Creative Commons License Upheld in Belgian Court

In 2004, the Belgian band Lichôdmapwa released the song “Abatchouck” under a Creative Commons Attribution Non-Commercial No Derivatives license (CC BY-NC-ND). Several years later, one of the band members happened to hear about 20 seconds of the 3:20 song on an advertisement for a theater and festival company. Recently, Lichôdmapwa was awarded 4.500 Euros for the infringement of “Abatchouck”.

When Lichôdmapwa first heard their song on the radio, they contacted the theater company (roughly translated by Bablefish as “Festival of theater of spa”) to see if they could negotiate an outcome favorable to all. The negotiations failed and Lichôdmapwa sued the theater company for copyright infringement in September of 2009.

The Band’s Claims

Lichôdmapwa claimed that the theater company had violated all three of the terms of their chosen CC license. The theater had modified the original work to make it fit in the commercial, violating the No Derivatives provision. The theater violated the Non-Commercial clause by using the work in an advertisement. And the theater violated the attribution requirement by not including any mention of the song’s artist in the commercial.

The band asked for 10,380 Euros in damages, plus to have the theater pay for the publication of the court’s judgment in a magazine called “Dogmagazine.”

The Theater Company’s Defense

The theater company attempted to claim ignorance, arguing that it was unaware of the terms of the license. It appears the theater also argued that since Lichôdmapwa is not a member of the Belgian collecting society, SABAM, the band had no rights to collect payments for the music’s use.

The Court’s Decision

Judge Vandeput did not agree with the theater company’s defenses. She recognized the validity of Creative Commons licenses, citing Dutch, Spanish and American courts as others that have also held CC licenses to be valid. She also confirmed that the musicians’ decision to not join SABAM and instead release their music more openly should not prevent enforcement of the license.

As to the theater company’s claim of ignorance, Judge Vandeput found that this was no excuse for violating the license. As an organizer of festivals and a company involved in using licensing, the company should have known to look for and follow the terms of the license. In addition, the website from which the theater downloaded the music, http://www.dogmazic.net, clearly mentions the terms of the license. There was no reason for the theater company not to know about the license or its terms.

The Money

Even though the band is not part of SABAM, the court held that they still suffered damages. And although Judge Vandeput did not award Lichôdmapwa the 12 Euros per distribution and 1,800 Euros per license term violated that they requested or the magazine print request, she did award the band 1,500 Euros per license term violated. 4,500 Euros and possibly court costs, not bad.

For our multi-lingual readers:

• More about the case by Herkko Hietanen (in Finnish)http://www.turre.com/2010/10/tuomioistuin-tietamattomyys-ei-este-cc-lisenssin-loukkaukselle/
• Full text of the case (in French) http://www.turre.com/wp-content/uploads/2010-10-26-D%C3%A9cision-trib.-Nivelles-Lich%C3%B4dmapwa.pdf

Collecting from charity to be balanced against collecting for charity

"New deal agreed on music licensing system" is the exciting news contained in a press release issued earlier this week by the UK's Intellectual Property Office (IPO).  You'd never guess from this title what the deal was about unless you worked for the IPO, though. According to this missive,

New deal: but who is giving to whom?

"The Government has helped broker a new deal between charities and music creators on the music licensing system. From now on, a public venue, including those used by a charity or not-for-profit organisation, where music is played from records, CDs, the radio or television will now require a licence from both PPL and PRS for Music. These organisations collect and distribute royalties on behalf of copyright holders such as composers, lyricists, music publishers, record companies and musicians. The new system will be fair for both musicians and charities. Those involved in creating music will be rewarded for their work while a package of measures have been agreed to protect charities from excessive costs.

In July 2008 the Government carried out a consultation into amending this legislation. In November last year the then Government responded to the consultation by saying it would reform the licensing system. This was followed by more than 18 months of negotiations with PPL and charity representatives. Since May this year it has been agreed that:

* Charities will be exempt from paying for a PPL licence for the first year giving them 12 months to prepare for the change;
* The lowest tariff of £40 a year has been extended to cover more than 60 per cent of the buildings where voluntary groups meet instead of only 30 per cent of buildings;
* The licence for community buildings has been extended to cover outdoor events like village fetes and carnivals;
* The vast majority of charity shops will pay the lowest tariff of £54 a year;
* The charity shop licence will cover back offices as well as the shop floor;.
* Charities will not face more red tape and bureaucracy. PPL and PRS for Music will create a single licensing system so organisations will only have to make one application. .. "

A statutory instrument ending the exemption has now been laid before Parliament. According to Minister for Civil Society Nick Hurd:

"We have worked hard to ensure that charities, particularly small organisations and charity shops, get extra protection and that the impact of any changes is minimised.  It will be difficult to satisfy everyone but we have achieved a fairer balance between the need to reward musicians for their work and the need to protect charities from excessive costs and additional bureaucracy. In addition, we hope that the agreed delay in implementing these changes will give the whole sector time to prepare and will allow discussions to continue."

Charities and not-for-profit organisations will not begin paying until next year allowing time for further discussions.  A new way to address complaints is also to be created by PPL and, if organisations believe they have been treated unfairly, they will be able to appeal to a new independent reviewer. PPL will operate the same voluntary exceptions as PRS for Music - at family occasions such as weddings, religious services, on hospital wards and for medical therapy.

Copyright Law, Getting in the Way of Getting Copyrighted Works

“The biggest barriers that consumers face in accessing copyright works
are those created by copyright law.”  And with that profound statement, Consumers International begins its exploration into how copyright and consumers interact, investigating the barriers consumers face when attempting to find information.

The book is Access to Knowledge for Consumers: Reports of Campaigns and Research 2008-2010, and it presents the findings of two years of studies conducted by Consumers International.  These studies included surveys of consumers across a wide variety of countries, in-depth reviews of the effects of enacting new flexibilities in the copyright laws of Australia and Israel, and reports from six country groups involved in advocacy at the national level.

Consumer Survey

The global survey looked at potential barriers to access (to knowledge) in four different categories: Political, Economic, Social and Technological.  The book includes a full copy of the survey questions, highlights of notable qualitative answers and full charts of quantitative breakdowns.  Unfortunately, the charts are a bit hard to read sideways on a computer screen.  A surprising finding of the survey was that African consumers have the highest respect for copyright law.  A not-so-surprising finding was that consumers are confused about FOSS (free and open source software) and open licensing.

However, in combination with the other studies, Consumer International also found:

Part of the solution to the access barriers that consumers face is the wider use of open content, such as Open Educational Resources (OER) and free and open source software (FOSS). Our survey found that most consumers are aware of these alternatives, and ready to give them a try.

Based on this information, Consumers International has identified “the need for education of consumers on the unique features of FOSS and (though not covered in the phase one survey) other forms of free licensing such as Creative Commons.” 

Copyright Law Flexibilities

Australia’s 2006 amendments to its copyright act added flexibilities that made time-shifting and formatting-shifting legal.  Before the enactment of the amendments, arguments arose that the amendments would interfere with the markets for legal downloads and a threat to nearly every type of copyright protected work.  Results of the research conducted revealed that the content industry’s nightmares did not come true. 

[T]here was evidence to suggest that the amendments may have increased compliance with the law – not only by legalising the common and harmless consumer practices in question, but by improving some consumers’ respect for the fairness of copyright law in general.

When looking at Australian’s perspectives on whether and when it is ok to download copyrighted material, the book again presents a mix of quantitative data and qualitative information. Some of the justifications of those who feel it is ok to download to their heart’s content are rather amusing.

“Because when I see what happens, when people like Britney Spears
get paid what they do and act like they do. This means to me the
entertainment industry can kiss my arse!!!!!!!!”

Israel introduced fair use into its British-based copyright act in 2007.  To study the effects of the introduction of this provision, researchers compared case law before and after 2007.  The concept of fair use existed in Israeli copyright before 2007, but it was not codified.  Results of the analysis was slightly disappointing but hopeful.  Finding that fair use claims rarely succeeded and that courts were applying the doctrine in disparate ways, the researchers also expressed belief that this will change with the progression of more cases.

In conclusion, we find the law in Israel, while evolving to meet the
new digital creativity landscape, still lacks the balance which will reflect the social understanding of what should constitute a fair use and how copyright can foster creativity and innovation.

Country Group Reports

The book includes reports on national advocacy from Brazil, Cameroon, India, Nigeria, South Africa and Zambia.  Each of these reports discusses activities done in the country to promote access to knowledge and the strengths and weaknesses of these activities.

 

Access to Knowledge for Consumers: Reports of Campaigns and Research 2008-2010 is a 336 page book, but it will not cause you back strain.  The entire book is available in pdf, released under a Creative Commons BY-SA license.

Another slice

Less than two weeks after Judge Kimba Wood in the federal District Court in Manhatten ordered a halt to distribution of the file-sharing software application LimeWire, TorrentFreak reports that a "secret" development team has reengineered the software and released it back onto the Internet as the new and seemingly improved “LimeWire Pirate Edition” which is based on the LimeWire 5.6 beta released earlier this year. TorrentFreak say “LimeWire is back as good as new” with “a few significant changes which make it better and more streamlined than before”. A source told TorrentFreak that after the court’s decision “a horde of piratical monkeys climbed aboard the abandoned ship, mended its sails, polished its cannons, and released it free to the community” adding “All dependencies on LimeWire LLC’s servers have been removed, all remote settings have been disabled, the Ask toolbar has been unbundled, and all features of LimeWire PRO have been activated for free”.

http://s0.2mdn.net/1651284/v3_new.html?rfp=http://www.v3.co.uk/v3/news/2272936/limewire-riaa-p2p-pirate and http://torrentfreak.com/limewire-resurrected-by-secret-dev-team-101108/

IP meets IP, as Bonnier questions hit the CJEU

For those who can never work out whether 'IP' stands for intellectual property or internet protocol, here's a minor nightmare in the making: there's a new reference listed on the Curia website for a preliminary ruling from the Högsta domstolen, Sweden. It's Case C-461/10, Bonnier Audio AB, Earbooks AB, Norstedts Förlagsgrupp AB, Piratförlaget Aktiebolag, Storyside AB v Perfect Communication Sweden AB.  The reference was lodged with the Court of Justice of the European Union (CJEU) on 20 September 2010, since which time we presume it has been in the pipeline, awaiting multiple translations.

The questions referred for a ruling are as follows:

"1. Does Directive 2006/24 ... on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58 ... (the data storage directive), and in particular Articles 3, 4, 5 and 11 thereof, preclude the application of a national provision which is based on Article 8 of Directive 2004/48 ... on the enforcement of intellectual property rights and which permits an internet service provider in civil proceedings, in order to identify a particular subscriber, to be ordered to give a copyright holder or its representative information on the subscriber to whom the internet service provider provided a specific IP address, which address, it is claimed, was used in the infringement? The question is based on the assumption that the applicant has adduced evidence of the infringement of a particular copyright and that the measure is proportionate.

2. Is the answer to Question 1 affected by the fact that the Member State has not implemented the data storage directive despite the fact that the period prescribed for implementation has expired?"

Swedish English-language online paper The Local provides some background here for the uninitiated.  Essentially, this is the first piece of litigation to test out Sweden's anti-file sharing law (Ipred), which was passed in April 2009. The CJEU reference comes after five audiobook publishers sought details of internet users who were known to them only by their IP addresses but the ISP, ePhone, was reluctant to comply with this request.  In June 2009 the trial court ruled in favour of the publishers, but the the Court of Appeal (Hovrätten) upheld ePhone's appeal on the basis that the publishers couldn't prove whether the audio books on the server really had been available to the public. It is the further appeal to the Supreme Court (Högsta domstolen) which led to the CJEU reference.

The answer is right in front of you

On 25 October the European Commission held a Digital Agenda Stakeholder Day at which the European Publishers Council gave one of the presentations, “The answer to the machine is in the machine”. Their project is to build an infrastructure that will pull together the various existing automated licensing systems ranging from Creative Commons to ACAP. As their press release describes:

‘In the internet age we need to be able to identify the content being used and who controls the rights in it; we need to be able to identify the user and the usage; we need to be able to read any permissions information; we need to be able automatically to link these various entities together to complete a transaction. A digital copyright symbol would be a gateway and marker for any person and any machine for all this essential information.’

David’s fair use Silicon Valley dream

On Thursday David Cameron launched a review of Britain’s IP law during an announcement about creating a Silicon Valley in London’s East End. The review is due to report in April next year. According to the BIS press release the review will look at:

· Barriers to new internet-based business models, including the costs of obtaining permissions from existing rights-holders;
· The cost and complexity of enforcing intellectual property rights within the UK and internationally;
· The interaction between IP and Competition frameworks;
· The cost and complexity to SMEs of accessing services to help them protect and exploit their IP.
· The review will also look at what the UK can learn from the US’s “fair use” rules covering the circumstances in which copyright material may be used without the rights-holder's express permission.
· The review will make recommendations on the changes the UK can make as well as the long-term goals to be pursued through the international IP framework.

There is clearly a risk here of reinventing the wheel – apart from anything else by re-running the substantial recent reports generated by the EU and the Labour government. However, some of these areas have not figured particularly large in Labour’s reports: cost of enforcement, competition law and ‘fair use’.

It was the fair use point that the Prime Minister chose to home in on in his speech:

‘The second new announcement I can make today is to do with intellectual property. The founders of Google have said they could never have started their company in Britain. The service they provide depends on taking a snapshot of all the content on the internet at any one time and they feel our copyright system is not as friendly to this sort of innovation as it is in the United States. Over there, they have what are called “fair-use” provisions, which some people believe gives companies more breathing space to create new products and services. So I can announce today that we are reviewing our IP laws, to see if we can make them fit for the internet age. I want to encourage the sort of creative innovation that exists in America.’

Once you get over the distracting mixture of business and law-making (Google, the driving force for revisiting copyright law, also turns out to be putting up the cash for an ‘Innovation Hub’ in the East End), how does this stack up?

1. Have Britain’s laws presented a particular problem for Google’s search engine? Theoretically a question mark hangs over whether search engines are in conflict with European copyright law (the Advocate General in the Google AdWords cases explored this point, while the English judgment Metropolitan International Schools v Designtechnica took the view that a search engine wouldn’t be protected by the hosting defence of the E-Commerce Directive). But in practice Google's search engine has hardly been beseiged by litigation here.
2. Google’s search engine does have legal approval in the US but is ‘fair use’ the reason? When Google was sued over caching, fair use did feature in one case but the more important argument has been that website owners are giving Google an implied licence because they can easily disable the caching. This is an argument that Google could use if it ever found itself in court over its search engine in the UK.
3. If David Cameron wants to give Google’s search engine a clear green light he’d do better to argue in Europe for a copyright exception for search engines. If we had fair use, it would be up to a judge to make the call – he might say it wasn’t fair use.
4. Would fair use make such a difference to foreign investment? As Mark Owen points out, changing tax law might be more relevant. In a report commissioned by the Labour government on the economics of copyright it was found that quantifying the relative economic effects of specific details of copyright law was extremely difficult if not impossible.
5. Fair use is characterized by its flexibility compared with the certainty of the European exceptions: that means the only way you arrive at certainty is litigation. Is it perhaps therefore better suited to the US, where courts hum with copyright litigation? The UK has a fair dealing court case once in a blue moon.
6. Most importantly, introducing a fair use copyright exception will not be easy: it would require an overhaul of the copyright law of 27 European states.

The report’s investigation into the costs of enforcement on the other hand looks more promising…

Crosstown v Rive Droite: the Court of Appeal unfazed by foreign copyright

In 2006 Crosstown Music acquired rights in 119 songs from music publisher River Droite. Rive Droite had been assigned the rights by the songwriters under agreements that stated the rights would revert in the event of a material breach. Accounting failures of Rive Droite resulted in the songwriters Mark Taylor and Paul Barry being underpaid and last year Mann J held that the rights reverted back to them. Crosstown appealed and on Tuesday the Court of Appeal gave its judgment. It dismissed the appeal on all three issues:

1. Crosstown argued that the reversion clause was invalid because it effectively meant that the assignments had been for an indeterminate length of time. The Court of Appeal, however, had no problem with this indeterminacy: to them, it fits quite happily with section 90A of the Copyright, Designs and Patents Act 1988 and with previous case law.

2. Crosstown said the songwriters had given notices of the breaches too late, but the Court of Appeal refused to imply a term that the notices had to be served within a reasonable time.

3. Crosstown said that following the Lucasfilm judgment (which was given after Mann J’s), the trial judge did not have jurisdiction over questions of title to the foreign copyrights that were involved. The Court of Appeal said that Lucasfilm was irrelevant as it had been about infringement of foreign copyright, not copyright ownership or title. Furthermore the agreements conferred exclusive jurisdiction on the English courts.

The Court of Appeal’s decision on this third point is certainly pragmatic. Many copyright licences cover numerous jurisdictions and if an English court could not handle this dispute, then how else should it be managed? Perhaps by a United Nations of IP judges, each opining on their own copyright law. However, was Crosstown’s argument so absurd? Though the agreements were governed by English law, even English contract law cannot override national copyright laws. So if there are any countries where copyright cannot be assigned for an indeterminate length of time, then this reversion clause would seem to present a genuine problem.