Voila, Sarkozy proposes a new 'Google' tax

We previously blogged that Bono had heralded the intervention of the movie industry as a potential savior for the ailing music industry, saying "Perhaps movie moguls will succeed where musicians and their moguls have failed so far, and rally America to defend the most creative economy in the world". Well, in true Christmas spirit, along came French President Nicolas Sarkozy with yet more Christmas cheer for Bono - a real secret Santa. In a speech at the Cite de la Musique in Paris, Sarkozy made it clear that he is actively supporting new proposals from a committee led by music producer and label boss Patrick Zelnik to tax Google and other search engines, web portals such as Facebook and French internet service providers such as Yahoo and AOL. The so called "Google tax" would be used to provide funding for the music and publishing industries – as well as funding ‘music cards’ for French music fans so they can legally buy music (and other content such as films and books) online, and this wqould be finacially supported by thre French Government too. In return, the French President seems keen that music sold must be able to be played ‘on all platforms’ which appears to be a reference to totally DRM free music. The French President also seems keen to investigate Google’s dominant position in online advertising as potentially anti-competitive.

Google France’s public affairs director, Olivier Esper, told Liberation that he hoped the government would "favour cooperation" and warned against "prolonging a path of opposition between the Internet world and the world of culture, for example, through the path of taxation". Christine Balague, , co-president of a French Internet think tank Renaissance Numerique said "Let's stop demonising the Internet, and let's look at the benefits provided by the Web" adding "Neither the online portals nor the Internet providers steal from artists. On the contrary, they participate in the emergence of new and innovative economic models.


http://www.zeropaid.com/news/87606/convicted-file-sharer-drm-free-tracks-on-kazaa-to-blame/

"Slightly Divided We Stand": the EU, its Member States and the WIPO Treaties

By WCT Notification No. 76 the 1709 Blog learns that

"The Director General of the World Intellectual Property Organization (WIPO) presents his compliments to the Minister for Foreign Affairs and has the honor to notify him of the deposit, on December 14, 2009, by the Government of the Republic of Malta of its instrument of accession to the WIPO Copyright Treaty, adopted at Geneva on December 20, 1996, as well as the deposit by the Council of the European Union and the Governments of the Republic of Austria, the Kingdom of Denmark, the Republic of Estonia, the Republic of Finland, the French Republic, the Federal Republic of Germany, the Hellenic Republic, Ireland, the Republic of Italy, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Portuguese Republic, the Kingdom of Spain, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland, of their instruments of ratification of the said Treaty".

That's not all, though. Like Romeo and Juliet, Strawerries and Cream, Tom and Jerry and Minneapolis and St Paul, the WIPO Copyright Treaty is virtually inseparable from its non-identical partner, the WIPO Performances and Phonograms Treaty. By WPPT Notification No. 78 this blog notes that the same selection of jurisdictions has acceded or ratified that Treaty too. This notification however continues:

"The instruments of ratification of the Kingdom of Denmark, the Republic of Finland, the French Republic, the Federal Republic of Germany and the Kingdom of Sweden contained the following declarations, respectively:

- "in accordance with Article 3(3) of the WIPO Performances and Phonograms Treaty (WPPT), the Kingdom of Denmark declares that it avails itself of the faculty provided in Article 5(3) of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome Convention (1961)) in the sense that Denmark will not apply the criterion of publication in Article 5(1)(c) of the Rome Convention."

- "Pursuant to Article 3(3) of the Treaty the Republic of Finland avails itself of the possibilities provided in Article 17 of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome Convention) and refers to the notification made at the time of ratification by Finland of the Rome Convention, stating that it will apply, for the purposes of Article 5 of the said Convention, the criterion of fixation alone and, for the purposes of Article 16, paragraph 1(a)(iv), the criterion of fixation instead of the criterion of nationality."

- "The Government of the French Republic declares, in accordance with Article 3(3) of the WIPO Performances and Phonograms Treaty (WPPT), that it avails itself of the faculty provided in Article 5(3) of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention of October 26, 1961), and that instead of the criterion of first publication it will apply the criterion of first fixation."

- "In accordance with Article 3(3) of the WIPO Performances and Phonograms Treaty (WPPT), the Federal Republic of Germany declares that it avails itself of the faculty provided in Article 5(3) of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome Convention (1961)) in the sense that it will not apply the criterion of fixation laid down in Article 5(1)(b) thereof."

- "The Kingdom of Sweden declares, in accordance with Article 3(3) of the WIPO Performances and Phonograms Treaty with reference to Article 5(3) of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, that Sweden will not apply the criterion of publication, with the exception of the reproduction right for phonogram producers."

So much for copyright in the European Union being a 'level playing field' ... However, both treaties enter into force, with respect to the European Union and the relevant Member States, on 14 March 2010.

nb The European Commission's welcome for these developments was recorded in a press release on 14 December 2009 (here), as previously recorded on this weblog.

Music publishers settle over lyrics site

The USA’s National Music Publishers Association (NMPA) has said that it has successfully settled its copyright infringement suit brought by members Peermusic, Warner Chappell and Bug Music against Motive Force and Sean Colombo, operators of the unlicensed LyricWiki database of song lyrics. Under the terms, Motive Force and Mr. Colombo will be permanently enjoined from further using unlicensed song lyrics on websites or applications, and will "turn over funds associated with the exploitation of the unauthorized content" saying that all unlicensed content had now moved to a licensed lyric website. The NMPA says that it’s continuing with its action against the alleged unlicensed use of lyrics against LiveUniverse and owner Brad Greenspan, the co-founder of MySpace.

http://www.dmwmedia.com/news/2010/01/05/music-publishers-settle-suit-against-unlicensed-lyrics-site

U2 can appeal, Mr Tenenbaum

Joel Tenenbaum, who was ordered to pay $675,000 for infringing 30 sound recordings after his jury trial in the USA, is to ask for a re-trial. Among other claims, lawyers for Tenenbaum say that the verdict was unconstitutionally excessive - the argument being that a penalty of $22,500 a song is “obviously unreasonable” – although it is of course well within statutory limits. The US Copyright Act allows penalties ranging from $750 to $150,000 per infringement at the jury’s discretion. Indeed the jury’s decision in the Tenenbaum case is not without precedent: in the USA’s first major file sharing claim, single mum Jammie Thomas-Rasset was ordered by a Minnesota court to pay $1.92 million for file sharing 24 songs.

Now Charles Nesson, Tenenbaum’s attorney and Harvard academic (pictured in a rather fetching turtle neck ensemble) wants U.S. District Judge Nancy Gertner to reduce the damages to the minimum $750 a song or give the Boston graduate student a new jury trial saying “Given the fact that Tenenbaum was one of many millions of people sharing music and that the plaintiffs have failed to show any actual damages from Tenenbaum’s particular actions, this award is obviously “so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable”. It is fair to say that the Recording Industry Association of America (RIAA) has now wound down its high profile campaign to sue individual file sharers and downloaders, but this doesn’t detract from the fact that Tenenbaum was convicted on his own admission and the jury’s award well within statutory parameters. It seems likely that whilst the judiciary may be unhappy about the level of damages awarded in both these cases, it is unlikely to take a proactive role in reducing them – leaving this to Congress. As for Congress, as the movie, television and music industries continue to ask for greater protection, it seems unlikely that the legislature bow to pressure to reduce statutory penalties. Nesson is also asserting that Tenenbaum’s 2004 file sharing on Kazaa and Limewire was protected by the US fair use doctrine — a suggestion that online file sharing is permissible. In Tenenbaum’s Massachusetts trial Judge Gertner would not allow this defence to proceed and quite frankly it’s hard to see why this would be allowed to proceed in a second trial. Dowloading files without paying is surely never going to constitute ‘fair use’.

In fact it seems likely that countries will in all probability move to stregthen rather than loosen copyright protection. In the US, the RIAA, the Motion Picture Association of America and others are lobbying Congress and internet service providers to adopt a “three strikes” policy in which internet access would be cut off for repeated infringement. This legislation exists in Taiwan, in New Zealand and (nearly it seems) exists in France – and has been included by Business Secretary Lord Mandelson in the Digital Economy Bill which is in the committee stage the UK. This week U2 frontman Bono heralded the intervention of the movie industry as a potential savior for the ailing music saying that file swapping and sharing hurt the creators of cultural products. Bono argued “the only thing protecting the movie and TV industries from the fate that has befallen music and indeed the newspaper business is the size of the files” pointing out that “the immutable laws of bandwidth” indicate that technology is just a few years from allowing viewers to download entire movies in just a few seconds adding “A decade’s worth of music file-sharing and swiping has made clear that the people it hurts are the creators—in this case, the young, fledgling songwriters who can’t live off ticket and T-shirt sales”! Interestingly the singer pointed out that the US effort to stop child pornography and China’s effort to suppress online dissent indicate that it is “perfectly possible to track” Internet content and felt that the movie and TV industries may succeed where the music and newspaper industries have failed saying “Perhaps movie moguls will succeed where musicians and their moguls have failed so far, and rally America to defend the most creative economy in the world, where music, film, TV and video games help to account for nearly 4 percent of gross domestic product”.

ISP TalkTalk's head of regulation Andrew Heaney responded by telling reporters: "It is outrageous to equate the need to protect minors from the evils of child pornography with the need to protect copyright owners. As a society we have accepted that it is appropriate and proportionate to intrude on people's internet use by blocking access to sites that host child abuse images. To suggest that sharing a music file is every bit as evil as child abuse beggars belief" adding "Bono obviously does not understand how simple it is to access copyright protected content without being detected. P2P file-sharing can be spotted (albeit at great cost) but there are dozens of applications and tools out there which allow people to view content for free and no amount of snooping can detect it". ISPs currently argue that it would cost each and every ISP customer about £25 a year to reimburse ISP’s for tracking and stopping net piracy.

http://www.wired.com/threatlevel/2010/01/riaa-verdict-is-unreasonable/
http://www.manilatimes.net/index.php/tech-times/8976-u2s-bono-calls-for-control-over-internet-downloads

Digital Economy Bill - more musings

As already mentioned and discussed on this blog, Lord Lucas, a Tory back-bencher and one of the remaining elected hereditary peers, put down an amendment trying to introduce an offence of groundless threats. [Pictured right, the left-field.]

On closer inspection of the marshalled list of amendments which peers are debating this afternoon, this is not the only area in which Lord Lucas is seeking to make his mark. He has also put down a series of amendments introducing new Clauses to the Bill with the following headings [with added commentary from 1709]:

Format shifting [an unfettered right to format shift any copy you own]

Artists' right to re-market [work that is out of print etc]

Fees for retransmission and delayed transmission of copyright material [i.e. levies on retransmission of free-to-air broadcasts and on PVR viewing of those programmes - an idea that has been campaigned for long and hard by Steve Morrison, head of All3 Media and former Granada Media CEO (and almost nobody else)]

Implied licence to copy [no idea what this is about - anyone?]

Transfer of rights in exchange for equity or other rights in a business [a statutory right for authors to receive payments based on equity received by licensees of their rights, I think]

Compulsory licensing of recorded music to be made available via the internet [does what it says on the tin]

Protection of search engines from liability for copyright infringement [the noble Lord also has a nicely co-ordinating or matching amendment extending the protection of the e-commerce regulations to search engines, hyperlinkers and aggregators. This one, though widely opposed, has at least been the subject of bona fide academic debate]

It is unlikely that any of these amendments will be taken up by the government, but it did raise the question in my mind as to what change to copyright law, either following Gowers or otherwise, do 1709ers think it is most important to add to the Digital Economy Bill.

In this game of "phantom amendments" remember that to be considered, an amendment has to be within the "long title" of the Bill, which in this case is "a Bill to make provision about the functions of the Office of Communications; to make provision about the online infringement of copyright, about licensing of copyright and performers’ rights and about penalties for infringement; to make provision about internet domain registries; to make provision about the functions of the Channel Four Television Corporation; to make provision about the regulation of television and radio services; to make provision about the regulation of the use of the electromagnetic spectrum; to amend the Video Recordings Act 1984; to make provision about public lending right in relation to electronic publications; and for connected purposes."

Answers on a postcard please

UK National Policy for IP Education

While the Lords flick the ermine moult off the pages of the UK's Digital Bill this week, debate is hotting up about its potential impact on junior filesharers. In The Scotsman, earlier this week, John McGhee, an IT integration manager with Glasgow City Council, a principal teacher of pastoral care and a teacher of computing at Holyrood School, was lamenting the poor record of education about lawful internet use and the impact of filesharing on the creative industries.

"There's no national steer (above right) that this needs to be part of the curriculum," he says, "as you find when it's not nationally driven it's down to individual schools" said McGhee. "The challenge is to bring teachers up to speed and a confident level. You need a capacity for an ethical debate and a technical debate."

Not quite, Mr McGhee.

There has, in fact, been a significant "national steer". Following the UK's Gowers Review of Intellectual Property, in February 2008 the Department for Culture Media and Sport published From Margins to Mainstream: Creative Britain: New Talents for the New Economy. Recommendations included commitments to:

*Promote creative collaborations between employers, educators and training providers

*Local economies driven by creativity

*Clear routes into creative careers from local schools and colleges

*Link education and the world of work

*Talent pathways to facilitate better informed and broader career choices

*Educational outreach to ensure academia is providing the right skills

*Introduction of intellectual property into the national curriculum

*Industry and academia building stronger links to bridge the gap in skills provision

*Greater emphasis on business and entrepreneurial skills as part of creative courses

Section 5 of January 2009's Digital Britain Interim report says: "The simple message at the core of this interim report is that we cannot afford to treat education and training for digital technologies as just another ‘vertical’ subject area. It underpins everything we do in the 21st Century. Successful, emerging economies have already embraced this message. We must do likewise.....Similarly, in education and training for digital life skills, we need a step change in approach, starting with the youngest. .....[There is] the need effectively to engage an entire generation growing up with the internet, multi-media formats and broadband. This starts with inspiring and innovative programmes and initiatives to engage a new generation of students and attract them into technology-inspired and creative careers."

Geoff Taylor, British Phonographic Industry chief executive, recently said the Digital Bill would be a welcomed addition to education projects, but more work was needed. "The creative industries have become a vital sector of the UK's economy, and if we are to continue that success and create more new and exciting jobs for young people, it is essential that we educate young people as to the value of ideas – whether their own or somebody else's. ......Both industry and government must do more to encourage greater respect for copyright and intellectual property in society."

The BPI can afford to make such statements. Along with bodies such as PRS for Music, private individuals working in the industry and a number of music publishers, the BPI made a contribution to the new teaching materials produced by, amongst other government Sector Skills Councils, the Creative and Cultural Skills Council. The Council has produced "a broad range of vocational qualifications for adults, and also more general qualifications for 14-19 year olds". This includes an on-line learning service, Creative Choices. The music teaching modules and materials cover in considerable details music recording, live music, music publishing, copyright law and music trade practices, collecting societies and their role and governance. Teachers throughout the UK would find these materials, that are available from CCSkills, valuable assets to help them put filesharing in its industry context for their students and to equip their charges for the real world of the creative and cultural industries. More modules from other Skills Councils are on the way.

Goodbye Sweden, hello Ukraine: bulletproof havens for your holidays ...

Yesterday's Guardian featured an article ("Internet pirates find 'bulletproof' havens for illegal file sharing") by Bobbie Johnson, that newspaper's tech correspondent, which carries some useful pointers as to where file-sharers might choose to go for their holidays this summer. According to this article,

"Internet pirates are moving away from safe havens such as Sweden to new territories that include China and Ukraine, as they try to avoid prosecution for illegal file sharing ...

For several years, piracy groups that run services allowing music, video and software to be illegally shared online have been using legal loopholes across a wide range of countries as a way of escaping prosecution for copyright infringement.

In the last year there has been a significant shift, say piracy experts, as the groups have worked to stay beyond the reach of western law enforcement.

The change is rooted in the evolution of "bulletproof hosting", or website provision by companies that make a virtue of being impervious to legal threats and blocks. Not all bulletproof services are linked to illegal activities, but they are popular among criminal groups, spammers and file-sharing services.

Rob Holmes, of ... IP Cybercrime, ... said successful hosts were now starting to get stronger. "Some of the more popular ones have become more strongholds than they were previously," he said. "It's an industry and it always will be. When you think about it, bulletproof hosting is just a data version of money laundering."

Late last year a Swedish court found four men guilty of breaking copyright law through their links to the Pirate Bay website, ....

That decision prompted many piracy services to seek jurisdictions beyond the reach of western law. Pirate Bay moved its web servers to Ukraine, while another popular file-sharing service, Demonoid, which started in Serbia, also relocated.

"Before going completely dark in October [2009], Demonoid physically moved their servers to Ukraine, and remotely controlled them," said John Robinson, of BigChampagne, .... "Ukrainian communications law, as they paraphrase it, says that providers are not responsible for what their customers do. Therefore, they feel no need to speak about or defend what they do."

Not every controversial service has fled beyond traditional jurisdictions, however. Some problematic hosts still exist in the US, such as the infamous host McColo, which was based in San Jose, California, and remained in operation until last year.

Pirate Bay, after its brief excursion to Ukraine, is now run out of a Dutch data centre called CyberBunker, which is based in an old nuclear facility of the 1950s, about 120 miles south-west of Amsterdam.

Research published last year showed that most bulletproof hosts are located in China, where criminals are able to take advantage of low costs and legal loopholes to avoid prosecution.

Despite officials in Beijing talking in tough terms about computer crime – hacking potentially carries a death sentence in China – the authorities rarely co-operate with other countries to take action against hi-tech criminals. As a result, just a handful of firms in China are responsible for hosting thousands of criminal enterprises online. ...

Richard Cox of Spamhaus, a British organisation that watches spammers and monitors bulletproof hosts, said it was almost impossible to stop expansion of such services. "At the moment there are a number of individuals who are setting up bulletproof hosting sites in China," he said. "No matter how big a part of the Chinese network we block, the administrators there just do not care."

Not every controversial service has fled beyond traditional jurisdictions, however. Some problematic hosts still exist in the US, such as – the infamous host McColo, which was based in San Jose, California, and remained in operation until last year.

But the long-term impact of offshore hosting is becoming more problematic as investigators worldwide try to cut the links between criminal groups and protected internet servers.

One notorious gang of hackers, known as the Russian Business Network, ... started as a bulletproof host in St Petersburg but had connections to a wide range of criminal activities online. Widely known in the computer security community, it is being investigated by the FBI. The Russian authorities, meanwhile, have been keen to foster greater communication to stop the spread of criminal activity online.

Some are hopeful that greater co-operation between international governments will help prevent the development of new piracy havens, but others suggest that it is unlikely that a complete block on such activities will ever be possible.

"There will always be a place to run to," said Rob Holmes ... "Each time a law passes, or a new country creates some kind of stumbling block for them, they'll always find another place to do this. It goes back to the speakeasies in the 1920s – when one place got busted, they would just congregate in another place."

It can be argued that bulletproof havens are a positive step when viewed in broad terms: they are a sign that diplomacy, economic pressure and other measures can at least be targeted at the havens themselves, which can be worked on individually with a view to their cooperation. This is not much consolation to IP rights owners, however, since it is their rights which cannot be enforced.

Holiday in Ukraine here
Ukraine luxury hotels here

Happy public domain – bah! Humbug!

Three hundred years ago clocks ticked over from 31 December 1709 to 1 January 1709 (New Year’s Day being 25 March). Even today the transition to 1 January might be less than dramatic. For many copyright works 1 January is the first day of life in the public domain, but does that mean they’re suddenly all fair game?

Copyright-generating individuals who passed away in 1939 include W. B. Yeats, Sigmund Freud, Arthur Rackham and American Western author Zane Grey. They must be experiencing a sense of déjà vu as they enter the UK public domain, having previously done so in 1990. But is this really it? Balloons released into the sky, they may yet get snared on some branch. Copyright works have more lives, it seems, than cats...

1. Original copyright term.
2. Revived copyright term.
3. Works published posthumously (Zane Grey left a stockpile of manuscripts that were published for many years after his death).
4. Copyright continues in countries beyond the UK, such as many US works (Zane Grey).
5. The original work is out of copyright but the adaptation isn’t (translation of Freud).
6. Material around the work is still in copyright – text accompanying Rackham’s illustrations, editorial matter (notes for Yeats or Freud) or the book jacket. The presentation of the work may be in copyright (typography).
7. Material within the work is still in copyright (Yeats literary criticism).
8. It isn’t in copyright but you still have to pay a royalty (text of Peter Pan illustrated by Rackham).
9. It isn’t in copyright but is protected by another IP right – e.g. a trade mark or a database right (Yeats poetry anthology?).
10. It isn’t in copyright but you can’t copy it because either you can’t get past the DRM or it’s in a physical place you can’t access like an art gallery with a no photography policy.

I feel a New Year’s resolution coming on: ‘Do something original!’ Hmm...maybe that’s a bit over-ambitious...