Performances protected by copyright ? Google gets a new hearing

Google Inc. will head back to federal appeals court over the somewhat  controversial decision that forced the Internet giant to take down an anti-Muslim video earlier this year. The 9th U.S. Circuit Court of Appeals has confirmed that it will rehear the case that sided with an actress featured in an inflammatory movie posted on YouTube called “Innocence of Muslims.” In February, the court’s 2-1 decision  (with the original and amended rulings by Judge Alex Kozinski for the majority) said Cindy Lee Garcia had never consented to being in the movie and her performance could be protected by copyright law.  The court will rehear the case en banc, though the current injunction against Google does remain in place.

Copyright: the Commission prepares for action

Yesterday, the Digital Single Market team of the shiny new European Commission held their first high level meeting.

The Vice-President of the Commission and leader of this particular initiative Sam the Eagle Andrus Ansip has shown us all how modern he is and blogged about the meeting

He had something to say about copyright, which is repeated here in full.  He identified as one of the six priority areas of work for his team: "removing restrictions (and preventing new ones) and particularly to stop blocking of online consumers based on their location or residence. This will be about reforming copyright rules and getting rid of unjustified curbs on transfer and access to digital assets. Is there anyone who would not want to get rid of geo-blocking, which goes against the core principles of Europe's single market?"

The answer to his question is a resounding yes.  To pick just one example, there are plenty of broadcasters, especially in smaller EU countries like Estonia, from which the Commissioner hails, who would like to buy the local rights to say, an English TV series, in order to air them with Estonian sub-titles, but could not possibly afford to buy those rights absent geo-blocking, because the price would have to reflect the fact that anyone who wanted to watch the programme anywhere in Europe would be free to do so, largely untroubled by the presence of the subtitles.  Accordingly, no geo-blocking would mean depriving those consumers entirely of the ability to see those programmes in their local language.  And what of the BBC licence payer, who would probably, on the whole, rather not end up funding the ability for those elsewhere in the EU who don't pay the licence fee to watch programming on the iPlayer?

That's not to say that geo-blocking is always done for good reasons, but hopefully, Veep Ansip's understanding of the economics of the copyright industries will become more sophisticated as he learns his way around the brief.

US ousted by China in TPP replacement?

The Trans-Pacific Partnership (TPP) trade agreement, which many had said had "troubling" provisions pushed through by the United States government (not least "draconian" US based copyright laws - but no fair use) may have died a death. This is not because of the likes of Gizmodo alerting the world to the TPP as “the biggest global threat to the Internet since ACTA” but, according to the Times newspaper, because a number of the ten countries, including Australia, who were set to sign the US Trade Agreement are now planning a new free trade agreement with China which the Chinese president Xi Jinpong said "is a historic step in the direction of an Asia-Pacific free trade area".    

That new Spanish law: a tale of fragments, aggregators -- and money

Last week the IPKat hosted this piece by Elena Molina and Sergio Miralles on the controversial new Spanish IP law.  Not to be outdone, the 1709 Blog has commissioned an analysis of its own. The author is our friend Valentina Torelli who, like Elena and Sergio, is currently practising in Spain. Here's Valentina's assessment:

As announced online last week, the Spanish Law no. 21/2014, the highly-publicised intellectual property law reform, was published on 5 November, provoking shock reactions within the world of ISPs. The law comes into force on 1 January 2015, except for some provisions which will be effective one year from publication. 

Among the changes to the previous intellectual property law, a green light has been given to the contested new Article 32(2), which makes the author’s right’s limitation for review subject to a compulsory economic compensation, when content aggregators communicate to the public literally “negligible fragments of contents”, taken from news publications or from latest news websites, which are directed at forming public opinion or have informational or entertainment purposes. 

The modification of Article 32(2) was intended to better comply with Article 5(3)(d) of Directive 2001/29 (the InfoSoc Directive):

“quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author's name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose.”

The most interesting part of the new Spanish provision is the inalienable nature of the economic compensation – which results to be compulsory collective management right for publishers and authors – in relation to making available negligible parts of publications. This compensation has been nicknamed the “AEDE tax” [tasa de la Asocición Espanola de Editores] as it will go to the benefit of publishers or other “right holders” and will be collected once a year by CEDRO, the Spanish collective society for authors and publishers, according to the Annual Budget Law. 

That said, although news-aggregators are exempted from asking for authorization to recompile periodicals’ and reviews’ irrelevant portions of contents, they will have to pay a predetermined amount of money to make them available to the public, irrespective of whether the legitimate right holder is a member of the Collective Society. This means that the collected compensation could be divided among the Collective Society’s members, without necessarily being paid to the legitimate right holder. Likewise, the publications released under Creative Commons will also be compensated by means of the new provision although their nature is quite the opposite to a ‘compulsory economic right’ philosophy. 

In any event, such limitation for review to author’s rights does not cover the communication to the public involving thumbnail images of images and photographs taken from the previously identified publications. 

From a legislative technique perspective, some perplexities may arise in regard to the criteria whereby the part of publications provided by content aggregators could be considered negligible (fragmentos no significativos) but protectable under copyright law and, therefore, exempted under condition of an economic compensation for the sake of the public interest in access to culture and information (Articles 44 and 20 Spanish Constitution). 

 It seems that the solution would be to carry out an assessment on a case by case basis, assuming that no authorization or compensation is due when the publications’ fragments are originally summarized by the aggregator and then communicated to the public together with the link to its original source. 

Another important point is the identification of the content aggregators, as there is always a tendency to take into consideration the big players in the market, disregarding other smaller operators, providing the same type of services addressed by these legislative measures. In this regard, sooner or later at international level the category of content aggregators should be regulated on its own for the purposes of copyright protection. 

Provided that social networks should not fall under the definition of content aggregators for the purposes of the reform, it would be interesting to analyse whether the limitation provided in Article 32(2) of the new Spanish Intellectual Property Law would apply to blogs, databases or applications, undertaking reviews of news publications. Indeed, Spanish law no. 34/2002 implementing Directive 2000/31 (the E-Commerce Directive) provides no definition of “service providers”, it being necessary to refer to the European legal framework and, in particular, to Article 1(2) of Directive 98/34 as amended by Directive 98/48, which provides the following definition:

“ ‘service’, any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.”

Consequently, emphasis should be on services “normally provided for remuneration”, given that the provision of a service “at distance” “by electronic means” regards the inherent functioning of the Internet and that “at the individual request” involves the active participation of the users querying the internet itself. It follows that the category of providers engaged in content aggregation could be wider than is normally conceived when thinking of internet service providers, just because the concept of remuneration could be differently interpreted. 

In relation to the beneficiaries of the reform, again it is unclear whether the new provision encompasses only the traditional media of communication or also covers other players such as blogs and online reviews to the extent that they engage in news updates. Likewise, it seems that if the publication whose negligible fragments are aggregated was considered a collective work, the fragments’ authors would step back in respect to publishers’ right to the economic compensation. 

Moreover, according to the second part of Article 32(2), the new mandatory compensation may also entail browsing ISPs’ activities, when they offer users the search tools for spare words, included in the negligible portions of publications, and they do not comply with the three cumulative requirements provided by the law. Indeed, the review limitation to the author’s rights applies only if the availability of such search tools to the public (i) does not pursue the browsing ISP’s own commercial purpose, (ii) is strictly limited to the offer of search results in accordance to the users’ previous entries in the search engine and (iii) provides the link to the original webpages to which the protected contents belong. 

In this case, the provision has two main points.

·         the fact that the search tool regards spare words included in the publications, without specifying how many words or combination of them can be exempted.
·         such search services cannot be associated with the provider’s own commercial purposes, although it is not clear whether the provision is conceived only for pay-services or if it also embraces indirect revenue sources.

This being said, the reason underlying the introduction of the economic compensation concerns the publishers’ prerogatives to protect the undue exploitation of their intellectual property rights on the internet. In particular, it is aimed at contrasting the direct competition between them and content aggregator ISPs, in relation to access to information without the latter sharing the costs the publishers bear in producing their original content. 

Notwithstanding the argument relating to the anticompetitive effect of content aggregators’ services against both offline and online publishers, the Spanish National Commission for Markets and Competition (CNMC) in its report of 16 May this year took a totally different stand. In the light of the several versions of the Intellectual Property Law’s draft reform, the Commission proposed modification of Article 32(2), recommending that the limitation for review be reconsidered as regards the mandatory nature of the economic compensation and the exclusive assignment of its collection to collective societies. The main points of the report can be summarized as follows: 

1.       The content aggregator ISPs’ and press-clippers’ competitive role affecting publishers could not be confirmed. 

 The Commission observed that website holders could apply technological protection measures, such as the standard program robots.txt, to prohibit or to limit crawling and the aggregation of website content according a tailored degree of availability. However the snippets’ aggregation provides publishers with visits to their websites, as complete access to information is only possible on their pages. This takes into account the huge economic investments that many, if not all, publishers make in order to increase their indexing in search engines. Effectively, the Commission achieved a more favorable result in the contractual balance of interests between all the interested players as regulated by the market. In this regard, as content aggregators have raised concerns all over the European Union, it is worth mentioning that the German Federal intellectual property law had introduced an obligation for them to obtain publishers’ licences to communicate to the public full protected contents, with only the making available of snippets being exempted from such licensing. Moreover, the Commission emphasised that, while the predetermination of economic compensation would be ineffective, since it would not serve the publishers’ different and variable interests, the advertising revenues derived from the linking to their websites from those of content aggregators would be significant. 

 Indeed, that content aggregators could contribute economically to publishers’ adaptation to the online market is not a brand new idea: for instance, in 2013, Google signed an agreement with the French Press Association under the eye of the French Government, whereby a dedicated fund, amounting to 60 million euros, was established to facilitate the press’s transition to the online environment.  

2.       Horizontal competition among content aggregators ISPs would be undermined 

As regards the competition between content aggregators, the CNMC warned about the discriminatory character of the compulsory economic compensation, in that it would be a measure preventing the access to the content aggregators market, which the actual ISPs did not have to get over. 

While waiting for the entry into force of the new Article 32(2) next year, it will not be long before we see how affected content aggregators will deal with the new provision and adapt their business models to the rules of the Spanish web, and whether the Spanish internet will change its mode of operation.

The CopyKat - a panorama of disharmony in European buildings?

The Times reports that one of the world's 'most wanted hackers' has been arrested. And who is it? Well it's none other than Fredrik Neij, one of the four men who created The Pirate Bay. Neij was arrested crossing from Laos into Thailand, seemingly by Thai immigration officials responding to an Interpol arrest warrant. Local reports say that whilst living in Laos with his wife, he also had a home on Phuket and had financial assets of £95,000 as a cash balance. He was the last remaining convicted Pirate Bay man at large. He and his co-founders Gottfrid Svartholm Warg and Peter Sunde were found guilty of multiuple contributory copyright infringement in the Swedish courts in 2009. After a lengthy appeals process (with Svartholm not even showing up for appeal hearing) all but Carl Lundström - the fourth member - went on the run -  Lundström having negotiated down his sentence to house arrest. Svartholm Warg made it to Cambodia,  but was recently extradited to Denmark on hacking charges (against the Police) and sentenced to three years and a half in prison.  In June Peter Sunde was arrested in southern Sweden. Sunde had been living in Berlin, Germany, seemingly without a problem, but returned to Sweden at times as he had family there. His final appeal against his sentence failed when his request for another appeal was denied by Sweden’s Supreme Court - and ultimately he was sentenced to eight months in prison along with a substantial fine on the copyright infringement charges. And now finally Neij faces his own spell in prison too, although at almost the same time, Peter Sunde was released from jail having (finally) served more than five months for his 2009 conviction.

Several major movie studios and record labels have filed a lawsuit against the Swedish ISP B2, demanding that the company blocks access to The Pirate Bay. The lawsuit, which also calls for a blockade of the streaming site Swefilmer, is the first of its kind in The Pirate Bay's home country.

Our friend Enrico Bonadio at the City Law School is organising a seminar on Wednesday 3rd December 2014, at College Building, Room AG 02 at the City University EC1V 0HB, titled "New media between copyright protection and the access to network conundrum".The speaker is Nicola Lucchi, Associate Professor at the Jönköping International Business School (Sweden) and the seminar examines how regulatory policies for new media are posing barriers to equitable and open access to digital information, and the seminar also discusses and analyses the functional relationship between modern communication technologies and legislative reforms in the area of digital communications that threaten to reduce online freedoms. It's free to attend but you need to register.  More here.

Astronaut Chris Hadfield's "goosebump-inducing" cover of David Bowie's "Space Oddity?" which had amassed 23.4 million hits before it was taken down from YouTube is back online after 
Hadfield secured fresh permission from Mr Bowie's representatives to use the extra-planetary recording, which was made aboard the International Space Station at an elevation of 250 miles (400 km), after a five month hiatus. Bowie himself loved it, posting on Facebook that it was "possibly the most poignant version of the song ever created" and an initial one-year agreement which has now been extended after a "careful and exacting" legal process with Hadfield saying "And now, we are so happy to be able to announce that my on-orbit cover of Space Oddity is back up on YouTube. This time we have a new 2-year agreement, and it is there, for free, for everyone. We're proud to have helped bring Bowie's genius from 1969 into space itself in 2013, and now ever-forward. Special thanks to Onward Music Ltd, to the Canadian Space Agency and NASA, to musicians Emm Gryner and Joe Corcoran, to videographer Andrew Tidby, to my son Evan, and mostly to Mr. David Bowie himself. For the countless others who have helped work to bring about a new era of exploration, the art of it sings to us all." More on copyright in space here and here.

Rome - it may have been built in a day -
but surely built some time ago .......

Now then - this is what caught my eye this week. I wasn't aware of this, but it's been suggested that whilst The EU’s 2001 InfoSoc Directive contains a clause that says photos of architectural projects in public spaces can be taken and used free of restriction (with copyright vesting in the photographer) - the so called "freedom of panorama" after the term used in German copyright law, Panoramafreiheit, this is optional and  France, Belgium and Italy decided not to transpose it into national law. Well, that's according to Dimitar Dimitrov, a Wikipedia spokesperson who says “If you take an image of the Atomium and put it on Facebook, that is copyright infringement” - and indeed Belgium's Atomium website does indeed note “any use of the image of the Atomium must be submitted to the organisation before it is published” and "The image of the Atomium is protected and can only be used under certain conditions” and “Prices depend on whether it is to be used for a cultural, educational or commercial purpose.” The Atomium picture on Wikipedia's page is a photo of a model built in Austria. Elsewhere, the images of the monument are usually simply blacked out to respect Belgian rules. Have any of our readers heard of images of modern public buildings in Paris, Brussels or Rome being restricted in any way? Dimitrov suggests that "people can now take photos of the Eiffel tower during the day but not at night. This is because the architect has been dead so long that the copyright rules no longer apply. But they have since installed lights" and “The lightshow is protected by copyright”. The article in the EU Observer suggests "Another oddity is that because the European Parliament does not own the copyright license of its buildings, it cannot legally grant permission for people to take photos of it."  In the UK whilst copyright subsists in architecture as an artistic work by virtue of s4(1)(a) [a work of architecture being a building or a model for a building], section 62 of the CDPA allows photographs (or indeed a film) to be made of a building and provides that “copyright in such a work will not be infringed by (a) making a graphic work representing it, (b) making a photograph or a film of it; or (c) making a broadcast of a visual image of it”. In addition to buildings, section 62 also provides an express exception to copyright infringement in relation to photographs of certain specific works - sculptures, models of buildings and works of artistic craftsmanship - permanently situated in a public. So from a UK perspective there is a rather an unharmonised panorama across the EU - something that surely will be revisited soon.

There seems to be a lot of cyber noise on this - The Eiffel tower gets a lot of attention - more here http://torrentfreak.com/night-time-eiffel-tower-photos-are-a-copyright-violation-141108/  and here http://www.slashgear.com/your-night-time-eiffel-tower-photos-are-copyright-violations-09354716/ and the position on replicating Notre Dame and parts of its architecture and interior in the video game Assassins Creed gets attention here http://www.vg247.com/2014/11/10/assassins-creed-unity-notre-dame-pc-ps4-xbox-one/ with one of the game's senior level artists, Caroline Miousse, saying " There are certain things we were actually unable to directly re-create due to copyright issues. But we chose not to see this as a negative. For example, when I look at the organ in Notre Dame, I think it’s a masterpiece. It’s just so huge and beautiful… and copyrighted. We couldn’t reproduce it exactly, but we could still try to nail the feeling you get when you see it. We kept it very similar in general appearance, and it’s only when you get close to it and really analyze it that you realize it’s not the same exact organ you would see in Notre Dame today."

Yesterday the European Parliament's Legal Affairs and Culture Committees met to discuss the future development of copyright (11 November) with academics, representatives of content creators and distributors and European Commission experts. we will update on this as and when reports come in unless any of our readers watched the live stream of the hearing, and would care to comment. New Commission President Jean-Claude Juncker had announced that within the first six months of his mandate, he will take steps to modernise copyright rules “in the light of the digital revolution and changed consumer behaviour”. The Commission held a public consultation from December 2013 to March 2014, which generated more than 9,500 replies from users, authors, publishers and other stakeholders.

And finally today, a group of 77 prominent computer scientists have filed a petition with the U.S. Supreme Court urging it to review the controversial ruling that allowed Oracle to claim copyright on APIs - the essential building block for many everyday software operations. The brief, filed by the Electronic Frontier Foundation, comes in support of Google, which has appealed to the Supreme Court after losing a decision to Oracle in May. That decision, issued by the Federal Circuit appeals court, reversed a California judge’s conclusion that APIs (application programming interfaces) are not subject to copyright because they are simply a process or a method of instructing one computer program to communicate with another — as opposed to source code or literary works, which are considered original works protected by copyright with the Washington appellate court saying "with the court saying "We conclude that a set of commands to instruct a computer to carry out desired operations may contain expression that is eligible for copyright protection". More here.

More on US copyright and retransmissions

The introduction of so-called geo-fencing technology has become the next technological development to call into question the meaning behind US copyright law.

This time, the question is whether webcasts which are limited in transmission area by geo-fencing, are subject to licence requirements or royalty payments for performance of sound recordings under the US Copyright Act. Confirmation is sought by Verstandig Broadcasting – the owner of several FM stations in Virginia.

Under the Copyright Act, a webcaster is bound to pay royalties for sound recordings performed in their webcast. Although broadcasters are exempt from paying these royalties in relation to their broadcast programming, they are not when retransmitting the performance over the Internet. Under a narrow exception at s114(d)(1)(B)(i) of the Act, retransmissions are also exempt, if the radius of the transmission is no further than 150 miles from the broadcast transmitter.

Geo-fencing allows a webcaster to set boundaries on the accessibility of their webcast depending on the physical location of the recipient (based on the recipient’s computer’s IP address, WiFi, GSM access point and GPS coordinates). The technology was largely developed to help internet gambling operators, as individual US states gradually liberalise gambling within their state borders (but not across state lines).  Geo-fencing therefore can ensure that the webcast is not received by listeners more than a certain distance away, whereas previously, there was no way of ensuring this.

Verstandig are interpreting the exception to mean that as long as they limit the radius of their transmission to 150 miles from the transmitter, they are not liable to pay digital performance royalties. On 28 February 2014, Verstandig wrote to SoundExchange (the body responsible for administering statutory licenses and collecting digital performance royalties for sound recordings, including from webcasts) and asked for confirmation that if they went ahead on this basis, they would not be subject to legal challenge.

SoundExchange disagreed, stating that the exemption applied to ‘retransmissions of broadcasts by cable systems to their subscribers or retransmissions by broadcasters over the air. It does not apply when broadcasters simulcast their programming over the internet’, and urging Verstandig to obtain licences for the performance of sound recordings. Verstandig therefore asked a US district court in Harrisonburg, Virginia to issue a Declaratory Judgment providing that:
• a live stream of its FM broadcasts over the Internet to listeners physically located within 150 miles of the FM station’s transmitter is an exempt transmission under s114(d)(1)(B)(i) of Copyright Act;
• the stream would not be an infringement of rights protected by Copyright Act;
• no statutory licence is required; and
• SoundExchange has no right to collect royalties.

SoundExchange have countered the action on both jurisdictional and substantive grounds. They claim that the court lacks jurisdiction because Verstandig do not have a ‘real or substantial’ dispute, or ‘actual controversy’, as-well as claiming that geo-fenced radio streams are not exempt, following a ruling by the US Copyright Office in 2002 which found that ‘the exemption is not applicable to radio transmissions made over the Internet’, but only in relation to retransmissions over satellite and cable.

In September, a magistrate judge issued a Report and Recommendation to dismiss the action on jurisdictional grounds, as requested by SoundExchange.

We await the outcome, to see if the district judge will follow the magistrate judge’s recommendation, or agree with Verstandig.

Although a relatively narrow point, it would be interesting to consider what broader implications geo-fencing technology might have in areas of interest to copyright lawyer - for example in the context of the EU's continued drive towards a single digital market.

More about this case HERE in Radio World

[Thanks to Katharine Alexander for help in writing this; thanks also to my friends at www.geocomply.com for drawing this case to my attention]

The IPO goes technical (protection measures)

The IPO is clearly in a mood to give early Christmas gifts to its readers.  Snapping on the heels of the consultation on shortening the term of protection for old unpublished works foreshadowed in Ben's post last week (and explored further in the comments to that post) comes news that they have published guidelines on how the Secretary of State will deal with the complaints which he/she might receive under the provisions of section 296ZEA of the Copyright, Designs and Patents Act 1988,  introduced into UK law on 1 October by the snappily titled Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014.

The Guidelines may be found here - on the newly revamped (and from this Blogger's perspective, newly inpenetrable) IPO website.

As the explanatory note published this week says:

Technological Protection Measures (TPMs) (also known as copy protection measures or DRM) are often used to protect copyright works, for example, through encryption on DVDs. TPMs can have a important role in enabling copyright owners (rightsholders) to offer content to consumers in different ways, as well as protecting against unlawful copying (piracy). EU and UK law protects the right of copyright owners to use TPMs to protect their works, and circumvention of such technology is illegal.

However, use of TPMs could potentially prevent activities that are permitted by copyright exceptions [surely they are always permitted, it is just that they can be lawfully undertaken without copyright holder approval]... The law therefore provides for a complaints process that aims to ensure that a TPM does not unreasonably prevent people from benefiting from an exception. The guidance on this page gives information on when and how someone may make a complaint, other steps that they should consider and some of the factors that may influence the outcome of a complaint. 

The guidelines are interesting to read - and although they fail to solve the conundrum at the core of the new exceptions (the Secretary of State can intervene where the TPMs defeat the purpose of the exception ... which is to give the right to make copies), while treading a careful line to make sure that no discretion is being fettered, they do provide reassurance that 

"For example, the Secretary of State would not want to impose a large and disproportionate burden on business and undermine the ability of the Creative Industries to produce the content we all enjoy. 

Equally, the Secretary of State will also want to ensure that the benefits of the exceptions can be realised. For example, it is right that an archive that is seeking to preserve the cultural life of the nation by holding (securely) copies of works should not be restricted from doing so by TPMs." 

Also worth noting is that there is now a complaint form for potential complainants to fill in - and that the same form has been extended to cover not only the Secreatry of State's new power under section 296ZEA, but also the matching power that already existed under section 296ZE (in respect of a range of other exceptions).

Oister Oi! A small episode of infringement

A few weeks ago this blogger's attention was caught by a piece of Danish litigation before the splendidly-named Maritime and Commercial Court in which a production team and reggae band sued an advertising agency and a mobile broadband provider for copyright infringement involving a very short snippet of work.

The defendants initially asked the claimants to produce both text and music for a commercial. This was done; the defendants approved the material and a deal was struck between them which expired in February 2013. Some time after the expiry of the agreement, the defendants produced a new commercial which, said the claimants, used a three-note music sequence and the words "oister oi" which infringed copyright in the work originally produced under the agreement. The defendants denied any infringement, saying that the text merely consisted of the broadband provider's name, Oister, and the word 'oi' [apparently 'hello' in Portuguese: can someone verify this?], and the music was only three notes taken from a whole piece.

The court ruled that, when assessing whether the fragment "Oister Oi" was protected by copyright, the text and music must be evaluated as a whole and had to have an overall level of originality. In the court's opinion, the choice and combination of words, note sequence and rhythm, considered as a whole, were indeed the expression of an individual creative effort.  Accordingly the fragment as a whole had the character of a copyright-protected work. Since the defendants had used the fragment twice, the court found Dkr 20,000 to be a reasonable remuneration.

While very short works have been found to be subject to copyright protection and the taking of short extracts has been found to be an infringement, the risk factor involved when embarking on such litigation is inevitably greater where an argument of de minimis or insubstantiality is available to the defendant.  One would imagine that this uncertainty would tend to lead to cases being settled more often, but there is no evidence that this is so.

Source: "Short fragments of text and music may be protected by copyright", by Mads Marstrand-Jørgensen (MAQS Law Firm, Copenhagen), written for International Law Office.