Easter COPYKAT Part 1 - upcoming events

GS Media Event: 24 April 2017 at the University of Southampton School of Law

GS Media and the evolving linking regime – Did we just wreck the Internet?

You are warmly invited to attend a guest lecture by Antti Härmänmaa, head of IPR at Sanoma, on the 24 April at the University of Southampton School of Law, kindly hosted by Eleonora Rosati. Antti Härmänmaa will provide his expert insight regarding the current CJEU jurisprudence relating to linking. If you wish to attend, please contact Eleonora Rosati at e.rosati@soton.ac.uk.

Antti

Härmänmaa

On 8 September 2016 the Court of Justice of the European Union gave its long-anticipated decision in the case GS Media BV v Sanoma Media Netherlands BV and Others (the “GS Media case”), the latest episode in the line of hyperlinking cases, a subset of the convoluted CJEU case law concerning communication to the public under the InfoSoc Directive.

Introducing a new test for linker liability, and applying this test in the case, the court’s finding was that GS Media had effected a communication to the public. As instructed by the court, we now know that hyperlinking to protected freely available works can, in deed, constitute copyright infringement if certain conditions are met.

What were the circumstances that led to the court case? Has the risk of copyright infringement by content creators, internet users and publishers increased as consequence of the decision? And is the law concerning hyperlinking now finally settled?

These are some of the topics that will be discussed in the guest lecture by Antti Härmänmaa, head of IPR at Sanoma on the 24th of April at the University of Southampton School of Law. If you would like to attend what promises to be an excellent informational session, please contact Eleonora Rosati at e.rosati@soton.ac.uk. 

European Copyright Society Conference – Friday 12 May, SciencesPo

The European Copyright is holding a conference entitled ‘Building a EU unitary copyright’ on Friday 12 May at SciencesPo, Auditorium Caquot, Paris.

Information from the conference webpage states that “The Conference aims at launching the debate and laying the foundations for the construction of an EU unitary Copyright. It seeks to explore several key issues surrounding the construction of a unitary Copyright including the creation of a Copyright ‘title’, means of bridging the common law Copyright tradition and the civil law droit d’auteur traditions, cumulation or substitution as regards national copyrights, enforcement mechanisms including the judiciary system and the formulation of its substantive content (i.e. ownership, rights, exceptions and limitations, contractual protection of authors etc.).”

Registration for the event can be found here.

CREATe IP Summer Summit 2017 (26 – 30 June) – University of Glasgow

You are warmly invited to participate in the upcoming CREATe IP Summer Summit. The theme this year is ‘Open Science and Open Culture’ with a special focus on development in the Global South. The summit will take place between Monday 26 – Friday 30 June 2017 at the University of Glasgow.

Sessions will include: 

• Openness and IP: Where are we today? – Martin Kretschmer (University of Glasgow)
• Open policy making in the cultural space in UK – Margaret Haig (UK IPO)
• Enabling Open Science through Open Access Licences – Thomas Margoni (University of Glasgow) 
• Is ‘open’ the only alternative to closed, traditional IP? How about a mixed approach, learning from business and strategy? – Sukhpreet Singh (University of Glasgow)

Who is this summit meant for?

CIPSS’17 is aimed at students, industry professionals, and the public sector.

-      Students may be postgraduates, PhDs or postdoctoral researchers, having an interest in ‘openness’.

-      Industry professionals can be from the commercial or the not-for-profit sector, the sharing economy, or NGOs working in this field.

-      The public sector can include government officials such as civil servants and policy makers, whose job requires them to have an understanding of how ‘openness’ interacts with the international IP regime.

For more information on the Summit, please visit its webpage.

THE COPYKAT

This CopyKat from David Liao

US Copyright Office – further update

As previously covered on The 1709 Blog here, there was an unprecedented removal of Maria Pallante from her position at the US Copyright Office last October with some speculation that her policy position had been the cause of this. Further information recently revealed indicates however that the US Copyright Office may have been grossly mismanaged during Pallante’s time, with one such example being a failed electronic licencing program which exceeded its budget of $1.1 million by over $10 million.  In addition, there are also allegations a fake budget item to the tune of $25m appeared in the initial FY18 appropriations request, which would account for roughly a third of the Copyright Office’s budget. This information has been brought to light specifically in relation to a bill introduced in Congress March this year (which would, amongst other things, allow the President appoint the next Register of Copyright as opposed to the Librarian of Congress) and more generally a call for modernisation of the Copyright Office and reallocation of power between the government branches.  More details here.

Big Bang Producers can sleep soundly to Soft Kitty

Fans of the hit show “The Big Bang Theory” will be familiar with the catchy song “Soft Kitty” (video clip here for those unfamiliar or wanting a refresher). What may be less well-known is that in December 2015 a lawsuit was filed in relation to this song by Ellen Newlin Chase and Margaret Chase Perry, the daughters of Edith Newlin who wrote the original lyrics to the song in the 1930s as a poem.

As background, this poem had been published in the Songs for the Nursery School book by one of the defendants The Willis Music Group (“Willis Music”) in 1937 with Newlin’s permission, and also registered then as a musical composition with the US Copyright Office. Willis Music subsequently renewed this copyright registration in 1964 and the plaintiffs alleged this would have renewed Newlin’s rights to the lyrics. If so, the licence provided by Willis Music to the other defendant’s (including Warner Bros. Entertainment) would have required Newlin’s permission and therefore use of this song in the show infringed her copyright. 

Despite noting that section 24 of the 1909 Copyright Act is “hardly a model of clarity”, the Southern District Court of New York recently dismissed the claim, holding that Newlin and assigned the copyright to Willis Music (meaning the licence was valid) and that the distinction made by the plaintiff’s between common law copyright and other copyrights was a distinction without a difference. For more details, see here for the memorandum and order. 

Collection societies and blockchain

The three largest member-owned collection societies (the American Society for Composers, Authors and Publishers (ASCAP), the Society of Authors, Composers and Publishers of Music (SACEM), and PRS for Music) are working with IBM and Hyperledger Fabric to create a new system to confirm copyright ownership information and conflicts using blockchain technology. The goal of the project is to “prototype how the music industry could create and adopt a shared, decentralised database of musical work metadata with real-time update and tracking capabilities” and, if successful, will hopefully address long-standing issues in the music industry and provide benefits to music creators worldwide. See here for more details. 

DMCA, Moral Rights and Photography

A New York photographer has filed a copyright infringement suit in the Southern District of New York against a media company owning four news websites, claiming it used one of his photographs without permission to illustrate articles. The case is Theodore Parisienne v. Beasley Media Corp., Inc., 1:17-cv-02407.

Plaintiff is a professional photographer who took a picture of a man being pulled in an ambulance. The man had been struck by a subway in Queens, New York, after allegedly robbing a teenager of her smartphone. Plaintiff licensed the photo to the Daily News, who used it to illustrate its article about this event. The newspaper credited Plaintiff under the photograph.

The complaint alleges that Defendant reproduced the photograph on its four news websites to illustrate its own report on the subway robbery and accident. Defendant did not credit Plaintiff for the photography.

Plaintiff claims this is copyright infringement, as Defendant did not have permission to reproduce and to publicly display the image, in violation of Plaintiff’s exclusive rights under Sections 106 and 501 of the Copyright Act, 17 U.S.C. §§ 106 and 501. That is a classic copyright infringement complaint.

DMCA as a moral rights law

The complaint also alleges that Defendant intentionally and knowingly removed the copyright management information identifying Plaintiff as the author, which had been published under the photo in the Daily News website. Plaintiff claims that this violated 17 U.S.C. § 1202(b) protecting the integrity of copyright management information.

It is interesting to see that 17 U.S.C. § 1202(b), part of the Digital Millenium Copyright Act (DMCA), is becoming a sort of de facto moral rights law, providing authors with an enforceable right of paternity. We reported on several others cases where Plaintiff used the DMCA to enforce their right of attribution, which is a moral right, see here, here, and here.

U.S. law provides limited moral rights under the Visual Artists Rights Act of 1990 (VARA). VARA only protects “works of visual arts” which are defined by Section 101 of the Copyright Act, 17 U.S.C. § 101. Photographs are ”works of visual arts,”and thus within the scope of VARA, only if they were “produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.”

This was not the case here. This is a picture taken on the spot, in the heat of action, as the man is pulled inside the ambulance by New York City emergency medical technicians. The purpose of the image is to inform. The author did not select the subject for its aesthetic value, nor did he direct the subjects to wear special clothes, to pose a certain way, nor did he have the time to select particular lightning or lenses.

That said, copyright law does not differentiate work of art from work of lesser aim. As Justice Holmes famously wrote in 1903, “[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations” and this certainly applies to photographs. As long as a photograph is original, it is protected by copyright, whether is a work of art or a news photo. These two categories sometimes overlap, as in this work by Weegee, but not always. As beautiful as Weegee’s works are [and ‘beautiful’ is not a legal concept], they were not taken for exhibition purposes and even they would be outside of VARA’s scope.

Will U.S. law ever provide comprehensive moral rights?

In our case, the work is protected by copyright, and the DMCA provides its author with a claim against Defendant for alleged falsification, alteration and/or removal of copyright management information, aka right of paternity. There is still no U.S. law which could serve as a substitute to provide authors a right in the integrity of their work, another moral right, and it is unlikely such law would ever be enacted in the U.S. The U.S. Copyright Office recently undertook a public study on moral rights for authors, specifically the rights of attribution and integrity. The public comments it has received so far are here. The U.S. Copyright Office has extended the deadline for the submission of written comments, which are now due no later than May 15, 2017.

Photo is courtesy of Flickr user Dade Freeman under a CC BY-NC-ND 2.0 license.

Cross party support to make US radio 'pay to play'

A bipartisan group of legislators led by Representatives Jerry Nadler and Marsha Blackburn have reintroduced the Fair Play Fair Pay Act, a bill that would establish a public performance right for sound recordings on terrestrial radio, forcing stations to pay labels and artists for using their material, and correct the unusual position in the USA where there is no performance right for sound recordings on AM/FM stations (although there is for satellite and internet radio, and those royalties are collected by the collection society SoundExchange). 

If the bill passes, and is signed into law by President Trump, it would put webcasters like Pandora and iHeartRadio, which pay statutory royalties for their online radio platforms, on an equal footing with AM/FM radio, who would have to reimburse the owners of sound recordings for using their copyrights. 

Members of Congress say the bill will not be used to lower royalties that radio stations now pay to publishers and songwriters, which stations have always paid for the use of their songs. 

The legislators also say the bill will "make a clear statement that pre-1972 recordings have value and those who are profiting from them must pay appropriate royalties for their use," a reference to the ongoing web of litigation involving recordings made when copyright was still a matter of state law. As previously reported, sound recordings made after 1972 are covered under federal copyright law.

Representatives Nadler, Blackburn, Conyers, Issa, Deutch and Rooney issued  a joint statement saying: "Our current music licensing laws are antiquated and unfair, which is why we need a system that ensures all radio services play by the same rules and all artists are fairly compensated. Our laws should reward innovation, spur economic diversity and uphold the constitutional rights of creators. That is what the Fair Play Fair Pay Act sets out to accomplish: fixing a system that for too long has disadvantaged music creators and pitted technologies against each other by allowing certain services to get away with paying little or nothing to artists."

The National Association of Broadcasters (NAB), the radio industry's leading trade group, opposes the bill and president and CEO Gordon Smith said the bill "would impose a job-killing performance royalty on America's hometown radio stations,"  "NAB remains committed to working with Congress on balanced music licensing proposals that help grow the entire music ecosystem, promote innovation, and recognize the benefit of our free locally-focused platform to both artists and listeners."

http://www.billboard.com/articles/business/7744254/fair-play-fair-pay-bill-congress-radio-pay-artists

A second bill has now been introduced: The new PROMOTE Act is based on the premise that as the radio stations argue that basically airplay is free promotion for the acts and the labels, artists should have the right to decline the promotion and ask that their records not be played. More on CMU Daily.

http://www.completemusicupdate.com/article/second-bill-in-us-congress-seeks-to-address-radio-royalties-issue/

Image: Kmccoy

THE COPYKAT

This CopyKat by Tibbie McIntyre

The WS Society – Intellectual Property Conference – 20 April

You are warmly invited to attend the upcoming Intellectual Property Conference hosted by the WS Society. The event will take place on Thursday 20 April 2017, 9:00am – 1:00pm, at The Signet Library in Edinburgh.

The event promises to provide a wealth of information and discussion for IP practitioners, with panels covering;

-          The UK IP system post Brexit

-          Recent developments in IP contracts and licensing agreements

-          Brexit, PGIs and trade marks

-          IP in the Scottish FinTech sector – a case study

-          Panel session: the experiences of in-house counsel – what’s on their agenda?

-          Case law update – impact and implications

Speakers at the conference offer a wide range of expertise, including Stephen Rowan of the IPO, Ross Nicol of Maclay Murray & Spens, Mark Cruickshank of RBS and Anoop Joshi of Brodies. Gill Grassie will chair the conference.

The day should provide a valuable forum for IP practitioners to meet and discuss the impending impacts of Brexit on IP. For further information, please see the information page.

Seizure of over 10,000 pirated textbooks in Kenya

Pirated textbooks worth approximately Sh5.5 million were seized two weeks ago during a raid conducted by the Kenya Revenue Authority (“KRA”) and the Kenyan Ministry of Education.

The Kenya Publishers Association responded positively to the seizure, emphasising that pirates generate large incomes yet pay no taxes to the state. David Waweru, chairmen of the Kenya Publishers Association, stated that the pirated books “have poor binding and print quality. The text is illegible and unfriendly to the learners.” Examples of the poor quality pirated books can be viewed here. Waweru called for the facilitation of a new copyright bill which would enact stricter laws with heavier penalties for pirates.

“Digital Economy Bill criminal provisions are too broad” says experts

The Digital Economy Bill (“the Bill”) is currently making its way through the UK Parliament. The Bill deals with a variety of issues, including ticket touting, broadband provision and digital copyright. The digital copyright provisions are particularly controversial because a copyright infringer that causes any loss of money to a copyright holder will fall under the criminal liability provisions. Opponents of the current draft argue that the broad definitions in the criminal liability provision puts casual file-sharers at risk of prison-time. Additionally, the maximum prison term for copyright infringement is to be increased five-fold from two to ten years. TorrentFreak posits a nightmarish scenario for a young woman who downloads a single film after the passing of the Bill.

A group of experts sent a letter to the UK Government last week arguing that the criminal liability at Clause 35 of the Bill is too wide. (*N.B. the letter refers to clause 28 because it was published before the latest amendment of the Bill.) The letter argues that clause 35 is not compatible with the foreseeability and proportionality principles found in EU law and the European Convention on Human Rights (“ECHR”).

The foreseeability test

Per the letter sent to the government, the foreseeability test

“requires that the law needs to be sufficiently clear and precise in its terms to afford individuals an adequate indication of the circumstances where, and the conditions upon which, online copyright infringement may attach criminal liability i.e. specifically in particularly serious or commercial-scale online copyright infringement cases.”

The current drafting of the provision is broad enough to envision that an individual could potentially spend ten years in prison for sharing one file. The writers of the letter argue that “the Bill should explicitly state that criminal liability may attach only to commercial-scale or particularly serious copyright infringers.”

The proportionality test

It is argued in the letter that clause 35 does not adhere to the proportionality test found within EU law and the ECHR. Proportionality as it is applied to internet usage monitoring in investigating suspected infringers is used to bolster the argument that the provision in clause 35 is too broad to be proportionate. In the case of proportionality of internet usage monitoring, two factors are of importance;

1.       The depth and scale of the internet usage monitoring

2.       The scale of the infringement against which the monitoring is being carried out (commercial-scale would be justified, whereas it is more difficult to justify internet usage monitoring in small-scale infringement)

The issue with the current drafting in terms of adherence to the proportionality principle is that there is no differentiation between commercial-scale and small-scale infringement.

The solution

The solution, as proposed, would be to draft the provision so that ‘commercial-scale loss’ of income by copyright holders attracts criminal liability, rather than any loss. Additionally, ‘risk of loss’ should not attract criminal liability in infringement circumstances, and only ‘serious risk of causing commercial scale loss’ should attract criminal liability. This small amendment would lift the threshold for criminal liability to apply to those seeking to generate income from copyright infringement, rather than to encompass individuals engaging in non-commercial infringement.

The Bill is due to have its 3^rd reading in the House of Lords this Wednesday, 5^th April 2017. We await with anticipation as to whether this amendment will be made.

US Supreme Court NOT to hear case on whether safe harbour applies to pre-1972 music recordings

The US Supreme court has refused to hear the appeal filed by Capitol records relating to pre-1972 song recordings. The judgement handed down by the 2^nd Circuit on 16 June 2016 stands.

Background – safe harbour

Safe harbour is the qualified limitation of liability for hosting providers which host third party content, where users have uploaded copyrighted content (the law can be found here). It was introduced through the Digital Millennium Copyright Act (“DMCA”). Many in the music industry are opposed to the current formulation of the safe harbour principle, citing the ‘music value gap’ as a major loss of revenue (for more on this, please see here). Both the DMCA and the 1976 Copyright Act (which the DMCA amended) are federal laws because they emanate from Congress – the safe harbour principle is a creation of federal law. The 1971 Sound Recordings Amendment Act - an Act designed to protect against unauthorised duplication and piracy of sound recordings - is also a creation of federal law. The 1971 Sound Recordings Amendment Act came in to force in 1972.

At stake in this case was whether pre-1972 sound recordings are covered under the safe harbour rule, since pre-1972 sound recordings are protected under state law rather than federal law.

Capitol Records et al. argued that the safe harbour rule should not apply to pre-1972 song recordings, thereby inducing liability for Vimeo for the uploading of pre-1972 song recordings onto its platform.

The 2^nd circuit court found for Vimeo, stating that “we find no reason to doubt that § 512(c) [the safe harbour provision] … protects service providers from all liability for infringement of copyright, and not merely from liability under the federal statute.” This decision stands, and all infringement of copyright on Vimeo et al. by 3^rd party users is still covered by the safe harbour principle.

UK’s PRS for Music launches new online tool for live music performances

PRS for Music recently launched a new online tool designed to help rights holders manage royalty income from live performances.

The online tool allows users to upload set lists or programmes from performances whilst on the move with a phone or tablet. Over 1,000 set lists and programmes were reported to PRS in the first 24 hours of the launch, covering performances across 23 countries. The ease and convenience of the new tool is an essential factor in helping rights holders gain income from their copyrighted works. Members can report all live performances – including a small gig at a pub, DJing at a club, a classical concert or a sold-out stadium show.

PRS for Music members should log on to their online account and click ‘report your performance’ to access the new tool.                                                     

Reintroduction of Fair Play, Fair Pay Act in the US

A group of bipartisan legislators in the US have reintroduced a bill which is designed to put AM/FM radio into the same situation as webcasters – such as Pandora and iHeartRadio.  AM/FM radio stations pay nothing to perform music yet webcasters are required to pay statutory royalties for playing music on their online radio platforms.

A joint statement from the bipartisan group stated that "Our current music licensing laws are antiquated and unfair, which is why we need a system that ensures all radio services play by the same rules and all artists are fairly compensated."

A statement by Content Creators Coalition asserted that "for decades, artists have been forced to let their music generate billions of dollars of advertising profit to the corporate investors of radio companies while not being paid one cent for their art. It is past time for Congress to right this wrong."