For your delectation and possible dissection: a Copyright Troll Infographic

This blogger receives offers or requests on a pretty well weekly basis from people who compile infographics  on a variety of issues. Most are of only tangential relevance to IP law or of no relevance at all.  However, the infographic below is right on target so far as copyright is concerned, bearing the title “What Every Website Owner Should Know About Copyright Trolls”.  There are two things that should surprise no-one. One is that the law cited is that of the United States; the other is that there's nothing on the infographic to say so.  Readers' comments are of course welcomed.

Source: Online-Paralegal-Degree.org

DJs and collecting societies in Poland: time for dialogue?

We bloggers receive a good deal of correspondence from readers, most of which never gets on to the blog. However, every so often we receive something worthy of reflection and discussion.  Here we have a message from veteran Polish DJ and editor of the DJs Portal Yahu Pawul, which will resonate with many people whose experience of copyright is usually with its hard end, at which arbitrary rules appear to govern their regular routines, rules which they find hard to understand or appreciate.  Writes Yahu:

"I'm an "old" deejay pioneer of the Polish disco scene - I started 1970 and continue at 61 :-)) I do also some work as a publisher against Polish copyright law's persecution of Polish deejays.

They (the copyright organisations here) work in strange ways -- it looks like corruption etc. -- and send the Police into the discotheques and arrest deejays as pirates, thieves, etc., which I find totally wrong!

We are deejays of discotheques and we are persecuted a lot in Poland because of the sources of the music we play.

Deejay persecutions are totally wrong because, if we play music, then club owners have to pay royalties for precisely what are mentioned on our report lists - for artists, authors, producers. It does not matter what the source is for our mp3 / music / tracks, the same royalties have to be paid.

They call deejays who download music from any internet source pirates. This is upside down and totally wrong, because deejays do not sell this music but play public only that which creates a profit for all - and most of all for artists, producers and authors!

By the way, we in Poland need serious control of copyright organisations as to whether they do transfer 100% of the royalties they say they have the right to collect.

Is there any chance for cooperation with you against this wrong law in Poland as same as against those copyright organisations?"

It's not the way of the 1709 Blog to get involved in domestic law reform especially since, as a group of bloggers from different countries, with different professional or academic backgrounds and different perspectives, we can't easily reach consensus on a wide variety of issues.  However, what we can do is to offer people with different views and, in many cases, well-entrenched interests, a chance to debate and discuss their differences.  DJs don't share the anxiety that collecting societies have with regard to unauthorised or illicit downloads, and collecting societies don't often see a benefit to viewing, through the eyes of DJs, the little bit of world they both occupy. When both claim to benefit the interests of performers, composers and other rights owners, a little dialogue is in order.

Portuguese pub ruling: no need for licence for extra speakers

From our friend Pedro Malaquias comes news of a Portuguese Supreme Court of Justice decision which, in brief established that the transmission of broadcasts containing protected works in cafés and pubs was not a “communication to the public". Pedro writes:

Portuguese Conspiracy? Not
quite: this pub's in London 

"This decision (Supreme Court of Justice Ruling no. 15/2013, File no. 124/11.9GAPVL.G1 -A.S1, 3rd Section) is dated 13 November 2013, but was only published on 16 December 2013. Importantly, it is an “Acórdão de Fixação de Jurisprudência” (a decision aimed at resolving conflicting decisions of the appeal courts by establishing the interpretation of the Supreme Court.  This decision does not bind lower courts, but the likelihood of lower courts deciding against it in the future is reduced and require extensive substantiations. Decisions that run contrary to such a ruling will always be appealed to the Supreme Court of Justice, which may simply apply its previous decision.

Background

The case is a criminal one. It started on 6 March 2011, following a police inspection of a cafe/pub, in which there were 10 customers. In this place, a television music channel transmission was being reproduced through a TV set connected to three speakers spread through the premises. Since the owner of the establishment had not obtained an authorisation from the collection societies to broadcast protected works, the equipment was seized and criminal proceedings were brought against the owner of the premises.

No information is provided in relation to the first instance decision, but the appeal court (the Tribunal da Relação de Guimarães) decided that this behaviour was not punishable, as the use of speakers did not constitute a retransmission of the signal and therefore did not require the copyright holders’ authorisation.

As this decision directly contradicted another one issued by the same court, the Public Attorney filed an appeal against it (no other appeal had been filed). In this decision it was stated that, if the owner of the establishment had not connected any speakers to the TV set, no criminal offence existed.

The Supreme Court ruling

The Supreme Court of Justice opened by stating that the question in issue is simply that of ascertaining if the connection of speakers to a television, with the objective of spreading/ amplifying its output in public premises, requires an authorisation, in the absence of which the person responsible for the act commits the criminal offence of usurpation, under Article 195(1) of the Author’s Right and Related Rights Code (unless otherwise stated, all provisions cited here are from this Code).

Following some references to the exclusive rights held by an author under the Code (with references to 11bis of the Berne Convention), the Court asked if the listening to or watching of television channels in cafés, restaurants, bars, and other establishments open to the general public determines the need for their owners to obtain an authorisation from the authors of the transmitted works.

In order to decide this question, the court stated that a distinction must be drawn between reception and communication: “reception is the capture by appropriate devices of sound and image signals broadcast by a transmitter. The reception is the terminus of the transmission process and that alone solely justifies it: transmissions are made (broadcast) to the receiver”. The broadcast requires author’s authorisation. But once such authorisation has been granted, the reception is free, that is, the receiver can organise it at its will. What is essential is that it is maintained within the scope of reception.

According to the court, this was different from a work being reused, which occurs when the transmission adds, modifies, or innovates the work. Only in those cases would the author be entitled to a new remuneration. Examples are provided:

- That will usually be the case when the reception is converted itself into a show, organized in public places, around sporting or musical events, whether or not with paid admissions, but publicized, possibly with a special decoration or arrangement of space, all with the view to capture a wider audience, at least wider than the one usually present at the establishment. In this case, the mere reception plan would be abandoned to enter into the plan of creating a show, although one based on the reception of a television show. There is an organisation and a “scenario” that change the normal reception of the show. In this case, we are already under a communication to the public.

- The same solution shall be accepted when dealing with a multiplied reception, as occurs in hotels, in which the reception is communicated to the bedrooms and common areas, which results, further to an exponential amplification of the broadcast signal, in an extra service provided by the hotel to its guests, capable of attracting customers, and, as a result, profits, and, therefore, susceptible of being considered a reuse of the work, entitling the author to a remuneration.

However, that is not the case when the signals are simply received in cafes or pubs, which are open to the public, without an entry fee, in which the reception of television shows will not constitute a particular appeal. Connecting speakers to improve the sound quality or volume throughout the premises does not result in a different legal solution, as long as it does not result in a recreation of the transmitted show.

Based on the above, it was decided that connection to a television set of devices for the amplification of sound, broadcast by a TV channel, in commercial premises, does not constitute a new use of the broadcast work. As a result, its use does not require permission from its author and, therefore, it shall not be capable of resulting in criminal offence provided for in Articles 149, 195 and 197 of the Code.

No mention is made in the entire decision of any EU directives. The only reference to EU case law is made in relation to hotels, in a footnote reference to Case C‑162/10 Phonographic Performance (Ireland) Limited v Ireland; no reference is made to FAPL v QC Leisure.

SPA – Sociedade Portuguesa de Autores –  Portugual's most relevant author’s collecting society, is far from happy with this result, having released public statements in the past few days claiming that this decision goes against both Portuguese and EU law. As a result, it stated that it will keep on collecting royalties in these cases and will make every available political and judicial effort to overturn this decision and to make the Portuguese state liable for it.

According to a 3 January SPA statement, CISAC, STEF (Iceland), TONO (Norway), SABAM (Belgium), SUISA (Swiss), AEPI (Greece), ARTISJUS (Hungry), PRS (UK), ZAIKS (Poland), TEOSTO (Finland), AKM (Austria) and IMRO (Ireland) have expressed support for SPA’s position"

Thanks so much, Pedro!

Collaborative Works in French Law: Who is suing whom?

On December 11, 2013 the French Supreme Court (Cour de cassation) issued an interesting ruling dealing with joint works (oeuvres de collaboration or collaborative works) and the particular procedural rules relating thereto in respect of infringement actions.

A collaborative work is a work created by multiple natural persons in what is often referred to as a "spirit of community" (as distinguished from collective works, which are the product of a top-down creative process).

The result is a work in which each co-author enjoys an undivided right over the whole (as well as, subject to certain conditions, rights to his individual contribution).  By way of example, a film is a collaborative work whose co-athors include the director, the screenplay writer and the music composer.

As a consequence of the rights structure in such works, exploitation of the work requires unanimity among the co-authors.  From a procedural perspective, courts have long interpreted this regime as requiring, as a condition of admissibility, a co-author who brings suit to protect his economic (as opposed to moral) rights to call into the proceedings his fellow co-authors.

The issue then arose as to what, if any, were the particular procedural requirements where the allegedly infringing work (as opposed to the infringed work) was a collaborative work.  In a 2006 ruling (where the allegedly infringing work was a film), reversing the lower court's decision on this point, the Supreme Court held that in such circumstances, a plaintiff who sues one co-author of an allegedly infringing collaborative work must, as a condition of admissibility, call into the proceedings the co-authors thereof.

This result was widely criticized by commentators (including yours truly) as being premised on a false equivalency between the two situations (co-author of a collaborative work bringing an infringement suit against a third party and author bringing suit against co-author of an allegedly infringing collaborative work).

In its most recent decision, the Court appears to to limit the scope of the 2006 ruling to the case where the defendant is himself a co-author of the allegedly infringing collaborative work.  In the 2013 case, the plaintiff (a lyricist) brought suit against the producer of an allegedly infringing sound recording of a collaborative work (song).  The appellate court had applied the 2006 reasoning and held that in such circumstances it was incumbent upon the plaintiff to call into the proceedings the co-authors of the song.  The Supreme Court reversed, noting that the sole defendant was the producer/user ("exploitant") of the allegedly infringing work and that in such circumstances, it was not a condition of admissibility that the co-authors of the song be called into the proceedings.

2006 ruling here

2013 ruling here

Asking to pay for a TV licence: what is an effective strategy?

Bruce was happy while having
his daily amount of Downtown Abbey ...

The 1709 Blog has engaged in conversation with one of its many friends about payment of ... TV licences in the UK. According to our friend, about half of his/her time [that’s exciting] since arriving in this country has consisted of aggressive letters [pretty much mirroring this] from TV Licensing UK telling him/her that he/she will be going to prison if he/she does not pay for a TV licence.

In response to this incessant mail that tends to accumulate in the common mailbox of a transient student flat, our friend has prompted a query about the effectiveness of this method:

"Has anyone investigated compliance rates with the UK's demands to pay TV license fees (and does anyone ever pay the black and white TV rate?!) as well as what kind of reactions to copyright law this approach inspires in the general population?"  

... But happiness was spoiled 
when the postman rang (twice)

Our friend would find it most interesting to see the cost/benefit analysis on amount spent with nagging letters vs. the amount of people that need to respond to make it all worthwhile, and find whether a more economical all-round measure could be found for supporting the TV content-providers.

Can anyone help?

Copyright Tribunal settles Welsh music dispute

In January 2013, Welsh language music ceased to be played on BBC Radio Cymru when the BBC lost the right to use the music in a row with Eos, the then newly formed collection society set up by the Welsh Music Publishers and Composers Alliance (Y Gynghrair)  to represent Welsh sonqwriters and composers in the broadcast environment.  The WMPCA had said that changes to PRS for Music's distribution policies meant that most Welsh language composers had "lost around 85% on average of their royalties" and Eos attracted 297 composers and 34 publishing companies as new members, who 'opted out' of PRS for Music, transferring the broadcast rights to some 30,000 works into Eos. Eos did reach agreement with S4C - Channel 4 in Wales before the end of December 2012. 

The Welsh music, previously core to the BBC's Welsh services, went off air for just over a month, making it hard for the national broadcaster to meet Welsh language targets – and of course with Welsh music not being played on the radio in Wales, Eos's songwriters and publishers were not getting paid either - and nor were the performers of the songs getting any 'needletime'. By February 2013, the two sides had agreed to a short term solution with Rhodri Talfan Davies, Director of BBC Cymru Wales, saying "I am delighted that Eos has agreed to allow Radio Cymru to play its members' music once again. Indeed the BBC said it had set aside £50,000 to support Eos' legal costs "so that its members' arguments over the commercial value of its broadcasting rights could be properly heard". And so they were - as the case headed to the Copyright Tribunal.

In June and before an interim hearing, the BBC and EOS agreed an interim licence in the BBC's favour, for £10,000 per month. The Tribunal, noting that it had a wide discretion, took into account what would happen if the amount it ordered by way of a provisional fee turned out to be wrong. Since Eos was in financial difficulties, any overpayment might be difficult for the BBC to recover. Bearing this in mind, the balance of justice was best served by maintaining the status quo by ordering an interim licence fee of £10,000 per month. The BBC said that "The parties have widely divergent views on what a reasonable licence fee should be -- the BBC says it should be £100,000 per annum and Eos says it should be £1.5m per annum. We are not in a position to pre-judge the final outcome of this matter and cannot now conclude with any certainty what the final fee may be".

The Tribunal has now reached its final decision and in a 25-page ruling the Copyright Tribunal has settled amount and terms of BBC's licence fee to Eos, under section 125 of the Copyright, Designs and Patents Act 1998.  It seems to follow the BBC's thinking - and the Tribunal said that it was clear from earlier case law that although it should take comparators into account, it was for the Tribunal to adapt them to the case, taking account of any special circumstances. It found the BBC's methodology to be logical and helpful in establishing a baseline licence fee of £46,000 per year. This methodology relied on the BBC's earlier licence agreement with the PRS (Performing Right Society Ltd) and MCPS (Mechanical-Copyright Protection Society) for Welsh language music as a comparator and then applied the "audience consumption model" (based on listener hours) to determine an allocation of that fee. The Tribunal concluded that £100,000 per year represented a reasonable licence fee, applying a generous uplift to take account of the sensitivities in the model, the uniqueness of Welsh language music and its relationship with the BBC. It held that the licence should run from 1 February 2013 until 31 December 2015, and the fee should be paid monthly in advance. 

Hard on the heels of the news that the Educational Rights Collective of Canada (ERCC), the non-profit Canadian copyright collective society that administers the Educational Rights Tariff, which collected just $10,000 per annum, had somehow amassed debts of $830,000, the Eos decision does beg the question about the effectiveness of a collection society administering such a (relatively) small sum of money. Surely it could be argued that Welsh songwriters would have been better served, financially at least, by staying within the fold of PRS for Music - as funding a new collection society was never going to be cost effective. That said, the case also shows that whilst there are distinct advantages in having 'monopoly' national collection societies, when [some] members become frustrated with their society, the obvious disadvantage is there is nowhere else to turn, something that that has been troubling competition regulators in the United Kingdom, Europe and elsewhere for some time, and which finally prompted a decision by the General Court in Case T-442/08 CISAC v European Commission where the Court held that ""the structures for collective copyright management in respect of the forms of exploitation covered by the contested decision [of the Commission] originated in the structures used for traditional forms of exploitation, with regard to which the national territorial limitations are not considered by the Commission to constitute an infringement of competition rules".  But a solution to this thorny issue? That is less clear.

BBC v Eos, CT 121/13, 16 December 2013.  http://www.ipo.gov.uk/ct12113-dec13.pdf 

The CopyKat - welcome to 2014!

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A dawn of cornflowers (and public domain) ... but only somewhere

A blogger's beloved poet: Sylvia Plath

Poetry-lovers will know that "a dawn of cornflowers" is taken from Sylvia Plath's beautiful poem Poppies in October. I have always been a devoted admirer of Sylvia's poetry, and - little known fact - I happened to live (very happily) in her same room when I was an LLM student at Newnham College in Cambridge (UK). 

Sylvia Plath in fact arrived there in 1955 on a Fulbright scholarship, and it was in Cambridge that - among other things - met "that big, dark, hunky boy", ie future (ex-) husband and Poet Laureate Ted Hughes [the story of their first encounter is told here: do read it!].  

Sylvia died in London in 1963 [she lived in the same flat at 23 Fitzroy Road, where also Irish poet WB Yeats had lived before her].

Copyright-wise, what does this date mean?

Well, it means that today Sylvia Plath's works enter the public domain [Happy Public Domain Day!], but only in those countries whose term of protection covers the life of the author and 50 years after his/her death. 

This is the case, for instance, of Canada, many countries in Africa, the Caribbean, and Asia. However, it is not the case of many other countries, including the US and Member States of the European Union, whose general term of protection is life of the author plus 70 years. 

For a map of copyright term around the world, see here.
Do you wish to know who else is in the Public Domain class of 2014? Click here.
A conversation about Sylvia Plath's (neglected) 50th death anniversary is available here.