Orphan works in the UK: a caring home at last?

Fun is guaranteed when you know
everything about 'diligent search' ...

Issues surrounding orphan works are not only important, but also make a great topic of conversation for summer gatherings. If you are running short of insights into this fascinating copyright-related topic, don't worry because 1709 Blog friend Tom Ohta of Bristows LLP (@tom_ohta) is coming to your rescue. 

Here's what Tom writes:

Orphan Works: here we come!

As readers may recall, earlier this year, the UK government launched a technical consultation [here] on the draft secondary legislation to introduce a licensing scheme for orphan works in the UK [on which this blogger wrote a longer (and critical) piece here] and to transpose the Orphan Works Directive into English law.

The UK government has now considered the responses to its technical consultation and taken these into account in the amended text of two regulations which have now been laid before Parliament: the Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014 (which introduces the orphan work licensing scheme) and the Copyright and Rights in Performances (Certain Permitted Uses of Orphan Works) Regulations 2014 (which transposes the Orphan Works Directive into English law). The amendments made to the text following the consultation are primarily ones of refinement.

... Just look at Tom's smile!

Previously, orphan works have been the subject of somewhat sensationalist (and misleading) commentary with buzz words such as the ‘Instagram Act’ which was ‘abolishing copyright’ [here]. A good starting point for those seeking to get up to speed with orphan works is the UK IPO’s (37-page) response to the technical consultation which summarises the comments received and sets out its current position. In particular, there are helpful flow-charts of how the licensing scheme is intended to work and the process under the Orphan Works Directive (at pages 4 and 5).

However… for those looking for the headline points, these are summarised below for your perusal, followed by some thoughts on possible issues that may arise in the future.

Authorising body

·    The UK IPO will be the authorising body responsible for granting orphan licences.

Diligent search

·    A ‘reasonable search’ of the ‘relevant sources’ must be conducted. The regulation requires applicants to search the register maintained by the UK IPO and the databases maintained by OHIM.

·    Where the UK IPO and OHIM searches fail to reveal the owner of the work, applicants must then check the sources listed in Part 2 of Schedule ZA1 to the CDPA: these are set out in the Certain Permitted Uses of Orphan Works Regulations, and different sources (including collecting societies) are listed depending on the type of work in question, eg audiovisual, visual works, newspapers etc.

·    It is likely that the Copyright Hub will play an important role in the functioning of the licensing scheme by having, for example, inter-linked databases to reduce the cost of diligent searches. However, it is currently still at a test phase.

With your diligent search
having a 7-year validity,
you may even think of
spending this time abroad

·    A diligent search will be valid for 7 years. 

Applying for an orphan licence

·    Applicants must provide information in the orphan licence application form (which has not yet been released) showing that a diligent search has been conducted, and specifying how it intends to use the orphan work.

·    It remains to be seen what level of detail the IPO will require to satisfy the diligent search requirements. It is worth noting the detailed sector-specific guidelines on due diligence criteria for orphan works which are set out in a Joint Report published in May 2008 as part of the European Digital Libraries Initiative.

It is unclear to what extent the IPO will have regard to these Joint Report guidelines when considering applications under the Licensing of Orphan Works regulation. In particular, the Joint Report guidelines suggest that as part of a diligent search, the applicant should take steps to publicise the orphan work, for instance, in trade publications, social networks, and in the press. This is likely to increase time and cost, and it is questionable whether it would be proportionate to require applicants to take such steps under the UK regime.  

Licence terms

·    An orphan work licence permits the licensee to carry out acts that would otherwise infringe copyright or performers’ rights for up to 7 years. However, there is a statutory prohibition against the grant of exclusive licences and sub-licensing is not permitted.

·    The licence may be granted subject to conditions, and the IPO has the discretion to vary the licence terms during its term.

·    Whether a licence can be transferred is not addressed in the regulation. However, the IPO has indicated that transferability of licences will be dealt with in the licence terms, and the normal position is that they will not be freely transferable, although each case will be considered on its facts.

Grounds of refusal

·    The IPO may refuse to grant a licence where it considers that the proposed adaptation or use of the work is ‘not appropriate having regard to the circumstances of the case, including whether the proposed adaptation constitutes derogatory treatment of the work’.

·    It also has a wide discretion to refuse to grant a licence on ‘any other reasonable ground’.

Licence fees

·    The IPO is entitled to charge a ‘reasonable licence fee’ for the licence term, bearing in mind factors such as the licence fees charged for a ‘similar use’ of a ‘similar relevant work’ which has not been orphaned. The IPO has been working closely with sector-specific groups (as listed in the response) to ascertain potential licence fees.

·    A reasonable additional amount can be added to the licence fee to cover the IPO’s costs.

·    The IPO must hold all orphan licence fees in a ring-fenced account, and must retain these for at least 8 years from the date on which the licence was granted.

·    After 8 years, if no rights holder comes forward to claim ownership, the IPO can deduct its reasonable costs from the retained fee, and apply any surplus ‘to fund social, cultural and educational activities’.

BREAKING:
IPO expects revenant rightholders
be in better shape than the one above

·    If a rights holder comes forward within 8 years from the date of the licence grant and satisfies the proof of ownership requirements of the orphan work (regarding which we currently have little information), the IPO must pay the rights holder the licence fee paid by the orphan licensee within 2 months.

·    If the rights holder comes forward after the 8 year period, the IPO has the discretion to remunerate the rights holder as it considers reasonable in all the circumstances.

 Appeals

·    A rights holder has a right of appeal to the First-Tier Tribunal (presumably, to the General Regulatory Chamber) where it considers that the IPO has acted improperly or failed to comply with its obligations under the regulation. The procedural rules currently applicable to the General Regulatory Chamber can be found here.

·    An orphan licensee can appeal to the Copyright Tribunal (whose rules of procedure can be found here) if the IPO refuses to grant a licence. An appeal can also be lodged by the orphan licensee in respect of any conditions imposed by the IPO in connection with a granted licence, or in respect of the licence fee amount.

What’s next?

The regulations will now be laid before Parliament for approval, and are due to come into force on 29 October 2014 [this is also the deadline for transposing the Directive into the laws of Member States]. In the meantime, the UK IPO is no doubt being kept busy developing the IT system and further fleshing out the processes underlying the orphan works licensing scheme.

It is anticipated that a number of issues are likely to raise issues for stakeholders, including the following:

·    Striking the right balance when considering whether the diligent search requirements have been met: the IPO will need to tread carefully to ensure that it adopts a consistent approach which does not impose overly onerous obligations on orphan licensees but also adequately protects the interests of rights holders, whilst considering the interests of those responding to diligent search requests.

·    Obligations on organisations responding to diligent search requests: the IPO acknowledges the collecting societies’ views that where an organisation receives a diligent search request, it is up to that organisation whether or not they respond, and if so, whether they can charge for providing that service. Given that the regulation does not impose any positive obligations on organisations to respond to diligent search requests, how will an organisation’s refusal to respond to a request (for instance, because it is particularly onerous) or a licensee’s refusal to pay an organisation’s requested administration fee (for instance, because it considers that it is unreasonably high) be taken into account when the IPO evaluates whether a ‘reasonable search’ has been carried out?

·    Global access to digitised orphan works: the scope of the orphan licence extends to digitising orphan works and making them available online. However, the statutory scope of the licence is restricted to use within the UK. Thus, where orphaned content is made available online, it raises questions as to how to address concerns about unlawful use of orphan content in other jurisdictions.

Whilst there are technical measures, such as geo-blocking, that could be deployed, where a site contains both orphan and non-orphan content, this can be an overly blunt tool. In the future however, it is feasible that reciprocal agreements are entered into with other countries to enable UK-issued orphan licences to be valid in those territories and vice versa [this is indeed something that this blogger heard IPO officers saying at a recent conference].

·    Dealing with ‘works within works’: how far does a diligent search need to go in respect of a work which contains multiple works within it – for instance, or a book which contains photos or drawings?

·    Moral rights: the law in this area is still evolving (for instance, in relation to moral rights and parody) and it will be interesting to see how the IPO will deal with moral rights issues when reviewing orphan licence applications.

It is likely to take some time before we are able to see how effectively the orphan licensing scheme will work in practice, and there will undoubtedly be further issues that arise as the orphan work licensing scheme develops. Watch this space.

Court cautious to imply exclusive copyright licence into business contract

Orvec International Ltd v Linfoots Ltd [2014] EWHC 1970 (IPEC) is an 18 June 2014 ruling of Judge Hacon in the Intellectual Property Enterprise Court, England and Wales. Orvec traded in textile products which it sold to airlines; Linfoots was an advertising agency which provided advertising and marketing services to Orvec between 2002 and 2011 which included the making of photographs of products which Orvec then offered to the airlines.

Both parties agreed that Linfoots retained ownership of copyright in its photographs, if for no other reason than that there was an express term to that effect in Linfoots' standard terms and conditions, which governed their relationship, which ended in 2011.

The products shown in Linfoots' photographs were sometimes made by Orvec but in many instances were supplied to it by Intex, a business based in Hong Kong. In 2012, after the business relationship between Orvec and Intex ended, Intex started to compete with Orvec in the supply of textile products to airlines. Then, in September 2012, Intex asked Linfoots to create and supply photographs for use in its advertising. Linfoots supplied images showing the sort of products which Intex offered to airlines, some or all of which appeared on Intex's website -- among which were images to which Orvec took exception.

According to Orvec, the images on Intex's website included photographs created for Orvec and that they had been supplied by Linfoots in breach of the latter's contract with Orvec in that their agreement contained an implied term giving it a perpetual and exclusive licence under the copyright in the photographs, an implied term which Linfoots had breached. Secondly, said Orvec, the appearance of those images on Intex's website gave rise to passing off, the means to which were supplied by Linfoots.

Judge Hacon dismissed both limbs of Orvec's action.

* As to breach of contract, an implied term setting out the licence granted by Linfoots to Orvec was likely to be simple in form: the more complex the putative term, the less likely it was that the reasonable person would take it to be an implied part of the contract.

* The reality was that the only term implied into this contract was that Liinfoots granted Orvec just a non-exclusive licence under the copyright in the photographs. This licence was probably perpetual, and the hypothetical reasonable person, considering Linfoots' standard terms and conditions, would not take anything more to have been implied: there was no reason to infer that the parties must have agreed that Orvec should have the right to prevent Linfoots from copying those photographs or dealing in such copies, even where Orvec's trade mark was omitted from the copy, since many of the products shown in the photographs were generic in nature.

* If more than a non-exclusive perpetual licence was to be implied, at most it would be was exclusive only where Orvec's trade mark appeared in the photograph. This however would require consideration by the hypothetical reasonable person of a term with a more complex formulation, which meant that the term was less likely to have been implied. In any event, it had not been established that any photographs showing Orvec's trade mark were supplied by Linfoots to Intex.

The judge's approach here seems entirely appropriate. This blogger has long felt that "there must be an implied term" is the last resort of a claimant who doesn't have any stronger basis for making his case, and this is an argument which appears to fail in the vast majority of IP cases where it is pressed.

ALCS: tough times if you want to live off your writing

The Authors' Licensing and Collecting Society (ALCS) in the United Kingdom commissioned a survey on authors' earnings (by Queen Mary, University London's Phillip Johnson, Johanna Gibson and Gaetano Dimita). It's called What Are Words Worth Now? A Survey of Authors' Earnings and you can read the report (12 pages) here.

Here's what the BBC ("Typical writer 'earns £11,000 a year', research reveals"), The Guardian ("Authors' Incomes Collapse to 'Abject' Levels"), the Daily Telegraph ("JK Rowling’s 'little story about wizards' makes it hard for authors, says Joanne Harris"), the Bookseller ("Typical author earnings 'dropped to £11,000 in 2013'") and the International Business Times ("Writers' Block: Authors' Average Earnings Plummeted to £11,000 in 2013") have to say about it.

The reports concludes thus:

Adapt and survive

The UK creative industries are a proven world-leading success story, punching well above their weight internationally. However, these are concerning times for writers.

Digital use earnings are going up but overall incomes are coming down and the proportion of professional authors who earn a living solely from writing has fallen from 40% to just 11.5%.

For writers to continue making their irreplaceable contribution to the UK economy, they need to receive fair remuneration for their work.

This means ensuring clear, fair contracts with equitable terms and a copyright regime that supports creators and their ability to earn a living from their creations.

This blogger has done a fair amount of writing in his time, and there have been years in which he has earned a welcome addition to his income from this source -- but he costed out his first attempts at remunerative writing and worked out that, taking into account time spent not just writing but also reading and correcting proofs, dealing with publishers and so on, his earnings were somewhere around 30 pence an hour. While this experience may not be typical of all authors, the reality check proved to be of greater value than the royalty cheque ...

The CopyKat - waving a goodbye paw for Mike, the GRD, Aereo's old business model, and the World Cup.

Mike Weatherley MP

Mike Weatherley MP, who has been particularly vocal on music business and intellectual property issues in his time in the UK Parliament, has announced he will not re-stand at next year's General Election. The Member of Parliament for Hove and Portslade since 2010, Weatherley worked in both the music and film industries before entering politics. He has been very involved in the All Party Parliamentary Groups on music and ticketing, and last year became the IP Advisor to Prime Minister David Cameron - as well as running the 'Rock The House' band competition which saw winners pay live in the Speaker's Rooms at the House of Commons in London. Commenting, Mike said: “This has been an exceptionally difficult decision to make. It has been a remarkable opportunity to represent the wonderful residents of Hove and Portslade in Parliament and I look forward to continuing to do this until the election near year.” Mike recently successfully battled cancer.

Indian TV company Multi Screen Media, a Sony subsidiary, has secured wide ranging web-block injunction in the Indian courts forcing internet service providers in the country to block some 219 websites - although the original legal filing last month reportedly targeted 479 offending online services who were illegally streaming FIFA World Cup programmes. Rather than targeting the sites, Multi Screen looked for blocking order(s) and the judge in the case said "Learned counsel for the plaintiff submits that many of the websites [in the list] are anonymous in nature and it is virtually impossible to locate the owners of such websites or contact details of such owners. It is further submitted that many of these rogue websites also hide behind domain privacy services offered by various domain name registrars".


Variety reports that following its defeat at the Supreme Court, Aereo is pursuing a new legal strategy in an effort to keep its broadcast streaming business alive. In a letter to U.S. District Judge Alison Nathan on Wednesday, Aereo’s legal team is claiming that it is eligible for the same statutory license that cable companies pay in providing broadcast transmissions to their subscribers. Aereo cites the Supreme Court majority opinion, which was rooted in the idea that because Aereo was “substantially similar to” a cable system, it fell under provisions of the 1976 Copyright Act that target such multichannel distributors and is "proceeding to file the necessary statements of account and royalty fees”.

UK collecting society PRS For Music has confirmed that the much anticipated Global Repertoire Database - a central database for musical works - has run been scrapped, though said that it remained "committed to the principles of a single point of works registration" and hoped lessons learned from the GRD could be employed in future song ownership data ventures. CMU Daily reports that the GRD was initially backed by all the big publishers, most of the significant music collecting societies, and some of the digital players who need access to the data. ICE, the joint venture between PRS For Music and Swedish collecting society STIM, was appointed as a technology provider, Deloitte were handed the business development role but recent missed self imposed deadlines and this week sources told Music Week that after £8 million in investment, the venture had been "scrapped due to a fall-out of collection societies over funding". 

Deckmyn, Suske en Wiske: the Advocate General's Opinion

Here's a guest post from Denise Verdoold (Banning, 's-Hertogenbosch, The Netherlands), whose combination of legal expertise and linguistic talent is brought to be on a piece of copyright litigation which Eleonora has been stalking on the IPKat (here and here) but which has hitherto escaped the attention of this blog.  Thanks, Denise!

AG Cruz Villalón defines criteria parody exception under Infosoc

On 22 May 2014, Advocate-General Cruz Villalón delivered his opinion in Case C-201/13 Deckmyn v Vandersteen. Although unfortunately not available in English -- the link therefore refers to the Curia case information section so readers can choose to view the opinion in any of the 21available languages taking their fancy -- the conclusion is worth mentioning as AG Cruz Villalón sets out the requirements which according to him the autonomous European concept of parody should meet. Especially with regard to the Copyright and Rights in Performances (Quotation and Parody) Regulations 2014, which will enter into force in October 2014, thereby introducing the parody exception into English copyright law, an English note on the AG’s opinion seems valuable. 

In Deckmyn v Vandersteen, the Belgian Supreme Court referred questions of interpretation to the CJEU concerning the nature and meaning of the term ‘parody’ as laid down in article 5(3)(k) of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (Infosoc Directive).

The case concerns a publicly distributed calendar on the front of which a reproduction is pictured of the cover of a Spyke and Suzy (‘Suske en Wiske’ in Dutch) album. Certain changes were made to the original cover so that the reproduction promotes a political message of the Flemish nationalist political party Vlaams Belang. Below are included a picture of the original cover (above, right) and a picture of the reproduction (left).

           

According to the heirs and right holders of Willebrord Vandersteen, the author of Spike and Suzy, the reproduction infringes the copyright in the original cover. The court of first instance upheld the heirs’ claims, stating that the distribution of the calendar constituted an infringement of the copyright in the original cover. The defendants appealed. The Court of Appeal of Brussel referred three questions of interpretation to the CJEU:

1.         Is the concept of 'parody' an independent/ autonomous concept in European Union law?

2.         If so, must a parody satisfy the following conditions or conform to the following characteristics:

-    the display of an original character of its own (originality);

-    and such that the parody cannot reasonably be ascribed to the author of the original work;

-    be designed to provoke humour or to mock, regardless of whether any criticism thereby expressed applies to the original work or to something or someone else;

-    mention the source of the parodied work?

3.          Must a work satisfy any other conditions or conform to other characteristics in order to be capable of being labelled as a parody?

Prior to presenting his answers, the AG stresses that the questions do not concern moral rights, the three-step test (exceptions to the exclusive rights of the author may only be created in limited circumstances and may not conflict with the normal exploitation of the work or be prejudicial to the legitimate interests of the author) or the scope of the reservation made by Belgian laws to include the parody exception in Belgian copyright law. These aspects fall outside the scope of application of Infosoc and are therefore left to the exclusive jurisdiction of the national courts.  

Proceeding to the referred questions, the AG answers the first one in the affirmative because Infosoc refrains from explicitly referring to the laws of the Member States to define the term ‘parody’. If this is the case, established case law determines that a concept is to be qualified as an autonomous concept in EU law. Furthermore, the AG points out the objective of Infosoc is to harmonise certain aspects of copyright, supporting the conclusion of ‘parody’ being an autonomous concept.

The AG considers the second and third question together, as these essentially concern the characteristics and prerequisites that a work has to meet in order for it to be considered a parody. According to the AG, a work needs to bear the following characteristics for it to be considered a parody under Infosoc: 

-           The parody needs to be an original work. The AG explains that a parody always consists of both elements which are clearly recognisable as being taken from the parodied work and elements which are original. Hence, parodies can be described as being both a copy and a creation. It is for the national courts in the Member States to determine, the AG continues, whether the parody either bears sufficient creativity as opposed to the parodied work, or should merely be regarded as a copy bearing insignificant alterations. 

-           In order for a parody to be lawful, it must not be confused with the original, parodied work. The combination of the original elements and the elements taken from the parodied work as vested in the parody may not cause confusion with the original work, the AG points out. 

-           The parody must have a humorous or mocking effect or intention. 

-           Courts in the Member States should take account of fundamental rights such as the right to freedom of expression when determining the allowability of a parody under Infosoc. A balance should be struck between the rights involved in a particular case. For this purpose, the AG comments that, in principle, the balance should be struck in favour of the right to freedom of expression. A work may therefore, according to the AG, not be excluded from the parody exception when the message it carries out is not shared by the author of the parodied work or a large part of the public. However, a parody should not carry out a message which radically opposes the most deeply rooted values of society. Therefore, the message carried out by the parody should be taken into account when parodying a work.

In this light, the AG remarks that the Member States enjoy a certain margin of appreciation when assessing whether the parody in issue bears the elements set out above.

We will now have to wait for the decision of the CJEU in this case. If the CJEU follows the opinion of the AG, more clarity will have been provided on the parody exception as laid down in Infosoc. However, it will be for the courts in the Member States to decide whether a parody meets the criteria formulated by the AG. Particularly the conceptualisation of the required absence of confusion and the application of the balancing exercise with respect to fundamental rights will prove interesting issues in practice.

Are closed systems of exceptions and limitations outdated? Here are IPKat poll results

How would this Jeremy vote?

On the wave of sexy felon Jeremy Meeks's photographic (and photogenic) success and subsequent hypothetical fan-created fashion campaigns starring this California-based "blue-eyed gang member", on 23 June the IPKat launched a poll [here] asking its readers the following question:

DO YOU THINK THAT EU COPYRIGHT SHOULD HAVE A SPECIFIC EXCEPTION FOR USER-GENERATED CONTENT (UGC)?

The poll closed last night at 23:59 GMT. It attracted 356 votes, so thanks so much to all those who took the time to respond!

An impressive majority (48%, ie 172 votes) thinks that what the EU needs is not just a specific UGC exception, but rather to replace its enumerated system of exceptions and limitations [see Article 5 of the InfoSoc Directive] and go for an open-ended fair use provision, probably modelled on US fair use ("Tell you what! Let's just go for open-ended fair use" was the relevant option). 

Another 20% (73 votes) would favour the introduction of a specific UGC exception ("Yes, it is inconceivable that EU copyright does not have such an exception" was the answer to tick) while maintaining EU-style closed system of exceptions and limitations.

56 readers (15%) think that there is no need for a specific exception, since any lack thereof has not been a deterrent to user creative endeavours ("There's no need, since lack of specific exception for user-generated content has not been a deterrent" was the relevant answer). Curiously, this seems to be currently the position of the EU Commission. In an internal draft of the much-awaited White Paper as leaked by this very blog, the Commission would not appear too keen on having a specific exception for user-generated content. Instead, a combination of different tools could be considered in order to reduce possible grey areas surrounding UGC, including clarifying the application of existing exceptions and limitations and envisaging a licensing mechanism for uses that do not fall within current framework.

With one vote less than those who think that lack of a specific exception for user-generated content has not been really a problem, another 15% (55 readers) believes that the EU should not provide for any additional exceptions, as existing ones are enough, if not too many already (“No way: it seems to me that there are already far too many exceptions” was the relevant option).

A bit more of comment back on the IPKat here.

When is copyright infringement unacceptable but condoned? When there are implied contract terms

Bristol Groundschool Ltd v Intelligent Data Capture Ltd and others [2014] EWHC 2145 (Ch), a 2 July 2014 decision of the Chancery Division, England and Wales, saw Richard Spearman QC, sitting as a deputy High Court judge, address various issues concerning ownership of copyright and breach of contract in a dispute relating to aviation training materials. The decision is lengthy (228 paragraphs) and raises a dozen or so issues, which readers are invited to read at their leisure.

Without the right software,
data mining is a real pain ...

The background and decision run as follows: in short, Bristol Groundschool, a company that specialised in training commercial pilots, brought suit against Intelligent Data (actually against several corporate and individual defendants) who supplied training materials. The Deputy Judge held that, on a true construction of its agreement with Intelligent Data, Bristol Groundschool owned most of the copyright in the artwork included in the electronic training materials and that the corporate defendants had infringed those copyrights by reproducing the artwork for their own business purposes, two of the three individual defendants being liable as joint tortfeasors because they were responsible for the day-to-day operations of those companies. Intelligent Data was also liable for breach of contract by failing to provide technical support to students to whom Bristol Groundschool had supplied the training materials. On the contractual side of things, the Deputy Judge held that a reasonable period for giving notice to terminate this agreement would have been nine months, giving Bristol Groundschool enough time to make other arrangements. On this basis, Intelligent Data was in breach of contract by threatening not to fulfil its obligations under the agreement unless Bristol Groundschool agreed new terms.

Learning to fly was so much
easier in the olden days ...

The interesting bit of this ruling was that the defendants counterclaimed against Bristol Groundschool and its managing director for infringement of copyright, breach of confidence, circumventing copy protection, malicious falsehood, and conspiracy to injure by unlawful means. Said the judge, the agreement contained an implied duty of acting in good faith: it transpired that Bristol Groundschool had secretly downloaded Intelligent Data's materials to use on its own behalf. This was commercially unacceptable behaviour which constituted copyright infringement -- but, however reprehensible that may be, even when added to other contractual breaches perpetrated by Bristol Groundschool, that did not amount to repudiation of the contract.  This was because there were extenuating circumstances -- including Bristol Groundschool's legitimate concerns about its own business, the fact that the downloading was essentially precautionary and the additional fact that the downloaded material was only used for limited purposes, causing minimal financial damage to Intelligent Data.  Even if one or more of the breaches had been repudiatory, he concluded, that would not have given Intelligent Data a defence to the claim against it for breach of contract.

This feels to this blogger like the sort of set of facts that, in an ideal world, would be dealt with best by mediation: as it is, neither comes out of the litigation with a clean bill of health, and the six days of hearing suggest that this was not a ruling that came cheaply.

The CopyKat - JCSI points to potential the illegality of a new UK copyright exception

The Shanghai Daily reports that the license of 'value-added' telecom service run by the Chinese video sharing site QVOD has been revoked by the Guangdong Provincial Telecommunications Administration over copyright infringement concerns. Shenzhen QVOD Technology Co., Ltd. can no longer be engaged in telecommunication services after the withdrawal of its license, the Administration confirmed. According to the Administration, QVOD has violated regulations of telecom service management. The company was informed of an administrative penalty - a rather large fine of 260 million yuan ($41.6 million U.S. dollars). 

The Second Circuit appellate court in the USA has ruled that architectural works cannot always be neatly categorized as compilations of unoriginal material, criticising the 2008 decision by the Eleventh Circuit in Intervest Construction, Inc. v. Canterbury Estate Homes, Inc - saying that decision was "overly simplistic", explaining that not all architectural works consist solely of unoriginal elements. "Some architectural designs, like that of a single-room log cabin, will consist solely of standard features arranged in standard ways; others, like the Guggenheim, will include standard features, but also present something entirely new. Architecture, in this regard, is like every art form."  The real issue, the Second Circuit explained, is to determine what elements of an architectural work are original and therefore protectable, versus what elements are standard and thus not protectable.  Zalewski v. Cicero Builder Developer, Inc 2014 WL 2521388, at *5 (2d Cir. June 5, 2014). More on Mondaq here.

Just days after they went on sale in the UK, Google Glass has been banned from two cinema chains who have screens across the country. Vue cinema chain and the Cinema Exhibitors' Association have both said the gadget cannot be worn during screenings, following cinema chains in the US, who have also banned the use of Glass over fears of copyright infringement being committed by customers using Glass’ forward-facing video camera to record newly released films. Image: Google.

Dr. Monica Horten, a writer, policy analyst and visiting fellow at the LSE, looks at "copyright liability for cloud computing services hovering on the EU horizon" and asks what we can learn from the case of ABC Inc v Aereo in the United States Supreme Court  - over on the LSE Media Policy Project blog in a piece headed "Copyright Liabilities Loom for Cloud Providers in Wake of Aereo Judgement". 


Hackers in Argentina (or well, I suppose they could be anywhere so I am guessing) have taken direct action after The Pirate Bay was blocked in Argentina - the first Latin American country to remove the site on the grounds of copyright infringement. Hackers  managed to replace the website of Argentinean music industry trade body CAPIF (who led the legal action to instigate the block) with a proxy to access The Pirate Bay which remained in place for some ten hours.

Not Katy Perry - but Roald Dahl's "Witches"

A group of Christian hip-hop musicians headed up by rapper Flame are suing pop singer Katy Perry and her record label in federal court in St. Louis, Michigan, claiming that the 2013 hit song "Dark Horse" infringes on their copyright of a 2008 song "Joyful Noise." That song appeared on an album that was nominated for a Grammy for best rock or rap gospel album and the claimants say "By any measure, the devoutly religious message of 'Joyful Noise' has been irreparably tarnished by its association with the witchcraft, paganism, black magic, and Illuminati imagery evoked by the same music in 'Dark Horse' ". 

In the wake of the leak of the European Commission’s White Paper on copyright policy come two articles looking at what should be done to modernise Europe's copyright regime: The first says "Achieving a modern copyright regime that is apt for a digitally connected continent requires a strategic vision" ...... and suggests that a strategic vision should include a proper balance in the copyright framework. Creativity must be incentivised and rewarded without, however, undermining legitimate interests of users and the broader development of a thriving digital economy in Europe". This article is by Jakob Kucharczyk, Director in the Brussels office of the Computer & Communications Industry Association, and is on Disco - the Disruptive Competition Project - and is well worth a read. And TechDirt have this take "EU Publishers Present Their 'Vision' For Copyright: A Permission-Based Internet Where Licensing Is Required For Everything" which can be found here.

And in the UK doubt has been raised about the UK government's power to introduce a new private copying exception to copyright without an associated mechanism for compensating rights holders. In a rather rare move* The Joint Committee on Statutory Instruments (JCSI) said it was unclear whether the introduction of a new private copying right without a mechanism for ensuring rights holders receive "fair compensation" could be permitted under European law saying "if they [the exception] are approved and made, there will be a doubt whether they are intra vires and in particular the Committee's attention had been drawn in particular to the CJEU's judgment in case C-467/08 Padawan in which the Court held that 'fair compensation', within the meaning of Article 5(2)(b) of the Copyright Directive (2001/29/EC), is an autonomous concept of European Union law which must be interpreted uniformly in all the Member States that have introduced a private copying exception; that Member States which decide to introduce the private copying exception into their national law are required to provide for the payment of 'fair compensation' to righstholders. The always readable Out-law.com has a good take on this here http://www.out-

law.com/en/articles/2014/july/doubt-cast-over-proposed-uk-laws-on-private-copying/ asking if this exception could end up being tested in the CJEU to determine the legitimacy of the UK's plans for the new private copying right. It's quite understandable that key elements in the music industry - in particular the record labels, music publishers and the sector collection societies will push for fair compensation to be included - or the exception scrapped so this one may run - although I for one will be looking for my own "fair compensation" - back from those very same labels and publishers - for all of those copyright payments I have made over the years for now obsolete formats like mini-disc, betamax,  VHS, cassette tapes and laser discs. The House of Commons will debate the proposed exceptions including private copying on the 9th July according to an IPO tweet (below).

*I am reliably informed that the fact that the JCSI has reported on the SI is very unusual. I understand that this is only the 7th time an affirmative SI has been reported by the JCSI during this Parliament (ie since May 2010). And it is the 3rd time of the 7 that the report is for doubtful vires. So, third time in four years. Quite a historic event generally and this could be seen as very historic in copyright law history!