High Court quashes UK's right to private copy Regulations

The High Court in London has quashed provisions in the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 introduced by the UK government in October 2014 to allow members of the public to lawfully copy CDs and other copyright material bought for their own private use. 

In June in  BASCA v Secretary of State for Innovation and Skills [2015] EWHC 1723 (Admin) the High Court ruled against the UK Government in a Judicial Review brought by the British Academy of Songwriters, Composers and Authors (BASCA), the Musicians’ Union (MU) and UK Music. These three bodies challenged the Government’s decision to introduce a private copying exception into UK copyright law, arguing that it was unlawful because it failed to provide fair compensation to rightholders in line with European law.

The Department for Business, Innovation and Skills said when introducing the new regulations that they would cause only zero or insignificant harm, thus making compensation unnecessary. But Mr Justice Green, sitting in London, ruled last month that the evidence relied on by the government simply did not justify the claim that the harm would be “de minimis”. The organisation that represents all sectors of the UK music industry, UK Music, estimated that the new regulations, without a compensation scheme, would result in loss of revenues for rights owners in the creative sector of £58m a year. 

On Friday, in a further decision, Mr Justice Green said: “It is clear that I should quash the Regulations. I make clear this covers the entirety of the regulations and all the rights and obligations contained therein.” In particular Green J said:

[5]. I have now received detailed and constructive submissions from the parties. The Secretary of State has accepted the position that the Regulations should be quashed. He states as follows:

“4. The Secretary of State welcomes the guidance which the Court has provided as to the correct approach to be adopted as a matter of law when considering the introduction of a private copying exception, and as to the scope and nature of the factual enquiries which are necessary. He will now take the opportunity to reflect further and in due course take a view as to whether, and in what form, any further factual enquiries should be carried out and whether a new private copying exception should be introduced. The Secretary of State has not decided on any specific course at this stage and wishes to take time to reflect before making any further decisions. He would not wish to create any uncertainty in the law by submitting that the Regulations remain in force while further policy decisions are made.

5. Given that the Secretary of State submits that a quashing order is appropriate at this stage, there is no necessity for a reference to the CJEU. As is made clear in the body of the Judgment, the Judge’s conclusion leading to the ruling that the decision was unlawful did not depend on his conclusions on issues of EU law, in particular as to the meaning of “harm” (the issue identified by the Judge is a matter for a potential reference)”

[11]  It is clear that I should quash the Regulations. I make clear that this covers the entirety of the Regulations and all of the rights and obligations contained therein. The Judgment concerned the personal and private use exception in section 28B; but the Regulations for example also introduce analogous exceptions for performing rights in Schedule 2 paragraph 1B CDPA 1988. The Regulations are thus quashed.

And turning to the matter of whether the Regulations should be quashed, ex nunc or ex tunc:

[19]. In the circumstances of this case I will declare that the Regulations are prospectively unlawful. However, I am not prepared to rule upon the position ex tunc. It seems to me that the declaration sought raises potentially complex and far reaching issues which it is appropriate to address in the circumstances of private law litigation between a specific rightholder and an alleged infringer. It will be for a defendant in future proceedings to explore and raise this issue, including whether the effect of the fact that they relied at the time upon Section 28B creates some species of estoppel, legitimate expectation or fair use defence in private law and whether, if such exists, this goes to the cause of action or the remedy or both. 

And explaining why the Court was not referring the matter to the Court of Justice of the European Union:

[30] ... Nothing that I have said in this ruling should be taken as an indication as to the decision that a future Court might make upon an application by the Claimants (or others) for a reference in the future. This is not an encouragement to a further application. It is clear from the Judgment that I considered a reference to be appropriate essentially because of the importance of the issue. I did not, however, consider the issue ultimately to be one of great difficulty. To succeed upon the issue before the Court of Justice the Claimants would have to persuade the Court of Justice that there was no discretion on the part of the Member States as to the choice of test for the computation of harm (as to which in the Judgment I set out fully the relatively extensive case law of the Court indicating that such a discretion did in fact exist), and, that the only lawful test was the licensing test. Alternatively, the Claimants would have to convince the Court that if there was a discretion conferred upon Member States, that it was outwith the appropriate margin of appreciation accorded to Member States for the Defendant to adopt the “lost sales” test. I consider that achieving success on a reference raising these issues would be no mean feat.

http://www.theguardian.com/uk-news/2015/jul/17/high-court-quashes-regulations-copy-cds-musicians

The Queen on the application of (1) The British Academy of Songwriters, Composers and Authors (2) Musicians' Union (3) UK Music 2009 Limited v Secretary of State for Business Innovation & Skills (Incorporated Society of Musicians Intervening) [2015] EWHC 2041 (Admin)

Private Copying Exception is no more ... for now?

In his final judgment handed down yesterday Mr Justice Green confirmed his earlier finding that the consultation process which led up to Statutory Instrument 2014/2361 permitting an exception (the new section 28B) for making personal copies of copyright works, other than computer programs, for private use, was flawed. As a consequence the SI cannot stand and is therefore quashed. The Secretary of State (in this case, in effect, Baroness Neville-Rolfe, the Permanent Under Secretary of State for Business, Innovation and Skills) agreed that this was the best course of action and asked the court to make the order while her department thought about how to resolve the underlying issues. The Court decided against making a reference to the CJEU about the issue of 'harm' caused by the introduction of the secondary legislation, but left the door open if the claimants needed to follow up on this aspect of their overall claim at a later stage. This judgment follows-on from the much more extensive (318 paragraph) interim judgment issued in June of this year which was reported on by Ben here, and by Eleonora here.


The bulk of the final judgment was taken up with whether the order quashing the SI should apply from the date of the order, or be retrospective to the date the SI came into force. The court heard detailed argument on both courses of action, but decided that the order should only apply prospectively, or in legal terminology, ex hunc. This leaves a very large number (possibly in the millions, according to the court) of copies made between 16 October 2014 and 17 July 2015 which are legal anomalies. They are may be legal copies - Green J refused to determine their status - whereas copies made under identical circumstances, (ie of legally owned music or films etc for private purposes such as format shifting) made before 14 October 2014 or after 17 July 2015, would definitely be illegal. Considering that one of the reasons for bringing in the exception was the previous uncertainty about the law, because the recording industry had acknowledged that it would not seek to sue private individuals who made such copies, this latest development will merely add to the confusion.

Unfortunately articles such as this one on the BBC Newsbeat website over-simplify the issues. The private copying exception per se has not been declared ultra vires; indeed Article 5(2)(b) of the InfoSoc Directive 2001/29 continues to permit member states to adopt this exception. It is the faulty consultation process which has meant the law cannot be allowed to stand. In theory, following a correctly-conducted consultation, the Secretary of State could re-introduce exactly the same wording in a new SI and that would be legal. Only then would the issue of harm, raised by the claimants, need to be resurrected.

Of course if the British Association of Songwriters, Composers and Authors and others have their way, the new regulations should incorporate some method of compensating artists and authors whose works are subject to private copying. The creative industries generally favour a levy based on sales of recordable media and devices (blank CDs, DVDs, iPods, tablets, laptops, mobile phones, etc), while other options include a bulk payment from public funds, or indeed no compensation at all, as was the case prior to this judgment. The InfoSoc Directive merely requires member states to provide that "rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject-matter concerned". The exact meaning of this clause is some obscure and the Recitals don't really assist. The most relevant one is Recital 52 which says:

"(52) When implementing an exception or limitation for private copying in accordance with Article 5(2)(b), Member States should likewise promote the use of voluntary measures to accommodate achieving the objectives of such exception or limitation. If, within a reasonable period of time, no such voluntary measures to make reproduction for private use possible have been taken, Member States may take measures to enable beneficiaries of the exception or limitation concerned to benefit from it. Voluntary measures taken by rightholders, including agreements between rightholders and other parties concerned, as well as measures taken by Member States, do not prevent rightholders from using technological measures which are consistent with the exceptions or limitations on private copying in national law in accordance with Article 5(2)(b), taking account of the condition of fair compensation under that provision and the possible differentiation between various conditions of use in accordance with Article 5(5), such as controlling the number of reproductions. In order to prevent abuse of such measures, any technological measures applied in their implementation should enjoy legal protection."

Does it mean that rightholders are entitled to compensation in all circumstances of private copying, and that amount of compensation will be varied by the overall extent of the application/non-application of technological protection measures (TPMs), or is the compensation only required when TPMs have not been applied? Logically if TPMs prevent copying, then no compensation should be due in such cases, yet a levy on media and devices would be a blanket one and unrelated to the extent of the use of TPMs in a particular segment of the digital marketplace. For example TPMs are extensively employed in computer games, DVDs/BluRays of films and some eBook formats, but much less so for recorded music. The Directive seems to imply that only those specific works which do not employ TPMs should enjoy any compensation. This would involve the onerous task of remunerating not just specific artists and writers, but also just specific works where TPMs had not been applied. It seems clear why the artists, record companies and collecting societies favour a blanket levy approach.

So this is problem the IPO now faces. As Green J remarked, it seems likely that a replacement SI on the subject may be many months, if not years, away. Alternatively the whole issue could be quietly forgotten.

Thai statute amendment now available online

According to WIPO Lex News, another piece of Thai legislation had been added to the organisation's online database:

The Copyright Act (No. 3) B.E. 2558 (A.D. 2015) was approved by the National Legislative Assembly, signed into law by the King and published in the Royal Gazette on February 5, 2015. It came into force on April 6, 2015 [though the WIPO web page gives the date of coming into force as 4 August 2015].

The Act amends the Copyright Act B.E. 2537 (1994), introducing the prohibition of, and penalties for, recording movies in movie theaters, and exemptions from copyright infringement for disabled people.

WIPO's collection of Thailand's intellectual property law texts can be found here

Sun, Sunburn, Sex and Selfies

You may have heard of “sunburn art” which seems to be the latest selfie trend. One can place pieces of (artfully) cut cardboard onto one’s skin to shield body parts from the sun, and then hit la playa sans sunscreen. At the end of the day, voilà!, #sunburnart is posted on social media. One can also use sunscreen to design lighter shaded areas on the body, while the unprotected skin takes a nice lobster color. Indeed, while #sunburnart selfies will not send a piece of art tumbling down, they nevertheless come with risks, ranging from potential online embarrassment to skin cancer.

#SunBurnArt As Dumb Trend

This is a social media trend, and some of the sunburn “art” is not much to look at, but some patterns created on the skin are certainly original enough to be protected by copyright. Under U.S. law, sunburn art can be protected by copyright if it is original enough and if it is fixed. While a tan is ephemeral (although the sun damage is permanent), it is fixed by the selfies, and may thus be protected by copyright. One can imagine a copyright infringement suit filed by someone claiming that a “selfieccionado” has ripped off his #sunburnart, although I hope never have to read this complaint, at least, not before cocktail hour.

#SunBurnArt as Performance Art

Because #sunburnart is potentially dangerous to one’s health, and as some of the patterns are quite original, one could consider some of these selfies as performance art on social media (oh yeah!).

Performance artists often put their health, even their lives, in jeopardy when using their bodies to create a performance. In the 1971, performance artist Chris Burden had a friend shoot him in the arm with a gun for the performance Shoot. The same year, Gina Pane climbed a ladder, which steps bore razor blades, to create L’Escalade. Three years later, Chris Burden was nailed on a Volkswagen “bug” car, which was pushed out of a garage, where the artist stayed for two minutes to create Trans-fixed. For Rhythm 0, created in 1974 in Italy, Marina Abramović placed 72 objects on a table, including a gun, a bullet, nails, a whip, a pocket knife and, yes, a band aid and alcohol, which the audience could use as they wished  on her body. Innocuous, even potentially pleasant objects, such as perfume, water, or a coat, were also available to be used. However, the artist ended up covered in blood.

These performances were all recorded, albeit not on selfies, and thus are protected by copyright in the U.S., which protects works only if fixed in a tangible medium. However, a performance artist wishing to be the sole right holder should make sure that the person photographing or recording the performance cannot claim the status of a co-author. Also, that fixation must be done “by or under the authority of the author.” This was reinforced recently by the 9^th Circuit en banc in Garcia v. Google, where the court noted that actress Cindy Garcia could not claim copyright in her performance, because, among many other reasons, she had not fixed her performance herself (see p. 16).

In France, the Paris Court of Appeals held in 2004 that the photographer who had taken pictures of the Première Tentative de rapport avec un chef-d’œuvre performance created by Alberto Sorbelli, dressed as a female prostitute, at the Louvre Museum in front of the Mona Lisa, was only the co-author of the work, along with Mr. Sorbeli, who had filed a copyright infringement suit after pictures of his performance had been published without his authorization and using a different title. Interestingly, Mr. Sorbelli had also claimed a violation of his right to his image, and this claim was also successful.

Performance Art and Nudity, Oh Là Là!

Let’s stay in France, where performance artist Milo Moiré was arrested this month in Paris for public exposure, putting a stop to her performance piece wherein she asked delighted tourists to take selfies with her, stark naked, in front of the Eiffel Tower. Indeed, even though the French have generally a laissez-faire attitude about nudity, “sexual exhibition imposed on the sight of others in a place accessible to the public” is incriminated by article 222-32 of the criminal Code and is punishable by one year imprisonment and a 15,000 Euro fine. It isnot nudity per se which is incriminated, but sexual exhibition, and the French courts consider what was the intention of the person who exhibited herself to judge whether a particular public nudity is indeed a sexual exhibition. The artnet news article (see above) notes that “nudity is normally tolerated [in France] if it is part of a performance. The arrest indicates that France does not view her as a legitimate artist.” It is probable that the police officers who arrested Ms. Moiré could not assess on the spot whether her public nudity was or was not sexual exhibition, especially because she encouraged contact with members of the public. Ms. Moiré was not charged, but if she had to face trial, her lawyer would probably would be successful in arguing that, because her public nudity was part of her artistic performance, the facts lack the moral element of “exhibition” and thus cannot be incriminated.

Let’s all have a fun and safe summer!

Image courtesy of Flickr user Classic Film under a CC BY-NC 2.0 license.

The CopyKat - That Blurred Lines trial just keeps giving

Fancy yourself as a digital pirate? Well better get yourself a saucy moniker then - like being a 'Bookaneer' - the literary pirates of the nineteenth century who exploited the lack of international copyright agreements to publish 'counterfeit' editions in foreign countries. These buccaneers of the book trade were especially prevalent in the USA, reproducing new works by popular British authors such as Charles Dickens without bothering to pay for the privilege - the extent that Dickens had a very public battle with piratical American periodicals and satirised their activities in Martin Chuzzlewit, the serial parts of which were reprinted in the very publications he was lambasting. 'Bookaneer' was coined by the poet and author Thomas Hood in a letter in The Athenaeum of 22 April 1837 under the title 'Copyright and Copywrong' (a title still used in journals and blogs today!). Thank you Andy J for this tip off!

In Japan the Abe government is seeking to abolish wartime copyright extensions in negotiations on the protection of intellectual property rights as part of Trans-Pacific Partnership multilateral free trade talks. In talks with the United States, Japan is demanding that the special arrangements be scrapped if the period of protection for copyrighted works of art is extended under a TPP deal, informed sources said. Under wartime copyright extensions, the copyright protection period is set about 10 years longer than usual for music and literary works created in the victor countries of World War II, including Britain, the United States and France. Japan was required to honor the extensions when it signed the 1951 San Francisco Peace Treaty on the grounds that the copyrights of productions in the allied nations had not been protected in Japan during the war. Among the 12 countries participating in the TPP talks, the United States, Australia and New Zealand are covered by the wartime copyright extensions

A US-based lobbying group co-founded by Google and Pandora that aims to "drive down royalties paid to songwriters and artists" (or perhaps as MIC themselves say they are "committed to a rational, sustainable and transparent system that will drive the future of music and ensure that consumers and consumer-serving businesses, such as retailers, restaurants and hotels, have continued access to play music at affordable prices") has suffered a second high-profile member exit, with US broadcaster NPR withdrawing. Amazon quit the MIC Coalition in June.

The contested image on The Blacker The Berry

Top Dawg Entertainment  hasn't had a very good week when it comes to copyright claims. First of all was the news that one of it's artistes, Kendrick Lamar, was facing a claim of copyright infringement over an image of a woman breastfeeding two babies was used without the photographer Giordano Cipriani's permission on the artwork for "The Blacker The Berry", and this was followed by news that the label's YouTube page has been "terminated":  "Top Dawg Entertainment has been terminated because we received multiple third-party claims of copyright infringement regarding material the user posted," reads the message when attempting to access the TDE YouTube page.

The Judge in the 'Blurred Lnes' Trial has rejected a new trial and has 'trimmed' the damages awarded against Robin Thicke and Pharrell Williams to $5.3 Million (from $7.3 million).  U.S. District Judge John Kronstadt has accepted the Gaye family's contention that record labels including UMG Recordings, Interscope and Star Trak Entertainment should be held liable for their distribution of the song that was found to be a copy of Gaye's "Got to Give It Up" and he also ruled that Clifford "T.I." Harris Jr., the rapper who contributed a verse on the blockbuster "Blurred Lines" song was liable.  Judge Kronstadt denied the Gayes' bid for an injunction, but has granted a request for an ongoing royalty rate of 50 percent of songwriter and publishing revenues. The post trial order can be found here. In his order, Judge Kronstadt specifically stated that the damages awarded against Williams were excessive, as it had not been shown that Williams was a “practical partner” of Thicke’s, and thus is only liable for his share of the profits from the song. The damages were reduced down from $4 million to just under $3.2 million, while the award of profits from Williams was reduced from just over $1.6 million to $357,000.  An appeal is expected, at least from Thicke and Williams.

Forgive my French: copyright ‘a la carte’ for photographic works

Mathilde Pavis
(is her picture sufficiently
original though?)

What is the approach to originality in French courts? 1709 Blog friend and PhD researcher, Mathilde Pavis (University of Exeter), explains.

Here's what Mathilde writes:

With the EU debating on the freedom of panorama [here, here and here] and the Paris Tribunal de Grande Instance denying copyright protection to Hendrix’s portrait [here and here], photographic works prove a hot topic of discussion in 2015. The latter decision in particular gives us an opportunity to assess the impact of the Infopaq/Painer jurisprudence on national disputes.  

In Painer, the Court of Justice of the European Union (CJEU) applied Infopaq interpretation of the originality requirement, i.e. that a work must be the author’s own intellectual creation and bear his/her own intellectual input, to photographic works. 

Five years later, Gered Mankowitz brought a claim before the Paris Court of First Instance which was very similar to the one that Ms Painer had brought in Austria, possibly hoping to receive the same treatment as she did. Against all odds, his motion was however denied. According to the French bench, his portrait of Jimi Hendrix was not sufficiently original. In particular, the photographer failed to demonstrate that he had put the necessary level of personal touch in portraying the famous musician. 

Natascha Kampusch
by Eva-Marie Painer

This interpretation of the law leads us to the paradoxical situation whereby a traditional head to shoulder portrait with a blue sky background is considered more original (for copyright purposes) than the less conventional photograph of a musician enjoying a cigarette in front of the camera.

This prompts the question whether the French court took note of the Painer decision following the Infopaq jurisprudence, or not.  Have French national judges realised that CJEU jurisprudence was not a mere confirmation of French copyright law but an attempt to harmonise the various national tests actoss the Union? Yes … and no. 

Reading the decision, the Paris bench did directly refer to Painer. Yet, comparing the outcomes of the cases to the portraits, we cannot help but be surprised by their divergence.  

So what happened?  Very simply, it seems as though France has not changed its position towards the originality requirement following the Painer case. The courts of the hexagon still enforce a slightly higher threshold of originality in general, and particularly so in the context of photographic works. 

Jimi Hendrix by Gered Mankowitz

They may now borrow the wording imposed by the CJEU but the essence of the test they apply is invariably of a higher standard than that of their EU superior. 

The Hendrix case is consistent with a series of decisions which distinguished between engaged creative photographers (i.e. worthy of copyright protection) and passive ones who are described as mere ‘button clickers’ (i.e. undeserving of copyright protection). A quick review of recent decisions on this issue may be useful to place this 2015 Hendrix decision in context and highlight the logic behind its reasoning.  

Paparazzi

Not an original photograph,
according to Paris Court of Appeal

In 2007, the Paris Court of Appeal (Paris, 4ème ch, 5 décembre 2007, n° 06/15937, SIPA Press : D. 2008 jurispr. P. 461 note Bruguière ; RTDCom. 2008 p. 300 obs. Pollaud-Dullian) rejected Sun’s copyright claim over pictures of William and Kate’s ‘love gateway’ in the French Alps. The court refused to see in the work of a paparazzo anything eligible for copyright protection. The fact that a paparazzo hides and waits for celebrities to show up to then take pictures of them does not make those photographs the expression of his/her own intellectual creation, or a display of his/her personality. Because this type of photographers holds a passive role in the composition of their pictures  which remain subject to chance and rather banal pictures of socialites’ everyday life, the threshold of originality is not met.

Sport photographs

The same 'passivity' was argued against the copyright claim of a photographer who sought to obtain protection over football pictures. In 2012, the Paris Court of Appeal found no originality in neither action nor team shots (Paris, 1ere ch., pole5, 14 novembre 2012, SARL Acces Photo c/ Tours FC, n° 11/03286: inédit). Again, in the eyes of the court there can be no originality in standing in a stadium and taking hundreds of pictures of game actions which are by no means controlled by the photographer.

This is déjà vu and therefore 

not protectable 

according to Paris Court of Appeal

However, controlling the action being photographed is not the only hurdle photographers must pass to obtain legal protection for their work. In the same decision, the court also rejected the photographer’s claim over team pictures for the making of which he had selected the background (the football pitch) and arranged the position of the players. In dismissing his claim, the court referred to the fact that such shots are highly banal and it requires no creativity to organise players by height in front of a background composed of grass and blue sky. 

The Court also rejected post-shooting edits as elements of intellectual input because such edits are now facilitated by computer programs. 

The message is clear: Photoshop-ing is not original and does not add any originality to a work.

One cannot help but wonder whether Natasha Kampusch’s portrait and the Tours Football Club team shots had not required the exact same amount of skills and intellectual input ... Yet again, similar facts received diametrically opposed treatment in French courts.

   

Calling the shots

Controlling both the set of the photograph and the position/expression of the subject portrayed seem thus crucial to obtain copyright protection over photographic works in France. 

In a 2008 decision, the Paris Court of Appeal drew a very fine line between protectable and non-protectable photographs taken during the same shooting session (Paris, 20 février 2008, n° 06/22330, SARL Les archives to 7eme Art c/ Stéphane Mirkine : Propr, Intell. 2008, p. 319 note Lucas (photographie de plateau)). 

Brigitte Bardot on the set of
... And God Created Woman

In that case, Leo M had been invited to take pictures on the set of the film ... And God Created Woman during its production. A series of pictures were taken but not all of them were deemed to bear the imprint of the author’s personality (i.e. intellectual input) despite the fact that all photographs shared the same lighting, angles, set and model (Brigitte Bardot). 

Between photographs deemed original and those which did not, only one element varied. In some pictures, the photographer let Bardot pose according to the role she was playing in the film whilst in others he directed her. Only the pictures where the actress had been directed by the photographer could be eligible for copyright protection. All the other shots were otherwise borrowing the atmosphere, mood and general feel of the film created by its director so much so that the photographer had no real input in the pictures.

Objects

When the matter photographed is inert, the threshold of originality appears slightly lower and more in line with the jurisprudence of other jurisdictions such as the United Kingdom. Choosing angles and lighting to photograph paintings (CA Dijon, 7 mai 1996 ; D. 1998, somm. 189, obs. Colombet), antique objects (Antiquesportfolio.com plc v Rodney Fitch & Co [2001] E.C.D.R. 5; [2001] E.B.L.R. 20; [2001] F.S.R. 23; [2000] Masons C.L.R. 51; (2000) 23(11) I.P.D. 23092; (2000) 97(30) L.S.G. 41; Times, July 21, 2000) or planes (Paris, 17 décembre 2008, n° 07/15882 (infringes the copyright vested in the photographs of planes the newspaper which uses it without the consent of the photographer)) is enough to satisfy the originality requirement.

Conclusion

The Hendrix decision is in line with a line of cases which has set a slightly higher threshold of originality for photographic works. 

This may be a vestige of the Law of Mach 1957 which  included those works as protectable ‘works of the mind’ subject to the condition that they evidenced an artistic or documentary nature. 

This additional condition of ‘artistic or documentary nature’ was dropped by the 1985 reform under the pressure of harmonisation driven by the EU which culminated in the 1993 Term Directive. 

Yet it seems as though the French judicature kept alive remnants of the 1957 statute despite the CJEU Infopaq and Painer rulings which de facto furthered the Directive’s harmonising agenda. 

Disparity between jurisdictions and inconsistency between cases are unlikely to smooth out, for at least two reasons. First, the assessment of originality in each case is highly fact-sensitive making outcomes of disputes rather volatile. Second, the finding of authorship is a point of fact which considerably limits its opportunity of appeal and augments judges’ discretion in confirming or dismissing copyright claims. All those factors put together contributes to drawing the profile of a French copyright as a legal framework a la carte designed by judges on an ad hoc basis and open to the idea of tailoring standards as the law and artistic practices evolve. 

N-N-N-Nineteen and Sony spat

Thanks to a public stand by artists such as Taylor Swift, and the UK campaigning organisation The Featured Artists Coalition, the music buying public are becoming increasingly aware of the often poor deal most recording artists get when it comes to royalties from digital downloads of their works. Now, documents released by the US District Court of the Southern District of New York reveal just how cynical is the position of Sony when it comes to negotiating deals with the likes of Spotify. This will come as no surprise to regular readers of this blog, following Ben's story here about the leaked contract between Sony and Spotify. 

Sony is being sued by 19 Recordings Ltd (which represents a number of artists from the American Idol series, including Kelly Clarkson and Carrie Underwood) over claims that Sony has acted in bad faith in taking a financial stake in Spotify and benefiting from general advertising revenue without passing on a share to the artists. Sony defends its activities by saying it is not required to share its general profits with its artists. While this may in principle be true, 19 are alleging that Sony have arranged their affairs to deliberately minimise the amount they have to pass on to the artists, often in contradiction to the 'best endeavours' clauses in the recording contracts signed with their artists. They say that Sony and other major record labels "have significant power to exert control over Spotify in order to not only dictate how revenue will be paid, but wrongfully and in bad faith divert money from royalties that must be shared to other forms of revenue that they can keep for themselves."

Sony rely upon the clauses within the contracts agreed between Sony Music and 19 Recordings Ltd which explicitly set out that Sony is not required to pass on general income or profits unrelated to individual tracks or albums. They also point to the SDNY Court's earlier ruling that proceeds from successful infringement and pirating lawsuits brought by Sony are to be treated as general income to record label and do not need to be passed on to the recording artists.

The current skirmish is about 19's attempt to amend the particulars of its claim, and Sony's motion for summary dismissal of the amended claim. We may have to wait some time before knowing if the actual issues will be heard at a full trial, but in the meantime, the public airing of disputes like this does nothing to improve the perception of the majors being out of touch and only interested in their own profits. Here is The Featured Artists Coalition's take on the situation:

"Whatever the legal rights or wrongs in Sony’s case, the breach of moral trust that has long been felt amongst artists is now in the public domain and on the record. If the labels won’t come together with artists to fix the problem, perhaps legislators will. Without solutions, the future of the music industry hangs in the balance as artists cannot make a living out of scotch mist, lining the coffers of record labels who appear not to care about the very hand that feeds them."

More details of Sony's response to 19's Amended Claim here (pdf)

Article on BBC News about Apple Music and streaming here

Performers and the 20% Fund: it's all gone a bit quiet

"Musicians benefit from extended copyright term for sound recordings" was the grand and exciting title of a media release by the UK government's Department for Business, Innovation and Skills and the Intellectual Property Office back in 2013 which read as follows:

Recorded performers will benefit from an extended length of copyright term for sound recordings and performers rights in sound recordings 

New rules introduced today (1 November 2013) will see recorded performers and musicians benefit from an extended length of copyright term for sound recordings and performers’ rights in sound recordings - increasing from 50 to 70 years.

The Copyright and Duration of Rights in Performances Regulations 2013 implement EU directive 2011/77/EU into UK law. Recorded performers and musicians will also benefit, after 50 years following publication of the sound recording, from some additional novel and innovative measures including:

• a ‘session fund’ paying many performers (such as session musicians) 20% of revenues from sales of their recordings [the '20% Fund']
• a ‘clean slate’ provision, whereby a producer may not make deductions from payments to performers (such as advances of royalties) from publication of a recording
• a ‘use it or lose it’ clause - which allows performers and musicians to claim back their performance rights in sound recordings if they are not being commercially exploited

The Minister for Intellectual Property, Lord Younger, said:

The new rules bring lasting benefits for our world class recording artists. These changes demonstrate the government’s ongoing commitment to, and support for, our creative industries - who are worth billions to our economy.

Artists who performed on sound recordings will benefit from this extension of copyright protection from 50 to 70 years. The changes should help ensure that musicians are rewarded for their creativity and hard work throughout their careers.

Jo Dipple, Chief Executive, UK Music said:

UK Music welcomes today’s announcement on extending the term of copyright for sound recordings. We are pleased that the government is implementing changes that acknowledge the importance of copyright to performers and record companies. This change will mean creators can rightfully continue to make a living from their intellectual property and works.

The directive also harmonises the length of copyright term for co-written works. The directive was approved by EU member states in September 2011 and the UK government has implemented the directive on time.

This blog has received an email from a concerned reader -- indeed a performer -- who reminds him that the task of administering UK performers' revenue arising from the copyright term extensions lies with the PPL (motto: "Standing Up For Music Rights") and that the first due date for the payment of monies by copyright owners to PPL for distribution to the Fund's beneficiaries --30 June 2015 -- has now passed. But there seem to be no details as to how the 20% Fund is to be administered and how monies are presumably to be collected from elsewhere in the European Union. PPL's own FAQs on copyright term extension don't run to that level of detail.

Musicians -- and particularly those who are not spring chickens -- are hoping to learn a bit more about the 20% Fund actually works. After all, where the performer of a work was 50 years old when the recording was made, his extra income will kick in when he is 100 years old. It might be helpful for him, though, if he could do his estate planning while he was still alive ...

The long and the short of it is that, if information is not available, it should be -- and if it is available, it isn't percolating through to musicians and other performers. If any readers can shed light on the situation, this blog and some of its elder and more venerable readers will be thrilled.

Additionally, non-UK readers may be able to share with us their own experiences as to how funds are collected and distributed in other EU Member States, which will have had to implement the same copyright extensions.