Easing manufactured goods back into full artistic copyright: call for evidence

"Heigh-ho, heigh-ho, it's back to full-
blooded artistic copyright we go!"

The British Government wants your help: the UK Intellectual Property Office currently carries this request for evidence.  The chances are that, if you're interested in the removal of this particular limitation on artistic copyright, you've probably offered the government a couple of thoughts already -- but if you haven't made up your mind yet there's an attractive 36-page document which lists and explains the 13 questions in response to which your answers may be valued.  

Call for Evidence: Transitional provisions for repeal of section 52 of the Copyright, Designs and Patents Act 1988

Reference: 2013-008

Launch date: 16 October 2013

Closing date: [23:59 pm on] 27 November 2013

The creative industries are a vital part of the economy and the UK Government continues to be a strong advocate for promoting innovation in the creative and design industries. The Government plays a part in this by ensuring that copyright both incentivises the creation of work and protects original material and the creator or owner of this material.

Protecting original artistic works through copyright is one way to incentivise innovation in design. The Government has taken the power to repeal section 52 of the Copyright, Designs and Patents Act 1988 which reduces the term of copyright protection for artistic works which are produced through an industrial process.

The Government will set a date for this change in law after public consultation. As a first step, the Government has therefore published a Call for Evidence to hear views on how and when the change in law should take place, and the reasons for these views. A short formal consultation will follow.

This Call for Evidence is aimed at all interested parties across all sectors including design, manufacturing, retail, import, publishing, teaching and digital.

Call for Evidence: Transitional provisions for repeal of section 52 of the Copyright, Designs and Patents Act 1988 here

The IPO states that it would prefer electronic submissions be emailed to Section52CDPA@ipo.gov.uk 

Thanks are due to James Love (James Love Legal) for drawing this to my attention

Do you LOVE originality? Then this contest is for YOU!

Wish to receive
a copy of this book?

Are you obsessed with the originality requirement? 

Has recent case law of the Court of Justice of the European Union on originality kept you awake at night? 

Do you want a free copy of this blogger's exciting (first) book Originality in EU Copyright, just published by Edward Elgar?

If you have responded with a resonant 'Yes!' to all these questions, then enter the new 1709 Blog competition!

Benjamin Franklin believed - quite rightly - that "Originality is the art of concealing your sources". What about you? What do you think originality (not necessarily in strictly legal terms) is all about?

To enter the contest you have just to complete the following statement: 

"Originality is ..."

Email your surely copyright-protectable (remember the 11-word extract in Infopaq?) sentence to originalitybook@gmail.com by Monday 4 November. 

When submitting your entry, remember to provide an irrevocable gratuitous and non-exclusive licence, because The 1709 Blog will publish the best entries.

The author of the book will select the winner pursuant to her peculiar sense of humour and mail him/her a (signed) copy which can then be re-sold on eBay.

Good luck!

The CopyKat - copyright and the internet: are we Poles apart?

The Polish Filmmakers’ Association (SFP) has won a "significant" legal victory against UPC Polska, the country’s leading cable operator. In a statement, the association says that the Warsaw Court of Appeal has ordered  the broadcaster to pay SFP compensation for the non-contractual rebroadcasting of audiovisual works. The actual amount, though not specified, will according to the SFP run into many millions of zloty.

In the communist era, the Eagle lost its crown

And also from Poland comes news that there is "no mechanism in place for mediation in disputes over copyright issues".That's according to Jerzy Straszewski, president of the Polish Chamber of Electronic Communications (PIKE). Speaking in a panel discussion on intellectual property on the second day of the PIKE 2013 conference and exhibition, he added that the Commission on Authors’ Rights (Komisja Praw Autorskich) formed in 2010 had no clearly defined role and there was a need for it to act as a mediator. Józef Kot, from Vectra Investments, said that the whole system for mediating disputes should be rebuilt from scratch, with the creation of an independent mediation authority and with the courts as a last resort

The operator of the popular file-sharing service isoHunt, is shutting down to settle a long-running lawsuit brought by the Motion Picture Association of America, according to court records. Gary Fung, the site’s Canadian operator, also agreed to pay $110 million in damages as part of the deal to end the long-running legal battle - although quite where he will get that sort of sum remains unclear. Programmer Bram Cohen released the BitTorrent file-sharing protocol in 2001, and its efficient way of transferring files has become the method of choice for illicit, peer-to-peer sharing of copyright.  The isoHunt litigation began in a Los Angeles federal court in 2006. In March of this year, a three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals ruled that the DCMA would not apply to Fung  because Fung’s business model, the court said, was designed for the primary purpose of copyright infringement.

TorrentFreak has managed to unearth some financial details for The Center for Copyright Information (CCI), the 'not for profit' organisation set up to administer the US's 'six strikes' regime. When the scheme started,  the founding content owner members (primarily the MPAA and the RIAA) agreed to share the costs with the participating major ISPs. The company's first eight month tax filing shows that  ISPs and copyright holders paid a total of $1,377,633 in membership dues, putting the yearly budget around $2 million per year. So where is all the money going? Well here's a breakdown, via TorrentFreak: (i) The CCI pays Executive Director Jill Lesser - the only key employee working there - a modest $43,750 during the first eight months of 2012 BUT (ii) Lesser indirectly earns a bit more from CCI from her consulting firm JAL, which the CCI paid $193,750 to during the same eight-month period. (iii) Around $144,093 was paid to PR firm Glover Park Group and (iv) Resource Global was paid $125,691 for its consulting services, as well as $102,928 in legal fees. The costs do not cover the cost of copyright actions by copyright holders and the costs ISPs incur when tracking down infringers and processing the notices with TorrentFreak saying that "copyright holders and ISPs are likely to spend double or triple the previously mentioned $2 million on the entire six-strikes system."

What has the UK's Digital Copyright Hub boss Richard Hooper been saying? Well you can read it all on the Music Ally website but in a nutshell "There is a problem with copyright in the fast-moving digital world, [but] before the kneejerk reaction ‘the law must be changed!’, look whether changes to copyright licensing, processes and organisations will resolve some, if not all of the problems specified… most of the problems can be solved if the creative industries get off their backsides and streamline copyright licensing”. 

That said, Creative Commons have urged lawmakers around the world to reform copyright law to make creative works more open to public domain. Creative Commons issued the policy statement in the face of more restrictive intellectual-property trends to dispute suggestions that "the very success of CC licenses means that copyright reform is unnecessary" saying "CC licenses are a patch, not a fix, for the problems of the copyright system," and the statement foes on to say "However well-crafted a public licensing model may be, it can never fully achieve what a change in the law would do, which means that law reform remains a pressing topic.… CC licenses are not a substitute for users' rights" and "the public would benefit from more extensive rights to use the full body of human culture and knowledge for the public benefit. CC licenses are not a substitute for users’ rights, and CC supports ongoing efforts to reform copyright law to strengthen users’ rights and expand the public domain."

The monster Grendel - rivalled by Google?

Researchers at the University of Nottingham have discovered that Google's terms and conditions of use need reading skills above and beyond those needed to understand the the heroic epic Anglo-Saxon poem Beowulf: Facebook's terms are so complex that the reader would be well placed to read The Prince by Machiavelli in their place. If you are thinking of signing up with Scottish Power - completing reading their terms and conditions is equivalent to reading Beyond Good and Evil by Nietzsche - if not worse: Research Fellow Ewa Luger, who analysed the texts, pointed out that data protection provisions are often particularly complex - making no sense to most readers (who haven't given up) and believes that first step towards understanding online terms and conditions would be to make the texts easier to read - saying that E.L. James, author of Fifty Shades of Grey, writes simple, readable, clear and understandable texts - if you like that sort of thing that is! 

“Elysium”, the recently released sci-fi action-thriller starring Matt Damon and Jodie Foster, is facing a copyright claim in the Northern District of California.  Screenwriter Steve Willis Briggs has accused director of Elysium,  Neill Blomkamp, of stealing the idea for “Elysium” from his screenplay “Butterfly Driver.”   At the heart of the claim is the core story in “Elysium”: In 2154, two classes of people exist: the very wealthy, who live on a luxurious space station called Elysium and the poor, who live on an overpopulated, devastated Earth. While residents on Earth are policed by ruthless robots, Elysian citizens live in comfort and regularly use man-sized medical devices called Med-Bays to keep them free of disease and injury. The film follows the main character Max, who is played by Matt Damon, as he attempts to gain access to restricted medical treatment that is reserved for the wealthy after he is exposed to a lethal dose of radiation and an ensuing fight with Elysiun's Secretary of Defence Jessica Delacourt (Jodie Foster) and vicious mercenary Kruger.  Briggs claims that numerous aspects of the film, namely the plot, characters, and themes, are taken directly from his “Butterfly Driver.” Briggs registered his screenplay in June with the U.S. Copyright Office in order to file the suit. Other defendants include Sony Pictures, TriStar Pictures, Media Rights Capital, and QED International.

Now to the world of video games: First off, The Switch report that one of their most popular posts concerned a full-on recreation of Nintendo's Super Mario Bros. in the browser. Nintendo is now accusing the developer of copyright infringement — to which one commentator wrote, "I don't understand, the dude just made something for fun. He's not making profit off of it, it's a fan creation! That's like saying we should take down all fan art and not wear any cosplay, because it's copyright infringement."

And more on video games: It seems independent video game developer Wild Games Studio might have "abused" YouTube's copyright system to censor a negative video review of their game My Day One: Garry's Incident which was posted by user TotalBiscuit. In a series of tweets, Total Biscuit addressed the issue saying "Well, cat is out of the bag since someone on Reddit found it. My Day One: Garrys Incident video was copyright flagged by the devs [developers]. I should point out that this is a game I was sent review code for, it was also the top-ranked video on Youtube for that game. It is fairly obvious what they are doing here, abusing Youtube's copyright system to censor criticism of their product." More on Gameranx here - all fuel for the debate about what is and here perhaps isn't the proper role of copyright.

The shutdown of MegaUpload took nearly 11 million legitimate files offline - that's according to a new study by the Northeastern University in Boston. The same report confirms that the majority of the files did contain infringing content. Overall, researchers say that at least 26% and possibly up to 79% of files on the sites surveyed infringed copyright. stored and shared via the now defunct cloud-locker and file-transfer service were likely infringing copyright. 


And finally - a fascinating article by Shrii Shrii Anandamurtijii on how copyright law does (and doesn't) interface with indigenous peoples' folklore  - and concepts such as communal ownership - here set against a background of Australian Aboriginal customary law. For more, it's on the Speaking Tree - go to "The equitable interface between customary law and copyright law". Image from www.tobwabba.co.au. 

Shukran Allah: when it pays to get there first

B4U Network (Europe) Ltd v Performing Right Society Ltd is a decision last week from the Court of Appeal (Civil Division) for England and Wales. You can find it at [2013] EWCA Civ 1236. This was an appeal by B4U against the decision  of Mr Justice Vos at [2012] EWHC 3010 (Ch) to grant summary judgment in favour of the PRS in its copyright infringement claim which was noted on the 1709 Blog here.

In 2004 the PRS, being a society formed to protect the copyright in musical works, had entered into a written agreement with two composers of songs for Bollywood films, Salim and Suleiman Merchant. By this agreement, copyright that the Merchants "may acquire or own" while remaining members of the society was assigned to it. In 2008 the Merchants were commissioned by Indian producers Dharma Productions to compose the music and lyrics for the film Kurbaan. Under that agreement, the rights in relation to musical works composed for the film vested in the film's producer and included all present and future works arising out of the contract and covered all territories of the world.

B4U admitted that it had broadcast a song, Shukran Allah, from Kurbaan on its UK music channel; the PRS inevitably proceeded against it for infringement on the basis that copyright had vested in it by virtue of its agreement with the Merchants.  Vos J granted summary judgment on the basis that B4U had no prospect of successfully defending the claim in relation to the song.  B4U was not particularly happy at this sudden outcome, maintaining that the copyright in the song was nothing to do with the PRS at all.  Said B4U, at the very moment that Kurbaan was composed, ownership of the copyright was instantly transferred to Dharma by virtue of the Copyright, Designs and Patents Act 1988 s.91(1) -- the bit that deals with assignment of future copyrights.  Since copyright in the song was never owned by the Merchants, argued B4U, it fell outside the scope of those works that were assigned to the PRS by the 2004 agreement.

The Court of Appeal (Lords Justices Moses, Kitchin and Underhill) dismissed B4U's appeal. How so?

 When the Merchants entered into their arrangement with the PRS in 2004 and their subsequent commissioning agreement with Dharma in 2008, the song had not yet been composed. Both agreements -- as the parties accepted -- accordingly took effect as equitable assignments of a future copyright.

If the song came within the scope of the equitable assignment to the PRS under the 2004 agreement, under the rules of priority that assignment, being the first in time, took priority over the purported assignment under the 2008 agreement with Dharma.

What rights were assigned to the PRS? The answer was future rights, namely those which the Merchants "may" own. That category of future rights which the Merchants assigned was not weighed down by any requirement that, once the work was created, the rights must be owned by them, since the 2004 agreement did no more than refer to rights capable of being owned by them -- and, at the time the agreement with the PRS was struck, it was beyond argument that the Merchants' rights in music they were yet to compose might be owned by them.

On a historical note, in every Copyright Act since 1911, the author had always in general been the first owner of the copyright, which would make it unnecessary to be concerned as to whether the Merchants ever became owners of the copyright. However, the court was prepared to accept that the effect of s.91(1) was to vest both legal and equitable title to the rights in the song, on its creation, in the first assignee in time. On that basis, those rights now vested in the PRS since they were rights which, as at the date of assignment, the Merchants might have owned.

Kurbaan here
Shukran Allah here

Bryson claim puts free speech in focus

Who owns the words in an interview? In the absence of an agreement (which of course are more and more common with with celebrity interviews in today's World) is it the Interviewer, the Interviewee? Or perhaps both? 

The Sydney Morning Herald reports that author Bill Bryson's "warm and cuddly image" has been somewhat tarnished after he and his publisher reportedly too action against a journalist for republishing an interview from nearly 20 years ago. 

The story seems to be that British travel writer and guidebook author Mike Gerrard interviewed Bryson back in 1994, and recently decided to republish the interview as an 8,000 word, 27-page e-book Bill Bryson: The Accidental Travel Writer, which he put on sale via Amazon. According to travel industry blog, World Travel Market, Bryson’s lawyers took exception to Gerrard’s enterprise, claiming it breached the Bryson's copyright. They demanded the book be removed from the Amazon store, a request Amazon agreed to, much to Gerrard’s annoyance. 

It seems that Bryson claims that he did not authorise publication of the interview beyond 1994 and moreover,  claims he remains the owner of the words actually spoken by him to Gerrard. Gerrad retorted by saying this of the claim: 

"If that were the case, no journalist could ever quote anything anyone ever said to them, because the person speaking the words owned the copyright in them. There would be thousands of breaches of copyright every day, in newspapers and magazines, in the radio and on TV, and online."

"Bill Bryson himself quotes conversations with people throughout his travel books, frequently to ridicule them ..... does he breach their copyright in the words they spoke? Does he ask their permission?"

And it's Gerrard's move to take the dispute beyond just his own argument with Bryson, and into the wider political debate, that interested me.

With speeches and interviews, there has been an evolution in the way the author here is determined. Way back in 1900 in Britain, a majority of the House of Lords in Walter v Lane, reversed a decision of the Court of Appeal, and found that reporters from the Times newspaper who took down shorthand notes from a series of speeches given by the Earl of Roseberry, a prominent politician, and later transcribed them, adding punctuation, corrections and revisions to reproduce verbatim the speeches, were authors for the purposes of copyright. Lord Brampton found that it was crucial that "The preparation [of the reports] involved considerable intellectual skill and brain labour beyond the mere mechanical operation of writing"; Lord Robertson, dissenting, compared the reporters to phonographs, and found that there was no authorship even though there was much skill required. 

Walter v Lane was, of course, before the 1911 Copyright Act which added the word 'original' to qualify a 'work' in the statute - meaning that the (here literary) work must originate from the author. That was 1900. Surely in the days of dictaphones and digital recorders there is little skill in recording a speech beyond simply pressing the "on" and "off" buttons. Even when moving from a 'sweat of the brow' approach to the "skill, judgement and labour" or "selection, judgment and experience" tests (see in University of London Press in 1916 and Macmillan v Cooper in 1923) to the more liberal approach taken by the European Court of Justice in Infopaq, it's still hard to see how anyone making a recording of a speech has in some way passed the test of authorship and that that material drawn from that recording is the expression of the intellectual creation of the person making the recording as an author (although of course there is a separate copyright in each recording of a speech or an interview). With the qualifications to Infopaq made by  Mrs Justice Proudman and the Court of Appeal in Meltwater, a simple recording of an interviewee surely cannot be an act of authorship of the interview content. So is the position quite the reverse?

In 2009 in the USA  the 10th Circuit appellate court cited William F. Patry from Patry on Copyright when holding that court reporters were not "authors of what they transcribe and therefore cannot be copyright owners of the transcript of court proceedings".

And readers of this blog will remember that on the 50th anniversary of the Dr Martin Luther King's "I Have a Dream" speech (delivered on August 28th 1963) many in the US press commented  that Dr King's Estate was "aggressive" in protecting the copyright not only in the video film of the speech - but in the words of the speech themselves, and indeed an appellate court in the US had agreed that the speech was not in the public domain. It was Dr King's - although many commentators felt the words were of such importance they should not be fettered by copyright. 

That said, and it's a big but - an interview is usually a two way process - questions and asked - and questions are answered - here with Gerrard presumably asking and Bryson certainly answering. There is a skill in posing and framing questions, in holding the attention of the interviewee, and often in editing the resulting words and in formatting into a readable article. There again it is an "art" that only has a successful conclusion if the answers to the questions are worth using. And they will be the interviewee's words. So good questions and good answers make for a good interview. It's a two way thing.

Australian copyright lawyer Isabella Alexander is quoted in the Sydney Morning Herald as saying the Bryson case is in a "difficult area" opining "I think that currently Australian law would not think that a reporter who is just transcribing would be an author because they would not have put in independent intellectual effort in creating that work."  I think I have to agree with that, but an interview might  well be different a different scenario.  I would suggest that this might well lead to co-authorship as the interviewer and interviewee's contributions are joint - and interwoven with each other - each with a significant creative input - which indeed would mean, in the absence of any agreement to the contrary,  Mr Gerrard would need Mr Bryson's permission before he could re-exploit the 'work'. And vica-versa of course.

Mr Bryson's words clearly have a value - his book sales top $100 million. And commercially his actions may make sense. That all said, who owns what when it comes to speeches - political or otherwise - and interviews - remains important, with a significant impact on free speech. What if Politicians could block re-use of, say, a controversial speech or an embarrassing interview by using copyright to protect their words? Beyond the exemptions for news reporting, criticism and review granted by the doctrines of fair dealing and fair use, and any implied licence, what if politicians, world leaders, celebrities and others could use copyright to expunge any record of mistaken words? It may be correct in copyright - but I have to say the implications for free speech would be somewhat chilling. 

Back in 2008 in a New York Times article titled Copyright and Politics Don’t Mix, Lawrence Lessig noted a spat between Republican New York State Assemblyman George Amedore and his rival Democratic candidate, Mark Blanchfield, which arose after Blanchfield used a short clip of Amedore saying  “I don’t look at the Assembly position as a job” in an advert - prompting a lawyer's letter asserting ownership of the copyright in the words by Amedore: Lessig said "It would be far better if copyright law were narrowed to those contexts in which it serves its essential creative function — encouraging innovation and ensuring that artists get paid for their work — and left alone the battles of what criticisms candidates for office, and their supporters, are allowed to make."

The British Political Speech website makes it clear that "Copyright for the Conservative Party leaders’ speeches resides with the Conservative Party Archive Trust. Copyright for the Labour Party leaders’ speeches resides with the Labour Party. In all other cases, unless otherwise stated, copyright resides with the person or estate of those who delivered the speech." This position, coupled with the now widespread use of of pre-interview and pre-performance agreements which either restrict future use beyond specific purposes or indeed transfer any copyright the speaker may or may not own over to them could be considered to be significant barriers to free speech and a free press. Are they?

Any thoughts of 1709 readers would be most welcomed.

Cases referred to:

The Newspaper Licensing Agency Ltd & Others v Meltwater Holding BV & Others [2011] EWCA Civ 890
Case C-5/08 Infopaq International A/S v Danske Dagblades Forening
MacMillan v Cooper [1923] 92 .L.J.P.C.
University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601

Walter v Lane [1900] AC 539

Estate of Martin Luther King, Jr., Inc. v. CBS, Inc. William C. O'Kelley [1999] in U.S. District Court for the Northern District of Georgia No. 98-9079

And more here https://www.cdt.org/files/pdfs/copyright_takedowns.pdf and more on US case law here http://www.rcfp.org/reporters-recording-guide/copyright-and-taped-interviews

"Underneath the mango tree ...": when cartoons improve reality

This blogger was just ten years old in 1962 when Dr No hit the silver screen and changed the world of movie fact and fantasy forever. When the lovely Ursula Andress (or "Ursula Undress" as she was generally known) emerged from the foam, shell in hand, with a voluptuous nod to Botticelli's Venus and a cute way of waking up James Bond by singing "Underneath the Mango Tree", we all knew something special had happened in our lives. This was as good as we thought it could ever get.

Fast forward to 2013 and this blogger finds himself staring at this YouTube clip of a cartoon version of the same Venus-emerging-from-the-foam scene, astonished at the impact that the deconstruction of reality can have upon the visual senses.  This is the work of HQCartoons, using Autoscope ("turns normal videos into stunning cartoons ...", and the impact is genuine.  Other clips sent in by Les Hurdle (thank, Les!) are from "Department S" (here) and "Randall & Hopkirk Deceased" (here).

The exercise of cartoonising clips of real-life action is of course not devoid of interesting copyright implications.  Quite apart from the moral rights question, when the creator of a film regards his work (rightly or wrongly) as being mutilated or distorted by this process, there are implications for economic rights as well. Substantiality of the amount of the original work copied can be assumed in most cases, but some jurisdictions will be grappling with defences of parody or transformative use, to be sure.  On the non-contentious side, are there templates and boilerplates for paid-for permitted cartoonisation? Are such activities being licensed? Have they attracted the attention of collecting societies? What's the story? If any reader can enrich us all by telling us, we hope that he or she will soon come forward to do so.

Its a show Jimi, but not as we know it

The CopyKat spotted an interesting article in London's Evening Standard highlighting a planned new tourist attraction in London's Camden - the Music Hall of Fame  - where visitors will be able to "jam on stage with Jimi Hendrix at Woodstock, be the fifth Beatle, or duet with Freddie Mercury at Live Aid". The attraction, set up by music entrepreneur Lee Bennett, uses the same hologram technology which allowed Tupac Shakur (who died in 1996) to perform with fellow rapper Dr Dre and Snoop Dog at last year's Coachella Festival in the USA - which created quite a buzz amongst music industry legal bloggers about the legal practicalities of achieving the feat - quite beyond the obvious technical challenges. 

So where do we start: whilst Mr Justice Birss recently affirmed that there "no such thing as a general right by a famous person to control the reproduction of their image" in the United Kingdom  (Robyn Rihanna Fenty v Arcadia [2013] EWHC 2310 (Ch)) the same cannot be said about the USA where image rights most certainly do subsist - and passing off, applied in the Rihanna case, was also used by the Court of Appeal in London to give some protection to Formula One driver Eddie Irvine when his image was 'monetised' in an advert for TalkSport Radio Ltd ([2003] EWCA Civ 423). 

Tupac at Coachella, 2012

Donald Passman, an entertainment attorney for the Los Angeles-based firm Gang, Tyre, Ramer, and Brown, Inc. and author of All You Need to Know About the Music Business, pointed out at the time of Tupac's "appearance" that above and beyond image rights, the creators of the Tupac hologram (and the Coachella Festival organisers) would also have had to clear each use of filmed material with the copyright holder of each and any clip, as well as the use of the song, and any separate sound recording - and even if it was a live recording, Passman advised that "recording agreements often cover any recording made of the artist during the term of the contract" saying "If this was like a TV performance or something like that they manipulated, the record company may have something to say about it as well." The London attraction also boasts that fans will be able to takeaway a DVD of their performances with the holograms and the Mayor of Camden Jonathan Simpson said "you can go and perform with your favourite bands - you you can be up there with Nirvana, you can be up there with Morrissey on the stage". 

Planned to launch in 18 months time - someone will have A LOT of legal work to get through - just looking at the list of names above I would have to suggest that this is going to be a herculean task ..... the Estates of Freddie Mercury, Kurt Cobain and Jimi Hendrix (the latter subject to various legal tussles over the years),  existing management and members of Queen and Nirvana, Morrissey, the Four Beatles (so two more Estates there as well as Apple), their record labels, the music publishers of the songs, the various film companies and TV rights owners, potentially some session musicians may retain rights, Live Aid,  Woodstock ... wow. Someone is going to be very busy indeed.

The CopyKat

BroadbandTVnews.com reports thatTelecom operators in Russia are arguing that they do not need to pay royalties to collection societies: Pioneer TV, a cable operator and producer based in the Smolensk region has complained to the Prosecutor General’s Office and Ministry of Culture about demands by the Russian Authors’ Society (RAO) for payments arguing that such demands are contrary to the law, with the Civil Code says nothing about payments from operators who are providing services to broadcasters. Pioneer TV also says that a draft decree, the latest version of which was published by the Ministry of Culture in July, runs counter to the Civil Code. Separately its seems (and further information would be much appreciated!)  the court for intellectual property rights has ruled in favour of the cable operator ER Telecom in a dispute with RAO and the All-Russian Intellectual Property Organisation (VOIS).

Digital Spy reports that Brian Belo has reached an out-of-court settlement with the makers of the reality 'drama' TV seriesThe Only Way is Essex over the show's concept. The former Big Brother winner had alleged that the ITV2 series breached his copyright, and that ITV and Lime Pictures - who make the structured reality show - reproduced a format that was originally created by him, Sassy Films and Massive TV for a show called Totally Essex.

In Nigeria, The estate of the composer of the National anthem, the Late Pa Benedict Elide Odiase, has sued  a telecommunications company for the sum of N1.5 billion for the use of the National Anthem titled “Arise O’ Compatriots”  as ring and call back tones without authorisation or licence.   Meanwhile, it seems that the telecommunication’s company has written to the plaintiffs’ lawyers claiming that the infringement was committed by it's content providers and  therefore it should not be held liable for the infringement of copyright in the work on its platform or network.

But not on Digital Music News ...

A while back Digital Music News published an entire iTunes Radio contract, which was targeted at smaller indie labels, showing how Apple "got to throw its weight around, presenting terms that were very much in Apple's favour over the labels" -  if they wanted to participate in iTunes Radio. It seems Apple's lawyers finally spotted this online and TechDirt reports that apparently Apple has made a copyright claim over the content (in the contract) to get the document taken down .... and indeed the page has now gone - you can see TechDirt's take on this action here.

The record industry in the USA seems to be caught between a rock and a hard place. Having successfully argued that federal law did not apply to pre-1972 sound recordings but that state law did - which enabled the label's to take legal action against controversial online platform Grooveshark's user uploaded (and infringing) content  because no DCMA 'safe habor' provisions would protect the platform for those tracks - the move seems to have backfired - at least partially. 


Satellite radio broadcaster Sirius XM - who have not paid any royalties for broadcasting pre-1972 sound recordings - has filed a response to one of the record industry's lawsuits against the broadcaster saying, that it does not have to pay royalties to collection society SoundExchange for pre-1972 recordings as federal law does not apply - AND  - that the specific obligation for satellite and online broadcasters to pay a sound recording royalty did not exist in state law, and if AM/FM radio stations are not obliged to pay labels a royalty under state copyright (which they are not) then neither is the satellite broadcaster saying "Plaintiff apparently has become aggrieved by the distinction drawn by Congress in withholding copyright protection from its Pre-1972 Recordings; thus now, after decades of inaction while a wide variety of music users, including radio and television broadcasters, bars, restaurants and website operators, exploited those Pre-1972 Recordings countless millions of times without paying fees, it asserts a purported right under the law of various states to be compensated by SiriusXM for comparable unlicensed uses." See our earlier blog here http://the1709blog.blogspot.co.uk/2013/08/turtles-probe-murky-soup-of-pre-1972-us.html

The Australian Competition and Consumer Commission  has concluded an investigation into the country's main music collective licensing society (APRA) and the country's collective licensing systems aqnd despite some scathing comments about APRA from various parts of the music and broadcast industries including writers, rights holders and end users - but in the main concludes that the body's operations do not raise significant competition concerns even though APRA has a "virtual monopoly" in those areas where the music publishing sector chooses to licence as one and "public benefit test has been met" with regards APRA's operations, noting the efficiencies and cost savings for all resulting from the collective licensing process. The draft Report has some recommendations - including requirements for clearer communications around the way collective licensing operates and how dispute resolution processes work. APRA was also told that it should better educate members on where there is the option to "licence back" or "opt out" of collective licensing.

A proposed private copy levy on digital lockers in Europe would be a complete disaster if implemented, according to Pirate Party MEP Christian Engstrom, who said that he could not envision a proposal worse than that of French MEP Françoise Castex, who presented her plan for the overhaul of the Copyright Directive to the Parliament's legal affairs committee Monday. She said her proposal will make the issue of copyright levies and downloading clearer across the European Union. With MP3 players and other devices being jettisoned for storage of music and other content in favour of cloud digital lockers, Castex recently proposed to the European Parliament's legal affairs committee a new levy system saying "The private copying system is a virtuous system that balances the right to copying for private use with fair remuneration to rightholders, and that it is a system worth preserving. [And] private copies of protected works made using cloud computing technology may have the same purpose as those made using traditional and/or digital recording media and materials". In response, Engstrom said "the very principle of levies is all wrong, we should be reducing them, not increasing them. European Commission figures show that the sum total of private copying levies collected in 23 of the 28 E.U. member states has more than tripled since the current Copyright Directive came into force in 2002 and now stands at more than €600 million.

As it's the week of the IP and The Fashion Industry Conference I noticed a report from New Zealand where fashion store Jeanswest New Zealand has been fined for infringing on a Dutch company's copyright over the design of a"biker" jean. G-Star took Jeanswest to the High Court in Auckland for allegedly copying a pair of its 2006 Ellwood Anniversary jeans, an adaptation of a French design it released 10 years earlier. The jean featured kneepads, horizontal stitching across the back of the knee and heel guards. In 2009, Jeanswest manufactured a limited edition of its own Dean Biker jean with similar features but omitting a saddlepad. Jeanwest's defence argued the company had come up with its own design after "an extensive review of fashion trends, existing designs and different product features; and the review did not take into account the E;lwood design". However, Justice Paul Heath found that an infringement had taken place but noting that all the Dean Biker jeans were no longer on the market, the Judge fined Jeanswest New Zealand $325 and ordered they pay costs. More from the Fashion and IP Conference here

And dont' forget that on 22nd October there is another IP conference - the "Hot Topics in IP" conference Marble Arch in Central London. A stellar list of speakers include: Michael Hart, Partner at Baker & McKenzie, who will analyse recent comparative advertising case law and the impact of recent developments in trade mark law: Martin Howe QC of 8 New Square who, having successfully represented Rihanna in the image rights claim against Topshop owner Arcadia, will provide an update on the status of image rights in the UK: Guy Burkill QC of Three New Square, who will share invaluable insights into current mobile phone patent litigation strategies: Mark Owen, Partner at Taylor Wessing, who will review copyright law in the UK and the potential impact of new exemptions: Duncan Ribbons, Partner at Redd, who will consider the impact of: the Jackson reforms on IP litigation: Paul Gardner, Partner at Osborne Clarke, who will offer industry expertise on the evolution of interactive. Chaired by Peter Brownlow (partner Bird & Bird). 1709 readers can receive 20% off the full delegate rate of £549 (plus VAT). Quote code MLU20. Book your place here or email alicia.sprott@lexisnexis.co.uk