Beijing: now Moldova commits

By Beijing Notification No. 9 ("Beijing Treaty on Audiovisual Performances: Ratification by the Republic of Moldova") we learn that

The Director General of the World Intellectual Property Organization (WIPO) presents his compliments to the Minister for Foreign Affairs and has the honor to notify the deposit by the Government of the Republic of Moldova, on September 4, 2015, of its instrument of ratification of the Beijing Treaty on Audiovisual Performances, adopted at Beijing on June 24, 2012.

The date of entry into force of the said Treaty will be notified when the required number of ratifications or accessions is reached in accordance with Article 26 of the said Treaty.

Including Moldova (which is listed by WIPO under "R" for "Republic") there are now nine ratifications or accessions. You can check the current list at any time by clicking here. Under Article 26 the Treaty doesn't come into force till three months after 30 "eligible parties" have committed themselves.

Quantum Surveying the IPEC Way

When we report cases of copyright infringement, we all too often concentrate just on the arguments and evidence which lead to the outcome at trial: the winners and losers. For obvious reasons it is rarely possible to look in detail at those cases which settle, because the agreements usually bind the parties to confidentiality, and slightly less rarely do we examine the separate hearings in which quantum is assessed and awarded. There are  two possible reasons why these hearings are less commented upon: they are intrinsically less interesting as they have little bearing on the law per se (ie they tend to be very fact specific to each case therefore hard to draw inferences from), and they also tend to be less extensively reported on Bailii and in the law reports.

However for those less conversant with litigation - and this includes the growing number of litigants in person - the process(es) by which quantum is assessed can form an important element when considering whether to fight or settle. For the layman to only consider such matters as the likely damages after liability has been established, is rather too late. And from lawyer’s point of view, occasionally a costs hearing can involve a determining of which law which should be applied.

And so it was with a recent judgment from the IPEC under His Honour Judge Hacon in the matter of Absolute Lofts Ltd v Artisan Home Improvements Ltd and Anor [2015] EWHC 2608 (IPEC). The case provides both a welcome insight into the current thinking on assessing quantum in copyright cases, and the extent to which the UK law may be at variance with the EU Enforcement Directive (2004/48 EC) (pdf) brought into force by the Intellectual Property (Enforcement etc) Regulations 2006. This is the second time that Judge Hacon has published a judgment concerning an inquiry into damages - the first being Henderson v All Around The World Recordings Ltd, which was a case about unpaid royalties and performer’s rights, reported on by Eleonora here.

Returning to the current case, it is only necessary to set out the facts in the most outline of terms, because the defendant admitted liability at trial. The claimant, Absolute Lofts, is as its name suggests, a company which specialises in loft conversions. It is based and operates in London and has its own website. The owner of the company, Mr Craig Colton takes photographs of work he has completed and posts them on his company's website. There was no dispute that he owned the copyright in these images and that he had assigned the copyright to his company.

Artisan Home Improvements Limited is a company operating in the Bradford area. In around 2009, the company's owner (and second defendant) Mr Darren Ludbrook expanded his existing small building business to include the loft conversion market. He needed images of conversions for his website in order generate interest in this new area of work. Although he blamed his website designer, the court found that he either took 21 images from the website of Absolute Lofts and included them on the Artisan website, or there were reasonable grounds for believing he knew they were infringing images. The fact that potential customers of Artisan were being misled in this way was not at issue in the proceedings, although the judge took this into account when assessing Mr Ludbrook’s integrity and general approach to business.

In something of a departure from the normal structure of a court judgment, Judge Hacon first outlined in some detail the methodology chosen to calculate the quantum, before addressing the law which governs the awarding of damages. In this case, the so-called 'user principle' was followed. This principle is based on the construction by the court of a hypothetical negotiation between claimant and defendant before the act complained of, where each party would have been acting willingly and without duress to achieve the same state of affairs (ie the use of the 21 images) in a legal way. This differs from quantum based on presumed (or provable) losses suffered by the claimant, or the presumed ( or provable) profits made by the defendant arising out of the infringement.

The first thing the court looked at were the alternatives to using Mr Colton's images: Mr Ludbrook could have commissioned his own photographer, or he could have purchased licensed images from a stock agency (which is ultimately what he did, once the letter before action was received and he was obliged to take down Mr Coltan's images). Counsel for each side provided their own estimates, supported by expert testimony, of the cost of commissioning 21 similar photographs, which ranged between £9,000 (the claimant's figure) and £700 (the defendant's lowest estimate), but the court rejected this analysis on the basis that Mr Ludbrook was seen as a man "prepared to use the cheapest images he could find that looked good enough and could pass for photos of loft conversions done by Artisan" [22]. Instead, the judge took the view that the best evidence was provided by what actually happened when Mr Ludbrook was forced to find substitute images - he obtained them from a stock agency for a total of £300. This was the level of ordinary damages the court awarded.

The claimant had also sought aggravated damages under Section 97(2) of the CDPA. This subsection says a court may award additional damages having regard to all the circumstances, but in particular to the flagrancy of the infringement and any benefit accruing to the defendant by reason of the infringement. However the judge found that he needed to consider whether s 97(2) had been made redundant by the Enforcement Directive, specifically Art. 13(1). This came about because the UK Regulations which brought the Directive into force, state in Reg 3 (2) that damages may be awarded based on taking all appropriate aspects into account (this would include those factors covered in s 97(2)), or damages based royalties or fees which would have been due if the parties had agreed beforehand (the user principle outlined above). However this strict either/or approach was not to be found to be so rigid in the Directive (Art 13 1a and 1b). In the directive, the wording for the second condition is: damages “such as at least the amount of royalties or fees …” (my added emphasis). The court decided at [48] that the Directive thus allowed the national courts to consider additional damages, such as those contemplated by s 97(2), since Art 2 of the Directive permitted national differences in the means of enforcement if they were more favourable for rightholders than those provided for in the Directive. On this basis the court felt it was appropriate to award additional damages on the basis of the indirect benefits the defendant gained from the infringement, that is to say the increased business in loft conversions following the use of the images on the website. The business accounts for Artisan over the relevant period were inadequate to show the actual profits but turnover was clearly substantial (around £500,000 in 2013 for example), and it had to be assumed that this was in part due to orders won of the strength of the website. The judge awarded an extra £6,000 in damages under this head. This figure would have been the same he concluded, whether it was calculated under the Art 13(1) process, or s 97(2) CDPA.

This is a somewhat simplified version of the judgment, which interested readers are encouraged to read  for themselves in order to gain the full nuance of the deliberations.

Postscript.   Following the hand down of this judgment, counsel for Absolute Lofts returned  to the court to ask for an amendment to the award of ordinary damages (the figure of £300). Their grounds for seeeking this were that when the court had taken the Shutterstock fees as good evidence of the real world  cost of obtaining a licence for 21 similar images of loft conversions. However the full terms of the licence had been omitted from the trial bundle. The claimant had subsequently obtained these terms  and found that amongst other things they contained the following:

    “YOU [the licensee of the images] MAY NOT”:

[...]

12. Use an Image in a manner that infringes upon any third party’s

trademark or other intellectual property, or would give rise to a claim of deceptive advertising or unfair competition.
[...]
18.  Use any Image (in whole or in part) as a trademark, service mark,  logo or other indication of origin, or as part therefore, or to otherwise endorse or imply the endorsement of any goods and/or services.’
19.  Falsely represent, expressly or by way of reasonable implication, that any Image was created by you or a person other than the copyright holder(s) of that image."

Clearly Artisan's use of the licensed images was in breach of these terms and so the licence was invalid. It follows that Shutterstock would either have charged more for the actual use, or would not have permitted such use at all. Either way the figure of £300 was the wrong basis for the award.

The judge then had to decide whether he was permitted to reconsider his judgment and award of damages without the necessity a new trial or an appeal. Fortunately earlier this year Mr Justice Birss had had cause to examine much the same issue in Vringo Infrastructure Inc v ZTE (UK) Limited [2015] EWHC 214 (Pat). Birss J  concluded that where evidence was adduced after judgment had been given, the principles set out in Ladd v Marshall [1954] 1 WLR1489 might well be applied by the trial judge since he would have a better view of the facts than an appeal court.

HHJ Hacon stressed that while these principles are not decisive they are highly relevant to the current case:

“First, it must be shown that the evidence could not have been obtained without reasonable diligence for use at the trial. Secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive. Thirdly, the evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not be incontrovertible.”

Counsel for Absolute Lofts argued that this was not new evidence, and therefore the first principle did not apply, but the judge disagreed. On the basis that these additional terms could have been discovered with reasonable diligence before the trial or at least before judgment, the first principle was not met and so the application must fail.

Full details of the judgment here

Much ado about nothing? - Is IP law ready for the 3D printing "revolution"

3D or not 3D? That is not the question. 3D printing IS coming and on Wednesday 7th October the City Law School host Dr Marc Mimler (UCL) who will analyse the impact of wider distribution of 3D printers on IP right holders. 

3D printing is an emerging technology that promises many interesting applications. While some commentators perceive 3D printing as the dawn of a new industrial revolution others are more sceptical about the technology’s impact. 3D printers have become more and more affordable in recent times. Therefore, a wider distribution of 3D printers among the general public appears possible. This means that users can then print 3-D objects from the comfort of their home. Additionally, there are websites available that can be accessed to download files that contain templates which can be read into a computer and used for printing objects.

It has been argued that this development may have an enormous impact on Intellectual Property (IP) Rights holders. 3D printing can be used to produce objects that are covered by an IP right. One could for instance print an object which is covered by a design right. But there could also be the possibility to produce an object covered by a patent, trade mark or copyright. 

Jacques Attali, the renowned economist, philosopher and French political adviser, who in 1976 wrote a book that predicted the "crisis of proliferation" that the digital age has bestowed on the music industry with astonishing accuracy, has said manufacturing will be hit by an identical crisis, and this time it will be caused by 3D printing, saying "With 3D printing, people will print their own cups, furniture" and "Everyone will make their own objects, in the same way they are making their own music" - and its coming faster than anyone expects.

Print your own 3D printed fully functional Supercar - the Blade ? Yes you can!

Dr Marc Mimler analyses the impact of wider distribution of 3D printers on IP right holders. The question arises whether the law is equipped to tackle this issue or whether legislative action may be required.

13.00 - 15.00 Wednesday 7th October


AG08
College Building
Northampton Square
London
EC1V 0HB
United Kingdom

http://www.city.ac.uk/events/2015/october/much-ado-about-nothing-is-ip-law-ready-for-the-3d-printing-revolution

French Ministry of Culture Unveils Committee to Oversee Charter regarding Online Payment Methods

                                                                       

                                                                Flower Power

Earlier this year in March the French Minister of Culture, Fleur Pellerin, presented a new framework for dealing with online piracy and signed an anti-piracy charter known as ‘charter of good practices in advertising for protection of copyright and related rights’ setting out best practices in relation to advertising on pirate sites. 

The campaign against the pirate sites continues as the Minister launched a monitoring committee of best practices in the area of online payment methods, on September 10, as the next tool in the government’s toolbox to fight piracy (building on recommendations made in the report submitted to the government in May 2014 by Mireille Imbert-Quaretta (a member of HADOPI), itself a follow-up to the Lescure report from May 2013.

Adopting the “follow-the-money” approach espoused by the Imbert-Quaretta report, the committee is to work with a group representing payment actors including MasterCard, PayPal, Visa Europe andthe French Banking Federation on the one hand and organizations representing rights holders on the other hand. These two groups will meet at least twice a year to identify, on the basis of specific criteria, sites that are unlawful, and consider ways to cut their funding as well as, where appropriate, blocking payments thereto. Since the approach is non-binding, the committee’s success will depend largely on the payment actors' willingness to play ball.  The real challenge for the committee is the sheer size of the problem. The data suggest that there are over 13 million pirate sites users in France.

The Ministry of Culture has indicated that it wants to push this initiative at the European level, thereby giving it an international dimension.

Link to Advertising Charter:  here

Link to Imbert-Quaretta report from May 2014:  here

Link to Pierre Lescure report from May 2013:  here 

Prince and Universal wrong to take down that 'dancing baby'

Prince: the 1988 Lovesexy Album

In an important decision, and one which will undoubtedly have an impact on how content owners deal with what they consider is infringing content on the likes of YouTube, the Universal Music Group have been told by the U.S. appellate court that they should have considered whether a woman’s 29-second video of her two kids dancing to Prince’s “Let’s Go Crazy” was a fair use before issuing a takedown notice to YouTube.

Cast your minds back to 2007 and you might remember that Prince persuaded Universal, his publisher, to take down a slightly blurry user generated video on YouTube of a toddler dancing to a snippet from “Let’s Go Crazy”. The mum who uploaded the video, Stephanie Lenz, was not amused. Prince had publicly said in a September 2007 statement that he intended to “reclaim his art on the internet” and Lenz was put on notice that her use of Prince’s music violated the U.S. Digital Millennium Copyright Act, and that if she violated it again, she could lose her YouTube account and any videos she’d uploaded to it. Lenz sent a counter notification, and YouTube eventually reinstated the video that year.

Lenz then  sued Universal Music, arguing that entertainment company misrepresented the basis for its takedown request, saying the Universal had clearly not considered fair use, suggesting that her “use of the Prince song ‘Let’s Go Crazy’ is a self-evident non-infringing fair use” and “(T)he Holden (Lenz's son) Dance Video non-commercially transforms the song into partially obscured background music for a family video about a toddler just learning to dance, uses only a small, non substantial portion of the original work, and does not substitute for the work or harm any market for the work”.

In 2012 in the San Jose Federal Court, U.S. District Judge Jeremy Fogel refused to dismiss the case – or hand Lenz a victory – without a trial and that Lenz might persuade a jury in her claims that Universal showed wilful blindness to the possibility of fair use, and that fair use was self-evident. The Judge also considered Universal’s position, saying that equally they could explain their position to a jury and explain that there was no bad faith and Universal “lacked the subjective intent to misrepresent the reasons it asked YouTube to take down the video.”

The case then reached a three-judge panel of the 9th Circuit Court of Appeals: Last month we reported that U.S. Circuit Judge Milan Smith said the concept of fair use is an integral part of the language of the DMCA, roundly criticising the music company saying: “I struggle with how anyone looking at this from Universal’s perspective would doubt that little children playing and dancing around to music by the artist formerly known as Prince could view it as anything other than a fair use.” U.S. Circuit Judge Richard Tallman looked at the arguments put forward by Lenz’s lawyer (Corynne McSherry, of the Electronic Frontier Foundation) who had suggested that under the DMCA, Universal needed to come to a legal conclusion about fair use before it issued a takedown notice. Judge Tallman said the court was struggling with whether the video was fair use – although McSherry’s point was that whether or not the use was fair use – Universal hadn't even considered this before issuing a takedown notice.

The appellate court has now concluded that “the statute [DMCA] requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.” The court held that “fair use is not just excused by law, it is wholly authorized by the law.” They called Universal Music’s argument “incorrect” — that fair use was not authorized by the law because it is an affirmative defense that excuses otherwise infringing conduct. 

At the heart of the argument was Section 512(c)(3)(A)(v) of the DMCA which states that, as part of the written notice, a statement must be made by the copyright owner that it 
"has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. " The dispute between the parties was whether fair use is an "authorization" under the law as envisaged by the DMCA.  The Court of Appeals agreed with the district court that the "statute unambiguously contemplates fair use as a use authorized by the law". Annsley Merelle Ward has written an excellent piece on the IPKat on this case which you can find here.

The judges wrote that Lenz may recover nominal damages “due to an unquantifiable harm” from the Universal Music takedown, although those damages cannot be collected on claims of impairment of free speech rights. The total of the damages, including the recovery of expenses and attorneys’ fees, would be determined at a trial.

Corynne McSherry, the attorney at the Electronic Frontier Foundation who represented Lenz, told the WSJ Law Blog that the “ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech.”

Then toddler Holden is nearly 10 years old now.

http://blogs.wsj.com/law/tag/universal-music/

http://www.npr.org/sections/thetwo-way/2015/09/14/440363919/dancing-baby-wins-copyright-case

http://www.musiclawupdates.com/?p=6428

http://the1709blog.blogspot.co.uk/2012/10/is-dancing-baby-takedown-notice-abuse.html

And see the interesting article in the Music Business Journal by Serona Elton here

The CopyKat

Kim Davis, the county clerk in Kentucky who was jailed for five days for refusing to give marriage licenses to same-sex couples may now face a copyright lawsuit. At a post-release rally with Republican presidential candidate Mike Huckabee, the Survivor recording of "Eye of the Tiger" was played to 3,000 people —and this immediately produced a furious reaction from a band member. "NO! We did not grant Kim Davis any rights to use 'My Tune -The Eye Of The Tiger" wrote Survivor frontman Frankie Sullivan on the band's Facebook page. Sullivan had previously sued Newt Gingrich (the Republican politician and Speaker of the House of Representatives who was a Republican presidential hopeful) in 2012 for using "Eye of the Tiger" at one of his political events - the case was later settled.

The EFF have filed a friend-of-the-court brief in the Court of Appeals for the Ninth Circuit, arguing against a district court decision that upheld state law copyrights in pre-1972 sound recordings. The EFF recently filed a similar brief in the Second Circuit - both cases were victories for  Flo & Eddie, aka The Turtles (pictured right) who successfully persuaded district courts that state copyright law restricts public performances of pre-1972 sound recordings in their battle against SirusXM. A similar action in Florda failed - here the court found there was no state law to protect pre-1972 sound recordings. 

Now here's a thing - hackers targeting pirates: TorrentFreak reports that several prolific torrent uploaders have received an alarming message claiming to be from the legal department at major label Warner Music UK. The email accuses the user of copyright infringement and urges uploaders to delete their torrents and accounts, which some have done in response. However .... on closer inspection the threatening email appears to be fake say TorrentFreak, who received a full copy of the grammatically inept message which was sent to email addresses associated with the uploaders’ torrent site accounts - although how the sender accessed those addresses is unknown. A few weeks ago KickassTorrents warned its users against phishing attempts, in which malicious parties attempt to obtain the personal details of users.

On June 11, 2015, the Advocate-General Pedro Cruz Villalón delivered his Opinion in HP Belgium v. Reprobel now pending before the Court of Justice of the EU (CJEU, case C-572/13). This Opinion and the underlying case raise one important issue: Is it permissible for a national copyright law to allocate a portion of the fair compensation for reproductions exempted under Article 5(2)(a) and (b) of the 2001/29 Infosoc Directive directly to publishers, although they are not listed among the initial holders of the reproduction right under Article 2 of the Infosoc Directive? Now the European Copyright Society, as a group of academics concerned about the copyright reforms envisaged in the European Union as well as by the interpretation and development of the law by the CJEU, has shared its view on this matter of principle: And its ALL HERE!

Piracy is still a big issue in New Zealand, but the recorded music, film and TV industries say the process to hold infringers accountable is too lengthy and too costly. Just one complaint has been laid, and upheld with the Copyright Tribunal so far this year, compared with 4 last year and 18 in 2013. To successfully complete a complaint against someone allegedly illegally downloading, rights holders have to identify the illegal downloader and file a notice with their Internet Service Provider (ISP). The ISP then passes the notice to the account holder with each notice costing $25. Three notices are required within a 12-months before a complaint can be laid with the tribunal and pay a $200 fee. It's all too complex and too expensive say content owners.

WORDS - they are important - we all know that: Now TorrentFreak has published an interesting opinion piece from Rick Falkvinge (a founder of Sweden's Pirate Party) on how words are used in the debate about the remit and reach of copyright: One mistake that geeks and techies often make, but PR professionals and lobbyists never make, is the observation that words don’t just have a precise meaning – they also have a positive or negative chime to them. Therefore, lobbyists try very hard to establish a language where everything they want is described in words with a positive chime." and Rick makes the point "This is why I insist on calling governmentally-granted private monopolies that interfere with property rights “industrial protectionism” - this and and much more here.

And finally, what is said to be the USA's largest illegal music file-sharing site, Sharebeast.com, has been seized and shut down by the Federal Bureau of Investigation (FBI). A US Department of Justice (DOJ) domain seizure notice first appeared on Sharebeast.com on Friday September 11th. Visitors to the domain arwew now confronted by a notice which states that the FBI has taken control of the site 'pursuant to a seizure warrant issued by a United States District Court'. Sharebeast's related sites such as mp3pet.com and albumjams.com also display the notice. More on MBW here.

Is a Paper Book Sharing App Illegal Under French Law?

French startup Booxup has created an app allowing its users to borrow hard cover or paperback books from the libraries of other users. It launched its service last spring. This is how it works: a user uploads her library on Booxup, or, at least, the books she does not mind to lend, by scanning their bar codes. If a fellow user is interested in one of these books, he contacts her, and the two arrange the way the book will be provided to the borrower, from shipping to meeting at a café, as the site suggests (this is a French startup, after all).

So Many Books, So Litle Time

But an agent of the Direction Générale de la Concurrence, de la Consommation et de la Répression des Fraudes (DGCCRF), the French consumer protection agency, recently visited the Booxup offices, apparently after a person working in the book industry, whose identity is unknown, contacted the DGCCRF to express concerns over this business model. Indeed, Booxup uses a sharing economy model, where users offer their  property or services to others, either for a fee, like Airbnb, or Uber, or for free, such as Booxup.

Uber suspended its services in France in July after its services were found to be illegal by the French government, and the DGCCRF agent who visited Booxup had been in charge of the Uber case. Could such a fate await Booxup? It may depend on how its business model fits within French intellectual property law. Let’s examine some of it.

French law recognizes the droit de destination, which is right of the author to have the primary purpose of the work be respected. Under this theory, the author has the right to prevent certain uses of her work even after it is no longer her property. The droit de destination is a creation of legal experts, but has a legal base in several articles of the French Intellectual Property Code (IPC). One of these articles, Article L.131-3, provides that a transfer of authors’ rights is subject to each of the assigned rights being separately mentioned in the instrument of assignment, and that the scope and purpose (“son étendue et … sa destination”) of these assigned rights must be defined as to their place and duration. However, it is difficult to imagine an author negotiating in a contract that the purpose of subsequent assignments of his books is that there are never be to be borrowed, not to mention the impossibility of enforcing such a clause.

Another article of the French IPC, article L. 332-1 2° authorizes the seizures of copies of a work which have been “unlawfully used,” and article L. 335-3 of the same code provides that “any …dissemination of a work of the mind, by any means whatsoever, in violation of the author’s rights as defined and regulated by law “ is an infringement. However, it remains to be seen if the droit de destination theory could apply to a book-sharing business model [I don’t think so].

What about distribution rights? One of the founders of Booxup explained in an interview he had the idea of creating a paper books sharing app when looking as his well-stocked library: according to him, 95% of the books in people’s libraries are never read again. As such, our libraries can be seen as cemeteries of books. If we exhume one of them and lend it to someone, do we distribute it again? Article 4.1 of Directive of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society provides that Member States must provide authors, “in respect of the original of their works or of copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise.” However, France has not transposed this particular article, even though it has recognized the first sale exhaustion of such right in article L. 122-3-1 of the IPC: “Once the first sale of a work or copies of a work has been authorized by the author or his successors in the territory of a Member State of the European [Union] or another State party to the Agreement on the European Economic Area, the sale of the copies of this work cannot be prohibited in the Member States of the European [Union] and the States party to the Agreement on the European Economic Area.” It seems that Booxup would be legal under article L. 122-3-1.

What about libraries? French Intellectual Property Code also regulates libraries, as France finally transposed in 2003 Council Directive No. 92/100/EEC of 19 November 1992 on rental right and lending right. Article L. 133-1 of the French IPC provides that if “a work is subject to a publishing contract for its publication and distribution in a book form, the author may not object to the lending of copies of this publication by a library open to the public.” However, this creates a right for the author to be financially compensated. But Booxup is probably not a library open to the public under French law, as the French “bibliothèque accueillant du public” implies that the library welcomes/hosts the public, just as the Directive defines such libraries as “establishments which are accessible to the public, and so article L. 133-1 is probably not applicable.  

It is interesting to see an example of the new sharing economy challenging IP laws, especially as Booxup, while a French company, boasts users from all over the world. Do readers know of similar programs in their own countries?

Image is courtesy of Flickr user BiblioArchives/Library Archives under a CC BY 2.0 license. 

The CopyKat: splattering times

TorrentFreak tells us that Google processed an astounding 16.68 million takedown notices in just one week in August, unsurprisingly the highest number ever seen in a seven day period. To compare - this contrasts with  just 158,000 takedown requests in a week in Aughust 2011. By November 2012 this had grown to 2.2 million in a week. The takedown notices are usually issued under the US Digital Millennium Copyright Act complaints against the Google search engine, requesting that links to copyright infringing material be removed from its database so that they no longer appear when users search for certain key words - with music takedowns being a significant chunk of this.

On the matter of safe harbours,  PRS's Head Of Legal, Policy & Public Affairs, Frances Lowe, told the Westminster Media Forum that a lack of clarity over what services could and should be protected by (US and) EU 'safe harbour' provisions disadvantaged both rights owners and propery licensed platforms: "The UK's songwriters and composers play a significant role in the UK economy and its exports", she said. "And the EU is their most important market. And their current priority is securing fair income from the use of their music across the online ecosystem, so that careers can be sustained". "Songwriters are currently being squeezed", she added, before targeting in particular the "user-upload platforms that are unlicensed or under-licensed" because they claim they are protected by safe harbours. This means they pay nothing or less for the songs they use, "despite the fact that without those songs they would not be able to raise capital, or pay their shareholders, or make a profit". The PRS recently lauched litigation against music streaming platform SoundCloud and Lowe said "Online services built on user-upload platforms which make content available to the public should not be able to plead safe harbour".

T


The BBC says its planning to launch a ‘New Music Discovery Service’ streaming service which will take on the likes of Apple Music, Tidal and Spotifywhich would make the 50,000 tracks broadcast by the BBC every month available to stream for a limited period. This digital platform will go one better than the ‘BBC Playlister’ initiative launched in 2013, which allowed listeners and viewers to transfer playlists of radio DJs’ shows to Spotify and other services. What those currently reviewing the BBC and the Licence Fee on behalf of the UK Government as part of charter renewal will make of a fully-fledged online music streaming service, owned and hosted by the Beeb, remains to be seen - but the BBC justify the move as an 'enhancement' to current services saying "Through this digital music offer, we would reinvent our role as a trusted guide, in partnership with our audience and with the UK music industry" addding "Together, the BBC and its audiences would curate music in new ways, enabling the discovery of more of all the music we play across the schedules of our many radio stations and TV channels" and  the service would also be "fully open and integrated with other digital providers", with users "able to transfer playlists between digital music products, and access them after BBC availability has expired through third-party providers". The BBC is already facing vocal criticism for unfairly squezing local news providers and "completely crowding out national newspapers" , as well as producing highly commercial programming like Strictly Come Dancing, Great British Bake Off and Top Gear to take on the likes of ITV in unnecessary prime time battles. The BBC's spend on its online operations as well as BBC3 and BBC4 are thought to be at risk. However, MBW reports that all three major labels are some way off licensing the new service– and have expressed early concerns about permitting a completely free music streaming service to use their catalogue.   Comment here. 


The Australian federal government has been urged on to stop the process of implementing an ISP copyright code.  The Internet users rights group Electronic Frontiers Australia has confirmed it wants the process to be halted, with its call coming in the wake of the introduction of new anti-piracy website blocking laws. The EFA said today that while it does not condone copyright infringement, international experience shows that copyright notice schemes are of “marginal value at best in addressing online copyright infringement" and puts the blame for infringement on a lack of legitionate services delivering what consumers want. EFA Executive Officer Jon Lawrence said the process should not continue until the government has conducted a “detailed cost-benefit analysis to ensure that it is not an unnecessary additional regulatory burden that will further harm competition in the sector and result in higher connectivity charges for Australians.” More here and here.


Billboard reports that Russian police have opened a probe into the collecting society RAO, which allegedly embezzled 500 million roubles ($7.4 million at the current exchange rate). The probe is centered on allegations that RAO, Russia's sole state-accredited collection society for authors’ rights royalties, embezzled some of the royalty fees it had collected by buying real estate and later transferring it to a shell company. According to reports, between 2007 and 2011, RAO purchased four buildings in central Moscow, which later changed hands several times, ending up in the possession of several other companies and individuals. The investigation comes at a time when the Russian government is controversially pushing RAO to merge with two other state-accredited collecting societies, VOIS (which deals with neighbouring rights) and RSP (which collects a one-percent tax on imports of electronic devices that can be used for copying content).

Where copyright leads .... others follow. The number of private prosecutions, once lonely road walked by copyright owners and not many others, is on the rise in the UK - with an estimated 300-500 private prosecutions last year - with the least three years seeing a 30+% rise year on year. The BPI, Sky TV, the Federation Against Copyright Theft and the Premier League have used private prosecutions as a useful tool against  alleged infringers - often succeeding even where the Police and the CPS have shown little interest. Now private prosecutions have been used in cases involving traffic offences, fraud and even domestic violence - the families of two women who were killed in the Glasgow bin lorry tragedy are threatening to bring a private prosecution against the driver of the lorry.

And finally - can you copyright an ink splatter? Well it seems Getty Images thinks you can: The Register reports that "Venerable hacker publication 2600 is fighting off what looks like an early candidate for the most egregious copyright infringement accusation of 2015". It seems that 2600 used an ink-splatter effect in 2012 and now group called Trunk Archive – ultimately owned by Getty Images – claims the image is theirs and the use was spotted by their crawler bots - and the use is infringing - with 2600 saying "We thought it was a joke for almost an entire day until one of us figured out that they were actually claiming our use of a small bit of ink splatter that was on one of their images was actionable". The ink splatter is in the bottom right section of the 2600 publication. In a twist, BoingBoing say that the ink spaltt isn't even Getty's - tracing the source of the ink splotches to a Finnish artist. More here.


Getty are also facing flak after demanding nearly $1,000 for one year's use of an image of a penguin that is actually part of a 'semi-popular' internet meme, better known as the Socially Awkward Penguin from a German Blog. Itb seems the issue is that the penguin itself could have been plucked from a photograph taken by George Mobley for National Geographic - although its now just a simplified cartoon penguin. Getty justified its actions to the DailyDot saying “Getty Images has an immense responsibility to the 200,000+ artists we work with to ensure that their work is properly licensed when used by commercial entities. Bear in mind that many artists themselves are small businesses, and are entitled to be paid for their work.” and pointing to the image embed tool that it launched last year.