Conversations on Copyright to start by revisiting transformative use

Conversations on Copyright: an early use of
"transformative use" as a chat-up line ...

Here's a bit of excitement heading for Glasgow. On the afternoon of Thursday 20 October Professor Peter Jaszi (Washington College of Law, American University) is speaking on "Copyright and Fair Use in the US: ‘Transformativeness’ Twenty Years On". This is the inaugural event in Conversations on Copyright, a new seminar series co-organised by the University of Edinburgh, the University of Glasgow and the University of Strathclyde. It brings internationally renowned academics and practitioners to Scotland to initiate new conversations on historical and contemporary copyright policy and practice, doctrine and theory.  According to the organisers:

"Prof Jaszi is the Faculty Director of the Glushko-Samuelson Intellectual Property clinic at the Washington College of Law, American University. With Craig Joyce, Marshall Leaffer and Tyler Ochoa, he co-authors a standard copyright textbook, Copyright Law (Lexis, 7th ed., 2006). Alone and with Martha Woodmansee, he has written several articles on copyright history and theory; together they edited The Construction of Authorship, published by Duke University Press. In 1994, Professor Jaszi was a member of the Librarian of Congress’ Advisory Commission on Copyright Registration and Deposit, and in 1995 he was an organizer of the Digital Future Coalition. He is a Trustee of the Copyright Society of the U.S.A., and a member of the editorial board of its journal. In 2007, he received the American Library Association’s L. Ray Patterson Copyright Award, and in 2009 the Intellectual Property Section of the District of Columbia Bar honoured him as the year’s Champion of Intellectual Property.

Since 2005, Professor Jaszi has been working with Professor Patricia Aufderheide of the American University’s Center for Social Media on projects designed to promote the understanding of fair use by documentary filmmakers and other creators. In 2006-07, he led an interdisciplinary research team, funded by the Ford Foundation, that investigated the connections between intellectual law and the traditional arts in Indonesia. He currently serves on the board of ITVS, an important funder of documentary film projects".

The event runs from 5.00pm to 7.00pm, but Professor Jaszi’s lecture doesn't start till 5.15pm. This means that if you arrive on time you can enjoy some conversations of your own first, To secure your place at this event please email Lilian Wright at lilian.wright@glasgow.ac.uk

BT and Talk Talk win right to appeal DEA judgment

The BBC reports that British Telecom and Talk Talk have been given permission to appeal against the High Court's judgment against them over their challenge to the provisions of the Digital Economy Act. Under the provisions of the DEA, Internet Service Providerss would be compelled to send out warning letters, at the behest of rights holders such as film and record companies, warning about illegal downloading. The Act also allows for sanctions, known as "technical measures", which could include disconnection - although the exact nature of technical measures and the circumstances under which they could be imposed have not as yet been determined. The Guardian add this "The decision means that there will now be a hearing at the Court of Appeal – likely to be in the new year – which means that the government's plans to send thousands of warning letters to alleged illegal downloaders will probably be pushed back by about six months. The government had planned to start sending the letters in the first half of next year, but it will now have to hold off until the challenge by Britain's two largest ISPs is resolved."

Lord Justice Lewison granted BT and TalkTalk leave to appeal the DEA on four grounds. Both companies have raised concerns about how the legislation works alongside EU directives on technical standards, authorisation, e-commerce, as well as privacy and electronic communications.

http://www.guardian.co.uk/technology/2011/oct/07/bt-talktalk-digital-economy-act?newsfeed=true

A conference -- and a book

"It's all good fun", said Maud, "but what the Glastonbury
Festival really needs is something a bit more, well, muddy"

This year's "Music and Intellectual Property" Conference, organised by CLT, takes place in Central London on Monday 5 December 2011. The programme is a bright and challenging one, with two 1709 Blog team members taking part in it. Ben Challis (Glastonbury Festival) is taking a look at business models in the music industry, giving some pointers as to what we should look for when deciding which are the winners, which the duds, while Jeremy Phillips is in the chair.

Topics covered this year are as follows:

• Music copyright and policy: Too Much, Too Quickly?
• What’s New, What’s on the Way: A European Perspective
• Infringement - Has the Same Old Tune Changed?
• Business Models and the Music Industry: Successes and Failures
• Online Piracy and The Digital Economy Act 2010 - Where Are We Now?
• Collective Copyright Management in Court
• Music and Copyright in the Patents County Court

For more details and registration, just click here.

This is the second year that CLT has offered Music and Copyright. Last year's conference was a great success and, coincidentally, one of its star speakers -- the University of Glasgow's Dr Andreas Rahmatian -- has just published a very thought-provoking and stimulating critique of proprietary interests in the creative sector: it's Copyright and Creativity: the making of property rights in creative works, published by Edward Elgar Publishing.

What is this book about? According to the publicity material:

"Copyright and Creativity discusses the making of property out of creative works through the legal mechanism of copyright. It shows the manner in which the law translates a great variety of expressions of the human mind into its normative system and transforms them into the property right of copyright or droit d’auteur.

This timely book examines the proprietary features of copyright, the inherent limitations of its powers, and its justification and relationship to the non-proprietary realm of the public domain. The latter part of the book deals with the ‘propertisation/commodification’ of human authors themselves through their works as alienable objects of property, the well-known ‘Romantic author’ critique as a sophisticated justification of that commodification, and at an international level, neo-feudal and neo-colonial developments as a result of this process.

This detailed study will appeal to undergraduate and postgraduate students, legal sociologists, and specialists in copyright, property theory, or legal theory and political philosophy with particular interest in property theory. Practitioners within bodies involved in legal policy, organisations concerned with law reform, European institutions, and international organisations will also find much to interest them in this book".

This blogger read one of the chapters pre-publication and can confirm that it is a work of substantial scholarship which will be much appreciated by anyone who has a good understanding of legal systems, jurisprudential notions of property and the principles of copyright.  It makes no concessions to lazy reading, sloppy thinking or common law sentiments. There's also an excellent 22-page bibliography which reflects not only the author's linguistic skills but the considerable breadth of his inquisitive instincts when chasing strands of thought. For a relatively small book, it's a big, big read.

Bibliographical details: Hardback,  xx + 314 pages. ISBN  978 1 84844 246 7. Price £79.95 (online price £71.96). 35% discount for 1709 Blog readers who purchase it by 31 October .£51.96 + carriage charges. Web page here.

Supreme Court confirms that a download is NOT a performance

The U.S. Supreme Court denied an appeal against an appellate court’s ruling that a traditional Internet download of sound recording does not constitute a public performance of the recorded musical work or the composition under federal copyright law. The Supreme Court denied the appeal without comment.

The American Society of Composers, Authors and Publishers (ASCAP) had appealed to the Supreme Court saying the ruling has profound implications for the nation's music industry, costing its songwriter members tens of millions of dollars in potential royalties each year. The federal government opposed the appeal and U.S. Solicitor General Donald Verrilli said that the ruling by the appeals court and the court of first instance were correct and comported with common understanding and sound copyright policy.

ASCAP argued that digital downloads were also public performances for which the copyright owners must be compensated. But a federal judge and the appeals court rejected that argument.

At issue was the section of the US Copyright Act stating that to perform a work means to recite, render, play, dance or act it either directly or by means of any device or process - with the appeals court ruling that "music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener" saying that the download it is simply considered a “reproduction” and thus not subject to performance royalties under the Act. A mechanical royalty for the delivery of a composition would be due for each download (though not payable to ASCAP).


ASCAP v. United States, No. 10-1337

ECJ upholds AG opinion; no copyright in football matches?

The ECJ judgment in QC Leisure is just in. You can read it in full here.

Press release pasted in full below - comment to follow.

"A system of licences for the broadcasting of football matches which grants broadcasters territorial exclusivity on a Member State basis and which prohibits television viewers from watching the broadcasts with a decoder card in other Member States is contrary to EU law

The screening in a pub of football-match broadcasts containing protected works requires the authorisation of the author of those works

The Football Association Premier League (‘the FAPL’) runs the Premier League, the leading professional football league competition in England, and markets the television broadcasting rights for Premier League matches. It grants broadcasters, under an open competitive tender procedure, an exclusive live broadcasting right for Premier League matches on a territorial basis. As the territorial basis generally corresponds to a single Member State, television viewers can watch only the matches transmitted by the broadcasters established in the Member State where they reside.

In order to protect such territorial exclusivity and to prevent the public from receiving broadcasts outside the relevant Member State, each broadcaster undertakes, in the licence agreement concluded with the FAPL, to encrypt its satellite signal and to transmit the signal, so encrypted, by satellite solely to subscribers in the territory which it has been awarded. Consequently, the licence agreement prohibits the broadcasters from supplying decoder cards to persons who wish to watch their broadcasts outside the Member State for which the licence is granted.

The disputes giving rise to the present cases concern attempts to circumvent that exclusivity. Certain pubs in the United Kingdom have begun to use foreign decoder cards, issued by a Greek broadcaster to subscribers resident in Greece, to access Premier League matches. The pubs buy a card and a decoder box from a dealer at prices lower than those of Sky, the holder of the broadcasting rights in the United Kingdom.

Since the FAPL takes the view that such activities undermine the exclusivity of the television broadcasting rights and the value of those rights, it is seeking to bring them to an end by means of legal proceedings. The first case (C-403/08) concerns a civil action brought by the FAPL against pubs that have screened Premier League matches by using Greek decoder cards and against the suppliers of such decoder cards to those pubs. The second case (C-429/08) has arisen from criminal proceedings against Karen Murphy, the landlady of a pub that screened Premier League matches using a Greek decoder card. In those two cases, the High Court of Justice of England and Wales has referred a number of questions concerning the interpretation of European Union law to the Court of Justice.

In its judgment delivered today, the Court of Justice holds that national legislation which prohibits the import, sale or use of foreign decoder cards is contrary to the freedom to provide services and cannot be justified either in light of the objective of protecting intellectual property rights or by the objective of encouraging the public to attend football stadiums.

So far as concerns the possibility of justifying that restriction in light of the objective of protecting intellectual property rights, the Court observes that the FAPL cannot claim copyright in the Premier League matches themselves, as those sporting events cannot be considered to be an author’s own intellectual creation and, therefore, to be ‘works’ for the purposes of copyright in the European Union.

Also, even if national law were to confer comparable protection upon sporting events – which would, in principle, be compatible with EU law – a prohibition on using foreign decoder cards would go beyond what is necessary to ensure appropriate remuneration for the holders of the rights concerned.

In this regard, the Court observes, first, that when calculating such appropriate remuneration it is possible to take account of the actual and potential audience both in the Member State of broadcast and in any other Member State where the broadcasts are received, and that it is thus not necessary to limit the free movement of services within the European Union. Second, payment by the television stations of a premium in order to ensure themselves absolute territorial exclusivity goes beyond what is necessary to ensure the right holders appropriate remuneration, because such a practice may result in artificial price differences between the partitioned national markets. Such partitioning and such an artificial price difference are irreconcilable with the fundamental aim of the Treaty, which is completion of the internal market.

For similar reasons, a system of exclusive licences is also contrary to European Union competition law if the licence agreements prohibit the supply of decoder cards to television viewers who wish to watch the broadcasts outside the Member State for which the licence is granted.

It is true that European Union competition law does not, in principle, preclude a right holder from granting to a sole licensee the exclusive right to broadcast protected subject-matter by satellite, during a specified period, from a single Member State of broadcast or from a number of Member States of broadcast. However, the licence agreements must not prohibit the broadcasters from effecting any cross-border provision of services that relates to the sporting events concerned, because such an agreement would enable each broadcaster to be granted absolute territorial exclusivity in the area covered by its licence, would therefore eliminate all competition between broadcasters in the field of those services and would thus partition the national markets in accordance with national borders.

Finally, as regards the questions asked concerning the interpretation of the Copyright Directive, the Court notes first of all that only the opening video sequence, the Premier League anthem, pre-recorded films showing highlights of recent Premier League matches and various graphics can be regarded as ‘works’ and are therefore protected by copyright. By contrast, the matches themselves are not works enjoying such protection.

That being so, the Court decides that transmission in a pub of the broadcasts containing those protected works, such as the opening video sequence or the Premier League anthem, constitutes a ‘communication to the public’ within the meaning of the copyright directive, for which the authorisation of the author of the works is necessary, because when a pub transmits those works to the customers present on the premises the works are transmitted to an additional public which was not considered by the authors when they authorised the broadcasting of their works".

Canada's Bill and the hacking of digital locks

On Saturday this weblog posted a short note, "Canada moves to modernise its copyright law". Canadian IP/IT lawyer and blogger Barry Sookman has now kindly drawn our attention to his own post today, "Some observations on Bill C-11: The Copyright Modernization Act", a lengthy and detailed analysis and commentary which you can read here. In clarifying what the Bill (which he tells us has been misreported by a number of news sources) actually says, he adds:

"The Bill does not prohibit hacking copy control digital locks for any purpose and there are multiple exceptions that permit circumventing access control TPMs. Moreover, Section 41.1(3) of the Bill expressly precludes an award of statutory damages against an individual who circumvents a TPM for his or her own private purposes. Accordingly, it is flat out wrong to claim that an individual could be liable for “thousands of dollars in legal damages” for hacking a TPM for personal purposes. Further, even if statutory damages did apply, which they do not, the Bill would limit such damages to a range, the maximum of which would be $5,000 for the most egregious case". 

Thanks, Barry!

Audiovisual performers take the stage

Muffin the Mule celebrates an end tounauthorised exploitation of audiovisual performance

Times are looking good for audiovisual performers. They may find it tough when they have to compete commercially against recordings of their performances which they made in their prime, and they may find it even tougher to enforce their rights in individual cases of low-value infringement, but at least their cause is viewed sympathetically in the marbled corridors of Geneva.  Life may not be a treat, but there may be a treaty awaiting them.  According to this World Intellectual Property Organization (WIPO) media release,

"WIPO Director General Francis Gurry welcomed a decision ... by WIPO’s General Assembly to convene a diplomatic conference in 2012 to agree an international treaty on the rights of performers in their audiovisual performances. The convening of a diplomatic conference signals entry into the final phase of treaty negotiations.

“This is a good day for actors, performers and the international copyright community,” Mr. Gurry said. “While some countries have domestic legislation that grants certain rights to performers in audiovisual works, there is a legal vacuum at the international level [Nature abhors a vacuum -- and so, it seems, does the world's diplomatic IP community]. Performers have not had control over how and when their performances are used abroad, nor any legal right to payment [not just abroad, either ...]. Today’s decision brings us a big step closer to resolving this question.”

In 2000, discussions on a treaty that would shore up the rights of performers in their audiovisual performances made significant progress, with provisional agreement on 19 of the 20 articles under negotiation. Negotiators at the time did not agree on whether [since it's really a matter of contract, not IP?] or how a treaty on performers’ rights should deal with the transfer of rights from the performer to the producer, and suspended the diplomatic conference.

Member states at the Standing Committee on Copyright and Related Rights, meeting in June 2011 in Geneva, agreed compromise wording on the provision on the transfer of rights which made it sufficiently flexible to adapt to different national laws, thereby paving the way for the conclusion of a treaty.

The diplomatic conference will be convened in 2012 and will continue the work of the meeting in 2000. It will be held in Geneva, unless the preparatory committee, which meets in November, decides to accept a proposal by a member state to host the event.

The adoption of a new instrument would strengthen the precarious position of performers in the audiovisual industry by providing a clearer legal basis for the international use of audiovisual productions, both in traditional media and in digital networks. Such an instrument would also contribute to safeguarding the rights of performers against the unauthorized use of their performances in audiovisual media, such as television, film and video [one senses at this point that there will remain little realistic prospect of safeguarding audiovisual performers' rights in the realm of the social media -- but that's a bridge too far right now].

Singers, musicians, dancers and actors have [jolly well not] enjoyed limited international protection for their performances since the adoption of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (the Rome Convention) in 1961. In 1996, the adoption of WIPO Performances and Phonograms Treaty (WPPT) fully modernized and updated these standards in respect of sound performances, particularly in relation to digital uses, leaving a void in the international rights' system for audiovisual performers".

This blog will watch and await further developments with interest.

Canada moves to modernise its copyright law

Canada's federal government has reintroduced copyright legislation into the House of Commons in an attempt to modernise the country's law, last updated in 1997. The former Liberal government introduced proposed legislation in 2005 and the Conservatives made two attempts during their minority governments in 2008 and 2010, but none passed.

The new bill is an attempt by the Canadian Government make the Country's copyright laws fit for purpose in the digital age. Bill C-11, the Copyright Modernization Act, is an exact copy of legislation tabled by the Conservatives in 2010, Bill C-32, which died when the last Canadian Parliament was dissolved.

The legislation the aims to strike a fair balance between the rights of consumers to use products they buy and those of copyright-holders who are entitled to due compensation for their creations. The law would legalize everyday consumer practices that are currently prohibited, such as using a personal video recorder to record a TV show for later viewing, or copying music from a purchased CD to an iPod. It would further allow educators, artists and satirists to break copyright under limited circumstances if the use is fair and not exploitative, and would also allow "mashups," where people transform or remix existing creative content into new works, as long as it's not for commercial purposes and doesn't have a significant adverse effect on the original rights-holders. The bill will also protect Internet intermediaries from liability for the actions of their users by providing for ‘safe harbour’ exemptions. Many Canadian commentators say that in the absence of such protections, search engines, video sites and blog hosts are vulnerable and often remove legitimate content under threat of legal action..

To some commentators a less welcome provision (and the sticking point in previous attempts to pass this bill) is the blanket ban against breaking digital locks, even for purposes of personal use. This includes "picking" a lock on a DVD purchased overseas to watch at home, or transferring a purchased protected e-book to read to another personal device. The bill provides for $5,000 fines for even the smallest such violations. Many see the provision as the end result of heavy pressure from US authorities who had placed Canada on a copyright piracy ‘watch list’ alongside Russia and China as a ‘hotbed of piracy’, and in the interest of maintaining cross-border trade and exemption from protectionist measures that would prevent Canadian firms from bidding on U.S. government procurement contracts.

Critics of the proposed legislation have said the provisions which relate to breaking a digital lock go too far and undermine the rights of users to use content for the purposes of education and fair dealing. Professor Michael Geist, Canada Research Chair in internet and e-commerce law at the University of Ottawa, called the proposed legislation “a tale of two bills.” He credits the Conservative government for attempting to strike a compromise on issues such as fair dealing and the ability to use copyrighted works for non-commercial purposes without permission to create mashups, tailoring damages under the act to create a distinction between commercial and non-commercial infringement, and addressing the role of internet providers. But, he said, the government was influenced by the United States to implement the tough digital lock provisions despite feedback from Canadians during consultations on the earlier bill saying "“[The provisions] remain unchanged and are one of the most inflexible, restrictive digital lock provisions in the world”.

The bill’s passage will also allow Canada to ratify the World Intellectual Property Organization internet treaties it signed in 1997.

http://business.financialpost.com/2011/09/29/canadas-copyright-conundrum-and-the-digital-locks-controversy/

http://www.ipbrief.net/2011/02/18/canadas-copyright-modernization-act-tries-to-please-everyone-succeeds-in-pleasing-no-one/

Flag from http://arstechnica.com/tech-policy/news/2011/05/canada-still-in-copyright-hall-of-shame-according-to-the-us.ars