The Bollywood amendments: a request for feedback

The 1709 Blog has learned that Nandita Saikia, an IP lawyer in India, has been writing a paper on the "Bollywood Amendments" -- the proposed amendments in the Indian Copyright (Amendment) Bill 2010 which relate to the film and music industry. She is still in the process of writing-up and tells us that it's available on SSRN here (where it is under constant review). If you'd like to take a look at it and offer Nandita some feedback, please feel free to do so.

You can contact Nandita by email here.

Spanish civil war? SGAE takes aim at EXGAE

EXGAE: serious lobbying
or smear campaign?

"Spanish Collecting Society Targets Group Proposing Alternative Royalty System", by Catherine Saez (on Intellectual Property Watch here) describes what looks a little bit like a declaration of war.  The incumbent copyright collecting society Sociedad General de Autores y Editores (SGAE) -- an organisation well known for its litigation before the Court of Justice of the European Union -- has reportedly told alternative royalty model lobby group EXGAE to cease activity or face some litigation of its own.  The legal threats are based on unfair competition and trade mark infringement since, say SGAE, EXGAE is pronounced “esgae” in Spanish.

SGAE: a target for criticism and
vilification from several sources

The IP Watch article explains that EXGAE claims to be "not against copyrights and royalties" but that it disagrees with the manner in which royalties are processed and distributed by the SGAE which, according to one spokesperson "only promotes well-known artists and does not support the creation and dissemination of music in the digital era".  Among other things, EXGAE encourages the use of CopyLeft music, under Creative Commons with commercial use for small shops wishing to have music in the background.

By now, according to the 1709 Blog's calculations, something further must have happened. Can anyone advise?

Article links for a digital day

In the wake of the cyber attack on ACS:Law and the leaking of personal details of thousands of suspected illegal downloaders and file shares, an update on the Ministry of Sounds’ actions against individual actions in the UK here http://torrentfreak.com/anti-piracy-lawyers-face-ddos-before-pivotal-court-decision-101002/ and actions by filmmakers in the USA here http://news.cnet.com/8301-31001_3-20018358-261.html

And a useful review of the recent Digital Music Summit at Belmont University titled “Music industry fights clashing digital battles” with comments from record label associations the IFPI and the RIAA and some different views from consumer champions EFF, amongst others:
http://www.tennessean.com/article/20101003/BUSINESS01/10030328/Music-industry-fights-clashing-digital-battles

Internet rights, rates (and wrongs)

I have always been suspicious that the only reason that songwriter and music publisher collection societies the Performing Right Society (PRS) and the Mechanical Copyright Collection Society (MCPS) in the UK ever evolved into 'PRS for Music' was because that at that time no-one quite knew what a stream or a download was in law and that the merger only way they could sensibly (and legitimately) explain their right(s) to collect royalties from the use of their member’s songs on the internet. There was (and still is) much debate about what constitutes a 'stream' and what constitutes a 'download' and whether these form a public performance (whether a broadcast or a 'communication to the public') or more like the sale of a copy of a copyrighted work - a 'per unit' sale. There again, some ask whether they both? Or are they the same thing? Or is copyright law so hopelessly out of tune with the modern world that none of these definitions are actually applicable? Well now a US Federal appeals court has had a go at casting some much needed light on these issues and indeed on how the US collection society should be levying royalties for the use of (here) collection society ASCAP (songwriter and music publisher) members' works.

Looking at royalty rates first, The US Second Circuit Court of Appeals has overturned a District Court's decision that applied collection society ASCAP's streaming music royalty to Yahoo and RealNetworks’s activities and ordered a lower court to re-examine its findings. The Court of Appeals said that "in setting the royalty rate, the District Court must follow an approach more tailored to the varying nature and scope of Yahoo's music use" saying that "The district court did not adequately support the reasonableness of the 2.5% royalty rate applied to the value of the Internet companies' music use". The lower court was also ordered to "conduct a more complete analysis of the various uses of ASCAP's musical works by RealNetworks."

Judge John M. Walker, Chief Judge Dennis Jacobs and Judge Debra Ann Livingston said that the lower ("Rate") court’s establishment of benchmarks using the rates cable companies and broadcast stations pay for licensing music was inappropriate because the nature and scope of the online companies’ use of music differed significantly. The judges sided with Yahoo! and criticised the Rate court for relying on inconsistent sets of data sources when coming up with its music licensing formulae and said that the rate court’s attempt to come up with a simple 2.5% across-the-board license for the two online services was imprecise -and did not take into account the different kinds of services that both Yahoo! and RealNetworks offer. The three-judge panel also found that the Rate court did not give enough of a rationale for basing its licensing fee formula on the amount of time a piece of music is streamed, rather than on page views, which is the primary driver of advertising revenue. The appellate court also found that Yahoo can’t be compared to television stations because its business isn’t as reliant on music as the television industry with Judge Walker, giving the opinion of the Court, saying "Nearly every program on a television station somehow utilizes musical works,” adding “In contrast, only a fraction of the traffic on Yahoo!’s web site uses music — much of Yahoo!’s web site does not implicate any music whatsoever. Given that Yahoo!’s revenue base relies far less on ASCAP content than the television networks’ revenue base, we believe that comparing percentages of overall revenue bases is of little probative value in this benchmark analysis.” The judge also pointed to Yahoo!’s more specific licensing terms with BMI in the USA for the different kinds of uses of music as an example of how licensing agreements can be more reflective of the nature of the use of the music and noted that ASCAP’s own agreements with Turner Broadcasting for its various cable stations also accommodate different kinds of licenses depending on how each station uses music.

The appellate court did agree with the lower court on one separate, but key issue that ASCAP had appealed. The Court rejected the notion that a music download constitutes a "public performance" of a song. The Court held that downloads do not constitute a public performance of a work as defined under current US copyright law. The court said "In answering the question of whether a download is a public performance, we turn to Section 101 of the Copyright Act, which states that '[t]o ‘perform’ a work means to recite, render, play, dance, or act it, either directly or by means of any device or process'," ruling that "A download plainly is neither a 'dance' nor an 'act'. Thus, we must determine whether a download of a musical work falls within the meaning of the terms 'recite,' 'render,' or 'play'." Judge Walker then went on to say that the court would look at he ordinary sense of the words 'recite,' 'render,' and 'play' which refer to actions that can be perceived contemporaneously saying "Itzakh Perlman gives a 'recital' of Beethoven’s Violin Concerto in D Major when he performs it aloud before an audience .... Jimmy Hendrix memorably (or not, depending on one’s sensibility) offered a 'rendition' of the Star-Spangled Banner at Woodstock when he performed it aloud in 1969. Yo-Yo Ma 'plays' the Cello Suite No. 1 when he draws the bow across his cello strings to audibly reproduce the notes that Bach inscribed. Music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener."

The court held that "The downloads at issue in this appeal are not musical performances that are contemporaneously perceived by the listener .... They are simply transfers of electronic files containing digital copies from an on-line server to a local hard drive. The downloaded songs are not performed in any perceptible manner during the transfers; the user must take some further action to play the songs after they are downloaded."The ruling also made a clear distinction with the streaming of files which, like broadcasts, had to be licensed for their performance saying "[Yahoo! and Real's] stream transmissions, which all parties agree constitute public performances, illustrate why a download is not a public performance. A stream is an electronic transmission that renders the musical work audible as it is received by the client-computer’s temporary memory. This transmission, like a television or radio broadcast, is a performance because there is a playing of the song that is perceived simultaneously with the transmission".

The Court sent the case back to the lower court to reconsider the method of calculating the licence fees due to ASCAP.


http://www.dmwmedia.com/news/2010/09/28/appeals-court-music-downloads-not-039public-performances039

http://broadbandbreakfast.com/2010/09/ascap-music-licensing-fees-voided-for-yahoo-realnetworks/

http://www.out-law.com/page-11406

Sky porn leak puts ACS in the shot

Further to my blog on the Ministry of Sound’s efforts to combat online piracy, The Daily Mail reports that ‘thousands’ of Sky Broadband customers have had their personal details leaked online by hackers, apparently linked to The Pirate Bay, who then published the customer details, alongside a list of pornographic films they have downloaded and shared. The information , which included the full names and addresses of over 5,300 internet users, had been collected by law firm ACS:Law who had compiled a list of people it believed were illegally sharing adult films using anti-piracy software and third party investigators. Hackers from 4Chan attacked the firm’s website in retaliation to its anti-piracy efforts and around 1,000 confidential ACS:Law emails, including personal correspondence between Andrew Crossley - who runs the company - and his colleagues were leaked onto the popular file-sharing website The Pirate Bay. It seems that the list of Sky Broadband customers was an attachment on one of the emails.

Read more: http://www.dailymail.co.uk/news/article-1315790/Sky-internet-porn-details-leaked-Users-personal-information-appears-online.html?ito=feeds-newsxml

"Music and Intellectual Property": a conference and a competition

Well, someone's got
something to sing about ...

"Music and Intellectual Property" is the title of a one-day conference which CLT Conferences is running on 8 December in Central London. Subtitled "Identifying, Protecting and Enforcing Rights in Music", the programme features a double input from the 1709 Blog: Ben Challis (General Counsel, Glastonbury Festivals Ltd) speaks on "The Glastonbury Tales: the Practicalities of Festival Life and IP", while Jeremy Phillips takes the chair for the day. There are some other excellent speakers too, and the day promises to scintillate.  You can see the full programme here.

There's a competition running along with this conference, the prize being complimentary admission -- and the fabled free lunch. It goes like this. Shakespeare's play Twelfth Night opens with Duke Orsino saying

"If music be the food of love, play on,
Give me excess of it".

Your task is to complete the following sentence:

"If music be the food of love, then copyright is ..."

Closing date for entries is 17 November. Competition entries should be emailed to Jeremy at the 1709 Blog with the subject line "Food of love".

The quiet mysteries of library ebooks

Reading a piece about second-hand ebooks, passed on to me by my new colleague Sebastian Davey at Swan Turton, I was reminded about an ad I’d seen on the train – about ebooks being available at my local library. So I went to see what was on offer. Here’s an extract from the FAQ:

How long can I keep them for? You can keep your chosen eBooks for two weeks.

Can I renew them after that time? eBooks can't be renewed in the traditional sense. However, if no one else wants the books you can borrow them again at the end of your two-week loan period.

Will I get any fines if I am late in returning my eBooks? No. You don't even have to return them. The file will simply become inactive after two weeks.

Will I be left with anything on my hard drive after my books have expired? Yes, a file will remain which you will have to delete. We have written some simple instructions to help you to do this.

What a delight! No more library fines …

So how does PLR work with ebooks? After all, you aren’t really ‘borrowing’ the ebook – you never give it back. The file just becomes inactive. The library is giving you a sublicence that comes to an end. Not the same thing as borrowing a physical book. Well, it’s all in that section of the Digital Economy Act that hardly got a mention in the heated debates, section 43.

It amends the Public Lending Right Act 1979 to say that

“book” includes … a work, other than an audio-book, recorded in electronic form and consisting mainly of (or of any combination of) written or spoken words or still pictures (an “e-book”);

“lent out”—
(a) means made available to a member of the public for use away from library premises for a limited time, but
(b) does not include being communicated by means of electronic transmission to a place other than library premises,

I know the Digital Economy Bill went through in a bit of a rush, but what on earth does (b) mean? It sounds like you have to go into the library with your Kindle and download it there.

Copyright lessons from (American) football

Last week, Kal Raustiala and Chris Sprigman, guest bloggers on the New York Times's Freakonomics blog, posted this interesting piece about what football (of the American variety) can teach us about the correlation between copyright protection and innovation. Though focused on copyright, their point can be made easily about any form of intellectual property protection. The question at heart is whether such IP protections are truly the catalyst for innovation.

As a child, I was taught "necessity is the mother of invention." Do you have a need that isn't being met? Create the solution! In law school, that lesson refocuses. Copyright protections (and patents) encourage creations; no one would create new ideas if they could be copied by others with no compensation. Right?

I must admit, as a bigger fan of soccer/football than of American football, I was not aware of just how much innovation has occured on the football field over the years. The Freakonomics post includes fascinating examples of innovations that would be valuable in the long run if copyrightable, but are still highly advantageous in the short term - winning now, this season - despite the fact that other teams are sure to copy the innovations later.

As the debate rages on in the U.S. whether copyright law should be extended to cover fashion designs, the argument that companies, designers, sports teams, must "innovate or die" in a highly competitive environment, regardless of IP protection, carries quite a bit of weight. I'm not suggesting that we shouldn't still ensure that innovations are able to be protected by IP rights for the benefit of the creator. We should. But perhaps the view that IP protection is required to spur design innovation needs rethinking.