Dilemma Resolved: No Unfair Competition

Last year I posted a short note on the 1709 blog on an appellate decision here in Paris regarding the thorny issue of the protection of TV formats (see here).

Eschewing copyright claims, the plaintiff (Endemol, producer of « Secret Story ») sued its rival (ALJ Productions, producer of « Dilemme » and led by a former Endemol France executive), relying on the law of unfair competition and parasitical conduct.

After scoring an initial success before the Paris Commercial Court, its action was dismissed by the Paris Court of Appeals.  Endemol appealed to the Cour de cassation (Supreme Court), which rejected the appeal on November 26th last (see here).

The Supreme Court approved the lower court’s finding that « the similarities between the two formats were instrically related to the enclosure genre of reality TV and correspond to the usual codes of the profession in this field, such that the alleged elements do not enable any specific identification of the formats claimed by Endemol ». 

The Court also pointedly remarked that ALJ Productions had adduced evidence that it had expended significant sums of money and effort in coming up with its show, which meant that it had not been free-riding on Endemol’s coattails.

While the law of unfair competition and parasitical conduct (grounded in the general tort of negligence under Section 1382 of the French Civil Code) should not be ignored in TV format cases, this case underscores the importance of bringing solid evidence of the distinctive elements of the format that has been allegedly unfairly copied – elements that go beyond what are expected and usual for the relevant genre (scènes à faire in US copyright-speak) - so that one can reasonably speak of a risk of confusion between the two competing formats.  As regards a parastical conduct claim, this requires clear proof of both plaintiff’s effort and expenses in developing its format and defendant’s failure to do so with respect to its own.

Even leading from behind is leadership, as IGOs go for Creative Commons

"New Online Licensing System Makes it Easier to Republish the Work of Intergovernmental Organizations" is the stirring title of a media release from the World Intellectual Property Organization (WIPO).  The good news goes like this:

"A new online licensing tool for intergovernmental organizations will make it easier to bring their published material to a wider audience. The unveiling of the Creative Commons 3.0 Intergovernmental Organisation (IGO) License caps a two-year collaboration led by ... WIPO [well done!] with the support of the Organisation for Economic Co-operation and Development (OECD), in collaboration with several other international organisations.

The licenses make it easier for IGOs to widely distribute their studies, reports, data sets and other material online. Once applied, the licenses give the public permission to republish that content, as long as they follow a few simple rules [which is what the public generally do already even when they don't follow any rules, simple or otherwise ...]. Creative Commons licenses are widely used and understood around the world. ...

“Governments and international organizations have to lead by example when it comes to disseminating information in the digital age [isn't coming in 12 years after Creative Commons got started, and long after it has become part of the regular copyright environment, more a case of "following by example"?],” said OECD Secretary-General Angel Gurría. “The OECD is proud to have played a key role in ensuring that the valuable work being done by the IGOs will reach a larger audience and have more impact.” ...

The Creative Commons IGO license will simplify the procedures for re-publishing by setting a single license requirement for a report or dataset once and for all, which remains valid for whoever re-uses the content.

The group of organizations that contributed to the development of the new licenses consisted of, in addition to WIPO: European Organization for Nuclear Research (CERN); European Space Agency (ESA); Food and Agriculture Organization of the United Nations (FAO); Inter-American Development Bank (IDB); International Labour Organization (ILO); Organization of American States (OAS); Organisation for Economic Cooperation and Development (OECD); United Nations (UN); United Nations Educational, Scientific and Cultural Organization (UNESCO); World Bank; World Health Organization (WHO). The International Federation of Red Cross and Red Crescent Societies (IFRC) and the Nordic Council of Ministers participated as observers to the group [Where are the others? Should they be gently encouraged to do likewise, or named and shamed ...?].

The media release then helpfully lists and links the following Creative Commons IGO options:

• Creative Commons / Attribution 3.0 IGO
• Creative Commons / Attribution-ShareAlike 3.0 IGO
• Creative Commons / Attribution-NonCommercial 3.0 IGO
• Creative Commons / Attribution-NoDerivs 3.0 IGO
• Creative Commons / Attribution-NonCommercial-ShareAlike 3.0 IGO
• Creative Commons / Attribution-NonCommercial-NoDerivs 3.0 IGO

EC consults on copyright

The European Commission has launched a public consultation as part of its on-going efforts to review and modernise EU copyright rules.

Set in the context of an introduction that says "Over the last two decades, digital technology and the Internet have reshaped the ways in which content is created, distributed, and accessed. New opportunities have materialised for  those that create and produce content (e.g. a film, a novel, a song), for new and existing  distribution platforms, for institutions such as libraries, for activities such as research and for  citizens who now expect to be able to access content – for information, education or  entertainment purposes – regardless of geographical borders"  The Review of the EU Copyright Rules invites stakeholders to share their views on areas identified in the Communication on Content in the Digital Single Market including territoriality in the Single Market, harmonisation, limitations and exceptions to copyright in the digital age; fragmentation of the EU copyright market; and how to improve the effectiveness and efficiency of enforcement while underpinning its legitimacy in the wider context of copyright reform.

The Review says this as a backdrop: "The "Licences for Europe" process has been finalised now. The Commission welcomes the practical solutions stakeholders have put forward in this context and will monitor their progress. Pledges have been made by stakeholders in all four Working Groups (cross border portability of services, user-generated content, audiovisual and film heritage and text and data mining). Taken together, the Commission expects these pledges to be a further step in making the user environment easier in many different situations. The Commission also takes note of  the fact that two groups – user-generated content and text and data mining – did not reach consensus among participating stakeholders on either the problems to be addressed or on the results. The discussions and results of "Licences for Europe" will be also taken into account in the context of the review of the legislative framework."

As part of the review process, the Commission is now launching a public consultation on 

issues identified in the Communication on Content in the Digital Single Market, i.e.: 

"territoriality in the Internal Market, harmonisation, limitations and exceptions to copyright 

in the digital age; fragmentation of the EU copyright market; and how to improve the 

effectiveness and efficiency of enforcement while underpinning its legitimacy in the wider 

context of copyright reform". As highlighted in the October 2013 European Council Conclusions  "Providing digital services and content across the single market requires the 

establishment of a copyright regime for the digital age. The Commission will therefore 

complete its on-going review of the EU copyright framework in spring 2014. It is important to 

modernise Europe's copyright regime and facilitate licensing, while ensuring a high level 

protection of intellectual property rights and taking into account cultural diversity". 

Internal Market and Services Commissioner Michel Barnier said his vision of copyright was of a modern and effective tool that supports creation and innovation, enables access to quality content, including across borders, encourages investment and strengthens cultural diversity saying “Our EU copyright policy must keep up with the times".

So there you have it: Interested parties have till the 5th February 2014 to reply. Eleonora has posted another interesting blog on the IPKat titled A closer look at the public consultation on the review of EU copyright rules and that is well worth a read.

Responses to the review need to be in the format of a pdf file emailed to DG Internal Market and Services and the email address listed is markt-copyright-consultation@ec.europa.eu

More here: http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/docs/consultation-document_en.pdf

US Post Office Sued Over Statute of Liberty Stamp

As 1709 Blog readers will remember, the US Post Office was recently ordered to pay $685,000 in damages to sculptor Frank Gaylord after using a photograph of his work as the design on a new stamp. Last week, another copyright suit was filed against the Post Office in similar circumstances.

Bartholdi's version (left) and Davidson's version (right)

Robert Davidson is the author of a sculpture called Lady Liberty of the Las Vegas Strip that sits outside the New York-New York Casino in Las Vegas. The sculpture is a half-sized replica of the more famous Lady Liberty statute in the New York Harbor, designed by Frédéric Auguste Bartholdi and designated to the US in 1886.

In 2011, the Post Office printed three billion new postage stamps incorporating a photograph of the Lady Liberty statute.  Unfortunately, the photograph used as the basis of the design was not of the original, public domain, Lady Liberty statute, as the Post Office had intended. Instead, the photograph was of Davidson’s Las Vegas Replica.

The Stamp 

Davidson has now filed a case against the Post Office. He alleges that his statue is more feminine, more fresh faced, and more sultry than the Bartholdi version, and therefore sufficiently original to qualify for copyright protection.  According to Davidson’s lawyers, the original was simply “inspiration” that provided “loose height, width and depth requirements”. Additionally, Davidson’s version has more stylish hair, appears to be smirking slightly, and displays a plaque that reads “This One’s For You Mom”.

More information can be found here.

CopyKat - a Thursday typhoon of copyright titbits

The Seoul High Court has ruled that performers and copyright owners whose music is streamed to the public from a digital source can indeed protect their rights. The appellate court ordered Hyundai Department Store to pay 235 million won ($230,000) to the Federation of Korean Music Performers (FKMP) and the Recording Industry Association of Korea (RIAK) for streaming music of their members for a two year peiod between January 2010 and December 2012.  Hyundai had taken the recordings from KT Music, a digital musical source retailer, and used the music at retail outlets.  The court noted  “There is no difference between streaming music and albums, in terms of financial losses from possible performances and sales of music albums” adding  “Streaming music also should be considered as same as music albums because its digital sources were saved in the database of KT Music and they also temporarily stayed on computers of the stores while they were streamed.”  The Korean Ministry of Culture, Sports and Tourism said earlier this year that it plans to revise the IP Law to boost the legal status of digitalized musical sources to the level of albums.  

Back in July, Aimee Mann brought an interesting lawsuit over the possible existence of a massive amount of unlicensed music being streamed online against MediaNet, a company once backed by EMI, AOL, BMG and RealNetworks before being taken over by a private equity firm. MediaNet is essentially a white label that has served up more than 22 million songs to more than 40 music services, including Yahoo Music, Playlist.com, eBay and various online radio services. Mann sued the company for allegedly infringing 120 of her songs, saying that a license agreement signed in 2003 expired three years later. MediaNet maintained it had a valid license and argued that a provision of its agreement with Mann granted it an ongoing statutory license even after the agreement's termination and a Section 115 US Copyright Act compulsory licence. But District Judge George King disagreed, siding with Mann saying "This is a reasonable interpretation of the License Agreement, and MediaNet has failed to argue otherwise," writes the judge. "Accordingly, Mann has adequately alleged that MediaNet does not have a Section 115 compulsory license to use her pre-December 5, 2003 and post-December 4, 2006 songs and Judge King went further agreeing the MediaNet cannot escape a charge of secondary infringement for allegedly causing others to infringe Mann's works. 

From Italy - with  no love? The Court of Rome has blocked Italian resident's access to VKontakte the Russian social network (with over 160 million subscribers) after a successful complaint by Medusa Film, who said that a non authorised copy of their comic film Sole a catinelle had circulated among the users of the Russian media giant. The Public Prosecutor decided the effective remedy was to block access to Vkontakte from Italy and now an Italian - or a Russian living in Italy, cannot communicate with their friends in Russia on VKontakte. But how long will this blanket ban extend for? And is it a reasonable solution to the problem - not least as it seems The Public Prosecutor did not make any attempt to contact the Russian social network and ask for the removal of the illegal copy of the film? One commentator mused “It is right to protect copyright...but the [Italian] Constitution puts the right of expression and communication and authors right on the same level. It is not correct to have one right prevail over the other” and Marco d’Itri who runs Osservatorio Censura, a site dedicated to reporting on Italian web censorship commented that action was being taken before a hearing on the full merits of the case. Rapidgator has also been blocked.

Six days before movie studios were set to begin a jury trial over alleged copyright violations by the "cyberlocker" site Hotfile, the case has settled. Hotfile has agreed to pay $80 million and to stop operating "unless it employs copyright filtering technologies that prevent infringement," according to a press release sent out today by the Motion Picture Association of America (MPAA). Judge Kathleen Williams had already ruled that Hotfile was not eligible for the DMCA "safe harbor" protection and that it was going to be liable for the actions of its users. Hotfile employed an incentive system to encourage downloading and paid users who uploaded popular files, including copyrighted files. 

Chinese online video site Youku Tudou has won a number of copyright infringement cases brought against Chinese search giant Baidu. Baidu was found guilty of copyright infringement by a court in Beijing. It was ordered to pay 491,000 yuan ($101,107) for illegally hosting 18 Chinese television shows that Youku Tudou bought exclusive rights to. Since October this year Youku Tudou has 32 filed cases against Baidu for infringing it's copyrights. The remaining cases are awaiting verdicts.

A new study by Peter DiCola for Northwestern University's School of Law shows that the 'average' musician relies more on income from live music and teaching than from the copyright industries. A study of the revenue streams of 5,000 musicians found that the largest portion of musician earnings are from live gigs (28 percent). Teaching comes second with 22 percent, salaried musical work has a 19 percent, share along with session work, also 19 percent. Songwriting/composing fees and recording earnings - the two categories most tied into copyright, bring in 6 percent each with DiCola's saying "A hypothetical boost in revenue from more effective [copyright] enforcement would only increase the average musician's total revenue by a small amount today, in the short term," adding "Stronger copyright might provide them incentives to move up the income ladder in a winner-­take-­all kind of market. But it will not put more money in their pocket today; for the hypothetical legislation to help them in the future, they must get rich first."

A man who was found to be in possession of one of the largest hauls of hi-tech equipment for use in copyright theft ever found in the UK has been sentenced to 18 months in prison. 52-year-old Keith Tamkin from Bognor had pleaded guilty to six offences - one of distributing articles infringing copyright, two of money laundering (a total of £140,000), one of transferring criminal property - a computer - and two of possessing prohibited weapons, a pepper spray and a stun gun. At one of the two properties used by Tamkin the police found more than 100 full computer hard drives, an estimated 150,000 CDs and DVDs, computers and eight 'multiple bay burning towers' to copy music, films and software. A large catalogue of 25,000 titles distributed to an extensive client base was also seized. 

The Turtles

Sirius XM have failed in an attempt to move a $100 million class action lawsuit in California for distributing and performing pre-1972 sound recordings to New York, where the broadcaster is facing another action. The satcaster is also facing two more actions brought by major record labels and a fifth lawsuit from SoundExchange, the digital performance rights organization that collects royalties on behalf of sound recording copyright owners. The California lawsuit is being led by members of The Turtles who say that Sirius cannot rely on section 114 of the US Copyright Act for protection – as pre 1972 recordings are subject to state law – which may arguably mean that Sirius plays songs recorded before that date without permission. Sirius argued that the plaintiffs were playing "lawsuit lottery" alongside the actions in New York and the third in Florida and sought to have the case transferred to New York and perhaps consolidated. But U.S. District Judge Philip Gutierrez denied Sirius' motion saying "it seems at this point that although the three suits share a common factual core, they are legally distinct and will turn on the separate interpretations of California, New York, and Florida law, respectively."

Could Judge William Alsup's June 2012 ruling that APIs could not be covered by copyright.about to be overturned by Federal appeals court? There are rumours about that at least one appeals judge is  are sceptical of the decision and may be leaning towards overturning it which would no doubt cheer up Oracle.

Watch this space!

Blocking orders, proxies and VPNS: a reader asks

Blog reader Dan Scofield writes to ask the following question:

"With the recent order forcing ISPs to block Primewire.ag and other sites that provide hyperlinks to 'infringing hosting sites' what can be done, if anything, about the use of proxy websites and VPNs to bypass these blocking orders?

My 13 year old sister knows how to use proxy websites and I doubt it will be long before kids (even the most technically illiterate of them) figure out how to use these sites. They really aren't complicated to use and I don't know if the courts have the powers to block the use of proxy websites (given they have perfectly legitimate uses) in order to stop this practice. Therefore, it seems to me that the only thing the courts can do to stop this is to actually have the infringing sites taken down rather than blocking access to them -- a feat that will be incredibly hard when the hosts can easily kickstart a new server in some remote location.

I suppose the blocking order of the sites that facilitate copyright infringement is a victory for IP rights holders, but when one reaslises how easy it is to get around the block, it becomes a rather hollow victory. And, in this day and age, people will quickly learn of proxies/VPNs for this purpose and the block will rendered a futile attempt at putting a stop to copyright infringement".

Readers' thoughts are welcome, both on the legal issues and on the wider commercial issues on both sides of the equation.

Botswana joins Syria in Beijing sign-up

The Beijing Treaty on Audiovisual Performances is not, it seems, everyone's favourite treaty.  Since it came into existence a year and a half ago, it has been ratified by just two countries: first Syria and now, according to a World Intellectual Property Organization (WIPO) media release, Botswana.   The African republic deposited its instrument of ratification on 20 November, but the Treaty, under Article 26, will not come into force until three months after it enjoys ratification or accession from 30 eligible parties [is the criterion of 'eligible parties' there in order to exclude the International Olympic Committee and FIFA, which act like autonomous countries in their own right and probably enjoy more income than quite a few nations ...].

Fancy writing an article on a hot copyright topic?

The Journal of Intellectual Property Law & Practice published by Oxford University Press is currently hoping to receive some potential contributions in the area of copyright. 

For a list of possible topics, see here.