China prioritises IP enforcement and administration

The China Daily reports that “Piracy has long been staining the reputation of China on intellectual property rights protection. However, thanks to government crackdowns and public awareness, things have changed for the better.” In late January, Chinese Vice-Premier Wang Qishan called for more efforts to fight copyright infringement and counterfeit products in China and Wang, also a member of the Standing Committee of the Political Bureau of the Communist Party of China Central Committee, stressed that the crackdown on intellectual copyright infringement and counterfeit products was an important task that should be intensified for the long term, pointing out the accelerated pace of enforcement over the last two years aimed at curbing illegal activities.

The manufacture and sale of counterfeit products and copyright infringement has long been a serious problem in the country, and two recent news reports caught my eye: In the first, the China Daily reported that a defendant, Wan Yongshen,  had  been sentenced to six months in jail and fined 2,000 yuan ($320) in the Haidian District People's Court in Beijing. Wan was convicted of illegally publishing copies of the works of Mo Yan, winner of last year's Nobel Prize in literature. The National Office Against Pornographic and Illegal Publications (NOAPIP)  said that Wan Yongshen published 3,000 illegal copies of Mo's books. The maximum sentence available to the court was seven years (substantially more for [publishing pornographic material). 

In the second case, the local authorities in Central China's Henan province raided a publishing house suspected of printing pirated books and found some 20,000 illegal copies. According to NOAPIP, they informed local authorities about the case after being tipped off by a letter in November. Local law enforcers in Zhoukou city then raided Longtu Printing Company and confiscated the alleged illegal publications, most of which were "driving test guidance books". The case has been transferred to police for further investigation "considering its seriousness", said local authorities.

NOAPIP reported it had been involved in fighting 36 important copyright cases, including Wan's case, in 2012, in cooperation with the Ministry of Public Security, National Copyright Administration, the Supreme People's Court and the Supreme People's Procuratorate. NAOPIP also disclosed 10 most common forms of copyright infringement cases that it fought in 2012. Among them, the most serious punishment handed out was an 11-year prison sentence in Tianjin, while the highest fine was 3.2 million yuan, for a copyright case in Harbin, Heilongjiang province. In early 2011, police arrested more than 4,000 people suspected of IPR violations in a nationwide crackdown; The Ministry of Public Security announced that vendors of illegally copied films, music or other copyright products online will face up to three years in jail. NOAPIP  said that in 2012, 5,331 copyright infringement cases had been brought nationwide and more than 40 million pirate items confiscated or destroyed.  45 million illegal publications were confiscated and more than 15,000 related cases were handled in China in 2012. In February 2012, the country launched a nationwide campaign against online piracy, during which authorities investigated more than 2,800 cases, involving 7.74 million yuan ($1.23 million), and withdrew certificates from at least 36 websites and companies.  China's Ministry of Culture announced  that it has opened investigations into 185 websites over suspicions of piracy and other illegal operations. The websites include 72 music websites, 67 animation sites and 46 gaming sites. The key target for 2013 will be piracy by online bookstores, e-commerce platforms and online auction websites.  

On the other side of the coin, a record-high number of 139,228 software copyrights were registered in China in 2012, according to the National Copyright Administration Agency. Beijing topped all municipalities and provinces with 39,125 registrations, followed by Guangdong and Shanghai. Software copyright registrations related to cloud computing contributed 1,946 filings, up 118% on 2011. The National Copyright Administration Agency also called on Chinese collection societies to “enhance their performance and transparency to better protect copyright holders”. With a history of just 20 years, collection societies are relatively new.  The Music Copyright Society of China was first established in 1992. Another four collective management organizations were founded in the past six years. Acknowledging that there were still serious issues with the systems already in place,  Yan Xiaohong, vice-director of the National Copyright Administration said "The collective management organizations need to improve their management level, and be more professional and transparent to better serve their members." and look to collection societies in developed nations for inspiration and guidance.

http://www.chinadaily.com.cn/business/2012-11/06/content_15880293.htm
http://www.bernama.com.my/bernama/v7/wn/newsworld.php?id=942807

http://africa.chinadaily.com.cn/china/2013-04/16/content_16409471.htm

http://www.chinadaily.com.cn/china/2013-01/20/content_16145813.htm

And an interesting judgment and judge's opinion on the protection of traditional folklore works in China, in the absence of statutory protection: http://www.chinadaily.com.cn/m/cip/2011-12/28/content_14344619.htm

Canadian collecting society wages war on fair dealing

Last year, further to the Canadian Supreme Court's clarification on the application of fair dealing to research and private study (see Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37), several Canadian universities opted out of collecting society Access Copyright's model copyright licence. Access Copyright has now responded by suing Toronto's York University for copyright infringement.

Access Copyright's approach is three-pronged:

1. It claims that York's purported fair dealing guidelines authorise and encourage copying that is not supported by the law, and that there is no justification for York to operate outside the interim tariff (see its Statement of Claim).

2. It has filed an interim elementary and secondary school education tariff application with the Copyright Board of Canada. The application seeks an effective enforcement mechanism against the ministries of education and Ontario school boards for their stated intention to stop paying the royalties set by the Copyright Board.

3. It has filed a proposed secondary tariff with the Copyright Board of Canada for the period of 2014‐2017.

York is not the only university to have opted out and Access Copyright claims to be monitoring all those that have. The University of British Columbia, which felt that Access Copyright's costs were not justifiable, has gone to the effort of opening its own copyright clearance office just to ensure that it complies with copyright laws.

The backlash is understandable: according to CTV News, Access Copyright's new deal would require educational institutions to pay the collecting society CAD 26 per full-time student annually up from the previous rate of CAD 3.38, plus a 10 cents per page royalty for copying protected works.

Access Copyright says that these legal actions are a last resort and that it believes in "a strong and vibrant culture of writing, publishing, reading, teaching and learning in Canada and is exploring new ways to meet the needs of teachers and students in this new digital learning environment."

It seems to this blogger however that this is another case of a collecting society having difficulty adapting to the digital world, where per page tariffs just don't work. Access Copyright alleges that York's fair dealing guidelines are "arbitrary and unsupported" causing Michael Geist, law professor at the University of Ottawa, to say:

"To suggest that a modest fair dealing policy based on Supreme Court jurisprudence and legislative reforms is "arbitrary and unsupported" is more than just rhetoric masquerading as legal argument. It is a declaration of war against fair dealing."

Breaking news: CISAC, others, gain partial cancellation of Commission decision

The General Court (Sixth Chamber) of the European Union has just given its keenly-awaited judgment in Case T‑442/08 International Confederation of Societies of Authors and Composers (CISAC), supported by European Broadcasting Union (EBU) v European Commission. According to the Curia media release:

The General Court partially annuls the Commission decision finding anti-competitive conduct on the part of copyright collecting societies

The International Confederation of Societies of Authors and Composers (CISAC) is a non-profit non-governmental organisation which represents, in over a hundred countries, collecting societies managing copyright relating to, inter alia, musical works.

The collecting societies acquire the management of those rights either by direct transfer from the authors or by transmission from another collecting society managing the same categories of rights in another country. They grant exploitation licences to commercial users, such as broadcasting undertakings or organisers of live shows. The prices of those licences are the source of the royalties that the authors receive, after the management expenses of those collecting societies have been deducted.

In 1936, CISAC drew up a model contract for reciprocal representation agreements between its members. That contract serves as a non-binding model for reciprocal representation agreements concluded between its members for the purposes of conferring licences covering public performance rights of musical works. Each collecting society agrees, reciprocally, to confer the rights over its repertoire to all of the other collecting societies for the purposes of their exploitation in the respective territories of those collecting societies. Because of the network created by all of those reciprocal representation agreements, each collecting society can propose a worldwide portfolio of musical works to commercial users, but only for use in its own territory. In 2000, RTL lodged a complaint with the Commission against a member of CISAC concerning its refusal to grant it a Community-wide licence for its music broadcasting activities. In 2003, Music Choice Europe, which provides radio and television broadcasting services on the internet, lodged a second complaint against CISAC concerning its model contract.

By its decision of 16 July 20081, the Commission prohibited 24 European collecting societies from restricting competition, in particular by limiting their ability to offer their services to authors and commercial users outside their domestic territory. The Commission decision, which concerns solely the exploitation of copyright via the internet, satellite and cable retransmission, does not call into question the very existence of reciprocal representation agreements. It does, however, prohibit: - membership clauses: clauses in the model contract which restrict authors’ ability to affiliate freely to the collecting society of their choice;

- exclusivity clauses: clauses in the model contract which have the effect of providing all collecting societies, in the territory in which they are established, with absolute territorial protection vis-à-vis other collecting societies as regards the grant of licences to commercial users;

- a concerted practice which was found to exist between the collecting societies and by which each collecting society limits, in the reciprocal representation agreements, the right to grant licences relating to its repertoire in the territory of another collecting society party to the agreement.

The Commission did not impose fines on the collecting societies but did require that they remove the clauses in question from the model contract and bring an end to the concerted practice. Most of the collecting societies concerned and CISAC brought an action before the General Court of the European Union against the Commission’s decision.

By today’s judgments, the General Court annuls, for CISAC and for 20 of the collecting societies concerned, the Commission’s decision in respect of the finding of the concerted practice [nb At the end of the media release, but not reproduced here, is a list of the outcomes of all 22 actions consolidated in this action, together with a 'scorecard' indicating the outcome. In that respect, the General Court considers that the Commission has not provided sufficient evidence. The Commission, first, did not have documents proving the existence of concertation between the collecting societies as regards the territorial scope of the mandates which they grant each other and, secondly, did not render implausible the applicants’ explanation that the parallel conduct of the collecting societies at issue was not the result of concertation, but rather of the need to fight effectively against the unauthorised use of musical works.

The General Court rejected the applications in so far as they sought the annulment of the Commission decision in respect of the membership and exclusivity clauses.

As regards the Stim case, the General Court rejected all of the arguments put forward by that collecting society, which had not raised in sufficient time the issue of the lack of proof of the concerted practice.

iCopyright: what do you know?

This blogger received today an email introducing him to iCopyright, the website for which you can check out for yourself here.  Having not come across iCopyright before, he wonders whether readers of the 1709 Blog might be familiar with it and/or may have tried its digital tagging services, digital licensing tools and the rest of the package. From the copyright notice, it appears that iCopyright has been around since 2010 so it must presumably have some track record. For the record, its home page carries the following message:

"A digital content world requires a new toolkit. Build in copyright protection – and much more.

The iCopyright Toolbar adds built-in copyright protection to every article or blog post. When readers click the toolbar, a digital “tag” ensures that your © follows your content across the web.

The toolbar also has built-in licensing and syndication tools, to turn your best content into dollars, when a link isn’t enough. Even tracks down content piracy, with our optional Discovery duplicate content monitoring service.

31 million articles and blog posts already have the FREE iCopyright toolbar. Install the toolbar, today".

If you have any knowledge or experience of iCopyright, do post your comment below.

Filmhub: Richard O'Dwyer's new venture

Richard O'Dwyer has been in the news quite a bit over the last few years. He was arrested on criminal copyright charges after starting TVShack, a website which made him £140,000 by providing links to illegal television and film download sites.

The Westminster Magistrate Court's found that there were direct consequences of criminal activity by Richard O'Dwyer in the USA, even though he had never left he UK, meaning that O'Dwyer should be tried in the US rather than the UK. Home Secretary Theresa May then rubber stamped the application and  O'Dwyer only narrowly escaped extradition  and criminal trial in the US by entering into a plea bargain, agreeing to attend the USA to visit a court and to pay over a limited amount of compensation.

One might have thought that O'Dwyers adventures in copyright law would end there. But no, the latest news is that he is now working on the launch of a new video streaming portal called Filmhub.

According to TorrentFreak, Filmhub will enable television and film enthusiasts to stream and discover video content from the major networks and studios. O'Dwyer's selling point is a "discovery engine" that makes personal recommendations, allowing users to find content relevant to them. It's not clear exactly how Filmhub will work - afterall Netflix, Amazon and Lovefilm already make recommendations for their users, based on users' previous film choices - but it seems that Filmhub will be authorised to aggregate content from these three providers, making it a one-stop shop for film and televsion.

O'Dwyer says:

"It could be described as a hub to manage everything you’re watching and wish to watch. What you like and dislike. And importantly delivering Movie & TV suggestions personalized to your own taste and current mood, with features to connect with others and share your opinions.

The aim with Filmhub is to bring everything into a single reliable source the community can build upon."

O'Dwyer says that he has learnt from his adventures in copyright law over the last few years and that "hopefully this new project is a way to give back to everyone."

Watch this space.

Copyright and Parasitism in the French Art World

                                                                 

Who are you calling a copycat?

The Paris Court of Appeal has recently handed down a ruling involving a dispute between two fellow painters.  Troy Henriksen alleged that Corinne Dalle Ore, after having visited his workshop, produced work that was disturbingly similar to his own and brought suit for infringement of copyright and parasitism (the latter being a legal characterization akin to unfair competition and based on the general tort of negligence under Section 1382 of the French Civil Code).

While the trial court agreed with the plaitiff on both counts, the Court of Appeal was more nuanced in its approach, finding in favour of the plaintiff on grounds of parasitism but rejecting the claims in copyright infiringement.

While in no way disputing the originality of the works created by Henriksen (and hence the fact that copyright subsisted therein), the Court found that the mere "impression of proximity" between the two artists' works did not constitute a reproduction within the meaning of copyright law.

On the other hand, the Court felt that the proximity between the two artists' workproduct could not have been the result of a common inspiration but rather was designed to generate a risk of assimilation or association between the two oeuvres.  It found that Henriksen had created something of economic value and that the defendant's work's proximity therewith was of a nature to give her an unwarranted advantage, i.e. that the various conditions of a parastical conduct claim under French law were satisfied.

Finally, the Court awarded Henriksen (and his gallery) damages in the amount of €5,000.

The ruling is noteworthy because it goes into some depth of a painting-by-painting analysis of the various similarities and differences between the works and the legal relevance (or irrelevance) thereof.  It also serves as a useful reminder that copyright (and infringement thereof) need not be the be-all and end-all of all copy-related claims.

The decision is Paris Court of Appeal, Pole 5, 1st Chamber 27 February 2013 RG 12/01050 (I would be pleased to send a copy to readers upon request).

Copyright in tricks - Could it be Magic?

"Magicians have stolen each other's secrets for as long as the art of magic has existed. But the interconnectivity of today's world is making it easier - and magicians can't always rely on the law to protect them."  Well, that's the view of Arun Rath, writing on the BBC's News Magazine in a fascinating article titled 'The magicians who rip off other conjurers' tricks'.  

Rath tells the story of magician Jeff McBride whose most famous routine is an intricate series of transformations, with a variety of masks, taking the audience through the entire history of magic. Recently McBride discovered he was not the only one performing this particular act after he spotted a clip on YouTube of a Thai magician doing his entire routine on Thai TV - move for move - along to the music McBride uses. He'd even cut and dyed his hair to copy McBride. Having used Google Translate to pen an email to the Thai magician, McBride discovered that his Thai counterpart actually thought of himself as a tribute act "like a Beatles or Pink Floyd or a Black Sabbath tribute act" and the pair managed to resolve the disputed copying amicably.

Steven Frayne, aka Dynamo

And all of a sudden magic is big business. David Blaine was already grabbing headlines, and  interest in magicians such as Dynamo in the UK have driven youth membership of the Magic Circle to record numbers. Sebastian Walton, recent winner of the Young Magician of the Year Award 2013, cited Dynamo as an inspiration. Hooked on magic after seeing magicians at Universal Studios in Florida four years ago, Walton says of Dynamo "it's miracles that he does" adding "he makes it modern by using everyday objects like mobile phones in bottles and things like that". In his Award winning show, Walton made a piece of jewellery borrowed from an audience member reappear inside a walnut, itself inside a piece of fruit. Third placed Elizabeth Rogan made a balloon on a string burst into flames.  

Teller's trick

But some cases do go to court: Walton is being mentored by Teller (the silent one in Penn & Teller) who filed a law suit last year in Nevada against a Dutch magician, Gerard Bakardy, who Teller claimed had stolen his "Shadows" trick - in which he cuts the shadow of a rose, causing petals to fall off of the real rose that is casting the shadow.  Mr. Bakardy posted a video of his own version of the illusion, called "The Rose & Her Shadow," on YouTube, which has since been taken down after it seems Teller issued a DCMA takedown notice, and was selling the secret to the illusion in the form of a kit for $3,050 to all comers. Mr Teller based his claim for infringement of his dramatic copyright on a registration of his illusion at the US Copyright Office, made back in 1983. 

Magicians argue that for young people to become interested in magic, and continue the tradition, they need to learn from the masters of the day, and need access to existing tricks. Selling tricks is also how many magicians make enough money to stay in the business. But it seems most magicians protect their tricks as 'trade secrets' and once the secret its out, its a wild wild west out there. Magician Kevin James has had numerous tricks copied and sold at knock-down prices on Chinese websites - using his name and branding saying "They use my advertising, they use my photos, they use my video on their websites, they use my text to sell it. They make it look like it's my product - only a third the price." 

In the BBC article Sara Crasson, a lawyer and a magician herself, suggests that magic tricks fall into, "if not a black hole, certainly a legal grey area". In a recent case in the Netherlands, a court ruled that whilst tricks and illusions per se are not protected, an illusionist's own version of a trick may be protected, and also a specific sequence or combination of illusions as part of a magician's routine, such as the 'head drop' sequence and 'hand through the body' tricks which were used by illusionist Rafael van Herck, could effectively constitute an original and creative choice, and could therefore be granted copyright protection as a dramatic work (the case of Rafael van Herck against fellow magician Hans Klok). 

However, it is a difficult area:  The leading Us case involves Robert Rice, aka The Mystery Magician, who failed in an attempt to sue Fox over its Breaking the Magician's Code TV specials in 2003 which he alleged infringed his act. The 9th Circuit wrote: "The mere fact that both The Mystery Magician and the [TV] Specials reveal the secrets behind magic tricks does not by itself constitute infringement. Rice's claim, therefore, may only succeed if the [TV] Specials infringed upon the presentation and stylistic elements of The Mystery Magician." In 1943 Charles "Think-a-Drink" Hoffman sued Maurice Glazer for violation of his the copyright and trademark rights in his "Think-a-Drink" act. The Supreme Court of Florida upheld the trademark decision for Hoffman, but held that Hoffman's act did not qualify for copyright protection as a dramatic work in US law; a 1998 joint claim led by Joseph Harrison against Fox's 'Masked Magician' series also failed on the ground that whilst it did indeed breach the Magician's code of honor, that could not form the basis of an action in Louisiana,

Trade secrets are seen as another tool for protection of tricks, but as Crasson told the BBC "If someone can watch the performance and figure out what the secret is, then that magician would lose trade secret protection" adding "For magicians, trade secrets are a lot tougher to keep because magicians frequently do know how other magicians do their work".  In the nineteenth century one US magician, Harry Kellar , repeatedly took binoculars to a show by British magician John Nevil Maskelyne to work out how he was doing his levitations. When that failed, he marched right up to stage at the key moment to take a peek. He still couldn't work it out, and ended up bribing another magician at the theatre to provide him with sketches. Kellar then performed this particular act around the world for years afterwards.

spot the difference - the original is on the right

German magician Losander, a current specialist in levitations, markets his levitating tables to other professional magicians at a cost of thousands of dollars - a business now threatened by copycat tables sold on Chinese websites. These websites often have "dubious branding" which seemingly suggest that the bogus product was endorsed by a very aggrieved Losander. 

Alongside 'trade secrets', Patents have been taken out by magicians, but the magic community say that as the 'secrets' behind the trick then enter the public domain on publication, the application can be self defeating and counter productive, and that the cost of enforcement of patents is a real barrier. So back to copyright!

Like magicians, comedians have long complained of having their jokes repeatedly stolen by rivals with no recourse to the law. They rely on a code of ethics - not the law - to regulate their industry - something Hugo blogged about on this site in 2010 and more on puns on the IPKat here.  And so with magic: instead of relying on formal legal mechanisms, magicians derive benefit from their inventions through informal social norms that encourage magicians to give due credit to the original inventor of a particular trick. A recent cover story in the trade magazine Magic identified South Korea as a hotbed of talented new magicians. It's also home to the Do Not Copy the Magic campaign - one of the most active movements against stealing tricks in the industry. One code provides “All members of the International Brotherhood of Magicians agree to oppose the wilful exposure to the public of any principles of the Art of Magic, or the methods employed in any magic effect or illusion”.

But is it enough? With magic growing in popularity, money talks. Dynamo, David Blaine and Derren Brown have never been more popular. Penn & Teller's television programmes - and even format rights to shows like Fool Us sell globally and in the UK new programmes like The Incredible Mr Goodwin and Help My Supply Teacher is Magic are bringing illusions to new and younger audiences.  Now no corporate function or ball is complete without at least one street or close up magician going from table to table. From a UK perspective, and in light of the European Court of Justice's musings in Infopaq where copyright protection was given to works - defined as an author's own intellectual creation - and the High Court's finding that headlines could attract copyright in Meltwater, I would be surprised if most magic trick's didn't qualify for protection. A scripted presentation would be a literary work, and as dramatic works need to be original and have movement, story or action - performed tricks and illusions should fall under that heading: I would have thought that alongside choreography (and pantomime in the USA) magic tricks would usually attract copyright. And if copied - form the basis of an action.  And in our ever litigious world - where there's a hit - there's a writ!

http://www.bbc.co.uk/news/magazine-21861418

http://arstechnica.com/tech-policy/2012/04/silent-magician-teller-files-copyright-suit-over-stolen-shadow-trick/

More on this in the paper by Jacob Loshin of Yale Law School: Secrets Revealed: How Magicians Protect Intellectual Property without Law

Rice v Fox Broadcasting Company http://caselaw.findlaw.com/us-9th-circuit/1047100.html 

Italian Communication Authority announces draft online copyright regulation by end of summer

Italian copyright fans will remember that previous commissioners of AGCOM (Autorità per le Garanzie nelle Comunicazioni - Italian Communication Authority) struggled with the adoption of an administrative regulation to protect copyright over the internet for quite a long time, but no such regulation was adopted before the end of their office last year (here, here, here).

One of the main problems encountered by AGCOM was its apparent lack of competence to legislate in the area of copyright. Former AGCOM president and erotic poet Corrado Calabrò indeed asked the Government (and Parliament) to clarify this point and, more in general, the nature and extension of AGCOM powers in the area of copyright.

Nothing of this sort has happened yet.

New AGCOM president Angelo Cardani

New AGCOM members were elected last June, following a reform of the structure of the Authority itself which resulted - among other things - in the number of commissioners being reduced from 8 to 4. Despite budgetary cuts, the idea of an online copyright regulation appears still vivid in both the minds and hearts of new AGCOM members.

Last December, new commissioner Maurizio Decina spoke about various copyright issues. Besides his opinion that ISPs should not be required to pay royalties for displaying links to and snippets of contents, Decina declared that, while Italian Government should clarify the nature and extension of AGCOM competencies in the field of copyright, he announced that - even this should not happen - the Authority would go ahead and adopt a specific regulation anyway.

Average (and slightly stressed)
Italian copyright lawyer
can't wait to see the draft regulation

After the end of an endless and cold winter (at least for Italian standards), yesterday AGCOM president Angelo Cardani announced that by this summer the Authority will issue a draft regulation on online copyright protection, which will then be subject to public consultation. This will happen even without a legislative intepretation of the actual competencies of the Autority in the area of copyright. As explained by Cardani, 

"when dealing with technical aspects and fundamental rights, perhaps it would be better for the Parliament to be in charge, but previous Parliament did not want to address these issues (or rather, it was busy otherwise), and we do not know what current Parliament intends to do. Therefore technicians [these being AGCOM members] will do their job. We will safeguard pluralism and right of access, and we will not have any doubts or hesitations [to go ahead and adopt an online copyright regulation]".

Will this really happen? Still according to Cardani, so far the new Authority has always kept its promises, and this will be the case also for the online copyright regulation.

We have then to wait a few more months to see the draft regulation unveiled. In the meanwhile, it is worth recalling that debate about copyright enforcement is currently taking place a bit everywhere. US Register of Copyrights Maria Pallante recently announced the need for the US to update its copyright system, including enforcement provisions (here and here). Likewise, following an orientation debate, at the end of last year EU Commission agreed a way forward for modernising copyright in the digital economy and, among other things, announced the need to discuss how to improve the legitimacy of enforcement in the context of wider copyright reform.