Jurisdiction in France over acts committed in Italy: Cour d'appel fights Cour de cassation

For a variety of reaons (added burden of proof in having to show bad faith, turning over control of the case to a public prosecutor) criminal copyright decisions by the Supreme Court (Cour de cassation) tend to be less common than civil infringment decisions in France. One such ruling came on November 29, 2011 and, what's more, involved issues of private international law, making it all the more noteworthy.

An Italian national took the liberty of reproducing an article written by someone else (also Italian) for the French daily "Le Monde" and publishing it in the paper and electronic versions of the Italian newspaper "Il Foglio". Criminal copyright infringement proceedings ensued and before the trial court the accused argued that French courts did not have jurisdiction (as the infringing acts occurred in Italy in his view). The trial court disagreed and found him guilty. This was upheld on appeal. In a decision handed down in 2008 the Cour de cassation reversed and faulted the appellate court for not having verified that the infringement had actually occurred in France and remanded the case back to the Court of Appeal.

In its subsequent decision of November 2009, the Court of Appeals, noting that Le Monde was a French entity, again held that French courts had jurisdiction and affirmed the trial judgment. Its reasoning was based on Section 113-7 of the French Criminal Code which provides:

"French criminal law applies to any crime as well as any misdemeanour punishable by imprisonment committed by a French national or by a foreigner outside the territory of the Republic where the victim is a French national at the time of the infraction."

In its most recent ruling, the Cour de cassation again reversed, stating that under the Berne Convention (article 5.2) the protection afforded an author is determined by the law of the state where such protection is sought, which means the law of the State on whose territory the infringing acts took place and not that of the state where the harm was suffered. Moreover, it stated, the commission of the infraction on the territory of the Republic is a constituent element of the infraction. The Court therefore found that given that the infringement occurred outside of France the Court of Appeal had misapplied the aforementioned principle.

The Cour de cassation's dicta regarding the meaning of the rule laid down in article 5.2 of the Berne Convention is of particular interest because a number of recent rulings by lower courts have suggested that the rule allowed for application of either the law of the State where the alleged infringment occurred or that of the State where the harm was suffered. It will be interesting to see how the lower courts interpret this most recent pronouncement by the Supreme Court on this point (bearing in mind the particular context of this case (criminal) and the fact that there is no principle of binding stare decisis in French law).

Copyright ban over Hitler's Mein Kampf

As reported by Der Spiegel, British publisher Alberta's Peter McGee wishes to sell excerpts from Hitler's Mein Kampf in Germany.

Plans to re-publish an annotated version of Hitler's autobiography for educational purposes in schools and universities in 2015 (when the copyright currently held by the Bavarian state government expires) had been announced back in 2010. However, since then, the Bavarian government has opposed the plan, citing respect for victims of the Holocaust. The Bavarian Finance Ministry said that permits for reprints would not be issued, at home or abroad and the republished book might be banned as Nazi propaganda, reports Wikipedia. 

The first of three 16-page extracts from the Alberta proposed publication, accompanied by a critical commentary, will be published later this month with a print run of 100,000 each and distributed as a supplement to the Alberta's existing weekly publication, a controversial series called Zeitungszeugen, or "Newspaper Witnesses", which reprints pages of Nazi newspapers from the 1920s and 1930s, along with a commentary. The authorities in the state of Bavaria confiscated more than 3,000 copies of Zeitungszeugen and pressed charges against McGee for publishing the texts. However, in 2009 a Munich court ruled that, although the publication of Nazi propaganda is illegal, McGee was not infringing the law because his intention was not to whip up racial hatred. The judges also ruled that printing Nazi swastikas from the original mastheads, which are generally outlawed in Germany, was legal in an educational context, reports The Local.

The front cover of Alberta's Mein Kampf should feature a photo of Hitler with a black bar obscuring his eyes and a headline that translates to "The unreadable book." This would be the  first publication of the book in Germany since 1945.

"It is a sensitive subject in Germany but the incredible thing is most Germans don't have access to 'Mein Kampf' because it has this taboo, this 'black magic' surrounding it," said McGee to Reuters. "We want 'Mein Kampf' to be accessible so people can see it for what it is, and then discard it. Once exposed, it can be consigned to the dustbin of literature," 

The Bavarian state finance ministry opposes Alberta's plans, claiming that the publication of Mein Kampf would be tantamount to copyright infringement. "The Bavarian finance ministry is currently considering legal steps against this publication" a spokesman for the ministry said in a statement.

McGee regards this as nonsense, reports Der Spiegel. "Mein Kampf is an extremely bad book, it is badly written, has awkward language and no internal logic" he said. "The thoughts are strewn across the whole book." But he added that one can only recognise its insanity if one confronts the text.

The President of Germany's Central Council of Jews said he hoped that the reprints would ‘demystify" the book. "I'm an Internet junkie myself" he said. "Everyone can already find the book on the Web." However, an American Jewish group on Tuesday said the publication plans may be morally offensive. 

Its Ours and You Can't Play With It - Even If You Don't Want To!

The US IIPA has demanded that the US Congress exclude Canada from the Trans Pacific Partnership negotiations until such time as Canada responds to US concerns about Canada's copyright regime. In addition, sounding crosser and crosser, the IIPA is unhappy about Canada's use of a cultural argument to limit access to Canadian markets of US "copyrighted (sic) materials" reports Ottawa-based blogger Michael Geist.

301 Watch List here

Ontario's 401 here

701 here

and for the musical 801 here

Happy Birthday InfoSoc Directive

At the European Parliament in Brussels last Friday, Marielle Gallo, CRIDS and IVIR hosted a birthday celebration to mark ten years since the arrival of Directive 2001/EC/29 . A star-studded line-up, in true birthday speech tradition, revisited the Directive's past and pondered on its future.

The Directive's achivements to date were reviewed by Dr Lucie Guibault who identified gaps in community harmonization ( adaptation rights, moral rights) and regretted that the broad brush approach of optional limiutations for Member States had led to cherry picking and variance in the scope of limitations and exceptions by some States. Flexibility of limitations and exceptions were considered by Prof Martin Senfteleben, who expressed concern that mash-ups and UGC were not accommodated in the Directive.

Prof Lionel Bentley, a a presentation called "Harmonization by Stealth", demonstrated how the ECJ has, in cases such as the key Case C-5/08 Infopaq Int v Danske Dagblades Forening (2009) provided a definition of originality despite individual Member States having their own legislative or, (in the case of the UK) common law, definitions. What constitutes "a work", "a part" and "adaptation" have similarly been the subject of the ECJ's attention. Prof Bentley mischievously proposed that the ECJ had employed 5 techniques for their "stealth" tactics:

1. If in doubt all concepts are European
2. Dismissing Other Sources
3. Reliance on International Law
4. Systematic Interpretation and
5. Rewriting the Question.

One hopes Professor Bentley will publish a formal version of his very lively presentation.

US visitor, Prof Justin Hughes from Cardozo Law School in NY gave us a trans-Atlantic view of the birthday boy (or girl) -" largely uninterested" - and, in regard to the Berne 3-Step Test, reminded guests of the encouraging US Charming Betsy Doctrine whereby US national law should be interpreted so as not to conflict with international law.

Maria Martin-Pratt's outline of the EC DG Market Copyright Unit's agenda was followed by Prof Christopher Geiger from the Unibersity of Strasbourg. Prof Geiger led guests through the benefits of the Lisbon Treaty and the Charter of Fundamental Rights and the manner in which they confer a specific competency on the EU to creat a truly unified EU copyright law and, interestingly, by qualified majority of the Member States.

Harmonization was revisited by Prof Bernt Hugenholtz from the University of Amsterdam by reference to The Good (eg. an emergence of common principles), The Bad (costs of a complex legislative p[rocess, and slow responses to technological development) and The Ugly (lack of both transparency and formal academic or independent advice - the latter of which the WITTEM Project seeks to address). It was slightly alaming from the perspective of the English-speaking music catalogue to hear a lauding the advantages of the cultural subsidies in Continental Europe drawn from collecting societies' foreign revenues. These subsidies and the discriminatory pension payments which are enjoyed by composers and publishers in Continental Europe are largely funded by British and American creators' works - yet these same funders sadly enjoy none of the benefits.

It was left to Prof Severine Dusollier, from the University of Namur and the Director of CRIDS, to enchant with some truly creative ponderings about the purpose of copyright and, in a cleverly horticultural framework, pose some fresh models for all those locked in the "back to basics/new business models" debate.

All that remains is to ask whether the speakers will be developing their arguments and making them available more widely for the benfit of us all.

Murdoch v Obama, Google v Murdoch

Further updates on the ongoing debate over the Stop Online Piracy Act (SOPA), after the Obama administration responded on Saturday to the "VETO the SOPA bill and any other future bills that threaten to diminish the free flow of information" petition and made it clear that, though online piracy by foreign websites is a serious problem that requires a serious legislative response, it will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet (full response was reported by this Blog here).

Right away, on Saturday night, Media mogul Rupert Murdoch embraced the arms of his Twitter account to blast President Obama for throwing "his lot with Silicon Valley paymasters who threaten all software creators with piracy, plain thievery." 

He also used a couple of tweets to attack Google: "Piracy leader is Google who streams movies free, sells advts around them. No wonder pouring millions into lobbying." and added "Film making [is as] risky as hell. This has to lead to less, hurting writers, actors, all concerned."  

As noted by The Hollywood Reporter, considering Murdoch was airing his complaints on the Internet, he didn't exactly find a sympathetic audience.

Captain Hook reading latest SOPA updates 

In an e-mail sent to CNET on Sunday afternoon, Google responded to Murdoch's statements.

"This is just nonsense," wrote a Google spokeswoman. "Last year we took down 5 million infringing Web pages from our search results and invested more than $60 million in the fight against bad ads ... We fight pirates and counterfeiters every day."

Google said it thinks there are better methods to fighting piracy than those sought by copyright owners: "We believe, like many other tech companies, that the best way to stop [pirates] is through targeted legislation that would require ad networks and payment processors--like ours--to cut off sites dedicated to piracy or counterfeiting."

The USA's SOPA- hot off the press - can it be true?

If the examiner.com is to be believed, US Congressman Eric Cantor (Republican) has announced he will stop all action on SOPA. More news on Techdirt.

It's just a game of keepy uppy

The music, film and television industries’ recent successes in fighting illegal file sharing by promoting both legislative change and winning court decisions such as Newzbin2 and the recent Dutch Courts decision to block access to The Pirate Bay are all well and good for content owners, but in the fast moving world of the internet things don’t stay still for long and news now reaches the 1709 Blog that The Pirate Bay will start linking by default to 'magnet' rather than BiTorrent downloads in what can only be seen of as a move to avoid user and file detection. Whilst BitTorrent links will still be available (being the currently preferred option for downloaders, both legal and illegal), they will be a secondary option for the time being. The magnet system makes user and file identification even harder and it is expected that The Pirate Bay will now phase out traditional BitTorrent file-sharing (although comments on their Blog suggest this may not be that easy).

And controversial US streaming platform Grooveshark, no stranger to the 1709 Blog and currently facing legal actions from all four major record labels, has just launched a new HTML5 app making it easier for music fans to access the service on their smartphones. Grooveshark had already launched apps for both the iPhone and Android-powered devices, but Apple and Google banned them from their respective stores. The new app seems a clever way to keep fans using the service.

http://thepiratebay.org/blog and http://venturebeat.com/2012/01/13/grooveshark-html5-mobile-app/

The world record for keepy uppy (uppie) is held by Dan Magness of England, a 25 year old professional freestyler, who kept a regulation football aloft for 26 hours using just his feet, legs, shoulders and head; he completed the feat - which took place in Hong Kong, in June 2010.

Hungary like the wolf

Under Hungary's presidency of the European Union in the first half of 2011, the European Commission successfully introduced the extension in the copyright term for sound recordings, increasing protection from fifty years to seventy years whuch was passed as a EU Directive in September 2011. But now Hungary is focussed on a far more local spat over copying - with allegations that Hungarian President Pal Schmitt plagiarised a Bulgarian academic's work for his doctoral thesis on the Olympics. Schmitt, 69, is a former Olympic fencing champion, and has been accused by HVG magazine (hvg.hu) of copying 180 pages of his 215 page 1992 dissertation on the Olympics in the modern age from earlier work by Nikolai Georgiev. A spokesperson for Schmitt said that the dissertation had been examined by professors at the awarding institution, the University of Physical Education and had been awarded the highest academic honours, and as both Schmitt and Georgiev were members of the International Olympics Committee (IOC), they knew each other well, had previously co-operated on research and had both used IOC documents in their work. Karl Theodor zu Guttenberg, Germany's defence minister, was forced to resign last year after it emerged he had copied part of his PhD thesis.

Schmitt is a close ally of Hungarian Prime Minister Viktor Orban who last year passed new media regulations promoting "balanced views" in Hungarian media and prohibiting coverage that might be deemed offensive to public morality or detrimental to human dignity - all overseen by a Media Council which consisted only of members of Orban's Fidesz party.

see http://www.musiclawupdates.com/?p=1210