Mein Kampf heads for the public domain -- and maybe a readers' warning

As is well known, Adolf Hitler's book Mein Kampf (in English "My Struggle") is coming out of life-plus-70 copyright on 1 January 2016 (see earlier 1709 Blog posts here, here, here, here and here).

Given that this work will be in the public domain, where it can be freely copied and republished, and given that the book's notoriety is also a basis upon which calls for its suppression have been met by arguments founded on freedom of speech and on its historical and cultural significance, Hate Prevention, a French initiative, is calling for new versions of Mein Kampf to bear an appropriate "warning" with regard to intolerance and hatred of others.  Speaking for the initiative, Dr Jean-Marc Dreyfus, Reader in Holocaust Studies at the University of Manchester (right), mentions that it is in no way confined to cautioning with regard to antisemitism, since homosexuals, Sinti and Roma were also victims of the creed of Mein Kampf's author.

The CopyKat - how will broadcasters fight back against the app?

Focussing on the latest trends and the latest technologies means that it is easy to be totally ignorant of what's going on in other parts of the world. So the CopyKat was brought out of orbit by an article in the Financial Express of Bangladesh that says "The mushroom growth of compact disc (CD) shops in cities and rural markets reflects, on the positive side, how dearly the Bangladeshis love music. But it does also indicate, on the other side, the extent of acts of 'piracy'. That provides some good reasons for growing worries over the pirated CDs. In a situation where most songs in CDs are pirated ones, both the government and original composers (of such songs) are deprived of a significant amount of revenue and rightful honoraria, respectively [and] could be raised significantly by implementing the copyright law."

Home to an estimated 144 million people, Russia is the world’s ninth biggest country in terms of population. With a recently booming economy, it should be of major importance to the global music business.Yet according to IFPI data, Russia contributed – in total – just US $72.8m to the recorded music industry last year, across digital, physical and public performance (the UK with less than half that population generated $1.33 billion). Whats worse - the market has declined - it was worth $191 million in 2007. Why - well blame it on piracy, corruption, past government inaction and consumers used to 'free' music. In the era of CDs in the 1990s and 2000s physical piracy was "up to 95% of the market.” And now with digital its worse.  Now a recent flurry of government activity has given some hope to the beleaguered music industry and there have been some recent successes in the courts.  In 2011 it seemed that enforcement of already existing infringement laws (including criminal sanctions) would be stepped up, not least to enhance Russia's position at World Trade Organization negotiations. In 2012 Russia's appellate court held that the massive social networking Vkontakte was liable for copyright infringement, upholding the earlier ruling by the commercial (“Arbitrazh”) Court of Saint Petersburg: in November 2014 Russia’s State Duma, the parliament’s lower house, approved a package of amendments to anti-piracy law, covering video, books, music and software, but not photos and among the amendments there was an initiative under which a Web site owner must delete within 24 hours any illegal content, rather than limit access to it, upon an electronic request from a rights’ owner. Now the Russian High Court has been given the power to order ISPs and website hosting companies to permanently block websites that repeatedly infringe copyright. Alongside the launch of services such as iTunes & Google Play and local music services such as Yandex, Torrent sites have  been sent a final notification from the Russian Government telling them that “the systematic violation of intellectual property rights will result in sites providing access to stolen content being blocked forever” and giving a 1st May deadline.

Pink Floyd's Roger Waters has taken a swipe at Silicon Valley in an interview in the Times (02.05.15) saying that he 'grateful' to have gown up in an age when an artist's hard work and talent were rewarded financially and before the music business suffered a 'takeover by Silicon Valley' saying "when this gallery of rogues and thieves had not yet interjected themselves between the people who aspire to be creative and their potential audience and then steal every f**king cent anybody every mad and put it in their pockets to buy f**king huge mega-yachts and Gulfstream Fives. These ..... thieves! It's just stealing. And that they are allowed to get away with it is just incredible". In 2010 Pink Floyd famously sued their record label, EMI, to withdraw their catalogue from iTunes after Apple's platform refused to sell 'Dark Side of the Moon' and other Floyd albums in their entirety - the band did not want individual tracks sold. Waters also takes a pop at consumers, saying he also blames "a whole generation that's grown up who believe that music should be free". Interestingly record labels don't seem to be in Water's line of fire -despite licensing and often being shareholders in many of the digital services Waters berates and paying royalty rates more appropriate for physical product than digital products.  That said, the tech companies have been clever in spotting just how important music is - and monetising that. One of the most interesting set of financial figures I have ever seen is the growth of Apple after it entered the music market. For a over a decade niche 'geeky' computer manufacturer with near static turnover, almost immediately after the launch of iTunes Apple grew to be the biggest corporation in the world dominating in computers ales, notebooks and mobile phones - with music sales just an ancillary - but an ancillary that undoubtedly made Apple ever such a cool brand. From 1992 to 2004 Apple's turnover grew from $7 billion to $8 billion: The iPlayer launched in 2001 and iTunes in 2003 and 2004. By 2005 Apple's turnover was $14 billion, 2006 19 billion, 2007 $24 billion, 2008 $35 billion, 2009 $42 billion and 2010 $65 billion. Now that is growth!

Next week at The Great Escape in Brighton an illustrious panel featuring our friend and IP specialist Amanda Harcourt and Andy Edwards (Board Director at Music Managers Forum), Horace Trubridge (Assistant General Secretary at Musicians’ Union), Jane Dyball (CEO at MCPS/IMPEL), Rob Collins (Label Director at Cooking Vinyl) and Vicky Bain (CEO of the British Academy Of Songwriters, Composers & Authors) who are going to debate THE DIGITAL PIE putting the spotlight on one of the biggest music industry debates of the moment: the division of streaming revenues between each of the stakeholders in music. How are the monies divided between labels, publishers, artists and songwriters, and asking - is the current system fair and sustainable? More on The Great Escape,  Europe's leading festival for new music here - this panel is on Thursday May 14th part of three days of conference panels, debates, workshops and new bands on show which will also ask 'what's the point of record labels anyway', explain music licensing and  'How to sell out gracefully' and investigate whether 'Music marketing is broken'. 

Daniel Voelker, the lawyer representing the 'Prenda Law' trio of attorneys, Paul Hansmeier, John Steele and Paul Duffy and their associated companies before the 9th Circuit Court of Appeals in the hearing into the earlier ruling of US District Court Judge Otis Wright which led to bruising sanctions and a referral to criminal investigators, is having something of a torrid time: ArtsTechnica has an excellent review but here's a little bit  flavour: "The entire proceeding was tainted," Voelker said. "Mark Lutz, the CEO of Ingenuity 13, was not allowed to testify. As soon as they asserted their 5th amendment rights, the judge stopped the proceeding. He can't use that against them." The appellate court disagreed: "Sure he can," responded US Circuit Judge Richard Tallman. "He can draw adverse inferences. The district court was trying to gather facts. Your clients didn't appear for the first hearing." And "Explain to me in simple English how this operation worked—from the beginning," said US Circuit Judge Harry Pregerson. "How did they make their money? Who ran this operation?" "I don't know," Voelker said. "You don't know anything, do you?" Pregerson said before Voelker persisted in arguing that the proceeding was tainted and that the sanctions should be thrown out entirely and Judge Pregerson said "Let's say you're right," said . "Do you want us to send this back and have this turn into a criminal contempt proceeding?" ..... "With a potential penalty of life in prison for criminal contempt?" asked Judge Tallman. "They're prepared to run that gauntlet?" Well, despite the judges' warnings, it seems the Prenda trio want their day in court. 

With a reported 100,000 people accessing illegal streams of the 'fight of the century' between Floyd Mayweather and Manny Pacquiqao using the new Periscope app, despite an injunction (Temporary Restraining Order) banning two other online services from offering free live streams, the CopyKat is wondering if the tweet from Dick Costolo, the CEO of Twitter, owner of Periscope saying "and the winner is ... Periscope" might come back to haunt him. With 'paid for' access to the fight costing anything from £24.95 here in the UK to upwards of $100 elsewhere, the cost of illegal streams via the likes of Periscope and Meerkat is potentially in the tens of millions of dollars, something that likes of HBO, Showtime and Sky TV, who licensed the exclusive rights to the boxing match, will no doubt be most concerned about. Periscope, which is an app (yes, another complexity!) allows a user to broadcast from where he or she is - for example by pointing his iPhone at a TV screen - has been downloaded over 1 million times and was blamed by HBO for facilitating mass copyright infringement after four episodes of the new series of Game of Thrones were leaked and widely shared using the service. The pay-TV offering reportedly generated over $400 million for official broadcasters. Apart from copyright infringement conundrums, the app and the 'social share' concept raises a host of other issues, privacy being at the forefront as the whole world becomes a broadcaster. Hmmmmmmmmm. Much to muse upon! 

The Shark is back: Techtimes tells us that Grooveshark.com may be no more, but a limited version of the website has reappeared  at Grooveshark.io, providing access to most of the same streaming music as the original Grooveshark, but lacking the playlists and other features. It seems a team of users began backing up all the music on the Grooveshark servers before the streaming service was shuttered last week. The group's leader, who calls himself "Shark," claims he has moved 90 percent of Grooveshark's music to the new site and is working on getting the remaining 10 percent.

And finally - a new book: A Newcomer's Guide to the Music Business is "A quick and simple guide to the music business for those on the verge of taking their first steps into the industry". Written by law graduate and music producer Tito Adesanya, who grew up on a notorious NW London council estate, "the book assists newbies in avoiding the basic mistakes the majority make when entering the music business, while also familiarizing prospective newcomers with industry customs, practices, and the type of working environment they can expect to encounter." And its just £4.99!

Some News from the U.S. Copyright Office

U.S. Copyright Office Publishes Its Online Fair Use Index

The U.S. Copyright Office recently published online its Fair Use Index. It explains on its site that “[t]he goal of the Index is to make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions, including by category and type of use (e.g., music, internet/digitization, parody). The Index was created “to help both lawyers and non-lawyers better understand the types of uses courts have previously determined to be fair—or not fair.”

The Index allows visitors to search a database of fair use judicial decisions from federal jurisdictions, district courts, courts of appeal and the U.S. Supreme Court. The Index does not, however, include all judicial opinions on fair use, but will be updated and expanded periodically. When clicking on a particular decision, a new page opens, which is a pdf document about the case, informing the reader about its date, court, key facts, issue, holding, tags and outcome. What is particularly interesting is the ability to search fair use cases for specific categories, such as “parody” or “music.”

This is a welcome initiative, as fair use is always a mixed question of law and facts and there is no way to predict with certainty if a particular use will be deemed fair by the courts. However, one can regret that the Index does not include the full text of the courts’ opinions, but only their citations, which can be used to easily search for them online, including on free sites such as Google Scholar or Justia.

House Judiciary Committee Hearing: The Register’s Perspective on Copyright Review

On April 29, the House Judiciary Committee held a Hearing on The Register’s Perspective on Copyright Review. It heard the Honorable Maria A. Pallante, Register of Copyrights and Director of the United States Copyright Office.

In her 36-page written statement, Ms. Pallante wrote about the role and functioning of the Copyright Office and listed the “policy issues that are ready for legislative process” (Pallante, p. 10). These issues are: music licensing, small claims, felony streaming, section 108 on library exceptions, orphan works, resale royalty, improvements for persons with print disabilities, and section 1201 on regulatory presumption for existing exemptions.

Music Licensing

Indeed, the Copyright Office published last February its Copyright and the Music Marketplace report, which suggested some changes in music licensing such as fully federalizing pre‐1972 sound recordings, which are currently only protected under state law, a situation which, for the Copyright Office, “impedes a fair marketplace.”

Small Claims

The Subcommittee on Courts, Intellectual Property & the Internet held a hearing in July 2014 about copyright remedies, where the issue of small courts was discussed (see transcript here). Ms. Pallante quoted Representative Coble, who said during this hearing that “smaller copyright owners find it not worth their time or money” to litigate (Pallante, p. 12). As early as 2013, the Copyright Office recommended the creation of an administrative tribunal, to serve as an alternative to federal courts in some copyright infringement cases. It would be interesting to see if this tribunal will finally be created.

Felony Streaming

Ms. Pallante also recommended that Congress “bring the criminal penalties for unlawful streaming in line with those for other criminal acts of copyright infringement,” that is, charging people engaging in unlawful internet streaming with a felony, not a misdemeanor as it is the case now (Pallante, p. 13).

Section 108 Library Exceptions

As for Section 108, it “fails to address the ways in which libraries really function in the digital era, including the copies they must make to properly preserve a work and the manner in which they share or seek to share works with other libraries” (Pallante p. 14). The Copyright Office is of the opinion that “Section 108 must be completely overhauled” and is currently preparing a discussion draft (Pallante, p. 15).

Orphan Works

Ms. Pallante also wrote that “[o]rphan works is ripe for a legislative solution” and affirmed that “the Copyright Office favors a legislative framework in which liability is limited or eliminated for a user who conducts a good-faith, diligent search for the copyright owner” (Pallante, p. 16). However, the rights of the authors, copyright owners and their heirs must be preserved as well.

Resale Royalty

The Copyright Office agrees that resale royalties rights (or droit de suite) may benefit certain visual artists, who are now at a disadvantage under current U.S. law, as they cannot take advantage of the value of their work going up. As such, “there are sound policy reasons to address this inequity, but … the administrative and enforcement costs of a resale right might be substantial.” Therefore, the Copyright Office suggests that Congress should “consider a number of possible alternative or complementary options for supporting visuals artist within the broader context of art industry norms, art market practices, and other pertinent data,” but Ms. Pallante did not elaborate further. (Pallante, p. 19).

Improvements for Persons with Print Disabilities

As for the improvements for persons with print disabilities, the Copyright Office “supports swift ratification of the recent Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, and is currently working with the Administration to achieve that result.”

Ms. Pallante also listed other “policy issues that warrant near-term study and analysis” (p. 21). They are other issues of Section 1201, such as its anticircumvention provisions, Section 512 on notice and takedown, and safe harbor, mass digitization, and moral rights.

Section 1201 Anticircumvention Provisions

Ms. Pallante noted that the anticircumvention provisions of Section 1201 prevent consumers from “engaging in activities, such as the repair of their automobiles and farm equipment, which previously had no implications under copyright law” (Pallante, p.24). That issue has been in the news lately, as the proposed exemption to prohibition on circumvention of copyright protections systems for access control technologies was published on December 12, 2014, and

“would allow circumvention of TPMs [ Technological Protection Measures] protecting computer programs that control the functioning of a motorized land vehicle, including personal automobiles, commercial motor vehicles, and agricultural machinery, for purposes of lawful diagnosis and repair, or aftermarket personalization, modification, or other improvement. Under the exemption as proposed, circumvention would be allowed when undertaken by or on behalf of the lawful owner of the vehicle.”

An IP counsel for John Deere, manufacturer of agricultural, construction, and foresting equipment, recently sent comments to the Copyright Office about this proposed exemption, stating that it is overbroad and that it would violate vehicle manufacturers’ copyright in their software, and that the user of the tractor merely has an implied license for the life of the vehicle to operate it. Congress already passed last year the Unlocking Choice and Wireless Competition Act, which allows consumers to unlock their cell phones. Will Congress also unlock tractors? I will keep you up to date on this important issue, of course. Vroom.

DMCA Notice and Takedown

Ms. Pallante also wrote about the DMCA safe harbors. As the courts have sometimes interpreted these provisions “in ways that some believe run counter to the very balance that the DMCA sought to achieve,” the Copyright Office believes it is time for a “formal and comprehensive study” on the issue. Ms. Pallante mentioned the cost of sending DMCA notices, and how difficult it may be for copyright holders to enforce their right under this take down system.

Mass Digitization

The Copyright Office is completing its analysis of copyright issues raised by mass digitization projects, such as Google Books. Ms. Pallante noted that the problem with mass digitization is “a lack of efficiency in the licensing marketplace,” as it is both costly and cumbersome to secure the sometimes millions of authorizations, to the point that rights clearance is a burden (Pallante, p. 26). Even though fair use may be of help, “the complexity of the issue and the variety of factual circumstances that may arise compel a legislative solution” (Pallante, p. 27). The Copyright Office “as part of its orphan works and mass digitization report, …will recommend a voluntary “pilot program” in the form of extended collective licensing (“ECL”) that would enable full-text access to certain works for research and education purposes under a specific framework set forth by the Copyright Office, with further conditions to be developed through additional stakeholder dialogue and discussion” (Pallante p. 27).

Moral Rights  

The Copyright Office “believes that [the issue of moral rights] is a critical topic for further analysis.” Individual authors face moral right issues, such as attribution and the right to say no to particular uses, and Ms. Pallante noted that some academics questioned the strength of moral rights in the U.S. after the Supreme Court Dastar Corp. v. Twentieth Century Fox FilmCorp. case.

“In the Office’s view, any comprehensive review of the functioning of the copyright system must give serious and sustained attention to the individual rights of authors—apart from corporate interests—and the need to ensure that those personal interests are adequately protected. For this reason, the Office believes that further formal study of moral rights in the United States is an appropriate next step in the congressional process” (Pallante p. 28).

It seems that the year ahead may see, if not legislation, at least some interesting discussions about U.S. copyright.  

Image of Copyright Office Hearing Room courtesy of Flickr user Peter Brantley under a CC BY 2.0 license. 

Image of books courtesy of Flickr user mollyali under a CC BY-NC 2.0 license.

It's clearly time for coalitions and comment - as copyright reform looms on both sides of the Atlantic

Along with the U.S., Japan, Canada and Australia (amongst many others), the European Union is currently looking to reform its copyright laws and in January 2014 launched a public consultation. And there is MUCH to ralk about and many stakeholders want to have their say. 

In the USA, Torrentfreak recently exposed what they say is the MPAA's true position on "fair use" which was that it was "extremely controversial," and the MPAA didn't want it included in various trade agreements such as the Trans Pacific Partnership Agreement. Fair use in the USA - but not elsewhere then. Now fair use fans in the U.S. have formed a new coalition, Re:Create, to advocate for "balanced" copyright laws, which means ones that do not "encroach" on creativity and speech by being overly protective of those copyrights. Coalition members include the Consumer Electronics Association, the Computer & Communications Industry Association and the American Library Association and other members of the group include the Association of Research Libraries, Center for Democracy & Technology, Electronic Frontier Foundation, Media Democracy Fund, New America’s Open Technology Institute, Public Knowledge, and the R Street Institute. Sherwin Siy, VP of legal affairs at Public Knowledge said "We and the other members of the Re:Create coalition want to make sure that our laws account for these realities of today’s connected environment, and help bring a pre-VCR regime into a post-Meerkat world." The EFF said "After decades of increasingly draconian statutes and judicial decisions, our copyright system has veered far away from its original purpose. To help get copyright back on track, EFF is joining forces with a variety of groups—including libraries, industry associations, and public interest advocates—to launch a new coalition focused on promoting smart, balanced copyright policy: Re:create" adding "Restoring a sense of balance, fairness, and rationality to the copyright system has never been more urgent. Copyright is supposed to promote creativity, but too often we’ve seen it used to shut down innovation, new creative expression, and even everyday activities like tinkering with your car. When a farmer needs to ask the Librarian of Congress for permission to fix her tractor, it’s not just the tractor that’s broken."

Recently the U.S. Register of Copyrights, Maria A. Pallante, said: “Few would dispute that music is culturally essential and economically important to the world we live in, but the reality is that both music creators and the innovators who support them are increasingly doing business in legal quicksand. As this report makes clear, this state of affairs neither furthers the copyright law nor befits a nation as creative as the United States.” Pallante also said that it was "indefensible" and "bad policy" that US did not have public performance right for sound recordings. She labelled the recently introduced Fair Play, Fair Pay Act, which calls for a performance right for recordings, "an excellent legislative framework." She also backed the Songwriters' Equity Act which aims at introducing new mechanisms to fix royalty rates for songwriters and publishers. She also touched upon the need for changes in the structure of the Copyright Office to meet with the new challenges. saying "A faster and more nimble Copyright Office is a priority".

And in the EU, Internal Market and Services Commissioner Michel Barnier said his vision of copyright was of a modern and effective tool that supported 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”. With many (the CopyKat included) starting to question whether US and European 'safe harbour' (or 'safe harbor' if you prefer) provisions are 'fit for purpose' after the passing of more than a decade, and with increasing focus on the role of content licensing - reform is clearly on the cards - at the moment much of which is driven by legislators and content owners. PRS for Music's CEO, Robert Ashcroft, recently named current ‘safe harbour’ hosting provisions within EU copyright legislation as the music industry’s ‘elephant in the room’, saying the provisions were damaging creators and the wider cultural industries, and needed to be addressed. The EU Commission has its own Digital Single Market Strategy, which includes plans to reform EU copyright. A draft version of this document has already been leaked and it would appear that areas for legislative intervention in the area of copyright are likely to encompass geo-blocking, exceptions and limitations, civil enforcement, and the role of internet service providers.  Pirate Party MEP Juliet Reda is also currently looking at copyright reform in her draft report on the adaptation of the Copyright Directive, including some challenging (and challenged!) views on copyright exceptions and term if copyrights as well as criticising geo-blocking in Europe - itself a view later criticised by a group of 20 leading film makers who said Reda’s proposals could seriously damage film production, and that the EU should focus on battling piracy. More arguing here!

Now Amazon, Google and a host of US trade bodies representing digital firms, broadcasters and other licensees of music have launched a new organisation - yes, another coalition (just like London buses, you wait for one for ages, then two come along at the same time) -  calling itself the MIC Coalition, calling itself "a coalition of companies, associations, consumer groups, venue owners and artist advocates". In its mission statement, the MIC Coalition says it is "committed to a rational, sustainable and transparent system that will drive the future of music and ensure that consumers and consumer-serving businesses, such as retailers, restaurants and hotels, have continued access to play music at affordable prices" and "This is a critical period for the future of music and the policies that govern it. Issues are being considered that will significantly impact how and where music is played and what users and consumers pay for it" and says that “for [the] music ecosystem to continue to grow and thrive, we must create a predictable, balanced and transparent music marketplace.”

In Australia, film, music and television producers have told a Senate inquiry they've been battling a decades long assault on their intellectual property. The copyright owners say that's why they're backing proposed legislation which will allow them to ask a court to block websites that are using pirated content. the copyright creators and owners have put on a united front to legislators in Sydney in their campaign against illegal downloaders. Brett Cottle from the Australasian Performing Right Association says musicians and artists have been bled dry by pirates.

Equally recently, and in a bid for what were argued to be fair copyright laws that might benefit citizens and researchers across Europe, organisations including the Wellcome Trust, the National Library of Scotland, the National Library of Wales, the Open Rights Group and indeed the Chartered Institute of Library & Information Professionals called for reforms. Their London Manifesto calls for fair copyright for libraries and archives across Europe. The Manifesto outlines suggested reforms that the supporters say would better support research, innovation and growth and might help create a digital single market. 

And finally, speaking at the United Nations on behalf of CISAC, composer-songwriter Eddie Schwartz, Co-Chair of Music Creators North America and President of the Songwriters Association of Canada, said that songwriters, composers and lyricists have seen the value of their works diminish over the past decade and their remuneration erode due to market imbalances. Sharing some personal experience, Schwartz added: “In the physical world of the 20th century, a million sales would have enabled someone like me, with a series of hits, to live with a comfortable middle class income. Today, in the digital era of the 21st century, one million streams earn me 35$, the price of a pizza."  Schwartz said that one way to address this issue was to develop Fair Trade Music schemes, in reference to the movement launched last year by a global coalition of creators. "Fair Trade Music is about fairness in the way creators are remunerated in the digital world," explained Schwartz. "We must adopt an ethical, equitable and sustainable system in order to develop this new value chain so that the works of those who devote their lives to creating are not valued near zero." CISAC have also criticised Julia Reda's report in an open letter saying "We agree that there needs to be a balance achieved between rights holders and the public. But this balance should not be struck at the expense of the increasingly fragile community of creators".

Mind The Gap: songwriters unsettled as 'Uptown Funk' gets five more writers

The fallout from the 'Blurred Lines' verdict in favour of the Gaye family and the $7.4 million in damages awarded against Pharrell Williams and Robin Thicke for copyright infringement of Marvin Gaye's "Got To Give It Up" continues with news that the six strong team of songwriter's behind Mark Ronson and Bruno Mar’s “Uptown Funk!” have added the five members of the Gap Band as co-writers, making a grand total now of eleven writers. According to documents from RCA Records, which released the song, the original writers - Ronson, Mars, co-producer Jeffrey Bhasker and Phillip Lawrence were writers of the song along with Nicholas Williams (aka Trinidad James) and producer Devon Gallaspy, whose “All Gold Everything” already had “portions embodied” in the song. They have now been joined by the five writers of  the 1979 hit “Oops Upside Your Head” including The Gap Band members brothers Charlie, Robert and Ronnie Wilson, keyboardist Rudolph Taylor and producer Lonnie Simmons. 

The move follows a claim put forth by publisher Minder Music on behalf of the “Oops” songwriters and of course was set against the background of Blurred Lines and the settlement made by Sam Smith and hos co-writers of "Stay With Me" with Tom Petty and Jeff Lynne over similarities to Petty's 1989 hit "I Wont Back Down".  Petty and  Lynne split 25% of Stay With me and it seems that the five new writers on UpTown Funk will split 17%.It seems settlement is cheaper than litigation - both in terms of costs and in royalties ' saved'. 

The floodgates will stay open for the time being. I was watching the Imagine BBC's Rod Stewart special 'Cant Stop Me Now' last night in which Rod openly admits that  the melody to his massive 1977 number one hit "Do Ya Think I'm Sexy" was lifted from a song that he heard at the Carnival in Rio. Wikipedia tells us the song is credited as being written by Stewart, Carmine Appice and Duane Hitchings, although the songs incorporates substantial elements of the melody from the song 'Taj Mahal' by Brazilian musician Jorge Ben Jor. Again though instead of litigation, Jor settled the matter out of court).  Numerous commentators have noted how nervous some parts of the song writing community now are - as the feeling that 'public perception' of what is (or isn't) a copy has taken over from the strict application copyright law - and even the somewhat criticised (but at least explained) opinions of musicologists - to the detriment of creativity and song writing. The Appeals Court decision in Blurred Lines is keenly awaited by many - although the Hollywood Reporter outlines the range of options open to Judge Kronstadt in that case - including in no particular order, the judge reviewing the damages awarded and reducing these on the grounds they are excessive, the possibility of a new trial, a settlement with maybe 50% of the song writing/publishing royalties going to the Gaye Family, an order of injunctive relief to stop the distribution of Blurred Lines as well as the appeal. Judge Kronstadt will consider various motions at an oral hearing scheduled for June 29th.

More on Billboard here, and the Wrap here,  Williams v Bridgeport Music, Inc, No. 13-06004 (C.D. Cal. Nov. 19, 2013) and in the 1709 Blog 'What's Wrong with the Blurred Lines Copyright Ruling' here.

Grooveshark surrenders

Music-sharing service Grooveshark has announced  that it has shut down after 10 years. The controversial free streaming site, which once boasted 35 million users is owned by Escape Media which has agreed to a legal settlement with the major record companies that includes the termination of all operations, wiping its computer servers of all the record companies’ music, and surrendering ownership of its website, mobile apps and intellectual property, according to a statement from trade organization Recording Industry Association of America (RIAA). “We started out nearly 10 years ago with the goal of helping fans share and discover music. But despite best of intentions, we made very serious mistakes,” a statement from Grooveshark said. “We failed to secure licenses from rights holders for the vast amount of music on the service. That was wrong. We apologize.”

Urging users to now sign up for legal, licensed music services such as Spotify or Beats Music, founders Josh Greenberg and Sam Tarantino also pointed users to http://whymusicmatters.com/find-music and said "If you love music and respect the artists, songwriters and everyone else who makes great music possible, use a licensed service that compensates artists and other rights holders".  A rumoured $75 million penalty clause in the settlement may explain their contrition. 

The age of EU copyright reform? Here's an event for you

Is this what the future
of EU copyright policy looks like?

What future awaits EU copyright? What are the reform plans (if any) of the EU Commission? What is in the pipeline for the Court of Justice of the European Union (CJEU) in the area of copyright?

If you have been asking yourself all these (and other) questions, wonder no further!

On 26 May 2015 I am organising a 3-hour event that will address these issues.

On 6 May the EU Commission is indeed due to unveil its own Digital Single Market Strategy, which includes plans to reform EU copyright. A draft version of this document has been already leaked. From this it would appear that areas for legislative intervention in the area of copyright are likely to encompass geo-blocking, exceptions and limitations, civil enforcement, and the role of internet service providers. 

Meanwhile numerous amendments have been presented to the draft Report on the implementation of the InfoSoc Directive, prepared by MEP Julia Reda. Following a vote in the Legal Committee of the European Parliament, her report will be subject to a final vote in plenary in early July.

The motto of the CJEU

Whilst the future of EU copyright policy, including possible legislative intervention, is (slowly) unfolding in Brussels, things are as busy as ever in Luxembourg, where the CJEU has been tackling (and will continue to do so) thorny issues such as digital exhaustion, hyperlinking, exceptions and limitations, and e-lending.

This event will review developments at both policy and judicial levels, and will take place at the beautiful London offices of RPC.

Places are limited (with some tickets available for full time students), so to provide everybody with the opportunity to discuss fully the present and future of EU copyright.

For those who cannot attend in person, it will be also possible to follow the event in either live streaming or at a later time via YouTube.

CDP points are also available.

For further details and reserve your place, just click here!

Copyright infringement in Ukraine: a little case study

"Ukrainian Painter Files Copyright Infringement Lawsuit Against Local Businesswoman" is the title of a news item by Olga Goncharova which was published in the most recent issue of Petosevic & Resources. It runs like this:

Yevhenia Gapchynska, a well-known Ukrainian painter and illustrator of children’s books, has recently filed a lawsuit against Valentyna Tsymbaliuk, a businesswoman from Lutsk, northwestern Ukraine, for the unauthorized use of images of her works of art on products such as passport covers and mirrors, which Tsymbaliuk manufactured and sold.

According to her lawyer, Gapchynska attempted to settle the matter out of court, but having received no response, she filed a copyright infringement lawsuit with a local court. The defendant failed to appear at the first hearing, so it has been rescheduled for early May.

Gapchynska has already won three court cases against sellers of unauthorized reproductions of her art, in Lutsk and Rivne, western Ukraine. As the salespeople did not reveal the origin of the unauthorized copies, the painter sued the salespeople and won several hundreds of euros in damages in each case.

This blogger wonders how cost-effective copyright infringement litigation in Ukraine actually is.  The haul of "several hundreds of euros" per case sounds small in relation to the stress and effort of going to court, even if -- as seems to be case -- a successful litigant in civil litigation in Ukraine will recover all documented costs. However, it can be difficult to persuade licensees to part with money for permission to use artwork that others are using for nothing.

One might also infer from the line about the salespeople not revealing the origin of the unauthorized copies that there exists no legal means of compelling them to do so, along the lines of Article 8 of the Intellectual Property Enforcement Directive (Directive 2004/48). While Article 8 does not provide an automatic means of getting the details of the names behind the most easily identifiable infringers, a "justified and proportionate" request for disclosure of that information should be difficult for a court to refuse.