Public Administration) Regulations 2014 

Copyright in Dublin: an event

Calling all copyright enthusiasts who will be in Dublin on 20 June 2014!

That day the Copyright Association of Ireland will run one of its popular “Updates” seminars. 

On that occasion I will have the honour and pleasure to join legendary Bob Clark [Professor Emeritus in Law at UCD and co-author of Intellectual Property Law in Ireland]. Bob will cover a range of copyright developments from common law jurisdictions, while I will look into recent EU copyright policy activity and topical decisions from everyone's favourite court, ie the Court of Justice of the European Union.

For further information and reserve your place, just click here.

CopyKat - to the scratching post - and beyond

The CopyKat does love an extra terrestrial copyright conundrum. And indeed whilst man may not have reached Mars quite yet, that has never prevented lawyers at the major record labels from extending their tentacles to reach outside the exosphere - initially by inserting clauses claiming ownership of their artiste's catalogues across the solar system  - then the Galaxy - and now the Universe. Who says the law doesn't keep up with technology? Here it's the other way around!  Now Russia’s Ministry of Economic Development has proposed a new legislative move to protect photographs taken from space - protection by copyright law: “The data from Earth Remote Sensing (ERS) and derivative materials are widely used. They are usually bought for a fee, but there is no clear legal regulation for ERS,” a ministry representative told newspapers. Reports says that Article 1225 of the Civil Code, Protected Results of Intellectual Activity and Means of Identification would be amended to include a new clause protecting “materials and/or data acquired through earth remote sensing.” NASA takes a very different approach saying this "NASA still images; audio files; video; and computer files used in the rendition of 3-dimensional models, such as texture maps and polygon data in any format, generally are not copyrighted. You may use NASA imagery, video, audio, and data files used for the rendition of 3-dimensional models for educational or informational purposes, including photo collections, textbooks, public exhibits, computer graphical simulations and Internet Web pages. This general permission extends to personal Web pages". To that end the illustration I have used is of the Russian MIR Space station - but from a NASA satellite.

In completely unrelated news - but still with the extra-terrestrial theme, singing astronaut Commander Chris Hadfield's recording of David Bowie's classic Major Tom, made on the International Space Station, has been removed from YouTube as his agreed (earthbound) term of use from Bowie has now expired with Hadfield saying:  "It has been a year since my son and I created and released the Space Oddity video. We have been amazed and delighted that so many people enjoyed it—and maybe saw what spaceflight can really be like. It helped show that humans have left Earth, and that the Space Station is a new stage, for not just science and exploration, but for our art and music too. With exploration comes insight—with perspective comes self-realization.We had permission from David Bowie’s people to post the video on YouTube for a year, and that year is up. We are working on renewing the license for it, but as there are no guarantees when it comes to videos shot in space, we thought you might want to have one last look before we take it down. Thanks for everything. You’ve all been incredible throughout.". More here. 

The UK's Police Intellectual Property Crime Unit (PIPCU) has had infamous sharing website Torrentz.eu's internet domain suspended. Torrentz.eu was already one of 21 websites blocked by UK ISPs last October after a court order directed them to put up a "virtual wall".

In the US, the Center for Copyright Information (CCI) has released its first report on the Copyright Alert System (CAS), the voluntary collaboration between entertainment and technology companies aimed at reducing copyright infringement. For the first time since the system's launch, specific information about the size of the program has been made available: Specifically, the report showed that 1.3 million Alerts were sent out in the initial 10 months of the program, most in the initial educational phases. 265 people challenged the Alerts under an arbitration system and 18 percent of those (47 people) were successful, mostly by showing that someone else had used their account - with no findings of false positives in which the content owner had misidentified the account.  Only three percent, or 37,456 of the accounts, reached level 6, which results in reduced internet speed. 
CCI also noted that the CAS is expected to double in size in the second year of operation, and CCI will begin an online awareness campaign to increase public awareness of the system. Jill Lesser, Executive Director of CCI, said : "We are encouraged by the initial data from the Copyright Alert System's first 10 months suggesting that the program has the potential to move the needle in deterring copyright infringement. Our initial research into consumer attitudes – along with what we have seen in our own data – shows that consumers do respond to this kind of educational system that alerts them to infringing activity on their account and helps them find the content they want easily and legally."  The majority of peer-to-peer copyright infringement is fuelled by a small group of younger, predominately male digital consumers”. More on Digital Journal. 

And there seems ti be LOTS of lobbying going on in the U.S. music industry right now.  A new group  formed from the Nashville music industry hopes to be able to influence ongoing debate on the future role and reform of copyright law. The group, called Interested Parties Advancing Copyright (IPAC), consists of about 50 independent publishers, administrators, business managers and entertainment attorneys.

Elsewhere in the USA, A2IM, the organisation that represents indie record labels have criticised Sony and Universal Music Group in "the fight over digital dollars". The American Association of Independent Music, whose artists include Mumford & Sons, Taylor Swift and Adele, argues that Universal and Sony are in effect a de facto “duopoly”— and use their dominance to grab a disproportionate share of streaming music royalties. Streaming services just have to deal with Sony and UMG, who control well over 50% of the recorded music sector (and yes - EU and US regulators let that happen!). The group, which represents around 325 indie labels in the US, has been lobbying lawmakers to take a fresh look at music licensing and outlined its issues in a filing submitted to the federal Copyright Office: The New York Post say that A2IM contends that the streaming music business "is essentially a zero-sum game: The music majors use their distribution muscle to extract the lion’s share of dollars from services such as Spotify and Pandora, leaving the indie labels to settle for whatever is left".

SoundExchange is making a push to change how pre-1972 recordings are treated is the U.S, The Washington D.C. based collection society for digital performance royalties has launched a multi-pronged campaign called Project72 - aimed at changing the federal law that excludes pre-1972 sound recordings from coverage under statutory licenses used by many digital music services. The campaign features a microsite and an advertisement -  a call to digital radio services to “pay for all the music they play” in the form of an open letter from over 70 artists including B.B. King, the Supremes, members of Steely Dan, the Beach Boys, Roseanne Cash, Martha Reeves, Cyndi Lauper and Al Green. the RESPECT Act was introduced by Rep. John Conyers (D-MI), ranking member of the House Judiciary Committee, and Rep. George Holding (R-NC). The bill would place pre-1972 sound recordings under federal law. Conyers stated the bill would give "a fair shake" to legendary artists and their lesser-known backing musicians. SoundExchange President and CEO Mike Huppe told Billboard the issue with pre-1972 royalties amounted to "a real and urgent problem that's happening right now."

And the Recording Industry Association of America has responded to the US Copyright Office's call for comments on a "Music Licensing Study: Notice and Request for Public Comment," by explaining why terrestrial radio should pay more in royalty payments.
Setting the current US system in a historical context (in particular the fact that terrestrial radio stations are exempt from paying royalties for broadcasting sound recordings) the RIAA says "We propose to replace the current overlapping musical work licensing systems with a single, simple and efficient system that incorporates marketplace royalty payments. As described below, such a system would have many potential advantages, including: (1) market rates for publishers and songwriters; (2) more consumer choice through easier funding and development of innovative services; (3) more revenue for services and higher royalties for creators due to savings from simplified licensing procedures; (4) improved accuracy of payments and transparency for publishers and songwriters; and (5) viability for ASCAP and BMI, and the revenue streams they administer."

And on the matter of who gets paid what from any revenues from downloads ..... Universal have now responded to the multiple lawsuits it is facing from its own artists over its controversial policy of treating a download (or even streaming income) as a 'sale' rather than licensing income - attracting the far lower 'per unit' royalty from a sale. The Hollywood Reporter explains that the new motions to dismiss from UMG  "stems from a 2010 appellate ruling in F.B.T. Productions v. Aftermath that suggested that record labels should be treating digital download income off of venues like Apple's iTunes as "licenses" rather than "sales." The difference could mean a lot of money because under typical licensing or leasing provisions of artist-label contracts, about 50 percent of collected revenue gets handed over to artists. Under sales provisions, it's usually not more than 15 percent - if they are lucky." UMG says that the F.B.T precedent is wrong and that a sale on iTunes should be like any other sale of physical product - and that in fact when the this all started UMG were generous to artistes as it waived its 'packaging deduction' for download sales - and that many artists and their representative hailed the new royalties model - albeit one based on the old - as preferable to wholesale piracy. A few artist attorneys are said to have brought forward the argument that these downloads were "licenses," an interpretation which Universal Music rejected. Then came the F.B.T. decision, and subsequently "the firestorm of litigation" with Chuck D. of Public Enemy, Rick James (by way of trust), Dave Mason of Traffic, Whitesnake, Andres Titus of Black Sheep, Ron Tyson of The Temptations and Bo Donaldson all still ready to challenge Universal Music's accounting. UMG have put up numerous other arguments rejecting the claims:  that lawsuits alleging that consumers were hurt by royalty arrangements are invalid because consumers aren't aware of these dealings; that some of the artists suing under Californian law had contracts that were governed by New York law; that 1970s singer Bo Donaldson couldn't sue because of an agreement with his former bandmates that majority participation was required to litigate; and Ron Tyson of The Temptations wasn't party to the crucial contracts because he didn't join the group until 1983. The the article on the Hollywood Reporter is well worth the read. 

And finally, UK Music Industry think tank Music 4.5 is hosting a seminar to examine the future of Intellectual Property (IP) and music licensing in the growing digital marketplace. The event, from 14.00 - 18.00 on the 25th June 2014 will bring together thought leaders, including Raoul Chatterjee (7Digital), Will Page (Spotify), Peter Bradbury (Sky) and Kim Bayley (ERA), to discuss current IP issues facing the music and music technology industries. The seminar will be hosted against a backdrop of change for IP and music licensing, as the European Commission examines the wider EU copyright. More here.

No go for John Doe show

Dominic Purcell as John Doe in the
eponymous 2002-2003 TV series

AF Holdings LLC, which claims to own numerous copyrights to pornographic films, and has been described as an 'arm' of the rather controversial copyright trolling law firm Prenda Law, has been rebuffed in it's bid to obtain subpoenas identifying information on 1,085 allegedly illegal downloaders. The District Court had ruled that AF could subpoena Internet service providers including Verizon Communications Inc. and Comcast Corp for identify information on subscribers whose computers were linked to downloads of the movie via the BitTorrent file-sharing protocol.  

The United States Court of Appeals for the District of Columbia Circuit said that AF was not entitled to contact information for people whose Internet addresses were linked to downloads of the film “Popular Demand” because few of them live in the District of Columbia, where the case was filed, and it’s unlikely any connection exists among all of the Internet addresses subject to the subpoena: “It is quite obvious that AF Holdings could not possibly have had a good faith belief that it could successfully sue the overwhelming majority of the 1,058 John Doe defendants in this district” U.S. Circuit Judge David Tatel wrote, adding that “AF Holdings clearly abused the discovery process” and that the action was "a quintessential example of Prenda Law's modus operandi". The judgment is well worth a read and ends with

"Accordingly, we vacate the district court’s order and remand for further proceedings consistent with this opinion.  We leave it to the district court to determine what sanctions, if  any, are warranted for AF Holdings’s use of a possible  forgery in support of its claim. "

With a headline of "Crushing Blow for Copyright Trolls: Appeals Court Halts AF Holdings' Extortion Scheme" The EFF had this to say: "The case is one of hundreds around the country that follow the same pattern. A copyright troll looks for IP addresses that may have been used to download films (often adult films) via BitTorrent, files a single lawsuit against thousands of "John Doe" defendants based on those IP addresses, then seeks to subpoena the ISPs for the contact information of the account holders associated with those IP addresses. The troll then uses that information to contact the account holders and threatens expensive litigation if they do not settle promptly. Faced with the prospect of hiring an attorney and litigating the issue, often in a distant court, most subscribers-including those who may have done nothing wrong-will choose to settle rather than fight."

And over on the Register under the headline "Smut-spreading copyright trolls lose John Doe case" it's explained that 

"AF Holdings' last smackdown was in November 2013, when the US District Court of Minnesota found that it hadn't demonstrated ownership of the content claimed in a previous shakedown. That court ordered that the company return the money it had obtained from punters, as well as paying their legal costs. That ruling, however, didn't stop one of the two movies, Popular Demand, being the subject of the Columbia and then US Court of Appeals case.


AF Holdings was represented by Paul Duffy, who at the previous lower court hearings as associated with Prenda Law." 

More on the Washington Post here http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/05/27/prenda-law-was-a-porno-trolling-collective/

(What's the Story) Copyright Glory? An event on 12 June

Looking for a copyright seminar in June?

Interested in copyright law and policy? Wish to discuss recent developments with your fellow copyright enthusiasts?

On 12 June from 14:00 to 18:00 pm I am running another copyright event in London entitled (What's the Story) Copyright Glory? [have I infringed Oasis's copyright? Register and we can discuss that!]

Topics will include:

• Recent copyright decisions of the Court of Justice of the European Union, including Case C-360/13 Meltwater (Does internet browsing fall within the scope of copyright? We will know on 5 June 2014);
• Copyright revision around the world, including EU Commission's Public Consultation and leaked Impact Assessment;
• The parody, caricature and pastiche exception under UK and EU laws;
• Orphan works in the EU, UK and US;
• The Collective Rights Management Directive and the new landscape for collective rights management in the EU.

This event will be limited to 20 participants, so to provide everybody with the opportunity to discuss fully the present and future of copyright law and policy.

If you wish to register, just follow this link!

IP in Music and Film: it's happening in Glasgow sooner than you think

Apologies for the extremely short notice, but here's something to warm the hearts of IP enthusiasts who live within popping-in distance of Glasgow.

1709 Blog team member Professor Mira Sundara Rajan (Glasgow Law School; CREATe copyright centre) is organizing a series of special events this week in Glasgow, on the theme of IP in Music and Film.

Guest speaker Martha de Francisco, an eminent sound engineer who has worked with classical music greats including Alfred Brendel, Jessye Norman, and the Philadelphia Orchestra, is currently an Associate Professor of sound recording at McGill University in Montreal, Canada. She will be providing her insights on music production and will lay the groundwork for discussion of the musical and legal implications of technology for authorship, ownership, collaboration, and creativity. Martha’s talk is scheduled this Friday afternoon, 3-5, in the Gloag Lecture Theatre at the Law School.

In preparation for Martha’s seminar, Mira will be hosting a pre-event session on Wednesday afternoon, 4-5, in the Walker Room at the Law School, discussing Copyright Issues in Sound Recordings. Her short presentation will be followed by ample time for questions, comments, and discussion. And let’s not forget Thursday: as part of the IP music and film fest, the independent film "Timelock" will be screened. Produced by Dr. Inge Sorensen of the Centre for Cultural Policy at Glasgow, and directed by David Griffith, it also features music by RM Hubbert, who won the SAYAwards (Scottish Album of the year) last year. The film is described as

“an aesthetically innovative, Tartan-noir thriller about a safe that doesn't open, a robbery gone wrong, and lives going off the tracks. Written and directed by David Griffith and produced by the CCPR’s Dr Inge Sorensen, TimeLock is micro-budget, filmmaking at its best. A digital film for the digital age - with a menacing, minimalist soundtrack courtesy of Dave McAulay, Howie Reeve and RM Hubbert winner of the Scottish Album of the Year Awards 2013. The screening will be followed by Q&A with the director.”

David and Inge will be on hand to present their film at 8:00 on Thursday evening, venue to be announced.

For further details, please link to the website of the newly established student IP Society at Glasgow (ip-society.co.uk), and to the CREATe website (create.ac.uk). All IP, music, and film enthusiasts are welcome!

Newzbin: "unlawful means" conspiracy claim upheld

Twentieth Century Fox Film Corporation and other companies v Harris and others [2014] EWHC 1568 (Ch), a Chancery Division for England and Wales decision of Mr Justice Barling a couple of weeks ago, is the latest (will it be the last?) bit of the Newzbin saga to hit the British courts.

All of the claimant companies, members of the Motion Picture Association of America, owned copyright in many films and television programmes. These proceedings arose from two earlier actions -- Newzbin 1 and Newzbin 2,  on which see this Katpost here.  Newzbin 1 was a copyright claim concerning the operation of a website by Newzbin Ltd for the purpose of making unlawful copies of copyright works available to its users, in which the court held that there had been extensive infringement of the claimants' copyrights.  Newzbin 2 involved the 'reincarnation' of the offending website as a similar website operating outside the jurisdiction. Here the court made an order requiring the major UK internet service providers to take steps to prevent subscriber access to the reborn site. The claimants, having become increasingly convinced that Harris, the first defendant, was actively involved in the operation of the later website, brought proceedings against him and persons and companies linked to him. According to the claimants:

(i) between mid-December 2009 and the end of November 2012 Harris had been the driving force behind mass deliberate infringements of the claimants’ copyrights;  

(ii) the various corporate defendants were Harris's corporate creatures, being owned and/or controlled by him, and  

(iii) he had used those companies for the purposes of channelling to himself or for his benefit the revenues earned from those infringing activities, as well as for syphoning off funds from Newzbin and thwarting the claimants’ ability to recover costs and compensation for the infringement by Newzbin of their copyrights, the entitlement to which had been established by the earlier proceedings.

According to Harris and the other defendants:

(i) although Harris had been the sole director and owner of Newzbin from December 2009 to May 2010, he had no intention to infringe copyright and did not believe that infringing activity was occurring until the first Newzbin judgment;

(ii) Harris had had nothing to do with the setting up or running the Newzbin2 website, which had been operated by hackers who had stolen data from the Newzbin1 website in order to do so and

(iii) there had been no conspiracy between the defendants.

What's more, argued Harris, in making him a party to the proceedings, the claimants were re-litigating matters against a new defendant whom they ought to have joined in the original trial and this was an abuse of process.

Barling J allowed the film companies' claim.

(i) There was no evidence from which it could be properly concluded that there had been sufficient material available to the claimants in Newzbin 1 and Newzbin 2 to justify holding that they ought reasonably to have joined Harris as a defendant in Newzbin 1 at any stage and there was no substance in the argument that commencing these proceedings against Harris was an abuse of process.

(ii) Harris was a joint tortfeasor with Newzbin in respect of the Newzbin 1 copyright infringing operations. He also masterminded and directed all Newzbin's actions in the period in question, including those that had been found to constitute infringing conduct. If ever there was a clear case of a company director intending, procuring and sharing a common design to commit an infringement with the company, this was it. Much the same applied to Newzbin 2, where he was either the sole tortfeasor or a joint tortfeasor.

(iii) All four elements required for an "unlawful means" conspiracy had been made out. These were (i) a combination of two or more persons; (ii) to take action which was unlawful in itself; (iii) with the intention of causing damage to a third party; and (iv) damage being caused to the third party.

Barling J's judgment is 178 paragraphs long,