Meltwater appeal to go to Supreme Court

The 1709 Blog understands that the Supreme Court for the United Kingdom has granted permission to the Public Relations Consultants Association Ltd (PRCA) to appeal against the decision of the Court of Appeal in The Newspaper Licensing Agency Ltd & Others v Meltwater Holding BV & Others [2011] EWCA Civ 890 (noted on the 1709 Blog here), which affirmed the earlier decision of Mrs Justice Proudman.

The PRCA's appeal is on the question whether the act of accessing a web page (and the inevitable copies made in doing so) is covered by the temporary copies exception (as set out in the InfoSoc Directive and the UK's Copyright, Designs and Patents Act 1988, s.28A). The Court of Appeal held that the exception does not apply -- at least to any on-screen copy and possibly to further copies if occasioned by a voluntary human process.

Collection Societies - does the UK - or elsewhere - need minimum standards?

Well well well, a very interesting night at Portcullis House at the UK's Houses of Parliament with a distinguished panel, chaired by Eric Joyce MP, and with at least two senior judges in the audience, and three - yes three - 1709 bloggers in attendance! Lets take that last point first - as myself (Ben), the newly re-installed Amanda (Harcourt) and John (Enser) were all in attendance at the interesting discussion on the whys, where's and wherefores of Collection Societies in the digital age - in the UK - in Europe - and globally. The nice thing about this panel discussion was it wasn't all about content owners ..... was it?

The background was the Hargreaves Review and the preamble to the debate was this: The UK is one of only three countries in Europe which does not have statutory supervision and minimum standards for collecting societies. In his Review, Prof Hargreaves recommended “collecting societies should be required by law to adopt codes of practice, approved by the IPO and the UK competition authorities, to ensure that they operate in a way that is consistent with the further development of efficient, open markets.” The Government accepted this recommendation because, “like the Review, the Government has heard a range of concerns about the operation of copyright collecting societies in the UK and elsewhere: from members on questions of transparency and governance, and from licensees concerning what they see as heavy-handed, misleading or unfair practice in charging for usage of works.”

From my own point of view - the idea of NON statutory but voluntary codes of practice for collection societies seemed accepted - with certain riders. And they are important riders - mostly to stop collection societies wriggling of the hook! And there were a great many 'elephants in the room' and some but not all were explored in a busy debate. Whilst Dr Stef van Gompel, postdoctoral researcher at the Institute for Information Law (IViR) at the University of Amsterdam provided some much needed independent input and an European slant, it was up to Frances Lowe, head of regulatory and corporate affairs at PRS for Music, to make a number of well reasoned and articulate cases for her Society. I have to say that Frances really "took it on the chin for collection societies". It begged the question of 'why no PPL' comments – as PPL were seriously bashed by here by copyright users - and there were certainly PPL staff members present – but they were strangely silent. A reason we should know?? It was Brigid Simmonds OBE, chief executive of the British Beer and Pub Association (BBPA), and Chris Johnstone, head of legal at Music Choice, who made challenging and well reasoned presentations on where the ‘user’ comes from. Whilst still a tad music industry focussed, the panel discussion - and comments from the floor - made refreshing change - so often these debates don't involve 'users' at all, but seem focussed on IP law, content owners and IP lawyers

Perhaps the best received contributions came from our judges – with High Court judge Sir Richard Arnold pleading for a new Copyright Act, and copyright Tribunal Chair Colin Birss QC saying he could run the Copyright Tribunal more like a Copyright ‘Board’ – but he would need a bit of funding!

But the most interesting comments for copyright users came from Brigid Simmonds whose organisation successfully challenged a PPL tariff rise at the Copyright Tribunal (at some cost), resulting in a refund of £20 million for pubs, clubs and hotel who used recorded music. Brigid said that whilst broadly in favour of voluntary codes of practice, when looking at how these affect copyrjght users such codes need to be written by both the collection society AND representative bodies of users. I might go further – perhaps all collection societies should be driven by statute to create voluntary codes of practice self regulating both their relationship with members and with users - but in default of such an agreed voluntary code then one would be imposed ‘from above’. A statutory based code with key elements could be developed but then tailored to each collection society's (and users) particular circumstances. And one key provision of such a code affecting users would be that when any tariff was to be reviewed there must be a proper and well timed consultation and the questions posed in such consultation should be set and agreed by BOTH sides: Perhaps in these strained economic times when an increase in tariff is suggested by the collection society, two questions might always be 'why is the rate going up?'and ‘how can the society reduce the tariff?’.

I am assured that a newly written blog covering all of the night's frolics, fun and fantasies will be available on the PICTFOR website VERY shortly. The website is here at
http://www.pictfor.com/2011/10/copyright-collecting-societies-does-the-uk-need-minimum-standards/

Why BitTorrent for Dummies is biting Wiley

[Apologetic note: an earlier version of this post assumed that there wasn't such a title as BitTorrent for Dummies. There is -- and you can find it here. According to the website,

"This book not only shows you how to acquire BitTorrent, but also how to use it without picking up worms, viruses, and lawsuits".]

Bit-Torrent may pose a threat
to Wiley's format, but so too
does its vulnerability to
parody (here) ...

John Wiley & Sons has a number of lucrative product lines, few of which have been more high-profile than its much-loved For Dummies franchise.  How many of us have not at one time or another either surreptitiously picked one up in a bookstore and nonchalantly flicked the pages in search of a piece of information that we were too embarrassed to confess not knowing? And how many of us have at one time or another secretly wished that one of these useful tomes was available to relieve our anxieties on a topic that was new to our experience?

Anyway, one title which John Wiley and his corporate offspring must be ruing is BitTorrent for Dummies. According to Jim Milliott ("Wiley Goes After Bit Torrent Pirates", Publishers Weekly, 1 November) the company has filed a copyright infringement suit in the U.S. District Court for the Southern District of New York. All 27 defendants are John Does whom, the publisher claims, are illegally copying and distributing its For Dummies books through the use of BitTorrent file-sharing software. Right now, the 27 are identifiable only by their IP addresses -- and even their most intimate friends probably don't call them by those -- and by the names of their information services providers.

... and here

Wiley says the action is part of its overall anti-piracy programme which, like For Dummies books, is aimed at educating the public (it's also aimed at stopping people copying its content). The company is happy to settle its claims, which makes more commercial sense than litigating them, but the prospect of litigation is a good way of concentrating defendants' minds on agreeing to pay up by way of settlement. A spokesperson says that Wiley has not actually sued anyone, but is only filing the complaint as an administrative step in order to learn the names of the infringers. Wiley states that BitTorrent users on the demonoid.me site downloaded Photoshop CS5 All-in-One-for Dummies more than 74,000 times since 6 June 2010.

As an aside, this blogger notes the acute vulnerability of the For Dummies format to parody and wonders what steps Wiley may be considering taking in order to preserve the integrity of its brand.

Thanks, Chris Torrero, for the link.

Current copyright issues: two new titles

Law Applicable To Copyright: A Comparison of the ALI and CLIP Proposals is the title of  relatively compact and very serious piece of scholarship from Rita Matulionyte (Leibniz Universität Hannover, Germany). In essence, it is the author's doctoral thesis, submitted in late 2009, defended in mid-2010 and updated till December 2010. There was a time when publishers would avoid doctoral theses like the plague. Fortunately those days are long past and books -- including some but fortunately by no means all doctoral theses -- are published on the basis of their genuine merit.

But what is this book all about? To anyone who is not at home with acronyms the title gives little away. However, as the publisher's web page explains

"This book discusses the problems of applicable law in international copyright infringement cases and examines the solutions proposed to them in the recent projects by the American Law Institute (ALI) and the European Max Planck Group for Conflict of Laws and Intellectual Property (CLIP). 

In particular, the book analyses how the territoriality principle and the lex loci protectionis rule are applied in traditional, broadcasting and online cases in selected European and US jurisdictions. It then evaluates whether the rules on ubiquitous infringement, de minimis, initial ownership and party autonomy, as proposed by ALI and CLIP, address the identified problems. 

This detailed and thorough study will appeal to academics, researchers, postgraduate and doctorate students, as well as to EU and international policymakers in the field of intellectual property and international private law". 

The author generally welcomes the initiatives both of the ALI and the CLIP, though she draws attention to the fact that the most problematic issue they face is that of the initial ownership of copyright -- a point on which the two approaches diverge: the CLIP proposal opts for a 'multi-law' solution, while the preferred choice of the ALI is a 'single law' approach. Neither, she feels, considers the interests of the work exploitation and the protection of the creator in a sufficiently balanced manner.

Dr Matulionyte should be congratulated for the care with which she has navigated her way through a technical, and for many copyright enthusiasts, dry subject. This book may not influence policy-makers, since it was not written by Cliff Richard or published by a lobby group-- but it will certainly help policy-makers understand the ramifications and possible consequences of what they do decide, should they choose to take a look at it.  With the addition of a table of cited cases and legal materials, it would help a number of practitioners too.

Bibliographic details: publisher: Edward Elgar Publishing. xi + 275 pages. Hardback 978 0 85793 428 4. Price £75.00 (online purchase price from the publisher £67.50).  Web page here. Also available as an e-book (details on web page).

Copyright In The Information Society: A Guide to National Implementation of the European Directive, edited by Brigitte Lindner (Rechtsanwältin, Member of the Bar of Berlin, Germany, Registered European Lawyer, Lincoln’s Inn, London) and Ted Shapiro (Massachusetts attorney, non-practising Solicitor, England and Wales, and denizen of Brussels), is a very different sort of book. The publisher's web page gives a clue:

"Celebrating the tenth anniversary of the Directive 2001/29/EC on copyright in the information society [and just how many people did celebrate it?], this book sheds new light on an important European legal instrument at a crucial stage – not only in the life of the Directive, but indeed for copyright itself. 

With a foreword by the ‘architect’ of the Directive, Dr Jörg Reinbothe, the book contains two further stage-setting parts, first on the WIPO Treaties which formed the basis for the Copyright in the Information Society Directive, and then on the Directive itself. The challenges created for regional and national legislators are also explored and identified, as are the complex compromises and varying levels of discretion left to these lawmakers as they performed their legislative tasks. The local nuances and particularities of the implementation of the Directive in each Member State are examined in detail via 27 diverse and compelling narratives. 

Combining academic research with practical features, and addressing copyright issues on international, European, and EU Member States levels, this highly illuminating work will strongly appeal to a wide ranging audience encompassing: academics, researchers and post-graduate law students in the area of international, European and comparative copyright law, in-house counsel legal practitioners, policymakers and government officials".

The team of national contributors is long and impressive. Looking at the list of names, reflecting so many skills and indeed nationalities, one cannot but think of the current Manchester City football squad in pursuit of success -- or the crew of the Pequod in pursuit of Moby Dick. The publisher states that the assembled authorities have provided "27 diverse and compelling narratives"; this reviewer respectfully submits that "diverse and/or compelling" might be a better description since some are compelling and some are diverse, while others again are both. It is difficult to achieve the sensation of true diversity when putting together a compilation in which, inevitably, the same provisions of the Directive just keep getting mentioned. However, diversity is there for the reader to behold if he is prepared to look for it: it is apparent that some of the contributors are more reverential  about the sacred task of implementation, while others have given their chapters a more sceptical flavour. Which authors display which characteristics? You have to read the book and see!

Bibliographic details: publisher: Edward Elgar Publishing. xlvi + 598 pages. Hardback. ISBN 978 1 84980 010 5. Price £140 (online price from the publisher's website £126). Web page here.

ALAI Germany: Conference on Orphan Works

Most aficionados of international and comparative copyright law will be familiar with ALAI (Association littéraire et artistique internationale), founded by Victor Hugo in 1878. During my time in London, I greatly enjoyed the meetings of the British branch of ALAI, BLACA (British Literary and Artistic Copyright Association) and would highly recommend them to anyone interested in copyright and conversation. Incidentally, the next meeting is scheduled for Monday (see BLACA homepage here).

Unfortunately, these days I would have to catch a plane instead of strolling down the Thames path in order to attend a BLACA meeting, so it gives me great pleasure to announce that its German sibling, ALAI Deutschland e.V., has organised a conference on orphan works in my current town of residence, Frankfurt am Main. The conference will take place on 30 November and is entitled "Verwaiste Werke im europäischen und deutschen Urheberrecht" (orphan works in European and German copyright law). As you can deduce from the title, it would probably be a good thing to possess some German language skills if you wish to attend.

The conference starts at 2 pm with a welcoming speech and introduction by Professor Reto Hilty (Max Planck Institute for Intellectual Property and Competition Law) and Professor Alexander Peukert (Goethe University Frankfurt). It will be followed by a number of statements on orphan works by representatives of the German book trade and film industry, the German National Library and the German Film Institute, collecting society VG Wort, and the Federal Ministry of Justice. Afterwards, there will be ample time for discussion (one and a half hours, to be precise) before the conference ends at 6 pm.

Participation is free for members of ALAI Deutschland e.V. and members of Goethe University Frankfurt; the fee for anyone else is EUR 50. The venue is Room 1.802 in the Casino on the beautiful Campus Westend of Goethe University Frankfurt (see photographs here and map of the campus here).

Needless to say, I would be delighted to see you there!

RSVP:
Prof. Dr. Alexander Peukert, Senckenberganlage 31, 60325 Frankfurt am Main, Germany
Fax: +49-69-798-22763
E-Mail: hofmann(at)jur.uni-frankfurt.de

Pearl Diving At Your Own Risk

Actual Pearls

Cultural Pearl

The Higher Regional Court of Frankfurt am Main (OLG Frankfurt) has been keeping busy of late. It has not only had to deal with the umpteenth instalment of the bunny wars (for those interested in trade mark law and/or chocolate, see Birgit's IPKat post here), but with copyright issues as well. Almost a year ago, I reported on the 'Perlentaucher' ('pearl divers') decision by the Federal Supreme Court (BGH) (see my earlier post here), concerning abstracts of book reviews and whether such abstracts constitute free use of the original review (section 24 German Copyright Act) or an infringement. The BGH reversed and remanded the case to the OLG Frankfurt after giving some general guidance and reminding all concerned about that old copyright favourite, the idea/expression dichotomy.

In a rare press statement (here), the OLG Frankfurt announced that it partly allowed the claimants' appeal (a change of heart, see its 2007 judgment in the same case here). It held that some of the abstracts were indeed infringements in the form of 'unfree' adaptations of the original reviews because they more or less consisted of especially distinctive and expressive passages from the original reviews, only omitting a few sentences.

The court's press office was quick to state that no general conclusions can be drawn from the case, but that the extent to which a book review may be freely copied or adapted is a matter of fact and degree in each individual case. Since that is certainly correct but not very helpful, I shall take a look at the judgment once it becomes available and let you know if it contains any hidden pearls of wisdom...

Printers, plotters and pronouncements: more work for the Court of Justice

The 1709 Blog has received, via the UK's Intellectual Property Office (IPO), notification of what appear to be four new and related cases referred by the German Bundesgerichtshof to the Court of Justice of the European Union for a preliminary ruling: Cases C-457/11 to  C-460/11 VG Wort and others. No details of this reference appear so far on the Curia website, but the IPO explains that the reference concerns the question whether printers and plotters (devices by which graphics can be reproduced) are among the reproduction devices on which remuneration for copyright is to be paid.

"1. In interpreting national law, is account to be taken of the directive [this would appear to be Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society] in respect of events which occurred after the directive entered into force on 22 June 2001, but before it became applicable on 22 December 2002? 

2. Do reproductions effected by means of printers constitute reproductions effected by the use of any kind of photographic technique or by some other process having similar effects within the meaning of Article 5(2)(a) of the directive? 

3. If Question 2 is answered affirmatively: can the requirements laid down in the directive relating to fair compensation for exceptions or limitations to the right of reproduction under Article 5(2) and (3) of the directive, having regard to the fundamental right to equal treatment under Article 20 of the EU Charter of Fundamental rights, be fulfilled also where the appropriate reward must be paid not by the manufacturers, importers and traders of the printers but by the manufacturers, importers and traders of another device or several other devices of a chain of devices capable of making the relevant reproductions? 

4. Does the possibility of applying technological measures under Article 6 of the directive abrogate the condition relating to fair compensation within the meaning of Article 5(2)(b) thereof? 

5. Is the condition relating to fair compensation (Article 5(2)(a) and (b) of the directive) and the possibility thereof (see recital 36 in the preamble to the directive) abrogated where the rightholders have expressly or implicitly authorised reproduction of their works?"

If you would like to make any comment on this case to the IPO, which in turn might just precipitate UK involvement, you have until next Monday, 7 November 2011, to do so. Just email Policy here and say your bit.

This blogger's guess is that the court might just find itself taking a look at its earlier decision in Case C-462/09 Thuiskopie v Opus -- where the remuneration mechanism was considered but the EU Charter of Fundamental Rights was not.

Copyright Debate: Is NLA v Meltwater the end of browsing?

Making a debating point --
or hailing a London taxi ...?

It all seems a bit sudden, but in not much more than two weeks from now there will be a free-to-attend copyright debate on the motion "Is NLA v Meltwater the end of browsing?"  The date is Tuesday 15 November 2011 and the two sides will lock horns from 5.15pm to 7.00 pm. The venue is the London office of Baker & McKenzie LLP.

1709 Blog team member Jeremy will be taking the chair. Speaking for the motion are Professor Andrew Murray (London School of Economics) and Dr Neil J. Wilkof (head of Intellectual Property, Herzog Fox & Neeman).  Ranged against them are Dominic Young (blogger and former director and chairman of the Newspaper Licensing Association) and Justine Pila (lecturer at Oxford University).

Why should you attend this debate? As the hosts explain:

The Court of Appeal for England and Wales recently upheld the High Court's judgment that users of commercial news aggregation services infringe copyright when they click on links to articles (The Newspaper Licensing Agency Ltd and others v Meltwater Holding BV and others [2011] EWCA Civ 890, 27 July 2011, on which see earlier 1709 Blog posts here, here and here). As a result anyone who clicks on an internet link creates an infringing copy of the webpage on their computer screen unless they have a licence. 

The Supreme Court's decision as to whether they will accept an appeal from this decision is eagerly awaited, but in the meantime the question that arises is: Is NLA v Meltwater the end of browsing as we know it?

To attend, email Naomi Harrison here and hope there's still room since space is limited.

The debate is CPD-accredited for 1 hour and 30 minutes - Solicitors Regulation Authority Authorisation 009/BAMC