Australia's Copyright Amendment Bill moves forward

The new Australian copyright amendment bill, The Copyright Amendment (Online Infringement) 2015 bill, has been approved by the Australian Senate's Legal & Constitutional Affairs Committee and will now be submitted to the House of Representatives in Canberra, Australia later this week.  When passed, the new law will allow rights-holders to request injunctions in the Australian Federal court to block access to overseas websites and  will underpin the creation of a code of conduct which ISPs must adhere to in order to reduce online infringement. The Senate Committee endorsed the bill, after submitting a report acknowledging the impact that copyright infringement has on the country's creative industries. The Committee did not clarify whether virtual private networks (VPNs), which have legitimate uses, would be immune from being blocked under the regime.

Although telecommunication companies have expressed concern over who will be paying the financial costs associated with blocking infringing website (and any legal proceedings that may arise after a website or a business gets erroneously blocked) the Bill is not expected to face major opposition or amendment before it is passed ito law. Four amendments were made to the initial draft, which is supported by both the Labour party and the ruling Coalition, although the Greens have objected to the Bill and in a dissenting report the Green's Senator Ludlum said the Copyright Amendment (Online Infringement) Bill 2015 was the "latest in a long line of misguided attempts by the government to monitor, control and censor the internet".

Communications Alliance chief executive officer John Stanton said the government should carry through on its earlier commitments concerning costs requiring that "Rights holders would be required to meet any reasonable costs associated with an ISP giving effect to an order [to block a website]...' " 

The effectiveness of the new regime would be reviewed after two years of operation.

http://au.idigitaltimes.com/australian-senate-approves-online-copyright-bill-101429 and http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Copyright_Bill_2015/Report

The CopyKat

An artist has won almost $1.35 million damages in a lawsuit over a sculpture commemorating workers who were paid $5 per day to risk their lives during the construction of the Hoover Dam. A jury in Las Vegas federal court ruled in favor of artist Steven Liguori, creator of the bronze statue known as the “High Scaler” at Hoover Dam. In 2011, Liguori sued Bert Hansen, the owner and operator of the Hoover Dam Snacketeria and the High Scaler Cafe at the dam, after the artist said he was cheated out of royalty payments and his work was used without permission for merchandise and marketing. Hansen had commissioned Liguori to create “High Scaler” for a $166,000 fee and had agreed to pay the artist a share of the proceeds from merchandise based on the sculpture as well as the artist’s other dam-related creations. U.S. District Judge George Foley ordered Hansen to pay Liguori $1.2 million for breaching their agreement and $150,000 in other damages.

Music publisher Kobalt has launched what it calls the world’s first ‘global, direct, digital mechanical and performing rights society’. The new venture is based on the existing operation of AMRA (American Music Rights Agency), which Kobalt acquired last year. What other music publishers make of a publisher owned collection society remains to be seen - but the new service promises two services to clients: (i) licensing of AMRA publisher members’ Anglo-American repertoire to DSPs operating in multiple territories and (ii) collection of writer’s share of public performance monies on behalf of AMRA writer members. AMRA plans to collect from th likes of YouTube and Spotify globally rather than in individual territories and promises to be "the most efficient way to handle the ‘high volume/low transactional value’ of music repertoire in a streaming world." More on Music Business Worldwide here.

Its somewhat ironic that as Facebook now seems to be a leading destination for illegally uploaded videos, one of the main complaints about this comes from the more creative users of YouTube, with YouTube creators alleging that their popular videos are being pilfered from the platform and uploaded to Facebook. A new term has even been coined for this practice: ‘freebooting’ - pointing out that Facebook doesn’t give creators the ability to monetize their videos just yet - with freebooting is detracting from valuable YouTube views which now has a workable and well publicised takedown system for content ownerrs, and its ContentID programme. More here. 


Fadi Chehadé, the President of the International Corporation for Assigned Named and Numbers (ICANN), has said that his organisation will not play international internet copyright police. His comments came as the US House Communications and Technology Subcommittee prepared to vote later this week on H.R. 805, the "Domain Openness Through Continued Oversight Matters Act," which would make ICANN an independent entity not under the auspices of the United States government, making the agency "more accountable to the Internet community" but Chehadé is clear that if and when independent, the organisation will not let trade groups or even governments compel it to enforce copyright laws.

Andrus Ansip, the European Commission's Vice-President for the Digital Single Market, has admitted that EU copyright law is "pushing people to steal," because they seek out illegal copies of works that are not available to them legally because of the widespread use of geoblocking in Europe. Ansip was interviewed as part of the music industry's annual Midem event (available as a video, found via TorrentFreak). He pointed to Spotify as an example of how people could be encouraged to pay for copyright material: "if somebody is able to provide services with better quality, with higher speed, people prefer to act as honest people; they are ready to pay, they don't want to steal." Emphasising that legal services need to be offered first before strengthening copyright enforcemen, Ansip also made comment on the controversial topic of geo-blocking in Europe, saying that whilst  "I'm not against territoriality" he was "against absolute territorial exclusivity"


Adam Suckling has resigned as News Corp Australia’s head of corporate affairs to become chief executive of the Copyright Agency, lauded for his "mix of commercial, content and copyright policy experience”. The appointment comes after the Copyright Agency extended its digital activities, launching digital textbooks for secondary school students and teachers, and teaching material to promote Australian literature. More here.

In Jamaica the House of Representatives has voted to increase the period of copyright protection for creative works used in Jamaica to 95 years after they become available. Under the amendment, copyright protection for local works was increased from life of the author plus 50 years, to 95 years from the end of the calendar year in which it was made available. The amended protection will affect Jamaican copyrighted creative works, including sound recordings, films, broadcasts or cable programmes, as well as performer’s rights.

The notice that Akkad received from YouTube

And finally, that bastion of liberal values, the UK's Guardian newspaper, is facing a barrage of criticism after it was accused of sending a “false” copyright notice in an attempt to “bully” a popular online ‘vlogger’ - after he parodied their politically-correct content by taking excepts from a video on the subject of African identity and stereotypes. Satirist, polemicist, and video-blogger Sargon of Akkad *what a title!) hit back at the Guardian after receiving a notice via YouTube that the newspaper was disputing his right to use their video in his parody of their identity politics. Breitbart London asked the Guardian how the copyright claim fits with its own claims of supporting “open journalism” and a statement, made by the newspaper’s editorial team, that “voices of opponents no less than that of friends has a right to be heard”. In response the newspaper issued a statement reportedly saying "“The Guardian has not issued a DMCA against YouTube user Sargon of Akkad,” a spokesman said. “There are, however, ongoing copyright discussions with the YouTube user regarding the amount of a Guardian video he has used – an issue highlighted by YouTube’s own Content ID system. We hope to come to an agreement with Sargon of Akkad and have offered advice on how to engage with Guardian content without breaching copyright. Open journalism is at the heart of the Guardian and we believe in the free flow of engagement, challenge and debate.”

Talking Copyright: Is There A Case For Copyright Term Reduction? June 19, 6-9pm

Recently the Green Party proposed reducing copyright term to 14 years after death, to encourage creativity through a more regularly refreshed public domain.

Fans of Copyright history will be aware that the Statute Of Anne initially prescribed a copyright term of 14 years, and the 1842 Copyright Act provided the first post-life term of 7 years.  The term has continuously lengthened and now stands at life plus 70 years for literary and musical works, and sound recordings recently increased from 50 to 70 years.

BritishBlackMusic.com/Black Music Congress and CultureTalkClub in association with City Law School have created a Talking Copyright forum for discussing the contentious topic of term reduction.

This British Black Music Month (BBMM2015) event is open to music fans, musicians, songwriters, academics, legal eagles, and music industry and IP/copyright practitioners.

Panellists: Sian Berry (Green Party spokesperson and 2016 London Mayoral candidate), Vick Bain (BASCA CEO), Jim Killock (Open Rights Group Executive Director), Hugh Francis (songwriter/music publisher); co-chairs Enrico Bonadio (City University London Law School senior lecturer) & Kwaku (BBM/BMC founder)

Friday June 19, 6-9pm

Room A110, College Building, City University London, St John Street, London EC1V 4PB (The building is marked "A": http://www.city.ac.uk/visit#9541=1)

Free, but must pre-book via www.BBM.eventbrite.com

US Re-Enters the Orphan Works Debate

The US Copyright Office (USCO) has recently returned to the subject of orphan works with a study outlining its analysis and proposals, a pdf version of which is available here. At 234 pages long, the best we can do here is provide a very broad overview of the study, and invite our readers to test their personal attention thresholds against the US Government's deathless prose. Just as an incentive, the main body is only 112 pages, and the remainder consists of hefty annexes covering the draft legislation and other supporting information.

This is not the first time the US has addressed the contentious subject of orphans. This time they have conjoined the subject of orphan works with the perceived need to do something to ease the burden on those engaged in the mass digitization of (mainly literary) works. The USCO have been persuaded that it is too financially and physically onerous to expect the digitizers (such as the Google Book Project) to contact each and every author for permission to scan their works, even where the contact information may in fact be readily available.

Orphan Works

 As we will assume that readers of this blog are relatively well aware of the alleged benefits of allowing third parties to access orphan works in order to exploit them through  such activities such as publication, reproduction and making available to the public, things normally reserved to a copyright owner, we won't reiterate what the USCO study has to say on this aspect.

Thus, after conducting a wide review of the solutions adopted or proposed by other nations (including the EU), the USCO study concludes that the best solution for the USA would be a legislative one, as opposed, for example, to letting the courts to apply the Fair Use criteria on a case by case basis. To that end the USCO concludes that resurrecting the failed Shawn Bentley Act of 2008 S. 2913, along with features taken from the 2008 House bill H.R. 5889, would meet the criteria (see below) which they consider any amendment needs to reflect.  In essence the proposed amendment to the Copyright Act 1976 would require a diligent search and registration of the intention to use the work, in return for which the user would face only limited liability in the event that the legitimate owner came forward to claim his/her work. The Fair Use defence would also still be available to the user.  Here is how they summarise the criteria for such legislation:
"

• Establish a limitation on remedies for copyright infringement for eligible users who can  prove they have engaged in a good faith diligent search for the owner of a copyright and  have been unable to identify or locate him or her; 
• Define a diligent search as, at a minimum, searching Copyright Office records; searching  sources of copyright authorship, ownership, and licensing; using technology tools; and  using databases, all as reasonable and appropriate under the circumstances;
• Require the Copyright Office to maintain and update Recommended Practices for diligent  searches for various categories of works, through public consultation with interested  stakeholders;
• Permit a U.S. court, in its determination of whether a particular search qualifies under the  statute, to take into account a foreign jurisdiction's certification that a search was in good  faith and sufficiently diligent, provided the foreign jurisdiction provides similar treatment  to qualifying U.S. searches;
• In addition to a diligent search, condition eligibility on a user filing of a Notice of Use with  the Copyright Office, providing appropriate attribution, and engaging in negotiation for  reasonable compensation with copyright owners who file a Notice of Claim of  Infringement, among other requirements;
• Limit monetary relief for infringement of an orphan work by an eligible user to  'reasonable compensation'  – the amount that a willing buyer and a willing seller would  have agreed upon immediately before the use began;
• Bar monetary relief for infringements of orphan works by eligible non-profit educational  institutions, museums, libraries, archives, or public broadcasters, for non-commercial  educational, religious, or charitable purposes, provided the eligible entity promptly ceases  the infringing use;
• Condition injunctive relief for infringement of orphan works by accounting for any harm  the relief would cause the infringer due to its reliance on its eligibility for limitations on  remedies;
• Limit the scope of injunctions against the infringement of an orphan work if it is combined with  'significant original expression'  into a new work,  provided the infringer pays  reasonable compensation for past and future uses and provides attribution; 
• Allow a court to impose injunctive relief for the interpolation of an orphan work into a  new derivative work, provided the harm to the owner-author is reputational in nature and  not otherwise compensable;
• Condition the ability of state actors to enjoy limitations on injunctive relief upon their  payment of any agreed-upon or court-ordered reasonable compensation; and 
• Explicitly preserve the ability of users to assert fair use for uses of orphan works. "

One of the earliest responses to the proposal has come from Mike Masnick on the Techdirt blog.   Masnick is characteristically scathing about the proposed measures, preferring to use the term 'hostage' rather than orphan, and arguing that a better approach would be to avoid (or at least substantially reduce) the creation of orphans by reinstating the compulsory registration of works in order for them to gain copyright protection. One quibble with this response is it does not address the current problem of the millions of orphans already in existence.
Comment from academic sources has yet to appear, possibly because many interested stakeholders, including academics, will have contributed in the earlier consultation phase, and therefore would have reasonable foreknowledge of what was likely to be proposed.

Mass Digitization

The problem facing institutions and companies (such as HathiTrust and Google Books) which wish to digitize vast quantities of works, some of which may well also be orphans, is rather different in that it is economically infeasible to contact each and every author for permission. The USCO acknowledges this difference by proposing a different solution to the problem, namely developing  an Extended Collective Licensing (ECL) scheme, but unlike the orphan work issue, their proposal here is to lead off with a pilot scheme in order to develop the most suitable ECL framework, concentrating initially on literary, pictorial and graphic, and photographic works.  Furthermore, the pilot scheme will not address unpublished works. The USCO appears to have accepted from an early stage that any ECL scheme will operate on an opt-out basis, although exactly how this will be managed is one of the aims of the pilot scheme.

Here's what the USCO's press release on the subject says about the next phase: "Because the success of such a system depends on the voluntary involvement of both copyright owners and users, the Office is inviting public comment on several issues concerning the scope and operation of the pilot program. The Office will then seek to facilitate further discussion through stakeholder meetings and, if necessary, additional requests for written comment. Based on this input, the Office will draft a formal legislative proposal for Congress’s consideration."
The Notice of Inquiry is available here. Written comments must reach the USCO by no later 10 August 2015

Questions from Coimbra as yet another reference is made to the CJEU

From Axel Paul Ringelhann comes news of another copyright-related reference to the Court of Justice of the European Union for a preliminary ruling. It's Case C-151/15 Sociedade Portuguesa de Autores CRL v Ministério Público and it's a request from the Tribunal da Relação de Coimbra, Portugal. Again, its theme is that of "communication of works to the public". Asks the referring court:

1. Is the concept of the communication of works to the public within the meaning of Article 3(1) of Directive 2001/29 [the InfoSec Directive] to be interpreted as encompassing the transmission of broadcast works in commercial premises such as bars, cafes, restaurants or other such establishments with similar characteristics, via television receiving apparatus, where the transmission of such works is amplified by speakers or amplifiers, thus constituting, in that context, a new use of copyright-protected works?

2. Does the use of speakers and/or amplifiers, that is, technical means other than television broadcast reception equipment, to amplify broadcast sound have any affect on the answer to the first question?

This blogger will confine himself to the observation that technology-neutral legislation such as Article 3(1), which reads

"Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them",

has not succeeded as a means of preventing technology-specific questions being asked of the CJEU, since -- however general the terms of the legislation may be -- communication to the public is a phenomenon that is in practice anything but technology-neutral.

Not a Bog Standard Copyright Case

Thursday 30th April 2015 was a pleasant, sunny day and so not a bad one to sit in the IPEC Small Claims court, listening to a battle between two toilet brushes. No, not a design rights case, but a case about copyright in a yellow toilet brush known as Brush Lee. When you know that the character seems to be a Kung Fu expert, the pun based on the film legend Bruce Lee's name becomes clearer.

The case being heard was Beverley Isaacs v Edward Bignell and Naughty Tortoise Ltd.

 

District Judge Clarke explained about how the proceedings would be conducted, without the need for evidence on oath, and with the judge playing an active role in getting to the essence of the evidence and keeping formalities to a minimum. Once two adjournments, one midway through the morning session, and hour for lunch, were discounted, the actual hearing took around three and a half hours.

Devotees of the Fox Kids TV Channel may be familiar with the Brush Lee character who appeared in various 90 second escapades inserted into the advert breaks between the main programming. We learned that these fillers were called interstitials. Those who are not aficionados of children's television can see an example of these 'interstitials' here.

The case concerned a claim that the likeness of the defendant's Brush Lee character was copied from a drawing by Beverley Isaacs of one of a series of characters created jointly by Ms Isaacs and the TV personality Benjamin Zephaniah, which were intended to form part of an animation series centred on Webster Spider (later to be renamed Rasta Spida), which the authors were jointly developing with Granada TV.

Mr Edward Bignell is the director and sole shareholder of the second defendant Naughty Tortoise Ltd (NTL) but in the late 1990s he was employed by Granada TV, and as such he attended these early meetings between Ms Isaacs, Ben Zephaniah and Granada's head of animation Annie Miles. A development agreement between the creators and Granada TV was draw up and signed on 22 March 1999. There then followed a number of meetings to develop the series concept, including one on 29 March 1999 when Ms Isaacs produced a drawing of a character she called Lu Brush, and it was claimed that a further more detailed drawing of the character was sent to Mr Bignell some days later. The Lu Brush character was visually based on a simple yellow toilet brush figure with oriental eyes and a propensity for kung fu. Following one of these meetings, the participants adjourned to the bar and during the ensuing hospitality, Mr Zephaniah had suggested the name 'Brush Lee' for the character, making a pun on the ever popular Bruce Lee. However while the Rasta Spida idea was developed, the toilet brush character was dropped and did not feature in the later work.

In 2000 Mr Bignell left Granada to set up as a freelance programme consultant using a predecessor company to NTL, Naughty Tortoise Productions Ltd. In September 2001 he was hired in this capacity by his old boss from Granada, Annie Miles, who had by then moved to become managing director of the Fox Kids Channel. Miles and Bignell then discussed a number of ideas for interstitials using characters based on household objects, to be used on the Fox Kids Channel. It was said that these discussions were merely a continuation of ideas about parodies of classic film genres, like westerns and kung fu, which the two had been discussing at Granada prior to the Isaacs/Zephaniah pitch of the Webster Spider idea. Mr Bignell gave evidence about how he, along with a team at Fox, developed a character based on a ninja toilet brush who was locked in battle with his adversary Jackie Chain (a wash basin plug and chain). In essence, cheap household items were bought on the high street and eyes and mouths drawn on plastic were then fixed to them, and the resulting figures were then simply manipulated by hand (as can be seen in the YouTube video link given above), to create the drama.

The defendant's position was that Ms Isaac's and his characters were created independently of each other, and that the choice of name for the Fox Kids Channel character was taken from Mr Zephaniah's suggestion, with the latter's approval. Indeed it was alleged that Mr Zephaniah had been aware of the development work going at Fox Kids and had not objected to it. Mr Zephaniah did not give evidence in person but in his statement, said he could not recall ever having given permission or to having acquiesced to the Brush Lee character being developed by Fox Kids. However neither party contended that the name 'Brush Lee' was subject to copyright.

The claimant spent some time during the hearing itemising the similarities between the two characters, which largely came down to the fact that both featured toilet brushes of a conventional design, used in such a way that the long thin handle was the head and body, and the bristles effectively represented the lower legs. And both were yellow in colour.

Mr Bignell claimed that although the idea was similar, the expression of it was very different. What's more, the defendant claimed that the idea of an animated toilet brush with human features was not at all uncommon in the advertising world or elsewhere.

The 25 short interstitial sequences were broadcast on Fox Kids in 2002, and in 2008 Mr Bignell obtained permission from the Channel to have the IP in the videos assigned to him. The following year, he licensed the rights in the videos to Target Entertainment in Australia, and subsequently, using his NTL company, put DVDs of the series on sale in the UK, along with copies some videos posted on YouTube which were intended to boost sales.

Mr Bignell and Ms Isaacs were the only witnesses to be called. Written statements from a number of other people were relied on by both sides. Mr Bignell's evidence was cross-examined at length, and he came across as someone who, although sure of the rightness of his version of events, often could not recall the details with sufficient clarity to back up his assertions. And although not technically a witness of fact, Mr Bignell's representative, Mr Andrew Baker, was able to assist the court with some additional generic background information about why and when development agreements might be drawn up and what sort of IP they would ordinarily seek to protect. This was based on his experience in the legal department at Granada TV, albeit at a different time to that pertaining to this case.

The hearing involved argument from both sides about the early sequence of events (much of which was disputed) and about the similarities between the works. Further time was spent discussing how the name Brush Lee came about, although the name was not really at issue. This was then followed by argument about whether the claim was time barred, given that the broadcast of the Fox Kids interstitials took place in 2002, which was rebutted by the claimant, who argued that since the DVDs were still on sale, the infringement was still continuing up to the date of the hearing. Lastly there was some discussion about the correct basis for assessing damages, and whether referring to a scale of fees set out in a US publication, The Graphic Artist's Handbook, was appropriate in this case. Understandably District Judge Clarke reserved her judgment, but today this has been handed down. She found in favour of the defendant, on the basis that none of the specific creative elements which Ms Isaacs gave to her character in order to transform it from an ordinary toilet brush into something with human characteristics were copied in Mr Bignell's character. Mr Bignell was awarded costs of £522.30, and the claimant was denied permission to appeal. 


_______________________________________________________________
The Doctor Fun cartoon © David Farley, reproduced here by kind permission of David Farley (dfarley@uchicago.edu)

The CopyKat

Azerbaijan’s Copyright Agency has issued a statement saying Armenians have been stealing the Azerbaijani peoples’ musical compositions, folklore samples and other intangible values for years. The statement came after the Armenian Culture Ministry apparently tried to submit the Azerbaijani folk dance "Kocheri" to UNESCO as part of the Armenian 'intangible cultural heritage' and the statement goes on to say 'Armenians are trying to present Azerbaijan’s “Sari gelin”, “Susen Sunbul” and dozens of other folk songs, “Yalli, “Kocheri”, “Uzundere”, “Mirzeyi” dances, ancient musical instruments (tar, balaban, zurna), even works of famous Azerbaijani composers Uzeyir Hajibeyli, Gara Garayev, Fikret Amirov and modern composers like Armenian examples'. More here.

Steve Albini, the renowned musician, record engineer, producer and songwriter has voiced a number of controversial but interesting opinion at the Primavera Pro conference and festival in Barcelona. You can read all about it here but gems included his view that the music industry “makes me angry that it exists as a parasite on the music scene, which is the fans, bands, shows, and the people who help them" and “The idea that you have to have contracts to do [business] agreements, that you have to have formal understanding between people in order to have a long relationship, is a complete fallacy" and “If you enjoy working with someone and both feel the relationship is working out, you naturally carry on indefinitely" and on copyright "“The old copyright model – the person who creates something owns it and anyone else that wants to use it or see it has to pay them – has expired in the same way that around the world you’re seeing structures and social norms [lapse] that were standard for many years.

In the UK, "recent controversy over the Green party's copyright policy illuminates not only the workings of the literary world but the essence of the Party’s shortcomings", argues Hana Gudelis in a well written piece in Varsity. Its well worth a read with Gudelis saying "Not only have the Green party failed to fully consider the negative consequences of their policy on one of the most vulnerable professions in society, but the members of the party have not even reached a clear understanding amongst themselves about the details of the copyright policy. "

Also in the UK, the High Court in London has granted The Publishers Association a blocking order under s97A of the CDPA, meaning the UK's leading ISPs will be required (within 10 working days) to block customer access to seven sites containing infringing content. The Publishers Association has issued almost one million take down requests to the sites. Chief Executive of Publisher's Association, Richard Mollet, said: “A third of publisher revenues now come from digital sales but unfortunately this rise in the digital market has brought with it a growth in on-line infringement. Our members need to be able to protect their authors’ works from such illegal activity; writers need to be paid and publishers need to be able to continue to innovate and invest in new talent and material." And Mr Justice Birss in the High Court has ordered a group of ISPs to block access to the “Popcorn Time” application for copyright film and TV content: Twentieth Century Fox Film Corporation and others v Sky UK Ltd and others.  More here.and more here.

Universal has submitted papers to the US Courts arguing that despite Pharrell Williams and Robin Thicke being found liable by a jury for plagiarising Marvin Gaye's "Got to Give It Up" - rapper TI (real name Clifford Harris) and their Interscope label cannot be held liable in the "Blurred Lines" litigation - because the said jury didn't find against them: "The court may not enter an order declaring that Clifford Harris Jr and the Interscope parties 'are directly liable to the Gaye family for copyright infringement' because the jury found, as to this very issue, that Harris and the Interscope parties are not liable to the Gaye parties for copyright infringement. Once a jury has decided an issue, a court may not 'declare' the opposite on that same issue without violating the prevailing parties' Seventh Amendment right to a jury trial".

Justice Robert A. Blair has been appointed  chair of the Copyright Board of Canada for a five-year term, effective immediately. Blair was appointed to the Court of Appeal for Ontario in November 2003, after serving for 12 years as a trial judge on the Superior Court.

And finally, the fall out from the shuttering of the original Grooveshark continues: U.S. District Judge Alison Nathan (sitting in Manhattan) has widened a preliminary injunction against the operators of the cloned Grooveshark service - and the injunction now include California based CloudFlare, Inc,.which optimizes the speed of websites and allows Internet users to connect to them without having to type in the numerical Internet address. But this "makes CloudFlare and other Internet Service Providers the copyright and trademark police for other rights holders" according to the company's general counsel, Kenneth Carter and CloudFlare, which does not host websites or register domain names, had said in court papers filed on May 28th that its services were passive and automatic, and that even without CloudFlare, the new Grooveshark would be able to continue (Arista Records LLC et al v. Vita Tkach et al, in the U.S. District Court for the Southern District of New York, No. 15-cv-3701).

Reha Training and GS Media: a call for comments

Apologies for a spot of double posting, but this is a slightly slimmed down version of a post that appeared on the IPKat weblog earlier today.  Given that the readership of the two weblogs is not coterminous and that this post is of substantial interest to the copyright community, it seemed prudent to make sure that readers of the 1709 Blog got to see and, if necessary, act upon it.

Two Court of Justice of the European Union (CJEU) copyright cases are the subject of an invitation to comment, issued by the UK Intellectual Property Office as a means of evaluating whether the UK government should make observations to the court.

The first is Case C-117/15 Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH v Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA), a request for a preliminary ruling from the Landgericht Köln (Germany) in a case that involves a rehabilitation facility. This establishment has a number of TV screens showing various TV programmes in recreation and training rooms: these screens, and presumably the programmes shown on them, can be watched by people making use of those rooms. In the underlying action Reha Training is seeking to resist the collecting societies claim for royalties on the basis that the availability of the TV screens constitutes a “communication to the public”. The questions referred for a preliminary ruling read as follows:

Is the question as to whether there is a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29 [on the harmonisation of certain aspects of copyright and related rights in the information society: the InfoSoc Directive] and/or within the meaning of Article 8(2) of Directive 2006/115 [on rental right and lending right and on certain rights related to copyright in the field of intellectual property] always to be determined in accordance with the same criteria, namely that

(a) a user acts, in full knowledge of the consequences of its action, to provide access to the protected work to third parties which the latter would not have without that user’s intervention,

(b) the term ‘public’ refers to an indeterminate number of potential recipients of the service and, in addition, must consist of a fairly large number of persons, in which connection the indeterminate nature is established when ‘persons in general’ — and therefore not persons belonging to a private group — are concerned, and ‘a fairly large number of persons’ means that a certain de minimis threshold must be exceeded and that groups of persons concerned which are too small or insignificant therefore do not satisfy the criterion; in this connection not only is it relevant to know how many persons have access to the same work at the same time but it is also relevant to know how many of them have access to it in succession;

(c) the public to which the work is communicated is a new public, that is to say, a public which the author of the work did not contemplate when he authorised its use by communication to the public, unless the subsequent communication uses a specific technical means which differs from that of the original communication; and

(d) it is not irrelevant that the act of exploitation in question serves a profit-making purpose and also that the public is receptive to that communication and is not merely ‘reached’ by chance, although this is not an essential condition for the existence of a communication to the public?

In cases such as that in the main proceedings, in which the operator of a rehabilitation centre installs television sets on its premises, to which it transmits a broadcast signal and thus makes it possible for the television programmes to be viewed and heard, is the question whether there is a communication to the public to be assessed according to the concept of ‘communication to the public’ under Article 3(1) of Directive 2001/29 or under Article 8(2) of Directive 2006/115 if the copyright and related rights of a wide range of persons concerned — in particular composers, songwriters and music publishers, but also performing artists, phonogram producers and authors of literary works as well as their publishing houses — are affected by the television programmes which have been made accessible?

In cases such as that in the main proceedings, in which the operator of a rehabilitation centre installs television sets on its premises, to which it transmits a broadcast signal and thus makes television programmes accessible to its patients, is there a ‘communication to the public’ pursuant to Article 3(1) of Directive 2001/29 or pursuant to Article 8(2) of Directive 2006/115?

If the existence of a communication to the public within this meaning is confirmed for cases such as that in the main proceedings, does the Court of Justice thereby uphold its case-law according to which no communication to the public takes place in the event of the radio broadcasting of protected phonograms to patients in a dental practice (see the judgment of 15 March 2012 in SCF, C-135/10, EU:C:2012:140 or similar establishments?

Readers may be getting a slight sense of déjà vu at this point, recalling that another CJEU reference, Case C-351/12 Ochranný svaz autorský pro práva k dílům hudebním, os (OSA) v Léčebné lázně Mariánské Lázně as [noted by Eleonora for the IPKat here], dealt with a similar set of facts involving a health spa.

If you would like to advise the UK Intellectual Property Office of your opinion, which might just precipitate a British submission in these proceedings, just email policy@ipo.gov.uk by 12 June 2015. You don't have to British to offer your thoughts -- and it probably doesn't even help if you are.

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The second is Case C-160/15 GS Media, this being a reference from the Hoge Raad der Nederlanden, The Netherlands to which the IPKat has already alluded here and here. In the underlying proceedings GS Media is a company which runs a website which allegedly infringed copyright in relation to photographs taken for a feature by publishing a hyperlink on its website that allowed the public to access those photos on an external, third party hosted site which also did not have consent to publish the photos in question. The questions asked here are these:

1(a) If anyone other than the copyright holder refers by means of a hyperlink on a website controlled by him to a website which is managed by a third party and is accessible to the general internet public, on which the work has been made available without the consent of the rightholder, does that constitute a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29? 

(b) Does it make any difference if the work was also not previously communicated, with the rightholder’s consent, to the public in some other way? 

(c) Is it important whether the ‘hyperlinker’ is or ought to be aware of the lack of consent by the rightholder for the placement of the work on the third party’s website mentioned in 1(a) above and, as the case may be, of the fact that the work has also not previously been communicated, with the rightholder’s consent, to the public in some other way? 

2(a) If the answer to question 1(a) is in the negative: in that case, is there, or could there be deemed to be, a communication to the public if the website to which the hyperlink refers, and thus the work, is indeed findable for the general internet public, but not easily so, with the result that the publication of the hyperlink greatly facilitates the finding of the work?

(b) In answering question 2(a), is it important whether the ‘hyperlinker’ is or ought to be aware of the fact that the website to which the hyperlink refers is not easily findable by the general internet public?

3. Are there other circumstances which should be taken into account when answering the question whether there is deemed to be a communication to the public if, by means of a hyperlink, access is provided to a work which has not previously been communicated to the public with the consent of the rightholder?

Again, if you would like to advise the UK Intellectual Property Office of your opinion, which might just precipitate a British submission in these proceedings, just email policy@ipo.gov.uk by 12 June 2015.