Blaca, IPI to mark Rome anniversary

This year's Blaca-IPI seminar takes place on 5 October 2011 at the London office of Bird & Bird (15 Fetter Lane , London EC4A 1JP). Its theme is "The 50th Anniversary of the Rome Convention" -- an anniversary that might easily have slipped by quite unnoticed in the heat of the various live copyright debates over file-sharing, ISP liability, orphan works, the cloud, collecting societies, piracy and so on.

The first session ("The Rome Convention’s History and Future") is chaired by Professor Johanna Gibson, wearing her IPI hat, and features the following contributions:

• "Rome Convention 1961: fifty years on: Retrospect and Prospect" by Professor Adrian Sterling;
  
• “From copyright to neighbouring rights and related rights, from the Rome Convention to TRIPS and WPPT” by Dr Gillian Davies;
   
• “Progress in the Standing Committee and the road to a Diplomatic Conference” by Tom Rivers

After a bit of a debate and a pause for changing chairmen, the second session ("Collective licensing as a sibling of the Rome Convention?") will kick off under the watchful eye of Gillian Davies, wearing her Blaca hat.

• “The Role of Collective licensing and the recent challenges” by Dominic McGonigal;
  
• “Extended Collective Licensing: a solution or an additional problem?” by Hubert Best.

Then there's a bit more debate, followed by the traditional dash for the drinks.


Registration: begins at 4.30pm; the event itself starts at 5.00pm and the whole show fnishes at 7.10pm.


The number of seats is limited and registration is required (just email Craig Kelly here and tell him you're coming). There is no registration fee for members of IPI or Blaca, but ordinary mortals must pay a thoroughly modest £20.

Term extension back on the agenda

Like Hugo I am also blogging 'cold of the press' but in case it has slipped anyone by in the laast couple of days, the idea of copyright term extension for sound recordings is well and truly back on the agenda in Europe and it now seems that the extension of the copyright term for sound recordings (from 50 years to a probable 70 years) may be implemented following a meeting of the European Union's Committee of Permanent Representatives. The European record industry has been lobbying for some time for the sound recording copyright term to be extended, noting the difference between European and US copyright terms (the US has a potential 95 year term for sound recordings), and difference with the term enjoyed by music publishers and songwriters - the copyright term in the melody and lyrics of a song is life of author plus 70 years.

Andrew Gower's 2006 Report on IP was seemingly unconvinced by the arguments put forward by the record labels but the last (Labour) Government seemed to support term extension, mainly based on pleas to protect the pensions of 'aging session musicians' - and Cliff Richard. The matter moved to Europe with mixed results and whilst both the European Commission and European Parliament backed an extension, in 2009 the Council Of Ministers failed to finalise arrangements with some states notably Denmark blocking term extension beyond 50 years.

I must say that this passed me by, but with the benefit of hindsight it seems that under Hungary’s presidency of the EU, the debate on Europe wide term extension was reignited and pro-extension lobbyists say they are now confident that the Council will agree to extension and this it will pass into domestic copyright law across the EU.

There have been a number of comments on any potential extension – and some of the most interesting came from the Music Managers Forum who wanted term extension to actually benefit musicians (rather than record labels) and suggested a number of very pithy proposals, some of which must have horrified the major record labels who usually get the lions share of profits from the sale of back catalogue and, with unrecouped artistes, get one hundred percent of all income - even at 50 years. The MMF suggestions included a ‘use it or lose it’ framework to return unused copyrights to recording artistes, statutory guarantees of royalty revenues, a fiduciary duty placed on labels to account for (equitable) royalties, a potential veto rights over how music is used, or, even, complete control for the artist after a period of time with a reversion of all rights to the original creators (the recording artistes) after 50 years – or even after 25 years.

http://www.independent.co.uk/arts-entertainment/music/news/cliffs-law-gives-ageing-rockers-a-pension-after-copyright-ruling-2351636.html

Sitek and the crime possessional

Here, proving that blogs do not always have to race to bring their audiences up to date, is news – cold off the press – of a judgment delivered in May, Sitek v Circuit Court of Swidnica, Poland, [2011] EWHC 1378 (Admin), an extradition case.

It was held that a defendant acquiring audio files ‘with the traits of illegal copying, which he should and could have assumed, on the basis of the attendant circumstances, to have been obtained by means of a prohibited act, in contravention of a licence’ would constitute an offence under s. 329 of the Proceeds of Crime Act 2002. That provision states that a person commits an offence if he acquires, uses or has possession of criminal property. Lloyd Jones J inferred that the files were ‘criminal property’ as the fruits of criminal conduct under s. 107 CDPA.

Is this a first? The copyright-specific criminal offences under the Copyright Designs and Patents Act are active (selling or distributing), but this is about being on the receiving end.

Fair Use Event for Readers in Washington, D.C.

Happy 1709 readers in Washington, D.C. – and unhappy ones in need of a little pick-me-up – can get a special preview of the book Reclaiming Fair Use: How to Put Balance Back in Copyright by Patrica Aufderheide and Peter Jaszi.  A reception for the book will be held at Washington College of Law this coming Tuesday.

Details
Where: 6th floor student lounge, Washington College of Law, 4801 Massachusetts Av., NW
When: 16:30, Tuesday, September 13th
Books: On sale for $10
Fair and fun: “Good food, fair use-friendly music, and friends”
RSVP: klbieze [@] gmail.com

More on Reclaiming Fair Use here: http://centerforsocialmedia.org/reclaiming

Two may be company, but can one be a crowd?

The 1709 Blog has received a question from a reader on the sensitive issue of what constitutes a public performance of a work. It deserves a response not only because it concerns a legal issue, one much beloved by those of us who set law examinations, involving the concept of public performance, but also because it raises questions concerning the sort of decisions that collecting societies have to make when formulating and executing their enforcement policies:

"A friend of mine runs a small jewellery shop with a workroom at the back; in the workroom he has a radio, which he listens to while he makes his jewellery. He is a sole trader.  No member of the public has any access to his workroom -- which is closed off to any public access (including from the shop itself) -- and the music cannot be heard in any public area. 

My friend is currently receiving threatening letters from PPL, demanding payment for performance of a work in public. 

Do any of you, or any of your readers, have a definitive definition of what "in public" means, for the purposes of s16(1)(c) of the Copyright, Designs and Patents Act 1988? 

PPL have their own take on it, but I can't find any legal authority to back it up:

WHAT IS A PUBLIC PERFORMANCE?
A public performance occurs whenever music recordings are played outside the domestic or family circle. Whenever a music recording is played in a commercial environment, even if only one person can hear it, it becomes a public performance and a fee is payable to PPL.

PRS seem a little more sensible:

‘In public’ means, broadly speaking, to an audience outside of his/her domestic or home circle. If the person does not obtain the required licence they may risk infringing copyright.

So PRS seems to imply that there has to be a broadcast by a person "to an audience" which makes sense - that to me is a public broadcast". If PPL are correct, on the same logic if my friend listens to music while he drives to see a customer in his car, alone, he would need a licence for that".

It will be good to know what readers think -- not just those from the United Kingdom but those from other countries in which similar fact situations may already have been judicially tried and tested or policy issues resolved.

More Scrutiny for First Sale

First comes suit, then comes jury, then comes appeal after appeal after appeal.

A defendant previously found liable for copyright infringement has filed an appeal for an en banc rehearing of his last appeal.  A jury found Supap Kirtsaeng was liable for willful infringement of eight copyrighted works belonging to John Wiley and Sons.  Faced with a rather large damages bill ($600,000), Kirtsaeng did the usual thing and appealed.  The Second Circuit affirmed, in a 2-1 majority, the District Court.  Now Kirtsaeng has filed another appeal, asking for an en banc rehearing in the Second Circuit.

Infringing Acts

Kirtsaeng, a Thai student studying in the US, had friends and family ship him books legally printed in other countries but not authorized for importation into the United States.  He then sold those books on eBay, reimbursed his friends and family for their trouble and kept the remainder of the proceeds.  We’re not talking small change here where the books were used for his studies and then sold after the semester.  Kirtsaeng took in somewhere between $900,000 and a million dollars doing this.

First Sale – What does “made under” mean?

The first sale doctrine in the US Copyright Act allows people to resell copyrighted works “lawfully made under this Act.”  The Second Circuit held that “made under” means made domestically and so the reselling copyrighted items made elsewhere is not protected by the first sale doctrine.  This is the same issue that came up in Costco where the Supreme Court upheld the 9th Circuit on a 4-4 split.

The Second Circuit looked at Costco and found it rather unhelpful, being a Supreme Court 4-4 split.  The court also tried to do a statutory analysis of the “made under” clause and decided the statute was rather ambiguous.  In the end, the court’s decision that “made under” means made domestically rests on language from a 1998 Supreme Court case, Quality King Distributors, Inc. v. L’anza Research International and some jockeying with the Copyright Act trying to make sense of the first sale doctrine language (§ 109(a))  in conjunction with part of the Act prohibiting unauthorized importation (§ 602(a)(1)).  Then the court punted:

If we have misunderstood Congressional purpose in enacting the first sale doctrine, or if our decision leads to policy consequences that were not foreseen by Congress or which Congress now finds unpalatable, Congress is of course able to correct our judgment.

Kirstaeng’s New Appeal

In his appeal for en banc, Kirstaeng argues that Quality King was misinterpreted and that the Second Circuit’s decision is in conflict with decisions from other Circuits (note: as a matter of legality, this is allowed but it is often grounds for a Supreme Court review of the issue).

Kirstaeng argues that the text of the first sale doctrine is not ambiguous because the Supreme Court found that it was “unambiguous” in Quality King.  Basically, Kirstaeng attempts to show the court’s arguments are really in favor of allowing the first sale doctrine as a defense for imported goods but the court just didn’t want to admit it.

The majority’s opinion conflicts with the text, history, and purpose of the Copyright Act, as well as the Supreme Court’s reading of those sources in Quality King. The opinion’s most remarkable feature, however, is that the majority all but conceded those points. Indeed, it repeatedly expressed deep skepticism about the correctness of its own interpretation. It offered a decision at odds with itself.

We’ll keep you posted if the en banc rehearing is granted.

Directors' rights: the AG speaks ... but not in English

In July 2010 the 1709 Blog noted the reference for a preliminary ruling from the Handelsgericht Vienna (Austria) in Case C-277/10 Martin Luksan v Petrus van der Let. To refresh readers' memories, the questions referred were these:

1. Must the provisions of European Union law concerning copyright and related rights, and in particular Article 2(2), (5) and (6) of Directive 92/100 [on rental right and lending right and on certain rights related to copyright in the field of intellectual property], Article 1(5) of Directive 93/83/EEC [on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission] and Article 2(1) of Directive 2006/116 [this being the codified version of the Directive on the term of protection of copyright and certain related rights], in conjunction with Article 4 of Directive 92/100, Article 2 of Directive 93/83 and Articles 2 and 3 and Article 5(2)(b) of Directive 2001/29 [on the harmonisation of certain aspects of copyright and related rights in the information society], be interpreted as meaning that the principal director of a cinematographic or audiovisual work or other authors of films designated by the legislatures of the Member States are directly (primarily) entitled in all events, by law, to the exploitation rights in respect of reproduction, satellite broadcasting and other communication to the public through the making available to the public and that the film-maker is not entitled thereto directly (primarily) and exclusively;

Are laws of the Member States which assign the exploitation rights by law directly (primarily) and exclusively to the film-maker inconsistent with European Union law? 

If the answer to Question 1 is in the affirmative: 

2a. Does European Union law grant the legislatures of the Member States the option of providing for a legal presumption in favour of a transfer to the film-maker of the exploitation rights within the meaning of paragraph 1 to which the principal director of a cinematographic or audiovisual work or other authors of films designated by the legislatures of the Member States are entitled, even in respect of rights other than rental and lending rights, and if so, must the conditions laid down in Article 2(5) and (6) of Directive 92/100, in conjunction with Article 4 of that directive, be satisfied? 

2b. Must the primary ownership of rights of the principal director of a cinematographic or audiovisual work, or of other authors of films designated by the legislature of a Member State also be applied to the rights granted by the legislature of a Member State to equitable remuneration, such as 'empty cassette remuneration' pursuant to Paragraph 42b of the Austrian Urhebergesetz (Copyright law), or to rights to fair compensation within the meaning of Article 5(2)(b) of Directive 2001/29? 

If the answer to Question 2b is in the affirmative: 

3. Does European Union law grant the legislatures of the Member States the option of providing for a legal presumption in favour of a transfer to the film-maker of the rights to remuneration within the meaning of paragraph 2 to which the principal director of a cinematographic or audiovisual work or other authors of films designated by the legislatures of the Member States are entitled, and if so, must the conditions laid down in Article 2(5) and (6) of Directive 92/100, in conjunction with Article 4 of that directive, be satisfied? 

If the answer to Question 3 is in the affirmative: 

4. If a legal provision of a Member State accords to the principal director of a cinematographic or audiovisual work or other authors of films designated by the legislatures of the Member States a right to half of the statutory rights to remuneration, but provides that that right is capable of alteration and not therefore unwaivable, is that provision consistent with the aforementioned provisions of European Union law in the area of copyright and related rights?

If you're still following all of this, you will probably want to know that the Advocate General delivered  her Opinion yesterday, but that it is sadly available in only seven official languages of the European Union [including Latvian and Portuguese] -- and not in English.

The Opinion is a long one (179 paragraphs). In French it goes like this:

"1. Les dispositions combinées de l’article premier, paragraphe 5, et de l’article 2 de la directive 93/83 et les dispositions combinées de l’article 2, paragraphe 1, de la directive 2006/116 et des articles 2 et 3 de la directive 2001/29 doivent être interprétées en ce sens que le réalisateur principal est l’auteur du film au sens de ces dispositions et que, par conséquent, les droits d’exploitation de la reproduction, de la diffusion par satellite, et de toute autre communication au public par voie de mise à disposition lui reviennent.

2. Toutefois, en vertu de l’article 14bis, paragraphe 2, sous b) à d), et paragraphe 3, de la convention de Berne, les États membres ont la faculté de prévoir une disposition attribuant directement (originairement) et exclusivement les droits d’exploitation au producteur du film , à condition que

– le producteur et le réalisateur du film aient conclu un contrat par lequel ce dernier s’engage à apporter sa contribution à la production de l’œuvre cinématographique;

– il soit possible de conclure des conventions contraires réservant les droits d’exploitation exclusif ou l’exercice de ces droits au réalisateur principal;

– les États membres garantissent que, dans ce cas, l’auteur du film, obtienne une compensation équitable au sens de l’article 17, paragraphe 1, deuxième phrase, de la chartre.

3. Lorsque les États membres prévoient, en vertu de l’article 5, paragraphe 2, sous b), de la directive 2001/29, une limitation du droit de reproduction de l’auteur du film, en vertu de l’article 2, sous a), de la directive 2001/29, pour les reproductions destinées à un usage privé, ils doivent lui garantir une compensation équitable. Dès lors que cela est garanti, ces dispositions ne s’opposent pas à une disposition de droit national attribuant originairement au producteur du film les droits sur les copies destinées à un usage privé.

4. L’article 5, paragraphe 2, sous b), et l’article 2, sous a), de la directive 2001/29 doit être interprété en ce sens qu’il s’oppose à une disposition de droit national, accordant le droit de l’auteur du film à une rémunération équitable respectivement pour moitié à l’auteur et au producteur, en conséquence de quoi l’auteur n’obtient que la moitié de la rémunération équitable".

A slightly tickled-up version of Google Translate renders it thus:

"1. The combined provisions of Article I, paragraph 5, and Article 2 of Directive 93/83 and the combined provisions of Article 2, paragraph 1 of Directive 2006/116 and Articles 2 and 3 Directive 2001/29 must be interpreted as meaning that the principal [director] is the author of the film within the meaning of these provisions and, therefore, the operating rights of reproduction, satellite broadcasting, and any other communication to the public by making available to him back.

2. However, under Article 14bis, paragraph 2, b) to d) and paragraph 3 of the Berne Convention, Member States have the option to include a provision giving directly (originally) and exclusively the rights of operation to the film producer, provided that

- Producer and director of the film have reached an agreement whereby the latter undertakes to contribute to the production of the film;

- It is possible to conclude agreements to the contrary, any rights of exclusive use or enjoyment of those rights to the principal;

- Member States shall ensure that, in this case, the author of the film, get fair compensation within the meaning of Article 17, paragraph 1, second sentence of the charter.

3. When Member States shall, under Article 5, paragraph 2 b) of Directive 2001/29, a limitation of the reproduction right of the author of the film, under Article 2 a) of Directive 2001/29, for reproductions for private use, they need to guarantee fair compensation. Once this is guaranteed, these provisions do not preclude a provision of national law originally attributed to the film producer duties on copies for private use.

4. Article 5, paragraph 2, b) and Article 2 a) of Directive 2001/29 must be interpreted as precluding a provision of national law, granting the right the author of the film to a fair remuneration for half respectively to the author and the producer, with the result that the author gets only half of the equitable remuneration".

This blogger is unwilling to comment on the basis of an unofficial translation, but he gets the impression that the Advocate General is recommending a creator-friendly and flexible interpretation of the relevant provisions. He invites those who are more linguistically competent to tell us what the Opinion really means.

By George, We’ve got Ourselves a Washington Declaration

Washington, D.C. is a busy place for copyright these days and not just on Capitol Hill.

At the end of last month, intellectual property experts from around the world gathered in the earthquake and hurricane afflicted city for the Global Congress on Intellectual Property and the Public Interest.  This particular blogger did not attend the Congress, preferring to stick to the earthquake-only danger zone of San Francisco.  However, readers can find a full report of the Congress from attendee Technolama here.

One of the accomplishments of the Global Congress was the creation of the Washington Declaration on Intellectual Property and the Public Interest, a document outlining the importance of reviewing the effects of changes made to the international intellectual property framework over the last few decades.

Summary

1. IP is important, but so are other types of rights, “including human rights, consumer protection, competition and privacy” and IP laws should be drafted within the framework of these other laws. [It’s good to see recognition that people must act within the confines of many different laws, not just IP laws. However, one must wonder about the ranking of these different types of laws. Why should IP laws be drafted within the framework of say, consumer protection laws? Why not the other way around?]
2. The public domain and openness are good things.  The public domain should be protected from further encroachment by term-lengthening and openness should be promoted.
3. Exceptions and limitations to intellectual property rights are important, especially when designed to assist people with disabilities or for creating archives.  Countries should have flexibility to implement them as fit for their jurisdiction.

4. Patent systems are out of wack and need to be redone.  New systems should encourage better incorporation of public interest priorities.

5. Creative contributions to society matter and “rewarding and empowering authors and artists may be needed.”  To this end, new methods need to be explored.  “Such innovation can help to end today’s fruitless disputes over practices like noncommercial file-sharing.”
6. Enforcement should be balanced; the punishment should fit the crime.
7. Development is still a key concern.  Not only should development be considered in new IP laws, developing countries should also be assisted in taking full advantage of existing opportunities.
8. New IP policies and laws should be based on research and evidence “rather than fait or ideology.”

Although the declaration does advocate scaling back some of the recent changes to intellectual property, it is not a pirate party type of manifesto.  The declaration is written and supported by a large group of intellectual property scholars and experts, and it asks for review, not for an overthrow of copyright.  The declaration recognizes the importance of intellectual property laws, “Intellectual property can promote innovation, creativity and cultural development.” But it also calls for a reexamination of current and proposed IP laws.

Many of the suggestions in the Washington Declaration are familiar, having come up in the context of the WIPO Development Agenda, a number of open licensing communities and many conversations this blogger has had with IP experts in Africa and Latin America.  Does this declaration represent a bigger push for change, and if so, are we getting close enough to the tipping point for an actual shift?

Those wishing to comment on or show their support for the Washington Declaration can do so at the above link. 

Photo: Washington D.C. cc-by John-Morgan available at http://www.flickr.com/photos/aidanmorgan/1470415503/