The CopyKat goes ape

In its submission to the US Department Of Justice's review of collective licensing in America, music collecting society BMI has said that it believes that music publishers should be allowed to choose which rights they allow it to administer.  It also says that BMI should be able to represent all rights in a musical work, including the mechanical right, not just the performing right, in order to create a "one-stop" licensing option and wats to see a new way for royalty rate disputes to be resolved. Just twenty four hours later the other big US song collection society ASCAP echoed those proposals, saying that allowing its members to pick and choose which specific performing rights it handed over to the collecting society to administer was "necessary to hold the system together". It also argued that being able to license mechanical as well as performing rights is "something that ASCAP's competitors are already free to do".

The BBC reports that the City of London Police's IP crime unit (PIPCU), which has been targetting web-block circumventing proxies, have now forced a number of these proxies offline and that one man has reportedly been arrested in connection with running a proxy server.

Sofie Gråbøl in The Killing

Sarah Lund, the star of the Scandanavian hot TV detective series The Killing, did an awful lot to promote chunky jumpers - the sweaters worn by actress Sofie Gråbøl became almost as famous as the cast of the Danish drama and Gråbøl admitted that her character had become dependent on her jumper and plans to scrap the woollen bound image were themselves scrapped by TV bosses. The show also prompted huge demand for the distinctive design - and now a lawsuit. The Faroese designers of Lund's original sweater, Gudrun & Gudrun, took legal action against Danish company Stof og Sy, which had made a considerably less expensive version of the "Lund" sweater - albeit one you had to knit yourself - retailing at 372 kroner (£40) rather than 2,887.50 kroner (£310) for a Gudrun sweater. But the claim for copyright infringement has failed - with a Horsens court in Denmark deciding that Stof og Sy can continue selling jumpers that resemble those from the acclaimed television series after Stof og Sy convinced the court that the star pattern used on the Lund jumper is an ancient and traditional Faroe Isles pattern - and the design of the jumper itself is based on the Faroese fisherman's sweater - both and hundreds of years old - so no violation of any copyright (or marketing laws) had taken place. More here and here. 

The Nigerian Copyright Commission (NCC) said it had seized pirated books, worth over N10 million, after a raid of markets and book shops, the Mile I Market and His Grace Bible House, Rumuowuta, all in Port Harcourt. The Commission disclosed that it has impounded 19 containers, suspected to be loaded with pirated books, at seaports and borders across the country. 

The U.S. Court of Appeals for the Sixth Circuit has confirmed that a party claiming infringement of copyrighted computer software must identify those components of the software that are protectable under copyright law before a jury can determine the substantial similarity of the defendant’s software.  Automated Solutions Corporation v. Paragon Data Systems, Inc., Case No. 12-3025; -3058 (6th Cir., June 25, 2014) (Cleland, J., sitting by designation). More here at the National Law Review website.

Re/Code reports that videogame streaming site Twitch's announcement that videos in its archives with unlicensed music will be flagged and partially muted has been met with some consternation and anger by users: Twitch has now admitted that it “screwed up” the announcement and has promised to add an “appeal” button for music that users think was flagged in error. But the actual act of cracking down on that unlicensed music, a seemingly necessary move to "avoid trouble from the litigious music industry", is here to stay.

Ronald Reagan: Official Portrait, 1981

Author Craig Shirely, an expert on former US president Ronald Reagan, is threatening to sue another author and biographer, Rick Perlstein, for copyright infringement for  his new Reagan book, The Invisible Bridge, seeking that the publisher of Perlstein's book pulp all copies, pay $25 million in damages, and take out adverts apologising to Shirley in The New York Times, The Washington Post, Newsweek, The Nation, The New Republic, Slate, and Salon. TechDirt suggests that Shiley's claim is rather unfounded saying "what he does have is the ability to point out where Perlstein relayed the same facts Shirley had previously recounted and a few minor sections which use Shirley's previous work as source material and paraphrase it. There are a couple of rather specific words retained in the paraphrasing, but that's about it, and most of those sections are recounting a setting or happening in history" adding "And it's not as though Perlstein is attempting to hide his use of Shirley's books as source material. The book-in-print directs those interested in the source material to Perlstein's website where he lists them out, including several of Shirley's books. He further credits Shirley's work in his source notes, talking about how useful it was. He further had reached out to Shirley to discuss some of his sources earlier.". Expect quills at dawn. 

Music Publisher EMI  has asked the Second Circuit to affirm it's victory in the battle with the heirs of songwriter John Frederick Coots over the ownership of the copyright in the song "Santa Claus Is Comin' to Town," asking the appellate court to confirm the lower court decision that company owns the song's rights until 2029. In a brief to the appeals court, EMI urged the Second Circuit to uphold U.S. District Judge Shira Scheindlin's ruling that Coots' heirs couldn't use the termination provisions under the Copyright Act of 1976 to regain the rights.

One of the disputed 'selfies'

Over on the IPKat Jeremy has posted a guest blog from Estelle Derclaye which re-examines the Case of the Black Macaque - the dispute between Wikipedia and British phorographer David Slater about some monkey business.- the snaps taken when the photographer's camera was stolen by a monkey (a crested black macaque) while he was on a trip to Indonesia in 2011 - and the monkey took a few shots of herself. Back in 2011 Aurelia J. Schultz posted an article on the 1709 Blog looking at this from the perspective of UK law and Indonesian law - as that is where the photo was taken - and the Daily Mail published the pictures here in the UK and online - and one of the thtee published 'selfies' had (C) Caters News Agency embedded in the shot with Mr Slater explaining "One of them must have accidentally knocked the camera and set it off because the sound caused a bit of a frenzy" and "At first there was a lot of grimacing with their teeth showing because it was probably the first time they had ever seen a reflection. They were quite mischievous jumping all over my equipment, and it looked like they were already posing for the camera when one hit the button. The sound got his attention and he kept pressing it". There is no mention of Slater amending the shot at that time although the three shots do look beautifully positioned and cropped in the Mail. Aurelia's opinion on the then known facts - "it appears under UK law, the photos are in the public domain. Under Indonesian law, the matter is less clear."  Slater is now looking to have the photos removed from Wikipedia: Wikipedia believes that although the photos were taken on the photographer's camera, he does not own the copyright because he did not take the photos. The Wikimedia Foundation spokeswoman, Katherine Maher, said that under US law no one owns the copyright and a message on its site states: "This file is in the public domain because as the work of a non-human animal, it has no human author in whom copyright is vested." Slater believes that Wikipedia's refusal to remove the article and a link to a free download of the images has negatively effected his livelihood and earnings. Estelle's view - "So is there copyright in the photograph? It seems

like this will be an evidential issue. If the photographer did indeed adjust the camera settings and the monkey stole the camera, then the monkey just pressed a button and is not the author, but the photographer is" and asks whether amendments such as cropping can "qualify the photograph as a derivative work made by the photographer?" concluding

 "The photographer may have a case -- and he actually wants a court to decide the issue." There were ten comments last time I looked - a couple of which are well worth a read. And with all this monkeying about, why not take a look at Eleonora's blog on the infamous 'Oscars' selfie - another copyright conundrum - but this one caused by actors rather than apes! And here's what hapens when you put a camera amongst a pride of lions ........ something that actors would NEVER do! And an interesting blog on this from Andrew Charlesworth, Reader in IT & Law at the University of Bristol, looking at both the concept of who can be a person and who might own the copyrights - and which jurisdiciton might apply here - and from an Australian perspective (what if a Koala took the selfie) see much more here.

That Oscars selfie and an automated snap of lions

And finally (and as you enjoy these various selfies) the CopyKat came accross a rather well written article about "common copyright myths related to fan fiction". The blog, A Fresh Look at Copyright and Fan Fiction by non lawyer Deb McAlister-Holland was actually an update of an earlier blog about fan ficiton and the author had been contacted by attorney Heidi Tandy who then helped McAlister-Holland through this tricky area - recently thrust into the public eye with Conan Doyle Estate's unsuccessful attempt to protect an expired copyright in many of the Sherlock Holmes stories and the characters of Holmes and Dr Watson. This new article is a good read and looks at transformative works under US law, The Supreme Court's decision in Campbell v. Acuff-Rose Music, the "Harry Potter Lexicon" case, and commercial and non-commercial uses in the USA in the context of fan fiction. If you have a burning urge to write the next sequel or prequel to Lord of the Rings, or deveop your own 'Harry Potter' characters or bring new tales of vampiric delight with your own Twlighight Saga you can find the original article here and the updated article here.

Brad bites back at plagiarism claims

American Country star Brad Paisley has penned a witty ditty called 'High Life'  looking at a family of freeloaders' mission to live the high life - moving on from spending an undeserved inheritance to settling with a restaurant chain after Mama 'fell over' on ice outside their premises - and the on to filing a bogus copyright claim for plagiarism against a songwriter. 

"I heard a song a couple months ago/It was Carrie Underwood on the radio," Paisley sings. "Reminded me of a poem my brother wrote/Back in the second grade/Now I know she didn’t steal it, but so what?/We lawyered up and we sued her butt/These days we figure we’d pretty much/Get paid to go away." (bunch of lowlifes, living the high life .......)

It's a matter close to Grammy winner Brad's heart. Back in May of 2013, singer-songwriter Lizza Connor (real name: Amy Elizabeth Connor Bowen) filed a $10 million copyright infringement lawsuit over the 2011 Paisley-Underwood chart topping duet "Remind Me." She claimed Paisley's co-writers on that song, Kelley Lovelace and Chris DuBois, had stolen lifted of their song from her at a 2007 songwriters' workshop, at which she performed a song she'd written called "Remind Me."  That case is proceeding after Judge Aleta Trauger ruled that songwriter Bowen had established a plausible claim of copyright infringement against performers Paisley, Underwood and songwriters Lovelace and  DuBoi.

More on Rolling Stone

The Copykat: Artists cry foul, the 'Sherlock Holmes' case has a legal bite in its tail - and is Disney skating on thin Ice?

Ahol Sniffs Glue’s original mural in Miami.

Artnet tells us that Miami street artist Ahol Sniffs Glue (real name David Anasagasti) has filed a law suit against popular teen clothier American Eagle Outfitters  for copyright infringement. The company appropriated Ahol’s signature “lazy eyeball” motif for international advertising campaigns, store displays, social media pages, and a billboard in New York City, all without consulting or compensating the artist. In the adverts  a  male model is pictured standing against a wall painted by Ahol in Miami’s Winwood Arts District with a spray can in hand, surely implying that he is the creator of the mural (the artist himself is described as a “bearded, heavily-tattooed Cuban-American").  According to the Huffington Post, the store even went as far as to hire artists to produce a rendition of the well-known motif for display at a store opening in California, plastering a large American Eagle eagle in the middle of it. Photo: Flickr/Dogslobber. 

More on art:The Age reports that Melbourne artist Jarrad Kennedy claimed he is "shocked" by the similarities between his 2005 work Court and the newly unveiled $2.5 million Pavilion by Sydney artist Hany Armanious: Cate Nagy, a partner in the intellectual property team at King&Wood Malleson told the Age that no one owns the concept of a giant milk crate saying "It is clear there's no copyright in ideas or in artistic concepts per se. The independent creation of a huge milk crate wouldn’t infringe copyright" adding "For a copyright in Mr Kennedy's case there has to be some act of copying, there has to be a causal link," Ms Nagy said. "Kennedy would have to prove that he [Armanious] had seen his milk crate." The City of Sydney said on Wednesday that Armanious had never seen Kennedy's work, which was a finalist in the 2005 McClelland art prize. Kennedy said He told Facebook commenters that he would be approaching Armanious directly saying "I was shocked to say the least. Art may be open to interpretation, but precedents dictate that the artwork is in breach of copyright. The artist will receive notice tomorrow," he said on the social media post. More about Pavillion here. 

Yahoo has filed a complaint with Germany’s Federal Constitutional Court challenging Germany's recently introduced copyright that gives publishers exclusive commercial rights over their content online except in the case of single words or "small text passages". “We believe that the Ancillary Copyright Law fundamentally violates our constitutional rights as a search engine operating in Germany and we hope the Court will find in our favor, and ensure that German users can benefit from the same breadth of information online as others around the world,” a Yahoo spokeswoman said in a statement. Spain is now one step closer to passing a law that may force Google News and other content aggregators to pay for links. Under the new Copyright Act passed by Congress, websites linking to articles by the industry’s biggest news organizations will have to pay a fee to the original source, or face fines of up to $400,000. whilst dubbed a 'google tax',  social media sites such as Facebook and Twitter are explicitly exempt, although the status of properties like Reddit, Digg and others is less clear, since the law targets “electronic news aggregation systems.”

Disney could be heading to trial over copyright infringement claims involving it's blockbuster animated hit and $1.22 billion grossing Frozen.  Kelly Wilson, who created a short 2D computer-animated film called The Snowman, has survived the first round in a copyright lawsuit against the company, after a judge noted some key differences between the two films - such as Frozen being lighthearted and The Snowman not, but also found some similarities.

Leslie Klinger has prevailed in his clam for legal costs against the Conan Doyle Estate. in a ruling issued on Monday, the same three-judge appellate panel who heard the case that decided that Mr Klinger did not have to pay a license fee to the Estate for his modern anthology of Sherlock Holmes stories because these stories featured characters that were first published before 1923, and their copyrights had expired, unanimously ruled that Mr. Klinger was entitled to $30,680 in legal fees: “The estate opposes Klinger's request on the same hopeless grounds that it had urged in its appeal, but does not question the amount of fees as distinct from Klinger's entitlement to an award of any amount of fees in this case” says the ruling in Leslie S. Klinger v. Conan Doyle Estate, Ltd. The court said adding “Unless Klinger is awarded his attorney's fees, he will have lost money … in winning an appeal in which the defendant's only defense bordered on the frivolous: A Pyrrhic victory if there ever was one,” adding “It's time the estate, in its own self-interest, changed its business model”.  Giving the decision Judge Richard Posner went further, criticising the Estate's 'disreputable business practices' and noting that the Estate had threatened Mr Klinger and his publisher Pegasus Books saying "if you proceed to bring out [Klinger's second book'] unlicensed, do not expect to see it offered for sale by Barnes & Noble, Amazon and similar retailers' explaining 'We work with those companies routinely to weed out unlicensed Sherlock Holmes from their offerings and we will not hesitate to do so with your book'. The Judge rebuked the Estate for 'extortion' and adding that Mr Klinger had performed a 'public service'. Lawyers for the Estate said the judge was 'out of touch' and that an appeal was being considered. The Times August 6th 2014 page 21 and moer at http://gigaom.com/2014/08/05/judge-posner-orders-estate-to-pay-up-over-sherlock-holmes-copyright-extortion/. 

The IFPI (International Federation of the Phonographic Industry) has written a letter to five of  Austria’s largest internet service providers, demanding that they block some of the largest torrent sites within two weeks including The Pirate Bay, Isohunt, 1337x.to, and H33t.to, The letter cites movie companies Constantin Film and Wega legal action against Austrian net firm UPC Telekabel Wien to block movie website called Kino.to in Austria - which was upheld in the court of Justice of the European Union. The IFPI has also weighed in on a website blocking bill passed by Singapore’s Parliament which will provide that content owners can seek injunctions from the Singapore High Court that would require ISPs to block specific copyright infringing websites. Copyright owners would not be required to send any takedown notices. Frances Moore, CEO of IFPI, said  “The recording industry welcomes the fact that Singapore has joined the list of nations that consider website blocking to be a proportionate and effective tool to tackle digital piracy. Website blocking is an important way of reducing infringement and stimulating the development of a licensed digital music market. We urge policymakers in other countries to look at introducing measures similar to those set to be implemented in Singapore.” In the UK, the movie industry's Federation Against Copyright Theft has successfully forced another torrent sharing site offline, this time TorrentShack, with the operator of the file-sharing platform admitting that he has complied with orders from the anti-piracy group to close down his service in a bid to avoid costly legal action telling TorrentFreak  "They have said that I need to hand them over the domain to this site and to cease my involvement with running such a site. If I comply then any and all charges against me will be dropped".

The CopyKat - kanga, manga, panda, anger and propaganda

The Drum tells us that the much hunted but still active Pirate Bay has extended itself to mobile phones, with an app that lets smartphone users browse the website (famous for its ever changing URLs) and download content straight to their smartphone. The site’s interface is now "fully suitable for people to access pirated content on-the-move" - so expect renewed crackdowns from the entertainment industry and governments around the globe.

TechDirt says that despite the Australian Law Reform Commission (ALRC) coming out with a set of proposals that were "actually pretty good, including things like introducing fair use to Australia", Attorney General, George Brandis, has "decided to only listen to Hollywood". TechDirt points to "a telling discussion" when Senator Scott Ludlam asked Brandis "if he had consulted any consumer rights groups or other copyright experts concerning his copyright plans, and Brandis refused to answer, instead getting angry and insisting that Hollywood's interest is the public interest. Brandis also claimed -- totally incorrectly -- that Australia, home to the Kangaroo, has no laws against online piracy" and is "the worst offender of any country in the world when it comes to online piracy."  Crikey.com.au says "The [Australian] government will rely on flawed copyright industry claims and free trade agreements to justify proposals to overturn the High Court’s iiNet decision and develop a new internet censorship regime for internet service providers, a draft discussion paper reveals."  The July 2014 Discussion Paper can be found here.

Way way too many peeps at this Cabinet meet?

In the wake of the CJEU's decision in Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd and Others (case C‑360/13) which held that browsing and viewing articles online does not require authorisation from the copyright holder, The PRCA has rejected an offer of a meeting with the Copyright Licensing Agency because it says it falls short of the terms it called for. It seems the PRCA had actually called for meeting, after the PRCA canvassed its members on the CLA’s Trial Media Consultancy Licence, brought in last November, which can cost "in excess of £1,480 a year." The PRCA’s survey found that a majority of its members thought the fees were unjustified and proposed a meeting with the CLA’s board to discuss the concerns. James Bennett, head of development at the CLA, wrote to the PRCA to say: "It is my remit to ensure that new licence products meet the needs of our customers, so I will be chairing the meeting for CLA. Andrew Greenan will also attend. Please let us know who will be attending for PRCA and which of your members will be accompanying you - 2 or 3 members should be adequate to represent your members views?" But a rather angry sounding PRCA rejected the offer and accused the CLA of "downplaying" the issue by limiting the people who could attend. 

The Japanese government is launching a major campaign to fight back against the blatant infringement of 'anime' movies and cartoons - particularly in China. The Cultural Affairs Agency estimates that losses due to Chinese pirate sites alone have amounted to at least ¥560 billion in the past year. The government, along with an industry group  including 15 anime production companies and publishers, will begin send requests to delete illegal anime and manga postings to some 580 alleged violators that the government has identified. “We want to create a scheme that allows overseas fans to enjoy Japanese works legally and without worries (for violation) and enables profits from them to be paid to anime production companies and publishers” a Ministry of Economy, Trade and Industry official said. 

A case that slipped by: back in June the Hamburg District Court (25b C 431/13 and 25b C 924/13) ruled that under certain conditions commercial wireless local area network (WLAN) operators in hotels and holiday apartments cannot be held liable for their guests using the WLAN connection to upload movies illegally to filesharing websites - here where guests could use the Internet temporarily by using a password and confirming that they "assume liability for all actions taken" and that they were aware that "alleged abuse can result in legal actions". In the apartment, the host indicated compliance with German law and referred to internet use.
Here users illegally uploaded movies to a filesharing website. The Hamburg District Court stated that the WLAN operators could not be held liable as perpetrators or accomplices with regard to a liability in tort since the privilege rule of Section 8(1) of the Telemedia Act(1) for service providers applied. The court affirmed that the defendants who had enabled internet access via WLAN networks had to be considered as access providers and were thus services provider in the sense of Section 8 of the act. Since none of the exceptions mentioned in Section 8(1) had been fulfilled, the defendants could not be held liable for the copyright infringement of the guests. The court further stated that even if Section 8 did not apply, the defendants could not be held liable with regard to inspection and monitoring duties (known as liability for interference). The court further found that – without any proof of the measure's effectiveness – it was unnecessary to block certain ports, as it seemed unreasonable to demand actions which carry a risk that access to legal services might be disabled or that the connection performance becomes considerably limited in general. In this regard, the court acknowledged the importance of an undisturbed internet connection for the accommodation businesses. More here http://www.internationallawoffice.com/newsletters/detail.aspx?g=9fbf222e-a4c0-4abc-bff8-dbb92d2820a4.

David Bitkower, Acting Deputy Assistant Attorney Generalfrom the US Department Of Justice (Criminal Division) has  told Congress that the penalty for operating an illegal streaming operation should be reclassified from the current misdemeanour level to a felony, because infringing streaming sites are becoming one of the most serious threats to the copyright industries. 

Pirate Bay co-founder Peter Sunde, has filed a another complaint about his current incarceration in the mid-level security facility Västervik Norra, saying the prison authority has failed to arrange a meeting between him and a representative of the Church Of Kopimism, which as Eleonora reported some time ago is, in Sweden, recognised as a religious group. Kopimism has as a central tenet the right to file-share and the Church of Kopimism is a religious organisation with roots which go back to 2010. The community of Kopimi requires no formal membership, although the Church is said to count around 3,000 members: Sacred symbols are CTRL+C and CTRL+V. Sunde says ""The board of spiritual care doesn't have any representative for the Kopimist faith with whom they cooperate and therefore the Prison and Probation Service should provide permission for electronic contact with representatives from the Kopimist faith to believers". So a religious need to be back on the internet then Peter? Sunde, who avoid incarceration for a number of years had previously been on the run for two years, complained he should have been held in a low security unit for his eight month prison term. 

The City of London Police (Police Intellectual Property Crime Unit) has started placing banner advertisements on websites believed to be offering pirated content illegally. The messages, which will appear instead of paid-for ads, will ask users to close their web browsers. The move comes as part of a continuing effort to stop piracy sites from earning money through advertising. Police said the ads would make it harder for piracy site owners to make their pages look authentic and  PIPCU boss Andy Fyfe said: "This new initiative is another step forward for the unit in tackling IP crime and disrupting criminal profits. Copyright infringing websites are making huge sums of money through advert placement, therefore disrupting advertising on these sites is crucial and this is why it is an integral part of Operation Creative". Engadget opines "UK copyright police hit piracy sites where it hurts: their wallets". More here.

A federal judge has awarded Black Eyed Peas songwriter will.i.am $1 million in costs and attorney's fees for successfully defending  a claim that the band had infringed copyright in their2009 hit, "I Gotta Feeling." Judge Josephine Staton awarded another $1.3 million in attorney's fees to the band's producer David Guetta, and $50,000 to the artiste's record labels Interscope and UMG. Brian Pringle sued the band members in 2010, claiming the Black Eyed Peas had ripped off elements of a dance version of his 1999 song "Take a Dive."

America's Alliance Of Artists And Recording Companies which "provides a music royalty, generated by the sales of automobile infotainment systems, blank CDs, personal audio devices, media centres, and satellite radio devices that have music recording capabilities, to its 300,000+ members worldwide" is in dispute with the car industry in America. It claims that Ford and General Motors are in breach of the 1992 Audio Home Recording Act by placing hard drives in their cars that, amongst other things, allow users to rip music onto the disk for in-car enjoyment, without paying a levy to the AARC under the provisions of the  Audio Home Recording Act - although the 1999 case between the RIAA and Diamond Multimedia Systems may yet prove a major hurdle to any claim (180 F.3d 1072 (9th Cir. 1999).

Beijing signs up for ... Beijing

This blogger was pleased to see, by Beijing Notification No. 5: Beijing Treaty on Audiovisual Performances, that the People’s Republic of China has ratified this treaty. According to this notice:

The Director General of the World Intellectual Property Organization (WIPO) presents his compliments to the Minister for Foreign Affairs and has the honor to notify the deposit by the Government of the People’s Republic of China, on July 9, 2014, of its instrument of ratification of the Beijing Treaty on Audiovisual Performances, adopted at Beijing on June 24, 2012.

The said instrument contained the following declarations:

– “The People’s Republic of China shall not be bound by Article 11(1) [bad news for performers: "Performers shall enjoy the exclusive right of authorizing the broadcasting and communication to the public of their performances fixed in audiovisual fixations"] and (2) [ditto: "Contracting Parties may ... declare that, instead of the right of authorization provided for in paragraph (1), they will establish a right to equitable remuneration for the direct or indirect use of performances fixed in audiovisual fixations for broadcasting or for communication to the public. Contracting Parties may also declare that they will set conditions in their legislation for the exercise of the right to equitable remuneration"] of the Beijing Treaty on Audiovisual Performances.

– “The Beijing Treaty on Audiovisual Performances shall not apply for the time being to the Hong Kong Special Administrative Region of the People’s Republic of China until otherwise notified by the Government of the People’s Republic of China.”

The date of entry into force of the said Treaty will be notified when the required number of ratifications or accessions is reached in accordance with Article 26 of the said Treaty.

China joins Syria, Botswana, the Slovak Republic and Japan, but there's still some way to go before the treaty comes into force. as Article 26 states:

This Treaty shall enter into force three months after 30 eligible parties referred to in Article 23 have deposited their instruments of ratification or accession.

The CopyKat - the pain in Spain means no blocking - again

A  court in Spain has overturned a previous ruling that had led to the blocking for a number of file-sharing sites. Back in May this year the anti-piracy group FAP secured injunctions in court forcing internet service providers in the country to block various file-sharing set-ups, including SpanishTracker, PCTorrent.com, NewPCT.com, PCTestrenos.com, Descargaya.es and TumejorTV.com - but in a blow to the content industries - who had celebrated the earlier ruling - an appeals judge in the wonderfully named Court of Instruction No.10 (well that's according to TorrentFreak)  has said there are "insufficient grounds" for blocking the offending sites in order to protect intellectual property rights - although thus will no doubt prompt fresh calls to extend or revise the so called Law Sinde in Spain which was meant to have allowed web blocking as a remedy against internet piracy from March 2012. 

It seems Amazon is trialling a 'Spotify' type service which will allow Kindle users to subscribe for ebooks - paying $9.99 a month to have access to 640,000 books and nearly 7,000 audio books. Richard Mollet, the Chief Executive of the Publishers Association in the UK has said that it is essential that any subscription service properly rewards writers and publishers. Kindle Unlimited joins Scribd, EnTitle and Oyster - but with the potential a far far bigger library of books available to subscribers - although no books from any of the 'big five' publishing houses (Penguin Random House, Simon & Schusterm, Harper Collins, Hachette and Macmillan are featured in the prootional video which had been seen by Gigam - although Lord of The Rings, books from the Harry Potter series and Life of Pi were apparently seen in the video.

And Google is possibly experimenting with a new system that would see adverts for legitimate content platforms positioned at the top of searches for unlicensed movies or music. Google has been widely criticised by the music and movie industries for not doing enough to steer web-users to legitimate rather than illegal sources of content.

Bornstein & Bornstein, a firm of attorneys in San Francisco are being accused of censorship after reportedly using a DMCA copyright takedown notice to remove a controversial and secretly filmed video from YouTube. A certain Jackson West had attended one of the firm's sessions  on how to progress local evictions of longterm tenants, and video taped people protesting at a seminar given by the lawfirm . However you can still see the video via Vimeo - for now - from a link on TechDirt.

US fashion and make up blogger and YouTube star is facing a copyright infringement action from Ultra Records and Ultra International Music Publishing, home of Calvin Harris and Deasmau5. The case, filed in the United States District Court in Los Angeles, makes it clear the label has only begun its search of Phan’s many online productions, but has so far uncovered dozens of infringements, according to the complaint. Those videos have been viewed more than 150 million times, the plaintiffs said. However at lest one Ultra artist, Kaskade, the globally renowned US DJ who was nominated for a Grammy last year, is not happy with his label's stance tweeting "Copyright law is a dinosaur, ill-suited for the landscape of today’s media.”   “I’m not suing @MichellePhan + Ultra Records isn’t my lap dog. I can’t do much about the lawsuit except voice my support for her.".

And finally, Malibu Media, perhaps wrongly accused of being a copyright troll, has succeeded in an infringement action against Don Bui, an immigrant from Vietnam who is now a naturalized US citizen, after the judge in the case gave short shrift to his explanation that the reason he downloaded and kept 57 Malibu Media porn movies from Kickass Torrents was because he had no idea how torrents work - and saw nothing wrong in "ordering movies" from Kickass Torrents. The erotic film studio has filed thousands of lawsuits against "John Doe" defendants in the U.S., in many cases "collecting a couple of thousands of dollars from "scared file sharers who do not want to go to court." US District Judge Robert Jonker reportedly said this "Defendant has some quarrels with the details of how BitTorrent works, but nothing that the Court sees as a fundamental or material issue of fact. Even as Defendant describes the facts, using BitTorrent technology, he ultimately winds up with 57 unauthorized copies of Plaintiff's works--copies that did not exist until Defendant himself engaged the technology to create new and unauthorized copies with a swarm of other users. True enough, the process is not identical to the peer-to-peer file sharing program in Grokster. It is, however, functionally indistinguishable from the perspective of both the copyright holder and the ultimate consumer of the infringed work. In both situations, the end user participates in creating a new and unauthorized digital copy of a protected work. It makes no difference from a copyright perspective whether the infringing copy is created in a single wholesale file transfer using a peer-to-peer protocol or in a swarm of fragmented transfers that are eventually reassembled into the new infringing copy." Bui's attorney also suggested his client was a "poor immigrant" who didn't understand English very well" - that argument was shot down as well. More on TechDirt.

Getting to grips with reality: when copyright claims grow out of proportion

Victor Lilley v Euromoney Institutional Investor plc and Metal Bulletin plc; Victor Lilley v Chartered Institute of Management Accountants; Victor Lilley v Aspermont UK Ltd [2014] EWHC 2364 (Ch) is actually a trilogy of actions on which Mr Justice Birss ruled in the Chancery Division, England and Wales, last week. In all three he was required to determine issues in relation to damages claims made by Lilley against against three publishers for copyright infringement.

Back in the 1990s, Victor Lilley wrote articles for various publications, for which he was paid a fee. Some time after their publication in traditional print format, copies of these articles appeared on the internet, without his permission. Lilley maintained that making his articles available on the internet infringed his copyright.  However, he claimed some extraordinary sums of damages: £27 million from Aspermont, £117 million from Euromoney and £450 million from CIMA. The claims were heard together.

Lilley applied for Birss J to recuse himself on various grounds, one of which was that he had executed what Lilley described as "yet another arbitrary, oppressive and unconstitutional action by servants of the government and the Court".  Lilley also sought an adjournment in respect of his claims against CIMA and Aspermont and for an order compelling Euromoney to answer a request for further information. In response, CIMA and Aspermont applied for Lilley's claims to be struck out on the ground that his claim for damages was "ludicrous".

In these proceedings Birss J had to determine (i) whether he should have recused himself due to apparent bias; (ii) whether the claims against CIMA and Aspermont should be adjourned on the basis that Lilley could not deal with all the claims together; (iii) whether to strike out Lilley's claims against them; (iv) whether the damages claim was indeed ludicrous; (v) whether Euromoney should be compelled to provide further information and (vi) whether a civil restraint order (CRO) should be made against Lilley.

Mr Justice Birss held as follows:

Recusal

Lilley had objected to the listing arrangements. However, the way his objections were dealt with would not lead a fair minded and informed observer to conclude that there was any real possibility that the judge making those directions was biased against him. What's more, the fact that judges reached the same or similar conclusions to questions they themselves had decided in an earlier case would not lead the fair minded and informed observer to think that a judge in that case was or would be biased.

By far the most proportionate, cost-effective and fair way to resolve the various issues arising in such closely related cases was to hear the applications together. It was important that the parties were on an equal footing, but Lilley's difficulties in preparing for the hearing were of his own making.

Striking out of Lilley's claims

Most of Lilley's claims against CIMA had already been struck out on the basis of the Limitation Act 1980. He had also been given the opportunity to provide further information in relation to any infringing acts on which he intended to rely which had taken place within the limitation period, but had not done so. Accordingly the rest of his claim against CIMA would be struck out.  His claim against Aspermont would not however be struck out; most of it was caught by the limitation period, just as happened with CIMA, but he still had a chance to provide particulars of alleged infringements falling within the limitation period.  The fact that his pleading was far too long, unclear and argumentative was not of itself a ground for strike out at this stage,

Calculation of damages

Lilley's damages would be calculated on an objective, willing licensor/willing licensee basis, at a sum which properly compensated Lilley for the infringements. This figure would be compensatory, not punitive in nature, looking at actual, commercially realistic rates for the appearance of articles on the internet.

The fair thing to do was to give Lilley one last chance to advance a proper case and set out a realistic claim relating to the quantum of damages.

Request for information

Lilley's request for further information was 22 pages long, argumentative and unclear, and Euromoney had gone to considerable lengths and cost to explain its position to him. Since requiring the company to set out yet further explanation of its position would achieve nothing, the request would be refused.

The CRO

Lilley's recusal application had been dismissed as totally without merit, as had his applications for adjournment and his request for further information. The very least that the court could do in such circumstances was to make a limited CRO.

In deciding whether a litigant had persistently issued claims or made applications which were totally without merit for the purposes of an extended CRO, the court should consider his conduct as a whole, so far as it could. All aspects of the litigant's conduct could be relevant, and not just his conduct in the proceedings in question.  Since Lilley had shown an irrational refusal to take no for an answer on numerous occasions, there were ample grounds for concluding that he had persistently issued claims or made applications which were totally without merit. An extended CRO would be made in each of the three cases before the court. This has the effect that, for two years, Lilley would be restrained from issuing claims or making applications in the High Court and the County Court without first obtaining permission.

Cases like this are always sad.  A claimant who knows or believes that his copyright has been infringed will often be ablaze with anger and resentment, especially when it appears that the infringer is well-resourced and has profited from the infringement.  However, it is important to retain a sense of proportion and that is what Birss J has done.

How much do European scriptwriters earn?

Last week on the 1709 Blog we reported that the Authors' Licensing and Collecting Society (ALCS) in the United Kingdom had commissioned a survey on authors' earnings, "What Are Words Worth Now? A Survey of Authors' Earnings", by Queen Mary, University London's Phillip Johnson, Johanna Gibson and Gaetano Dimita. The most recent ALCS News is now promoting a further survey, this time on behalf of the European Commission, and also relating to authors' earnings -- particularly scriptwriters. Says the ALCS:

The European Commission has asked Europe Economics and the Institute for Information Law of the University of Amsterdam to undertake a study on the remuneration of authors and performers. The study will focus on audiovisual and musical works and is therefore of most relevance to scriptwriters.

The results are likely to influence future EU policy on the remuneration of scriptwriters so the survey gives writers in audiovisual fields the chance to have their say in this.

The survey can be found at: http://ec.europa.eu/eusurvey/runner/remuneration_survey2014

Please note that all responses will be confidential: neither Europe Economics, the Institute for Information Law of the University of Amsterdam nor the European Commission will be able to identify you.

The deadline set for the survey is 8 August 2014 but this may be extended.

If you are a scriptwriter, act for one or know one, do please encourage them to participate.