Prince vs Jay Z - the streaming war begins

A court battle over the streaming rights to Prince's back catalogue is looming after the late singer's estate filed a claim in the US courts against Jay Z's Roc Nation and the TIDAL streaming service.

The action on behalf Prince's estate, fronted by NPG Records, claims that Roc Nation and TIDAL is streaming more than a dozen of the star's albums without permission.  The lawsuit, filed in the U.S. District of Minnesota court also names NPG Publishing as a plaintiff.

The law suit claims damages, and demands that unlicensed material be taken down: “Roc Nation to account for and pay to Plaintiffs their actual damages in the form of Roc Nation’s profits and Plaintiffs’ damages, or… statutory damages up to the maximum amount allowed for wilful infringement of copyright”.

Prince removed most of his back catalogue from streaming sites including Spotify, Google Play and Apple Music in July 2015. A month later, he released a new album, HitNRun: Phase One exclusively on TIDAL.

TIDAL claims it has licences, "both oral and written", for a wide range of material and “the right to exclusively stream [Prince’s] entire catalogue of music, with certain limited exceptions”. in a statement at the time if the 2015 release, the star praised TIDAL's artist-centric business model, saying it would allow him and his associated acts "to continue making art in the fashion we've grown accustomed 2 [sic]". The NRG claim alleges that a ‘Letter of intent’ was signed by NPG on August 1 last year giving TIDAL permission to stream Prince’s last studio album, Hit N Run: Phase 1 – with an exclusivity period of 90 days. 

However the lawsuit claims TIDAL has gone far beyond any permissions granted, According to the  NPG lawsuit, TIDAL “began exploiting some of these works after Prince’s death and on or about June 7, 2016” without permission and that  the company has repeatedly failed to submit documented evidence that show it has written consent to host the tracks.

https://www.theguardian.com/music/2016/nov/16/prince-estate-sues-tidal-music-access-jay-z

Image of Jay Z by Nick Cordes

The CopyKat: A possible point for legal divergence of the UK and EU in light of Brexit? (and much more)

This post was written by Tibbie McIntyre.

Much is spoken of the music ‘value gap’.

It stems from a limitation of liability for hosting providers which host third party content (in the US this is known as ‘safe harbor’). (European legislation can be viewed here, American here.) Essentially, when hosting providers are notified by rights holders of infringing content on their sites, they are required to take down the infringing content. But before such notifications are issued the hosting providers are not liable for the infringing actions of third parties.

YouTube is one of these hosting providers, benefiting from the limitation of liability. It is legally obliged to take down infringing content upon notification from the rights holder.

Meantime, let’s take a look at the music played on YouTube. In 2015, it was estimated that YouTube is responsible for 40% of consumption yet constitutes only 4% of the revenue. Some within the music industry feel that this glaring discrepancy in the numbers is thanks to YouTube’s limited liability. YouTube benefits from a position of strength compared to other streaming firms because in YouTube’s case, the music is already posted online. Spotify et al. must licence and then play.

What does this have to do with Brexit?

Draft Article 13 of the draft Directive on copyright in the digital single market (and Recital 39) is aimed at addressing this value gap by requiring hosting providers to “take appropriate and proportionate measures to ensure the functioning of agreements concluded with rightholders and to prevent the availability on their services of works or other subject-matter not covered by such agreements, including through the use of effective content identification technologies". This basically means that providers – such as YouTube – need to get licenced and implement filtering technologies.

Image in Public Domain

This move has been praised by a group of prominent US musicians, who have lobbied the US government to take similar steps.

It seems positive that the EU is trailblazing in this light.

BUT ….

As pointed out on the IPKat here, Article 13 cannot be implemented without also reforming Article 3 of the InfoSoc Directive and Articles 14 and 15 of the Ecommerce Directive. No one is quite sure yet how this issue will be resolved.

Brexit potentially comes in to play here. No one knows what will happen eventually, but there is always the possibility that the UK government might happen upon this issue and decide to tackle it – it has already been raised by one minister in relation to the Digital Economy Bill 2016-17.

If the UK government presses this issue (with a growing music industry there is no reason why it shouldn’t), the results could be very interesting indeed.

Dancing baby case

The ten year old saga (the baby in the video above should almost be a teenager by now) is rolling on, with the Supreme Court signalling its potential willingness to take the case further. The court has asked the US Solicitor General for his opinion on the matter, suggesting it might proceed with the case.

The district court opinion can be found here, the appeal at the 9^th Circuit can be found here and this issue. The case has also been commented on this blog previously here, and over at the IPKat here and here.

The case centres around whether rightsholders should consider whether a fair use defence applies to content posted online before take-down notices are issued.

Cases where the Solicitor General is asked to offer an opinion are accepted for review more often by the Court. This writer hopes that the justices will look at this case, as it could have a massive impact on how we conduct our lives online.

Follow the yellow brick road

The death knell rang this month for a decade long litigation saga in relation to merchandise relating to The Wizard of Oz, Gone with the Wind and the cat and mouse duo, Tom and Jerry. The 8^th Circuit Court of Appeals again reviewed the dispute, affirming both the $2.57 million judgment and permanent injunction in favour of studio giant Warner Bros.

As background, the defendants (X One X Productions, A.V.E.L.A., Inc., Art-Nostalgia.com, Inc., and Leo Valencia, collectively known as “AVELA”) obtained restored versions of advertising posters and lobby cards for Gone with the Wind, The Wizard of Oz and Tom and Jerry. Images of the famous characters from these films included Dorothy, Scarecrow, Tin Man and the Cowardly Lion from the Wizard of Oz, Scarlett O’Hara and Rhett Butler from Gone with the Wind and the cat and mouse duo Tom and Jerry.

AVELA extracted images from the restored advertising posters and lobby cards and licenced the images they extracted for use on a range of consumer products, including t-shirts, action figures, lunch boxes and playing cards.

The litigation saga began in 2006 when Warner promptly filed suit against the defendant, arguing copyright and trade mark infringement claims under the Copyright Act, Lanham Act and Missouri state law.

An interesting point is that the images on the advertising posters and lobby cards were generated before the films were completed and copyrighted. They were not duly registered in compliance with the copyright notice requirements of the 1909 Copyright Act, 17 U.S.C. §§1 et seq.. The Tom and Jerry images were also never registered, therefore not meeting the legislative requirements of that time period to give copyright notice.  (N.B. some of the images in question had been registered, however protection had not been timeously renewed). This fascinating issue – which was dealt with previously in this long-running saga – on drawing the boundaries between copyrighted works and the public domain in this case can be explored more fully here, here and here.

In the judgement handed down earlier this month, a range of issues were dealt with, including the award of statutory damages (with the appeallate judge finding the $2.57 million against AVELA isn’t disproportionate to the offense)

Importantly, AVELA’s attempt to invoke Dastar failed. Dastar is a Supreme Court judgement handed down in 2003 that holds that trade marks cannot act as a surrogate form of protection of works once copyright has expired.

A telling excerpt from page 10 of the judgement comments on how Dastar does not apply:

“Warner’s asserted trademarks in the characters from the films and cartoons do not run afoul of Dastar. The district court found and AVELA did not dispute that Warner holds registered trademarks in iconic phrases and names from the films and has used the character images for trademark purposes on a host of consumer goods for many years. Images of the film actors in character and signature phrases from the films are not communications, concepts, or ideas that the consumer goods embody as Dastar defines these terms. Products marketed under AVELA’s licenses employ iconic film characters’ pictures to associate the products with Warner’s films, not to copy the film itself. Accordingly, these are trademark claims, not disguised copyright claims, and Dastar does not bar them.”

“The clothes on the hanger do nothing; the clothes on the woman do everything,” – Justice Stephen G. Breyer

This remark was expounded at the Supreme Court earlier this month during a hearing in relation to Star Athletica L.L.C v Varsity Brands, Inc., et al.. The District Court stage can be read here, and the Circuit Appeals stage can be read here. This case has been and will be watched by many across the fashion industry.

The issue at stake in this case is whether designs on cheerleaders’ uniforms can be subject to copyright protection. All parties agree that two-dimensional designs may be copyrighted but the cut and shape of three-dimensional garments may not.

Designs that are utilitarian in nature do not attract copyright protection. Star, the smaller rival of Varsity and the defendant in the original proceedings, contends that the types of designs found on cheerleading outfits – stripes and chevrons etc. – are utilitarian in that they are essential to the function of a cheerleading outfit. This utilitarian function apparently – according to Star – is to “cause the cheerleader to be perceived as slimmer and more curvy than they actually are.”

The sportswear Colossus, Varsity, argued that many, many design variants are available in relation to cheerleading uniforms, yet this clothing still clearly remains for the purposes of cheerleading. In fact, “You can have a white cheerleading uniform worn by a cheerleader with the team name and team logo on it,”

A ruling in this case is expected by June 2017. It will surely be a landmark case for the fashion industry.

Should a Work in the Public Domain Be Able to Become a Trademark?

Here is the latest post from our Intern Tibbie McIntyre.

Gustav Vigeland was an eminent Norwegian sculptor whose most notable works include the Vigeland installation, a staggering arrangement of two hundred and twelve granite and bronze statutes covering eighty acres in Oslo’s Frogner Park, and the design of the Nobel Peace Prize medal.

A particularly unique deal was struck between Vigeland and the Municipality of Oslo (Oslo commune, “the Municipality”) in 1921, stating that Vigeland would bequeath the copyright contained within his life’s work to the city in return for the use for the remainder of Vigeland’s lifetime of a purpose built house and studio.

‘Monolitten’ (The Monolith)

Photo Credit: Nickrds09, available here. 

It is Vigeland’s work which is now at the centre of a case before the European Free Trade Association (“EFTA”) Court (E-05/16), which at a previous stage in proceedings, has been reported on over at the IPKat here.

With copyright protection for Vigeland’s work coming to an end in 2014, the Municipality applied for trade mark protection in relation to over one hundred of his pieces, including ‘‘Monolitten’ (The Monolith) (pictured above) and Sinnataggen’ (The Angry Boy) (pictured below).

The move could be considered by some as an attempt to extend legal protection for Vigeland’s work beyond the usual life of copyright, usurping the policy objectives behind copyright legislation with trade mark law. It could be considered by others as an astute commercial move by the Municipality (which has invested considerable money and effort in the promotion and curation of these treasured cultural artefacts) in order that it might maintain some control over its investment. In any event, the Municipality appears to be attempting to layer various different forms of IP rights in order to extend the originally bestowed copyright protection for the works of Gustav Vigeland. 

‘Sinnataggen’ (The Angry Boy) at Frogner Park, Oslo

Photo Credit: Hiytel under a CC BY-NC-SA 2.0 licence.

The bulk of the trade mark applications submitted by the municipality for trade mark protection have been put on hold, and a number of the applications were refused by the Norwegian Industrial Property Office (“NIPO”), on the basis of:

-          Section 14 first paragraph of the Trade Marks Act, with NIPO finding a lack of distinctive character in relation to the applications refused,

-          Section 14 second paragraph (a) of the Trade Marks Act on the prohibition of purely descriptive marks (i.e. the prohibition on marks that exclusively indicate the kind, quality, quantity, intended purpose, value or geographical origin of the goods or services, the time of production of the goods or of the rendering of the services or other characteristics of the goods or services)

-          Section 2 second paragraph third alternative of the Trade Marks Act on trade marks, where a right may not be acquired for signs that consist exclusively of a shape that results from the nature of the goods themselves, is necessary to obtain a technical result or adds substantial value to the goods.

The Municipality appealed NIPO’s decision to the Norwegian Board of Appeal for Industrial Property Rights (Klagenemnda for industrielle rettigheter; “The Board of Appeal”), which in turn considered whether the trade mark applications should be refused on additional grounds. The Board of Appeal consequently requested an Advisory Opinion for the case from the EFTA Court.

In The Report for the Hearing, the additional grounds the Board of Appeal considered might be the basis for refusal are cited as Section 15 first paragraph (a) of the Trade Marks Act (designed to implement Article 3(1)(f) of Directive 2008/95/EC), which details the absolute ground of refusal to register a trade mark, where the mark is found to be contrary to public policy or to accepted principles of morality.

The Board of Appeal also referred to the Mona Lisa case (Case 24 W (pat) 188/96, GRUR 1998, p. 1021 of the German Federal Patent Court), in which there was an attempt to register the Mona Lisa as a trade mark. In that case, the application was refused because of a lack of distinctiveness; the Da Vinci painting is often used by third parties, and would not serve to convey the origin of any specified goods or services. The Board of Appeal questions whether that decision should set precedent in European law, and whether trade mark applications of well-known works can only be refused on grounds of lack of distinctiveness.  If this is the case, is there the possibility where distinctiveness can be achieved through use – therefore qualifying the work for registration at a later stage?

This same point is eloquently expressed by The European Copyright Society’s (“ECS”) cogent response; “The decision of the German Federal Patent Court thus raises the possibility that the obstacle to registration may be overcome through intensive use of the sign in product marketing and advertising.” (Page 7 of the ECS response)

The Board of Appeal also references the Opinion of Advocate General Ruiz-Járabo Colomer in Shield Mark. Shield Mark may be relevant as the Advocate General states at paragraph 52;

“I find it more difficult to accept … that a creation of the mind, which forms part of the universal cultural heritage, should be appropriated indefinitely by a person to be used on the market in order to distinguish the goods he produces or the services he provides with an exclusivity which not even its author’s estate enjoys.”

Parallels can clearly be drawn in this case from the Advocate General’s words quoted above, and to grant trade mark protection for Vigeland’s work would most definitely grant the Municipality an exclusivity the creator’s estate never enjoyed.

The full set of questions referred to the EFTA court can be found here, as well as The Report for the Hearing, which includes written observations from the Municipality, the Norwegian Government, the EFTA Surveillance Authority, the European Commission and the German, Czech and UK Governments.

ECS’s response deals with the layering of IP rights and specifies that – in some cases – the cumulation of various forms of IP can potentially undermine policy objectives. This can lead to ‘dysfunctional cumulation’, which may “distort competition or may lead to a situation in which protection in one area of intellectual property law undermines the rationales and objectives of protection in another” (ECS opinion, page 2).

This writer would most definitely welcome comments from interested parties on this case, whether the consensus is that the Municipality are usurping copyright policy objectives or whether the decision to apply for trade mark protection is an astute commercial move. Keep watching the 1709 blog for updates on this case.

THE COPYKAT

And before any claims than an old(er) cat is stealing anyone's thunder (let alone credit!), this CopyKat come courtesy of our new intern and blogger, David Liao

Uptown Funk up? The band Collage are suing duo Bruno Mars and Mark Ronson for alleged copyright infringement, claiming ‘Uptown Funk’ is an “obvious, strikingly and/or substantially similar copy” of their 1983 single ‘Young Girls’. Amongst other things, the claim highlights the similarities between the “specifically noted and timed consistent guitar riffs” along with the bass notes, horns and synthesizers.  What is particularly worrying is the assertion that Mars and Ronson have copied the “main instrumental attributes and themes” of the 80s electro-funk tune. Readers will recall that the family of Marvin Gaye were awarded $5.3m in a controversial copyright ruling over ‘Blurred Lines’ last year where it was held the “vibe” of Gaye’s song ‘Got to Give It Up’ had been copied – a case that has been said to stifle creativity and limit artists’ abilities to draw inspiration from and pay tribute to past hits (covered here). 

This is not the first time ‘Uptown Funk’ has been subject to a claim of copyright infringement, with The Gap Band getting writing credits and a share of the royalties in 2015. However it remains to be seen whether this new claim will add further fuel to the fire in relation to sound-alike litigation  which focusses on the theme or feel of a song. 

CopyrightX: Applications to the Harvard networked course “CopyrightX” are now open until December 16th 2016. This free online course will run for 12 weeks and will be taught by a Harvard Teaching fellow, involving recorded lectures, reading from the section syllabus, and participating in special events.   Spaces are however limited – for more details see here. 

Kodi – stay tuned! Android/Kodi boxes are internet TV boxes with the Kodi app (previously XBMC) installed. While these boxes are legal (as any internet streaming box can install the Kodi app), the legality of selling them with the app pre-installed is currently uncertain as Kodi can allow users to stream content from the internet illegally. Two cases to keep an eye on: 

• UK shop-owner Brain Thompson appeared in front of Teesside Crown Court on 27th October over the sale of Android and Kodi boxes. Thompson faces charges of selling boxes “adapted for the purpose of enabling or facilitating the circumvention of effective technological measures”. This case has been adjourned for now and will resume early next year. 

• The CJEU has recently heard pleadings in relation to questions referred to it by the Dutch District Court of Lelystad, including whether the sale of Kodi boxes with add-ons containing hyperlinks to illegal websites constitutes a communication to the public falling within Art. 3(1) of the Copyright Directive (see here for further details). The Advocate General is expected to release his opinion in December this year. 

US Register of Copyright Register of Copyrights at the United States Copyright Office Maria Pallante was removed from her post on October 21st, leading to her resignation as she declined to take on her new role as senior adviser for digital strategy. There is some speculation that this was caused by the policy position taken by Pallante, with public advocacy group ‘Public Knowledge’ complaining that too many of the Copyright Office had close ties to the creative industries. However those who supported Pallante believed she struck the right balance between creators and copyright owners, as evidenced in her opposition to the “100 percent licensing rule” for example. Pallante had previously advocated transforming the Copyright Office into an executive agency and it is possible this factor played a part in her unprecedented removal. No doubt this will engender further discussion as to the future of the Copyright Office and whether it should in fact become independent or, as law professor Dennis Crouch suggests, possibly merged with the United States Patent and Trademark Office. 

And finally ..... a call for papers: The Winterthur Museum (in partnership with LARCA) are preparing for their project “Images, Copyright, and the Public Domain in the 19th Century“, which will seek to explore the cultural and legal consequences of the proliferation of images in the ‘long’ 19th century. At this initial stage, interested scholars are invited to propose papers for a conference to be held at Winterthur Museum in March 2018. More details, including potential lines of inquiry, can be found here. 

The sound of music: Youtube and GEMA finally settle

It's been one of the biggest stand-offs in digital music history - but now it appears that YouTube and German collection society GEMA have finally reached a licensing agreement - meaning German consumers can now finally (legally) use YouTube to stream music videos

Someone must have blinked, although the blank screens in one of the world's major economies clearly helped neither side. Now the platform and the collection society say they had reached a new deal for compensating music publishers (and songwriter artists), resolving a dispute that began in 2009. The resolution comes against a backdrop of European officials reviewing the region’s copyright rules - potentially giving more power to record labels, publishers and other content producers over the likes of Google, which owns YouTube, and Facebook. The labels, music publishers and more recently recording artistes have accused YouTube of grossly under paying for using sound recordings and music.

YouTube declared the settlement as a victory for musicians, saying they could reach “new and existing fans in Germany,” while GEMA said its 70,000 members would receive “fair remuneration” when their works were played over the platform. But neither side published the details of the agreement.

YouTube’s Head of International Music Partnerships, Christophe Muller said: “We’re committed to ensuring that writers, composers and publishers continue to be paid fairly, and that our users are able to enjoy their favourite songs and discover new music on the platform" adding "We are extremely pleased to have reached an agreement with GEMA to help their members earn revenue and to enable new musical talents to emerge" and "YouTube has evolved into an important source of promotion and revenue for musicians and we are pleased that GEMA members will benefit from their creative work on YouTube.”

In a blog post, YouTube wrote: "This agreement reflects a long-held commitment that composers, songwriters, and publishers should be paid fairly, while ensuring fans can enjoy their favorite songs and discover new music on YouTube ..... That commitment has helped YouTube evolve into an important source of promotion and revenue for musicians. As such, we continue to invest in our rights management system, Content ID, to protect rights owners while continuing to innovate and create new and exciting YouTube features such as VR and 360, that can heighten the music experience on YouTube even more."

In a press release GEMA added:

There are still different legal positions held by YouTube and GEMA on the issue of whether YouTube or the uploaders are responsible for the licensing of the used musical works.


Irrespective of these diverging views, GEMA and YouTube decided to look forward and create a secure foundation for GEMA members and YouTube users.


And Heker added  “Despite the conclusion of this agreement, the challenge remains for the politicians to create a clear legal framework. The economic value of cultural and creative works must also be passed on to the creators of the works."

http://thenextweb.com/google/2016/11/02/gema-finally-loosens-its-grip-on-youtube-in-germany/

“Spray” the Word: Graffiti Law is a New Legal Niche

I have been wondering for a while when an attorney will declare that he or she practices “Graffiti Law.” There have been so many graffiti-related cases in the past two years (here, here, here, here and here) that ‘graffiti law’ could very well become a legal niche.

I have not found any ‘graffiti attorney’ yet, but the topic seems to be of interest to scholars. In France, the University of Paris 13 organized a organized a colloquium on law and street art, Droit(s) et Street Art, which took place on October 14 in Paris, at the Bibliothèque Nationale de France (BNF). One of the questions asked to the participants was whether graffiti, was “an act of destruction, or an act of creation?"

In the U.S., the City of New York University School of Law has invited Dr. Enrico Bonadio, an intellectual property scholar from the City Law School in London, to be a visiting scholar for the Fall 2016 semester. Dr. Bonadio’s current research focuses on graffiti, street art and copyright law.

Dr. Bonadio’s plan, according to CUNY’s web site, is “is to interview artists from all five boroughs, as he builds an argument for copyright protections for street artists, particularly against corporations that use the street artists’ work, without compensation.”

Dr. Bonadio will soon present his work in progress to the CUNY law community. We hope that his communication will be published, so we can all learn from Dr. Bonadio’s research.

Photo is courtesy of Flickr User Central Intelligence Agency

Happy Halloween!

To  All our Readers, Happy Halloween!

Image: New York Public Library on Flickr.

French Representatives Discuss EU Commission Copyright Proposal

The Commission of European Affairs of the French lower Chamber, the Assemblée Nationale, examined last week a report on copyright protection in the European Union (EU), written by Representatives Marietta Karamanli and Hervé Gaymard (the Rapporteurs).

The Commission published on September 14 its proposal to update the EU copyright laws, which include a proposal for a Directive on Copyright in the Digital Single Market  (see here for Eleonora’s review on the IPKat blog). The Representatives’ report was written before the Commission publication, but it anticipated the proposals. The Rapporteurs, however, do not seem quite interested in change. They do not believe it is necessary to modify Directive 2001/29, the InfoSoc Directive, and even believe it would be “inauspicious,” as the InfoSoc Directive“ does not constitute an obstacle to the construction of a large digital single market” as envisioned by the European Commission.

Mandatory harmonization of exceptions? Well… peut-être…

The Rapporteurs are against mandatory harmonization of exceptions of the rights of reproduction and communication to the public in all the Member States, as it had been recommended by Julia Reda’s report, because “[n]ational flexibility in this field is a prerequisite for the development of a stable environment for creators and conducive to creativity.”

During the October 18 meeting of the Commission of European Affairs (video is here), Hervé Gaymard stressed the importance of strictly supervising these exceptions (encadrement strict), which choice and implementation, according to him, are best left to the Member States

As of now, the InfoSoc Directive lays out twenty exceptions to the exclusive rights of copyright holders which Member States may or may not chose to implement in their laws. The InfoSoc Directive’s only mandatory exception is laid out in its article 5.1., which directs Member States to exempt from the reproduction right temporary acts of reproduction which sole purpose is to enable a transmission in a network between third parties by an intermediary, or a lawful use, such, for example, “caches” and other technical copies made by users of computers for faster access by websites. Articles 5.2 and 5.3 of the Directive provides a list of exceptions which Member States may choose to implement. Recital 32 of the InfoSoc Directive specifies that this list of optional exceptions is “exhaustive.”

This led to Member States having quite a different copyright framework. We saw last week that France recently, but somewhat reluctantly, implemented the ‘freedom of panorama’ law in its IP Code. Other Member States implemented this exception more broadly, or not at all.

The EU Commission noted in its 2015 Communication towards a modern, more European copyright framework that:

“[t]he fragmentation of copyright rules in the EU is particularly visible in the area of exceptions. The exceptions set out in EU law are, in most cases, optional for Member States to implement. Often exceptions are not defined in detail. As a consequence, an exception in the law of one Member State may not exist in a neighbouring one, or be subject to different conditions or vary in scope. In some cases the implementation of a given exception in Member States' law is narrower than what EU law permits. Most exceptions do not have effect beyond a given Member State. “

New mandatory exceptions may be ahead. Article 3.1 of the proposal for a new Directive would create a mandatory exception “for reproductions and extractions made by research organisations in order to carry out text and data mining of works or other subject matter to which they have lawful access for the purposes of scientific research.” This new exception was discussed at the October 18 meeting, and Hervé Gaymard is favorable to it, but only if it leads to non-commercial works.

Article 4 of the new directive would provide an exception for “the digital use of works and other subject-matter for the sole purpose of illustration for teaching.” Hervé Gaymard declared to be favorable to this exception, as MOOCs must be allowed to develop, but only if in accordance to the French law and if it is not, for example, detrimental to the French school books market.

Article 5 of the new Directive would provide an exception for “cultural heritage institutions, to make copies of any works or other subject-matter that are permanently in their collections, in any format or medium, for the sole purpose of the preservation.” Hervé Gaymard is in favor of this exception, which would benefit France’s patrimony.

Mr. Gaymard concluded that the Rapporteurs were in favor of new mandatory exceptions, but only if they were they are framed, proportionate to the aim pursued and if they are not detrimental to creators’ income.

No fair use, non!

The Rapporteurs are suspicious of the American fair use, because it is unpredictable and “potentially unfavorable to creation” and is even “likely to cause significant damage to the authors.” The authors cite the Hargreaves Review of Intellectual Property and Growth as a proof of the “potentially harmful nature” of fair use. Indeed, this report had concluded that the UK was better off without fair use, as “significant difficulties would arise in any attempt to transpose US style Fair Use into European law “(see paragraph 5.19 of the Hargreaves Review).

The Hargreaves Review supported the use of the exceptions system as applied in the EU, rather than the US fair use system, although interpreting this report as saying that fair use is of a “harmful nature”, as the Rapporteurs did, may be a bit of a stretch. The Hargreaves Review presented some of the positive aspects provided by fair use, which the Rapporteurs chose not to report. One of the positive aspects of fair use reported by the Hargreaves Report is that it allows US judges “to take a view as to whether emerging activities in relation to copyright works should legitimately fall within the scope of copyright protection or not” without the need of the intervention of the legislature. One can understand that the Rapporteurs are not keen on giving such powers to the French courts. France is, after all, a civil law country, not a common law country.

Data portability, pourquoi pas?

Finally, the Rapporteurs “welcom[ed] the proposal for a regulation for cross-border portability of content, which will allow users to enjoy, wherever they are in the territory of the Union, the programs to which they subscribed in their State of habitual residence. But they stress the idea that portability should be strictly temporary, and that temporality must be a precise definition, without which the settlement would disproportionately infringe the principle of territoriality of rights, which is the base of the financing system for the creation, notably in France.”

This is only the start of the discussion about the EU Commission proposals. Stay tuned…

Picture courtesy of Flickr user Cata Fuentealba under a CC BY 2.0 license.