Barnier's future for copyright: watch this space!

Today the European Union Commissioner for the single market, Michel Barnier, gave a speech at the launch event of the CEPS Digital Forum Taskforce on Copyright in the EU Digital Single Market / Brussels. With the world watching the US elections it probably won't be the most read speech for today, so I thought it fair to bring it to the attention of readers.

Michel Barnier began his speech by saying:

© European Commission

"When it was created in 1992, one million computers were connected to the internet worldwide. In 2016, that number will be 10 billion: 10 000 times more! In 1992, we never imagined that one day we would be able to read our favourite newspaper, discover new music or watch a film  anytime, anywhere, on any device - a laptop, a tablet or a phone. We could not imagine the opportunities. Or indeed the challenges that would arise. In particular from a European perspective. Copyright is at the heart of these opportunities and challenges."

He went on to echo the Neelie Kroes by asking the question: is copyright fit for the digital age?

Michel Barnier generously said that he did not blame copyright for everything that does not work in the internet and more sensibly that he does not deny that rules need to be modernised and adapted where the evidence is there.

Barnier listed the four main things that he seeks to achieve, each of which he elaborates on further in his speech. In at nutshell what he wants is:

a copyright framework that facilitates the access of all Europeans to their heritage. He wants to make make dissemination of digital works currently out of distribution easier by a combination of limiting rights (where justified) and easier licensing, notably by way of collective management. He also refers to the Orphan Works Directive and to the Recommendation made to Member States "inviting them to step up their efforts for the digitisation of cultural material".

a copyright framework that passes the "Single Market test", making more content available to more citizens, cross-border. Michel Barnier argues that the territoriality of copyright, and the complexities of licensing, should not constitute a barrier. He says that an important step was taken in July when the Directive on the collective management of rights was proposed in relation to licensing of music rights by collecting societies. He went on to say that: " it is unacceptable that Europeans are confronted online with the borders we have been dismantling in the physical world for 50 years. As Single Market Commissioner, I cannot accept this." Therefore we can expect to see full implementation of Single Market instruments such as the Services Directive as well as possible new legislation.

a copyright framework that provides the right incentives for those that create and invest in content and that ensures the right balance with other policy objectives such as education, research or innovation. In this respect Michel Barnier considers whether more harmonisation is needed to update the existing limitations and to ensure that they apply across borders; however copyright should not be weakened to enable the development of new businesses free of cost. It is important, he says, the strike the right balance between rights and limitations whilst preserving the incentive to create.

a copyright framework that continues to provide incentives but which must include meaningful enforcement. Now more than ever Michel Barnier argues that it is essential that business models based on infringement of intellectual property rights are eliminated business models as this is how new jobs (in legitimate companies) will be created.

Michel Barnier finishes by saying that proposals must be based "on precise data and serious analysis" and that all relevant parties must be involved in the process. To this blogger this implies that we are in for a bit of a wait before we see any changes at a European level. Perhaps that the new CEPS task force on copyright in the digital single market will prove otherwise, however Michel Barnier's closing remark speaks volumes: his "recommendation at this point is simple: watch this space!".

Music licences and the nemo dat rule: trouble for DMX?

Readers of this weblog will no doubt recall the fairly vigorous exchange of views between Lofty Larynx and Moode Media CEO Lorne Abony (here, here and here) over the alleged vices and virtues of Mood Media's US background music service subsidiary DMX.  Some of us had wondered whether this brief flurry of correspondence was ever likely to flare up again. Well, it seems that it has.  The 1709 Blog received earlier today the following missive from Lofty Larynx:

"Hey DMX: Habing Trouble Finding Dat Nemo?

Nemo dat quod non habet

Earlier in the year, readers may recall, there was discussion about the public performance licences which US background music service DMX (a subsidiary of Mood Media) had managed to acquire from some 800 US-based music publishers, bypassing the collecting society system. DMX was swift to try to counter the assertion that they had no right to perform the music catalogues of any writers who were direct members of a performing right society outside the USA.

Regular readers may also recall the distinction at issue: namely, while ex-USA writer members make a personal, exclusive assignment of their rights to their local performing right society and the US publisher thus has no rights in the USA, US writers assign their performing right non-exclusively to their societies -- which enables US publishers to issue direct licences to users in some circumstances.

DMX had assumed, rather like US foreign policy, that what prevailed in the "good ole US of A" applied everywhere else in the world. Sadly, this is not the case.

There has been an outcry from writers across the world (and from some equally cross lawyers and managers), supported vocally and emphatically by their US colleagues, and echoed by concerned publishers – all of whom saw their income plummet as a result of these hasty and ill-considered DMX deals. Why is this? Because the effect of these licences has been to reduce the value of the US background music performing right by 70%. Rich[er] in hope, these writers need not curse their fate as their “bootless cries” have been heard. The transactions have been scrutinised by lawyers with access to all the right sort of documents and precedents (on both sides of the Atlantic). And now ...

An important and active major music publisher has acknowledged to two performing right societies (one in the US and one in the UK) that it (the publisher) does not control the performing right in any works written by direct members of societies outside the USA. The DMX licences did not include, for example, the British catalogue. That’s right – the US rights remain within the society system for all ex-US writers.

The less dominant US publishers should follow suit and admit the sad (for them) truth that they have purported to issue licences to DMX for their entire catalogues when in fact they do not control the US rights to works emanating from the writing community outside the USA.

Or, to put it another way, the direct licences issued to DMX by US publishers excluded all works from the British catalogue, (and by extension excluded the French catalogue, Spanish, Canadian, German, Italian, Australian). So DMX should not be allowing any of their music locations to play any Beatles or Stones, Adele, Amy Winehouse, Guy Chambers, Led Zeppelin, Tiny Tempeh, Elton John, Coldplay, INXS, John Taverner, Sir Peter Maxwell Davis, George Fenton etc etc ...

It might have looked like a good idea at the time, but, as consumer rights groups often advise the unwary, if it looks to good to be true, it probably is.

Lofty Larynx has said “[he] begins to be sympathetic to [DMX’s] position – playing some music that they were assured was granted under a valid licence. One hopes [DMX] will "discuss" their difficulties with their purported licensors.” Well, Mr Abony, it might just be time to pick up that telephone.

After all, as only a complete idiot potential licensee would have concluded a licence with a US publisher without ensuring that publisher gave the usual warranties as to title, one can infer that those DMX licences contain undertakings to DMX that each publisher was granting valid rights – when in fact this was not the case.

Lifting the lid on the small print has come at an interesting time.

Pandora's box

Bloomberg tells us that poor old US music service Pandora is trying to reduce its royalty liability and has issued proceedings against ASCAP “because some large music publishers have announced they are withdrawing new media rights from ASCAP and negotiating licensing fees directly with Web radio services”. Well, good luck with that effort, Pandora! For the all-giving radio goddess may risk too much if she assumes she can take non-US writers’ works as well. She and competitors like Apple Radio would be well-advised to swing by the offices of the performing rights organisations in the USA if they want to acquire rights to play any music written by anyone other than an American!".

Looking for a fellow ...

Our excellent and scholarly friend Professor Estelle Derclaye is looking for a Research Fellow to do a literature review on open publishing. Details are available here but, if the effort of clicking through is too strenuous for you, the details are reproduced below:

University of Nottingham School of Law 

Research Fellow (Fixed Term) 

Reference: LSS316 

Closing Date: Monday, 3 December 2012  

Job Type: Research & Teaching 

Department: School of Law 

Salary £27,578 to £35,938 per annum, depending on skills & experience. Salary progression beyond this scale is subject to performance

This full-time post will be offered for a fixed term contract for a period of six months to commence as soon as possible.

Applications are invited for a Research Fellow post to scope and evaluate current theory and practice concerning models for open publishing. The post is one of the research projects of the new Centre for Copyright and New Business Models in the Creative Economy funded by AHRC, EPSRC and ESRC (see www.create.ac.uk). The successful candidate will produce a literature review which will engage with intellectual, legal, and economic perspectives on open publishing and will map the field of academic publishing in the UK and abroad, drawing specifically upon the experiences of CREATe’s industry partners as well as other initiatives such as SSRN, open source software, and Creative Commons. The scoping study will identify any meaningful gaps in the relevant literature with a view to developing further research questions. The results of this scoping exercise will then be presented to relevant industry and academic partners at a workshop intended to assist in further developing the critical research questions pertinent to open publishing.

Candidates must have a PhD or equivalent in law or other social science subject, thorough knowledge of copyright law, and excellent verbal and written communication skills. It is also desirable that the successful candidate should have an undergraduate or postgraduate degree or equivalent in law; a formal qualification (undergraduate or postgraduate) that includes module(s) on copyright law, and experience in working on publications in English in the field of copyright or more broadly intellectual property law.

The post may involve travelling to a number of locations around the UK and in these instances expenses will be paid to the successful candidate. The person appointed will not be required to be based within the School of Law at the University of Nottingham, but must be willing and able to attend meetings in the School, including at short notice.

Informal enquiries may be addressed to Professor Estelle Derclaye by email. Please note that applications sent directly to this email address will not be accepted.

The candidate should also attach a cover letter of one A4 page maximum explaining why they are interested in the position.

More Details 

Information for candidates

Apply Online

ACI ADAM reference: you have to be quick to comment

The UK's Intellectual Property Office has just published the questions which have been referred to the Court of Justice of the European Union for a preliminary ruling in Case C-435/12 ACI ADAM E.A (on which see earlier 1709 Blog posts here and here). They are

1. Should Article 5(2)(b) [of Directive 2001/29] be interpreted as meaning that the limitation on copyright applies regardless of whether the works became available to the natural person concerned lawfully or does the limitation only apply when the work has become available without an infringement of copyright?

2. If the answer is that it applies only when work becomes available without infringement:-

a) Can the application of the three stage test form the basis of the expansion of the scope of Article 5(2) or can its application only lead to the reduction of the scope?

b) Is a national law that provides for payment of fair compensation for reproductions as above contrary to Article 5?

3. Is the Enforcement Directive (Directive 2004/48/EC) applicable to these proceedings – where a Member State has imposed an obligation to pay fair compensation under 5(2)(b)?

It's now still 5 November but, if you would like to comment on this case and tell the UK Government whether it should be making observations to the Court, can you please e-mail policy@ipo.gsi.gov.uk by this Friday, 9 November 2012.

Criminal copyright infringement: prison for IMAGiNE members

Further to my post last week noting that the EU and Canada are still in negotiations as to whether camcording should be subject to criminal provisions under CETA (Canada is for, the EU against),  it seems appropriate to mention a case of "capping", which is similar to camcording but involves going to a cinema and recording the audio rather than the audiovisual content of the film being shown.

On Friday of last week, two men were sentenced to prison in the US for their roles in the distribution of illegal copies of films online, which involved capping.

The men, Lambert and Lovelady, are members of the Internet piracy group IMAGiNE, which is said by the prosecution to have had the goal of becoming the "premier group for releasing online copies of movies that were still in theaters". Between September 2009 and September 2011, along with others from the group, Lambert and Lovelady went to cinemas and recorded the audio track to films. They then edited the track to each film and combined it with an illegal video file (obtained online) to create the full film, which they then uploaded and shared with thousands of IMAGiNE group members.

Lambert and Lovelady pleaded guilty to conspiracy to commit criminal copyright infringement earlier this year, and how now been sentenced to 30 months and 23 months in prison respectively. In addition they each face three years of supervised release as well as fines of USD$449,514 and USD$7,500 respectively in restitution. Two other members of the group have also pleaded guilty and are due to be sentenced in the near future.

The sentences are apparently part of the joint effort of the US Justice Department and the US Immigration and Customs Enforcement to crack down on online copyright infringement and will hopefully serve as a deterrent to others tempted to make a fast buck using a camcorder or dictophone.

CETA negotiations: criminal sanctions provisions watered down

Criminal scantions to be watered down
not thrown out completely

Negotiations on the proposed free trade and copyright agreement between Canada and the European Union, the Comprehensive Economic and Trade Agreement (CETA), which started in 2009 might be concluded by the end of the year. Karel De Gucht, European Commissioner for Trade, has said in an interview with Vieuws.eu that he and his Canadian counterpart are hoping to "close the deal" but that "we should have no illusions, there are still a number of difficult issues to tackle".

As previously reported, it is no secret that many of the copyright provisions in CETA are copyright are identical to the controversial ACTA, which was recently rejected by the European Parliament. De Gucht, has however conceded that "since the negative vote of the European Parliament on ACTA, we have been changing the language obviously".

According to the Irish site TechCentral, following a meeting of the EU Member States on 5 October, documents leaked from the from the Cyprus Presidency of the EU have shown  that the EU plans to move away from criminal sanctions in CETA. The intellectual property protection chapter is now understood to say that countries "may" provide for criminal procedures and penalties.

Further the parties have yet to agree provisions regarding filming within cinemas, or "camcording". The Canadians have asked for criminal sanctions to be imposed in respect of camcording (Canada has had a law against camcording since 2007) however according to the leaked documents the EU isn't keen on the concept.

Will we see a final version of CETA before the end of the year? This blogger is not holding her breath.

US artists' resale rights: deadline extended

Earlier this morning the 1709 Blog posted this notice concerning the US Copyright Office's request for information about the operation of artist resale remuneration schemes in other countries.  The blog has now received the following welcome email from Jason M. Okai (Counsel for Policy and International Affairs United States Copyright Office):

"I read your posting this morning titled, "US seeks views on resale royalties: deadline looms." I am writing to let you know that the deadline is extended to December 5, 2012. A second Federal Register Notice was published on October 16, 2012 extending the deadline by thirty days.

You will find this notice at the following URL: https://www.federalregister.gov/articles/2012/10/16/2012-25370/extension-of-comment-period-resale-royalty-right".

Thanks, Jason, for letting us know.

US seeks views on resale royalties: deadline looms

The 1709 Blog thanks John R. Walker for drawing our attention to the following item from the United States.  According to the Federal Register:

The U.S. Copyright Office is undertaking an inquiry at the request of Congress to review how current copyright law affects and supports visual artists; and how a federal resale royalty right for visual artists would affect current and future practices of groups or individuals involved in the creation, licensing, sale, exhibition, dissemination, and preservation of works of visual art. The Office thus seeks comments from the public on the means by which visual artists exploit their works under existing law as well as the issues and obstacles that may be encountered when considering a federal resale royalty right in the United States.

Time is of the essence, since comments must be received by no later than 5 p.m. Eastern Daylight Time (EDT) on 5 November 2012.  Contact and submission details can all be found here.