Mysteries of outer space

The IPO website carries news of these Article 234 references: C-431/09 and C-432/09 (N.V. Airfield, B.V. Canal Digitaal v C.V.B.A. Belgische Vereniging van Auteurs, Componisten en Uitgevers):

"1. Does Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission preclude the requirement that a supplier of digital satellite television must obtain the consent of the copyright holders in the case where a broadcasting organisation transmits its programme-carrying signals, either by a fixed link or by an encrypted satellite signal, to a supplier of digital satellite television which is independent of the broadcasting organisation, and that supplier has those signals encrypted and beamed to a satellite by a company associated with it, after which those signals are beamed down, with the consent of the broadcasting organisation, as part of a package of television programmes and therefore bundled, to the satellite television supplier’s subscribers, who are able to view the programmes simultaneously and unaltered by means of a decryption card or smart card provided by the satellite television supplier?
2. Does Directive 93/83 preclude the requirement that a supplier of digital satellite television must obtain the consent of the copyright holders in the case where a broadcasting organisation transmits its programme-carrying signals to a satellite in accordance with the instructions of a digital television supplier which is independent of the broadcasting organisation, after which those signals are beamed down, with the consent of the broadcasting organisation, as part of a package of television programmes and therefore bundled, to the satellite television supplier’s subscribers, who are able to view the programmes simultaneously and unaltered by means of a decryption card or smart card provided by the satellite television supplier?"

The queries arise in the context of a claim by collecting societies against TV Vlaanderen over satellite broadcasts. As a newsletter of Van Bael & Bellis explains:

“At first instance, TV Vlaanderen was ordered to compensate the right holders for the public communication of their works. On appeal TV Vlaanderen argued that the services which it provides form an integral part of the original satellite broadcasting by the broadcasting companies. Since the broadcasting companies acquired the rights to broadcast the programmes by satellite in their countries of origin, TV Vlaanderen maintained that it cannot be held to pay a second time for the same communication. Sabam and Agicoa contested TV Vlaanderen’s position arguing that, based on Article 11bis of the Berne Convention of 24 July 1971, two consecutive communications to the public are involved.”

Google face Chinese author's claim

Chinese novelist Mian Mian, who is suing Google in China for scanning and publishing part of her novel “Acid Lover”, has been told by a Bejing court that both she and Google must hold talks on a settlement and then report back to the court. The Shanghai-based author whose books about love affairs, drug abuse and suicide are routinely banned in China, is suing Google for a public apology and 60,000 yuan (about 6,000 Euros). Mian Mian's lawyer Sun Jingwei has acknowledged that Google had already removed Acid Lover from its library and has said that the author is open to negotiating a settlement with the company, but that the author's requirement of an apology is non-negotiable. Sun accepted Acid Lover was never published by Google in its entirety, but argued that because the company profits from publishing excerpts, it is an infringement to scan and use contents of the book without prior permission from the author saying "Google scanned and uploaded the books first and then turned to authors for settlement" adding "This is not reasonable. You should settle the issue first and then scan and upload the books, not committing infringement first.

The China Written Works Copyright Society is also looking for compensation for other Chinese authors whose works are included in Google’s online project and Mian’s lawsuit comes just two weeks after a Paris court ordered Google to stop digitising French books without the publisher's approval. The search engine was also told to pay 300,000 euros (£268,000) in damages and interest to French company La Martiniere, which had sued for copyright infringement for scanning book excerpts (see Hugo Cox’s post on this blog on December 18th) as part of the Google Books project. In the US, Google has agreed a $125m settlement with authors and publishers - although the settlement is still waiting final court approval.

http://news.bbc.co.uk/1/hi/business/8433345.stm

isoHunt inducement liability

A Californian court has granted summary judgment against isoHunt, one of the world’s biggest torrent-indexing sites. The court established that isoHunt has inducement liability for copyright infringement. Evidence of inducement includes box office hit movie lists, technical assistance for infringing users, technical features promoting infringement and a business model depending on infringement.

Report of LA Times here.

Welcome to the online world ... Ben

Pray indulge me readers, for I have been infringed! Now it is a little known fact that some thirty odd years ago I was vocalist with a moderately successful punk rock band called The Ignerents. The band, formed in Whitstable, Kent, in 1977, played quite a few gigs and released one single on Ace Records in 1979 (Radio Interference b/w Wrong Place Wrong Time) which was then re-released on the band’s own label. The band also recorded two tracks for a local compilation album, the now quite coveted and valuable vinyl offering that is ‘First Offenders’ (and which features amongst the other artists one your drummer called Korda Marshall, more recently head of Warner Music in the UK and now back at the helm of Infectious Records). But I digress. The band lasted until 1981 when University and more importantly the tragic death of our drummer, Stan, curtailed the band and prompted a second vinyl release, Platform 5 b/w The Trouble With You, this time as The Beekeepers. There was then a long period of complete hibernation until the second tragic death in the band, that of bassist Chris Harris, in 1994, which prompted myself and the other surviving member, Steve Harris, now a Michelin starred chef at the Sportsman in Whitstable, to compile a full album from our archive of reel to reel tapes (and even cassettes) and release this as a CD in 1997, primarily as a tribute to Chris.

Both on my Music Law Updates blog and on the 1709 Copyright Blog, I have written acres and acres of text on both legal and illegal services and the varied musical offerings in the digital realm: from Nokia’s novel Comes With Music to Radiohead’s ‘In Rainbows’ pay what you like offering to the rise of Spotify to the legalisation of Napster and to the dominance of iTunes I have blogged away. And from MGM’s famous case against Grokster to the numerous actions against Kazaa to the Recording Industry Association of America’s ill advised assault on their own customers through the widely publicised cases against file sharers Jammie Thomas-Rasset and Joel Tenenbaum to the ongoing ructions with The Pirate Bay and to the activities of ever present download sites like AllofMP3.com - friends, Romans, countrymen, I have blogged them all!

But my point is this - it’s all very well writing about this stuff, but I can’t say it ever really affected me personally, although the recent Google Books settlement debate got me interested in the effect on my more recent creative activities! Then a few weeks ago I got an email out of the blue from my cousin in Australia asking about ‘the band’ and just as a matter of interest I did a quick Google search. I had no idea what I might find – or any idea that our first seven inch vinyl single in original picture cover is now on sale for £35 (yes, thirty five fantastic pounds sterling!) at Netsoundmusic.com. Nor did I know that you can find the artwork for our single on boredteenagers.co.uk, an amazing website which aims to document all of the bands involved in the punk, powerpop, mod and new wave explosion of the late 70s and early 80s, no mean feat I should add! Or that Last FM had some of our music available for streaming (205 plays so far) and that I could create my own ‘Ignerents’ radio station . Or that in July 2008 on the ‘Always Searching For Music’ website there was a long discussion about our original 1979 vinyl release with some clearly very keen music fans offering up ‘ripped’ digital files to each other. You know what? I was flattered and rather pleased. But then I discovered that quite a few sites were offering ‘my’ music for free. Oh, thank you mp3cream.com and esm3.com for the quick thrill of knowing you have a 2.41MB file available to all. And then I found some sites SELLING our music …. and that is when it hits home and you suddenly say to yourself - HANG ON – THAT’S MY MUSIC AND I AM NOT GETTING PAID! And then you begin to think about things far far more carefully.

This is a legal blog, so I should throw in some salient facts here. When we started the band we almost signed to Step Forward Records (in 1979) but this never happened, so we own almost all of our sound recording masters, and as we wrote all our own songs, the songwriters own those copyrights and my own company administers the music publishing on all of these except the two tracks on the first single. We also created the artwork on the singles so that’s ours too! Now my publishing company is a member of PRS for Music but I have to say that our label, Rundown Records, is not a PPL member – and never have been – so when it comes to collection societies we are only half covered, although I should say that on music publishing I have yet to see a penny from any online activity (Lady Gaga’s recent complaint over a lack of income from online use springs to mind here) which is a tad annoying.

More interestingly no doubt I am now going through the same thought process as many members of the Featured Artists Coalition in the UK went through recently when the ‘liberal’ front of Radiohead and Pink Floyd came up against the ‘resistance’ of Lily Allen, who made it quite clear that she needed to be paid for her recorded music (something the record labels have been saying for some time!). Now I don’t ‘need’ to be paid for my music and nor do I consider it (in any way!) a pension fund, but it is out there on sale, I am not getting paid and others are! So that’s wrong, isn’t it? Hmmmm, a tricky one now. Apart from making the CD available in 1997, and a couple of more recent licences (late nineties) of individual tracks to two German punk rock compilation albums, was I ever going to make the music legally available on the web? Was I heck! I am all in favour of the ‘long tail’ of copyright, but as I have never uploaded a music file of any sort anywhere – or downloaded one for that matter, it wasn’t going to happen was it! And I guess if I was going to put the music out there, I would probably have made some of it available for free anyway, with Steve’s permission.

And should I really worry at all? Well clearly at this scale, no, not really. But even so, it does get you thinking and suddenly you see beyond the immediate problems of ‘piracy’ to the new opportunities that come with the web. First of all, now I know we have fans, I have my new blog (I know you are desperate to know, it is www.theignerents.blogspot.com). I then began to think of what other opportunities there are beyond those that just pander to my ego. Well with the Blog, I will soon have set up a mechanism for collecting fan data – and databases are king now (I think!). And if we were still a band we could try and get a gig at the annual Rebellion Festival in Blackpool in March, the highlight of the punk calendar in the UK – and maybe try for a European punk festival or two too! And we could definitely try and sell those last few boxes of CDs I have somewhere – fans in Japan and Germany seem increasingly keen on Ignerents’ collectibles, or I could empty out my cupboards and try and find those last few copies of our first single I have – at £35 a pop that would pay for quite a few nice winter warmers! And what if I autograph them? Hang on, will the value go down? And maybe some PRS monies will come through - eventually I imagine they will; and hang on, and what about that Glastonbury Festival thingy – I work there – I know the main booker! So many possibilities, so little time!

It’s a funny old thing the internet: yes it has destroyed a number of traditional business models in the music industry, and maybe “Ignerence was bliss” for me until a few weeks ago - but the internet has created many many other new and interesting opportunities. The clever bands of the future will be the ones who can seize these opportunities and move quickly and nimbly from technology to technology and embrace and react to ever changing patterns in consumer behaviour. But that is for the quick and the nimble – and where that leaves the traditional content industries remains to be seen.

See http://www.boredteenagers.co.uk/ignerents.htm and http://www.last.fm/music/Ignerents

Groundless copyright threats

Just as the human mind is changeable and inconsistent, so intellectual property law is not without anomalies. For example, while copyright protects even the most banal 2-D images, the Lucasfilm judgment sets the bar for 3-D creations at a daunting height. Another anomaly that has risen to the surface in recent days is the penalty for groundless threats of infringement proceedings. There are stiff penalties for most intellectual property rights – patents, trade marks, registered and unregistered designs – but none for copyright.

Lord Lucas is seeking to set this right by proposing a new section in the Copyright, Designs and Patents Act 1988. The noble lord, as previously noted, is eager to see some checks and balances in the Digital Economy Bill to rein in heavy-handed right owners, especially top-shelf copyright proprietors. The proposed section is:

"169A. Remedy for groundless threats of infringement proceedings

(1) Where a person threatens another person with proceedings for infringement of copyright, a person aggrieved by the threats may bring an action against him claiming—
(a) a declaration to the effect that the threats are unjustifiable;
(b) an injunction against the continuance of the threats;
(c) damages in respect of any loss which he has sustained by the threats.
(2) If the claimant proves that the threats were made and that he is a person aggrieved by them, he is entitled to the relief claimed unless the defendant shows that the acts in respect of which proceedings were threatened did constitute, or if done would have constituted, an infringement of the copyright concerned.
(3) Mere notification that work is protected by copyright does not constitute a threat of proceedings for the purposes of this section.
(4) A copyright infringement report within the meaning of section 124A(3) of the Communications Act 2003, if notified to a subscriber under section 124A(4) of the Communications Act 2003, does constitute a threat of proceedings for the purposes of this section."

Do readers of this blog think there is good reason for this proposal...or is it groundless?

Licences for links: Meltwater and the NLA

An interested and concerned reader has forwarded to me an email from Meltwater, a Norwegian-based business which now provides news and analysis services in more than 110 countries. The email reads as follows:

"Dear Meltwater Customer,

You may or may not be aware that the Newspaper Licensing Agency (NLA) recently decided to extend its hardcopy licensing regime to cover links to newspaper website content. The NLA believes that you (our customer) need a license from the NLA in order to click on the links you receive from the Meltwater News Service. Meltwater strongly disagrees with this and has announced today that we are taking the NLA to the UK Copyright Tribunal to challenge what we consider to be a "link tax" without legal basis.

The NLA, originally formed in 1996, was created to license and collect revenue from the copying and clipping of print media. Now the agency is attempting to enforce licensing agreements on Internet links. The NLA is targeting both companies providing media monitoring services and the customers subscribing to such services.

Meltwater is pursuing this legal action after the NLA threatened to sue any online media monitoring company who fails to sign up to its new content licensing agreement by January 1. 2010. We have been in good faith discussions with the NLA for several months now, but have been unable to come to an agreement. While Meltwater respects the copyright of the NLA's members, the licensing scheme seeks to control the receipt of links to freely published online content, even though such rights are not granted to copyright owners under UK copyright law. Therefore, Meltwater has decided to take this matter to the UK Copyright Tribunal because we believe that the NLA's licensing scheme has no basis in UK copyright law.

It may take 9 to 12 months for the Tribunal to come to its decision. In this period, Meltwater will continue to serve you with links to relevant news stories and we will continue to do our very best to meet your needs. ..."

Meltwater's email also contains an attachment with FAQs relating to this dispute. The NLA website's Guidance for Clients in turn contains the following advice:

"Soft Copy/Electronic Press Cuttings

If your client receives an electronic press clipping service from a press cuttings agency either via a web portal, or if you gain access to relevant articles via web links and wish to give your clients access to their cuttings via this means, then you will need to ensure you have opted for the digital extension to your NLA licence.

Agencies must confirm to the NLA the number of email addresses they wish to supply with cuttings at each client. Clients are allowed to view the cuttings on screen without the need to be licensed. If clients wish to print off copies, or foward emails they will need their own NLA licence".

Further information is provided in the "FrontLine Survival Guide to Copyright for PR Professionals" here.

While readers are left to make up their own minds, the 1709 Blog can add a few short observations and comments: (i) if neither the provision of links to customers nor their use by customers constitute acts which are restricted by copyright, there is nothing to license; (ii) it appears from the above that, while Meltwater states that it is the customers who will require a licence, the NLA states that clients can view cuttings on-screen without the need for a licence and it is the agency that needs the licence; (iii) this is the sort of scenario in which the absence of generally-agreed international norms as to what is permitted (or not) on the internet is bound to cause persistent trouble. Links to copyright-protected material are no longer a new and unfamiliar phenomenon; the time has surely come to reach a clear and consistent consensus, so that businesses can invest in the creation, sale and dissemination of content in the knowledge that their investment either will, or will not, be protected by copyright law, by contractual licence, by unfair competition principles or by anything else.

Abode to go?

Thanks to my old friend Dan Bereskin (Bereskin & Parr, Toronto) I can bring you the following news, in the words of thierry (sic) Ehrmann himself:

"On 9 December 2009, the Abode of Chaos celebrated 10 years of combat for freedom of expression.

The Cassation Court's criminal chamber presiding over a second appeal has delivered an order dated 15 December 2009 for the destruction of the 3,123 works of art forming the corpus of the Demeure du Chaos created by the artist and sculptor thierry Ehrmann in 1999.

Founded by the conceptual act of thierry Ehrmann on 9 December 1999, the Abode of Chaos (per the NYT) is an œuvre au noir (nigredo) inspired by the alchemical chaos of the 21st Century, whose tragic and yet sumptuous embers were ignited on 11 September 2001.

After just 10 years - and more than 1200 press and TV articles in 72 countries around the world - the international art community today recognises the Abode of Chaos as a unique and "sacred" artistic factory. This free open-air museum with more than 3,123 works attracts more than 120,000 visitors each year.

Between February 2006 and June 2008, under its E.R.P. status (Etablissement Recevant du Public) status, the Abode of Chaos attracted 437,130 visitors of whom 21% came from outside France. The place also hosts a number of artists in residence.

Since 1999, the local authority of Saint-Romain-au-Mont-d'Or (where the Abode is located) has been pursuing a crusade of artistic negation against the Abode of Chaos and continues to call for "the restoration of the building to its original state" … which means effectively means the complete destruction of the Abode!

This historic case will now be submitted to the European Court of Human Rights in the framework of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The case law on this Article 10 has frequently ruled against France in the past.

The wording of the Cassation Court's rejection of our appeal clearly reflects its concern to uphold French building regulations, and their application by the Grenoble Appeal Court, as being coherent with the freedoms of expression guaranteed in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Backed by the artists' collective and the weight of 108,000 petition signatories, thierry Ehrmann is more than ever determined to pursue the vigorous battle to defend the rights of all people to freedom of expression by launching an appeal against this second order delivered by the Cassation Court - and against French legislation - before the European Court of Human Rights.

Thierry Ehrmann considers that this decision violates his freedom of expression and that this freedom cannot be uniquely subjected to Building Regulations since artistic expression has been a national and universal right since the beginning of time.

In the current context, the petition to save the Abode of Chaos from destruction is of paramount importance. It will allow this extraordinary legal dispute to be taken before the European Court of Human Rights.

In an era when France is desperately seeking solutions to its diminishing global artistic influence and seems unsure of where to steer its national cultural policy (particularly with respect to the principle of free entry to museums), the Abode of Chaos is a bold and original response".

Follow the news direct from the Abode of Chaos here, here and here".While issues relating to human rights and cultural vandalism are always appealing, I find myself as ever focusing on the question of copyright: to what extent, if any, could the Abode of Chaos claim any sort of copyright protection and what, in commercial and moral rights terms, might be the outer limits of its protection? Readers' comments are, as ever, welcome.

French Google Book Search: ‘Non c’est non!’

Today a French court determined that Google had infringed the copyright of the La Martinière group of publishers by scanning their books and making ‘snippet’ sections of them available through Google Book Search (judgment here). Google was fined €300,000 and given a month to remove the scans or face fines of €10,000 a day.

The case shares the same history as the Google Book Settlement – except that the American claimants chose to settle while the French did not.

Google Book Search began with a ‘Partner Program’ – publishers licensing Google to digitize books and display the page containing the search term plus a few adjacent pages. In 2004 the Google Books Library Project was announced. Participating libraries allow Google to scan their books (out of copyright and in copyright). Public domain books are available in full. Snippets of in-copyright books are returned by a search. Google say they do not need permission from the copyright owners for this: it is covered by fair use. Google has now scanned more than 10 million books. In 2005 Google was sued for copyright infringement by the Authors Guild and five American publishers. In 2006 three publishers in the La Martinière group sued in France.

There were three key issues in the French case. Did the French publishers own the digital rights in the books? Should French or US law apply? Is copyright infringed?

Google argued that La Martinière were in no position to sue as they didn’t have the relevant digital rights.

The significance of choice of law is that European law does not provide Google with the potential fair use defence that may be available under US law. La Martinière argued that for délits complexes (where the cause and the effect are in different countries) the court should apply the law of the country that has the most points of contact with the case. La Martinière said France is that country for several reasons including: one of the defendants is Google France (based in France and it has some responsibility for Google Book Search), the site has a French domain name and is written in French, the claimants are based in France and the books’ authors are French. They also questioned whether it is certain that the place where the books were scanned and the location of the servers is in the US.

Google said that scanning for Google Book Search is not ‘reproduction’ in French law as the scan was not for human consumption, only the extracts – Article L. 122-3 of the Code of Intellectual Property says ‘reproduction shall consist in the physical fixation of a work by any process permitting it to be communicated to the public in an indirect way’ (italics added). The extracts, Google said, fall within the copyright exception for short quotations. La Martinière disagreed, adding that Google Book Search also returns complete book jackets.

The judgment calls into question the UK Publishers Association’s motivation for signing up to the Google Book Settlement. One of the reasons it has been sitting on its hands over the Settlement is that they are dissuaded by the costs of litigating against the mighty Google. This risk analysis has now been called into question. Google, however, is not the only mighty force the PA has been influenced by: some powerful UK publishers are pushing for the Settlement to go through as they have private deals in place.