The 1709 Blog

PRS for Music, STIM and GEMA to collaborate on new venture

2013-06-17T10:16:00.000+01:00

PRS for Music (UK), STIM (Sweden) and GEMA (Germany) have announced a major collaboration that the three music collection societies say will simplify both national and pan-European music rights licensing and processing. As part of the initiative, GEMA will become a shareholder and customer in International Copyright Enterprise AB (ICE), the company founded by PRS for Music and STIM in 2007. ICE will extend its current copyright repertoire management services to include the processing of transactional licences to Digital Music Services, both for its shareholder societies and for other society customers. In due course ICE will also create a state of the art audio visual database for film and television music processing.

PRS for Music, STIM and GEMA will in parallel establish a licensing hub that will combine the national repertoires of all three collecting societies as well as providing licensing services to other holders of multi-territorial European online rights, both publishers and societies. The combined repertoire available to license through the new hub will be amongst the largest of its kind in Europe, providing access to millions of works for download, subscription and streaming services.

Slated for delivery in 2014, the proposed joint venture will use the copyright and online processing services from ICE, who in turn will work in tandem with the planned Global Repertoire Database (GRD) and the partners say that the new venture will deliver benefits that include:

• Faster and more accurate invoicing and royalty payments, aiding both creators and music users

• Significantly fewer licensing negotiations for digital music services operating and launching across Europe

• A reduction in processing costs and an increase in accuracy as duplicate systems and processes are combined

• The ability to include other societies repertoires on an equal basis expanding licensing capability and bringing cultural diversity to European digital music services

Commenting on the announcement PRS for Music Chief Executive Robert Ashcroft said: “This partnership will enable dramatic improvements in licensing and rights management across Europe by reducing complexity and increasing efficiency. It will accelerate the growth and development of the digital music market, while ensuring that songwriters, composers and music publishers are paid the right amount of money, faster, more accurately and at lower cost. This is good news for everyone involved, from our members to the digital music service providers” and "Kenth Muldinm, Chief Executive of STIM, commented: “I am confident that our partnership will create a modern and more cost-efficient management of music rights in Europe. This initiative is simply a response to market demand – music needs to be distributed anywhere, anytime and on any device, to the benefit of both consumers and creators. Our joint aim is to make music licensing and royalty payments more efficiently– in short to encourage market entry for legal services and allow music lovers to enjoy music” with Carsten Drachmann, Chief Executive of ICE, saying: "The is a great step forward for the "one stop shop" of online licensing in Europe, and ICE is proud to deliver the back office services, technology and solutions that enables this joint venture and helps reduce complexity and cost, and secures a fast and accurate return to rights holders."

The collaboration is subject to approval by competition regulators.

http://www.prsformusic.com/Pages/default.aspx / https://www.gema.de/en/ / http://www.stim.se/

From big issues to daily detail: copyright in all its glory

2013-06-17T08:25:00.000+01:00

While the big issues continue to preoccupy copyright analysts and policy-makers, it's good to be reminded occasionally that the facts on on the ground reflect an ongoing battle between those who seek to make money out of copyright and those who seek to avoid paying. The case below is an interesting one in that regard: do we have a noble user here, unfairly restricted by the exploitation of outmoded rights and antiquated business models, or a grubby, undeserving fee-dodger? The decision is yours.

Federation Against Copyright Theft Ltd v Stanley Ashton is a Divisional Court, England and Wales, decision of a two-man team (Lord Justice Laws and Mr Justice Irwin) which comes to this blogger via a note published on the useful Lawtel subscription-only service. The twosome were hearing an appeal by way of case stated against a decision of a district judge to dismiss the information laid against Ashton which alleged that he had committed offences contrary to the Copyright, Designs and Patents Act 1988 (CDPA), s.297(1).

Ashton was a premises licence holder and the designated premises supervisor of a social club. Each of the three informations alleged that. on three occasions. he had dishonestly received a B/Sky/B broadcast of a premiership football match, provided from a place in the United Kingdom, with intent to avoid payment of a fee in accordance with a non-domestic viewing agreement, contrary to s.297(1). The magistrates' court found that Ashton's club was a members-only establishment and that he had entered into a non-domestic television contract with BSkyB to show its live programmes in the licensed area of the club over two periods; however, the contract was terminated each time by BSkyB for non-payment of the monthly subscription fee.

Investigators had visited the club four times and Ashton was advised that he had to have the correct contract if he was going to show BSkyB broadcasts. Ashton accepted that the TV and projector in the licensed area were showing pictures of premiership football games which BSkyB had exclusive rights to show. He had a residential Virgin Media package which included Sky Sports Live, for his residential flat which was handily located the licensed area. The parties accepted that there was a substantial price difference between the monthly subscription for BSkyB for domestic and non-domestic customers. Ashton maintained, relying on the unreported decision in Federation Against Copyright Theft Ltd v Gabriel, 23 August 2012 to support the proposition that the prosecution had to prove that a defendant must not have paid any charge for the programme which was received. The court concluded that Ashon did make payments via his Virgin Media contract -- which included Sky Sports -- and acquitted him.

On appeal the questions were these:

did s.297(1) proscribe the reception of a programme in circumstances, where within the UK, (i) a person (X) subscribed to a company (Y) which was only entitled to provide programmes for domestic use; and (ii) Y provided those programmes at a charge which was lower than the charge applicable for their reception in non-domestic/commercial premises; and (iii) X knew that the price charged by Y was lower than the charge applicable for the reception of the programmes in non-domestic/commercial premises and X also intended to avoid payment of the higher charge; and (iv) X knew that the higher charge was payable to another company which had exclusive rights to broadcast the programmes in non-domestic/commercial premises?
was the magistrates' court right to find that the payment for the " domestic use only" service to Virgin Media in those circumstances was the payment of any charge applicable to the reception of the programmes in commercial premises?
having regard to the evidence that was agreed and the live evidence called, was there any evidence to support the conclusion that Ashton did make payment to BSkyB via his Virgin Media contract which included Sky Sports Live?

In an extempore judgment that has not found its way on to BAILII the court allowed the appeal, returning the case so that the magistrates; court could ascertain whether Ashton was acting dishonestly or not. According to the Divisional Court:

Under s.279(1) a person who dishonestly received a programme included in a broadcasting or cable programme service provided from a place in the UK with intent to avoid payment of any charge applicable to the reception of the programme committed an offence.
The Murphy v Media Protection Services cases did not assist as they did not address the situation of where a programme could be obtained from two providers.
It seemed highly improbable that Parliament, when enacting the provision, did not have in mind the difference between domestic and commercial use.
The phrase "any charge applicable to reception" did not require such a narrow interpretation as that given to it by the magistrates' court and it had to be read as a whole. Section 297 was a penal provision and could not be given such a narrow interpretation. He had also erred in holding that payment made by S to Virgin Media amounted to a payment to BSkyB.

Queen honours CLA's Kevin Fitzgerald

2013-06-14T22:30:00.000+01:00

Copyright Licensing Agency (CLA) Chief Executive Kevin Fitzgerald has today been appointed Companion of the Order of St Michael and St George (CMG) in the Queen's Birthday Honours List. Kevin been honoured for his services to British economic interests, in particular, the promotion of intellectual property internationally and the welfare of British nationals imprisoned abroad.

Under Kevin's leadership the CLA - now in its 30th year - has worked closely with the International Federation of Reproduction Rights Organisations (IFRRO) towards developing a robust international copyright system that supports creators and publishers and underpins the UK creative industries. The UK creative industries bring major benefits to the British economy, generating £70,000 every minute, employing 1.5 million people and promoting British culture overseas.

In addition to his position as Chief Executive at CLA, Kevin chairs Prisoners Abroad, a humanitarian charity which provides non-judgmental care for British citizens imprisoned overseas.

Well done, Kevin!

Birthday blues in class action claim

2013-06-14T17:05:00.000+01:00

The Guinness Book of records says it’s the most recognized song in the English language, just simple tune consisting of four lines that’s delighted countless children and adults, including Marilyn Monroe's sultry serenade of President Kennedy. But in what appears to be the biggest copyright story of the year - at least in the popular press - “Happy Birthday to You” is now the subject of a lawsuit brought against the publishing arm of Warner Music Group, which claims copyright ownership in the song. A complaint, from a disgruntled film producer who had to cough up $1,500 to use the track, was filed in federal court in Manhattan and claims that “Happy Birthday to You” has been in the public domain since at least 1921. The suit seeks class action status on behalf of anyone who paid a royalty to use “Happy Birthday to You” in the past four years. The song allegedly generates at least $2 million a year in licensing fees for Warner/Chappell Music, Inc., which claims to own the exclusive copyright to the tune through a company it acquired, Summy-Birchard. Patty Smith Hillard wrote the lyrics to the song and asked her sister Mildred Hill to write a melody. The melody of “Happy Birthday to You” was adopted from an earlier Hill Sisters song, “Good Morning to All” and it’s not clear if that melody was original or if the melody for that was borrowed from other song(s).

The claimant, Good Morning To You Productions, argues that it has "irrefutable documentary evidence, some dating back to 1893, [which] shows that the copyright to 'Happy Birthday,' if there ever was a valid copyright to any part of the song, expired no later than 1921 and that if defendant Warner/Chappell owns any rights to 'Happy Birthday,' those rights are limited to the extremely narrow right to reproduce and distribute specific piano arrangements for the song published in 1935."

The Plaintff is seeking a declaration that the work is dedicated to public use and is in the public domain.

More from Hollywood Reporter here http://www.hollywoodreporter.com/thr-esq/happy-birthday-all-filmmaker-aims-568355 and the Wall Street Journal here http://blogs.wsj.com/law/2013/06/13/a-bitter-dispute-over-happy-birthday-to-you/ and the complaint as filed is here http://www.scribd.com/doc/147645129/Happybirthday and an earlier 2011 article which is an interesting read can be here http://www.slate.com/articles/arts/culturebox/2011/07/you_say_its_your_birthday.single.html

Not So Fast: French Minsitry Of Culture Hesitates to Transfer Graduated Response Entirely to CSA

2013-06-12T10:57:00.003+01:00

According to recent press reports, the proposed transfer of the three-strike graduated response from HADOPI to CSA (Conseil supérieur de l'audiovisuel) along with the substitution of the third-strike (internet suspension) with an administrative fine levied by the CSA has hit a speed bump.

It will be recalled that the recent Lescure report advocated such a transfer and recommended that the final strike be a relatively low administrative fine (€60).

Now, according to reports, the Ministry of Culture foresees serious legal obstacles to implementing a purely administrative fine as opposed to bringing the matter before the ordinary courts.

When in 2009 the original version of the HADOPI law, which provided that the final strike of internet suspension be pronounced by the administrative body itself, was submitted to review by the Constitutional Council it was held that this system did not pass constitutional muster. The Council opined that such a measure could only be applied by the judiciary, which gave rise to the system that is currently in force (strikes one and two, warning letters, sent by HADOPI and then, where appropriate, strike three administered by a court).

Mindful of this 2009 ruling, it would appear that the Ministry is not convinced that the system advocated by the Lescure report would be constitutional.

Cool for (Copy) Kats!

2013-06-12T10:55:00.000+01:00

Post Infopaq and Melwater, it always crosses my mind that using the title or lyrics from a well known song might just might be thought of as infringement (in this case dear readers, the title is a play on Cools for Cats, the 1978 hit by Glenn Tilbrook and Chris Difford of Squeeze) . But rest assured, the CopyKat will be making making full use of the newly proposed British and Australian copyright exceptions ...... yes for parody - but most importantly, relying on the newly created defence (here we go) of 'fur use' or failing that 'fur dealing'.

Anyway, on to copyright reform and what questions are being asked: The framework for the current Australian review set up by the Australian Law Reform Committee suggested a number of framing principles for the inquiry: acknowledging and respecting authorship and creation; maintaining incentives for creation of works and other subject matter; promoting fair access to and wide dissemination of content; providing rules that are flexible and adaptive to new technologies; and providing rules that are consistent with Australia’s international obligations. Any recommendations the ALRC finally makes will be weighed against these principles.

Chris Dodd, MPAA

In the US of A, Chris Dodd, Chair of the Motion Picture Association of America and a former US Senator, has taken to the pages of the Huffington Post to give his thoughts about the “reviews of copyright laws that are currently underway around the world” saying that any discussion on copyright reform “must focus on certain fundamental tenets that create the foundation of sound copyright policy and that are absolutely vital to any meaningful and informed discussion of this issue", not least that “copyright must empower creativity, innovation, and the dissemination of knowledge by ensuring that creators have a fair chance to be compensated for their creative efforts” but also that “copyright must benefit consumers by promoting free markets and competition. By recognizing well-defined and enforceable property rights, it incentivizes creators to take risks” and “copyright must support an Internet that works for everyone. Copyright must promote creativity, while also promoting new technologies and business models, like those that have emerged with the growth of the Internet.” To this Dodds adds that copyright must provide creators with modern protections, and finally that copyright must provide for incentives and accountability and include provisions that ensure the effective protections of creators' rights.

More succinctly, the UK's IPO preface their Technical Review with this statement: "Last year we consulted on making changes to copyright exceptions so that the UK's copyright framework remains relevant to the digital world in which we now live and work and continues to reward creators. Following recommendations by the Hargreaves Review, the consultation asked whether, and to what extent, the UK ought to adopt the full list of copyright exceptions which are outlined in the EU Copyright Directive".

And the Pirate Party in the UK say this on copyright reform:

The Pirate Party wants a fair and balanced copyright law that is suitable for the 21st century. Copyright should give artists the first chance to make money from their work, however that needs to be balanced with the rights of society as a whole. We would reduce the duration of copyright to 10 years - closer to the original duration of 14 years - reflecting the much greater ease with which works can now be made and distributed. Shorter copyright will encourage artists to keep on creating new work, will allow new art forms (such as mash-ups) and will stop big businesses from relying on large back-catalogues rather than investing in new content. Our 10 year copyright length will include within it a renewal after 5 years (allowing works in which the creator is no longer interested to fall into the public domain after 5 years). An exception will be made for software, where a 5 year term will apply to closed source software and a 10 year term to open source software, in recognition of the extra rights given to the public by open source licences.

Let's end with a song shall we? So its Squeeze again (well sort of, apologies to Glenn and Chris!) so sing along everyone!

My brief is doing parody

'Cos he's got the word to go

My mashed up track is brilliant

I just hope the court thinks so

I nicked a bit of music

what's the flamin' fuss?

It's not like Arnold's pirates

Or Birss' big red bus

It's funny how the exceptions'

Sometimes look so bleeding tame

And meanwhile in the Strand

There's a couple of likely lads

Who plead like how's your father

And they're very cool for cats

for CopyKats

Little known fact: Glenn Tilbrook produced my band's first proper demo tapes in Whitstable in 1978 along with Stewart Copeland. Not a lot of people know that.

Collateral damage to open source model? CJEU reasoning in Usedsoft v Oracle

2013-06-11T09:45:00.002+01:00

Our friend and correspondent Ken Moon (IP consultant, AJ Park, New Zealand) writes to tell us that he has now had an opportunity to consider the effect of the Court of Justice of the European Union (CJEU) reasoning in Case C-128/11 UsedSoft v Oracle on open source software licences (and for free software licences). Says Ken, it seems to him that the judgment, if taken literally, may blow the open source model out of the water. The following guest post is a short note of Ken's reasoning on the subject:

In UsedSoft v Oracle the CJEU held that (i) Oracle's software licence was a contract of sale and, (ii) the downloading of the software from Oracle’s website by the licensee (now considered a purchaser) exhausted Oracle’s right of distribution in relation to the copy that came into the possession of the licensee. The outcome of these findings was that Oracle software delivered by download could be resold by the ‘licensee’. The Oracle licence was a proprietary licence, but will the UsedSoft decision also impact disadvantageously on free or open source software licences?

Take the various versions of the GNU General Public Licence as examples. First, the licence as such is granted for the full term of copyright – life of last surviving author plus 70 years – long enough in itself, and the licence envisages software copies being transferred in perpetuity. Second, licensees are given the right to charge for each copy of the modified (or unmodified) software they distribute and of course downstream recipients in such circumstances will make payment for their copy. As the Free Software Foundation says, ‘free’ as in ‘free speech’, not as in ‘free beer’.

Applying the reasoning the CJEU used in UsedSoft, software copies distributed for payment under the GPL will be ‘sales’. The CJEU used the stipulated duration of the licence and transfer of ownership in the downloaded copies as tests to determine that Oracle’s purported licence was in fact a sale thereby allowing the Court to ignore the express terms of the licence agreement.

This creates two problems for open source licensing. The restrictions in such licences (in the GPL terms ranging from the obligation to preserve and insert legal notices to patent neutralising requirements) will be ignored by the courts as being inappropriate to a sale transaction. More ominously, the terms allowing the ‘licensee’ to make and distribute as many copies as desired and to modify and distribute modifications to the software must also be disregarded for the same reason.

But the raison d'être of the free software philosophy is that recipients must be able to make further copies (not just the temporary copies of binary code made during the running of the software) and modify the software. This mandates a licence (under copyright) and a deemed sale contract does not and cannot grant such rights any more than does a sale of a book. The failure of the CJEU to accord recognition of a software licence agreement and give effect to its terms is lamentable in itself, but more significantly for open source licences is the failure to appreciate that the terms of a licence may grant more rights to a user than occurs on a sale. Where does the UsedSoft logic now leave the prior decisions of German courts [http://gpl-violations.org/news.html ] , which have upheld and enforced the terms of free and open source software licences?

BBC and EOS "widely divergent" on Welsh licence fee

2013-06-10T12:00:00.000+01:00

In British Broadcasting Corporation v EOS- Yr Asiantaeth Hawliau Darlledu Cyfyngedig CT121/1 (on which, see Ben's earlier post here) the Copyright Tribunal issued a provisional ruling last month that BBCCymru (BBC Wales) should pay a licence fee to EOC, the licensing body for Welsh language music. This ruling, part of an ongoing dispute between the parties about the terms of the BBC's licence for the EOS repertoire, marks the first time that rule 35 of the Copyright Tribunal Rules has been invoked by a party seeking an interim order to permit it to use the repertoire according to terms set by the Tribunal pending a substantive hearing.

Before the interim hearing, the BBC and EOS had agreed an interim licence in the BBC's favour, for £10,000 per month. The Tribunal, noting that it had a wide discretion, took into account what would happen if the amount it ordered by way of a provisional fee turned out to be wrong. Since EOS was in financial difficulties, any overpayment might be difficult for the BBC to recover. Bearing this in mind, the balance of justice was best served by maintaining the status quo by ordering an interim licence fee of £10,000 per month. A final order is expected before the end of the calendar year.

According to the BBC (here):

""The parties have widely divergent views on what a reasonable licence fee should be -- the BBC says it should be £100,000 per annum and EOS says it should be £1.5m per annum. We are not in a position to pre-judge the final outcome of this matter and cannot now conclude with any certainty what the final fee may be".

The CopyKat - fascinating furballs of fun

2013-06-10T07:44:00.003+01:00

The City of London Police working, with the National Fraud Intelligence Bureau and representatives of the film and record industries, have started contacting websites believed to be profiting by providing access to infringing content, threatening the site operators with prosecution for criminal charges, which ultimately could result in jail sentences. The City of London Police have previously worked with the International Federation Of The Phonographic Industry (IFPI) to pressure credit card firms to stop taking monies sites believed to be involved in providing unlicensed content, while the UK's Serious Organised Crime Agency has previously targeted pirate sites operating.

CISAC, The global organisation that brings together the world's song rights collecting societies plus creators from various artistic disciplines, has launched a new forum for individual intellectual property creators to be called LINK. The new initiative was launched at CISAC's World Creators Summit in Washington which we mentioned in our last CopyKat update. Also at the World Creators Summit in Washington, DC, the US Register of Copyrights, Maria Pallante, has confirmed that she's looking to "provide a full public performance right for sound recordings" in the USA in a move which will cheer record labels and recording artistes.

Some blurry photos of Red Square have been sold for £50,000 at Sotheby's in London on June 5th. The reason they made big money was because they were taken by a chimpanzee. The chimp, called Miki, took the snaps under the 'direction' of two Russian conceptual artists. He has since passed on to the great jungle in the sky. The story me reminded of the excellent and much commented blog by Aurelia, posted here on the 1709 back in July 2011 - on the very relevant topic of who owned the copyright in monkey snapped images http://the1709blog.blogspot.co.uk/2011/07/monkey-see-monkey-do-monkey-get.html

Polish pianist Krystian Zimerman has stormed off stage at the Ruhr Piano Festival in Germany after spotting an audience member filming his performance on a smartphone: No doubt presuming the said recording would be up on YouTube in the blink of an eyelid, on returning to the stage pianist told his audience "The destruction of music because of YouTube is enormous". Although he did complete his concert, Zimerman declined to perform an encore and cancelled a post-concert reception. Other performers such as the Yeah Yeah Yeahs and the Stone Roses have recently expressed their dismay at seeing audience watching live shows through smart device screens, and of course actors have become increasingly vocal in berating texting, web surfing and even talking audience members. One commentator added "I saw Jack White at Brixton last year. The compere came on stage to announce the immiment arrival of Mr White, and said something along the lines of "don't watch the gig through a 4 inch screen. We've got professional cameramen in the audience, they'll take all the pictures you need, and you can go on the website tomorrow morning, and download as many as you want for free". The CopyKat can only agree - and iPads are the worst! Why does anyone think it's appropriate to hold up an iPad (or indeed any tablet - or even a PC or Mac!) and film a concert - that is being filmed anyway!

As news breaks that the IPO in the UK has launched a Technical Review of draft legislation for exceptions to copyright, Eleonora has posted up a very interesting blog on the IP Kat that explains radical moves in Australia to introduce a new 'fair use' regime - with a new new Discussion Paper launched on the 6th June by the Australian Law Reform Committee which certainly has some interesting conclusions. More here http://www.alrc.gov.au/publications/copyright-and-digital-economy-dp-79 and here http://ipkitten.blogspot.co.uk/2013/06/australia-wants-fair-use-and-so-will-you.html

Laurie Kaye has posted a blog on his website about Kindle Worlds, which is important both as regards fan fiction and, more generally, about the world of derivative works. In light of mooted Australian and UK changes in copyright law, it's a timely read and can be accessed by clicking here .

A Teeside University student has apologised to his university and Sony for leaking sensitive gaming data onto the internet. Johnathan Waring, 23, described as “technically gifted, but naive and immature”, was speaking after leaving court with a suspended prison sentence after advertising a posting on a computer hackers’ website, potentially compromising anti-piracy packages for Play Station 3 games. Imposing a one year prison sentence, suspended for a year, The Northern Echo reports that Judge Christopher Prince told Waring: “You uploaded the intellectual property of Sony causing it potential damage and inconvenience" adding “It also damaged and breached the trust of your university and fellow students.” http://www.thenorthernecho.co.uk/news/10472124.Student_walks_free_from_court_despite_causing_copyright_scare/

In the USA, The Republic reports that a 32-year-old man who fled to Pakistan shortly before being indicted on software copyright infringement charges has been sentenced to 7 years in prison. Naveed Sheikh, was also ordered to forfeit $4 million, the value of the infringed software programs, at sentencing Thursday in federal court in Baltimore. According to his guilty plea, Sheikh reproduced and distributed more than 1,000 copyrighted commercial software programs, including Microsoft Office and Adobe Photoshop. Prosecutors say he sold the software through several websites. Sheikh fled to Pakistan in November 2010. He was arrested in January 2012 at Dulles Airport. Fair sentence or 'utter madness'? Comment - which looks at similar sentences given to violent criminals, drug dealers and child pornographers on TorrentFreak here

And finally, in what looks like a fascinating new book, Without Copyrights (Oxford University Press), University of Tulsa law professor Robert Spoo examines am interesting chapter USA cultural history - how 19th and early 20th century U.S. copyright laws created a vast public domain of non domestic works which were not ptotected by US copyright - and with prices fixed by publishers too - upon which the USA's literary culture and modern publishing industry was built - and suggests that this "public domain–driven" effort laid the foundation for an American creative economy that now leads the world. An Interview with the author - which also touches on the current e-books competition case in the USA and the recent Kirtsaeng case on the first sale doctrine - can be found on Publishers Weekly here http://www.publishersweekly.com/pw/by-topic/authors/interviews/article/57721-ala-2013-the-golden-age-of-piracy-pw-talks-with-robert-spoo.html

Newsflash: draft legislation on copyright exceptions

2013-06-07T18:30:00.001+01:00

Following the recommendations in the Hargreaves Review of Innovation and Growth to modernise copyright exceptions, the IPO has today published the first pieces of draft secondary legislation for technical review. The draft legislation is available here and it comprises exceptions for private copying, parody, quotation and public administration.

Members of the public, creators, legal experts and industry groups are invited to comment on the legal drafting. The closing date for written comments on the first four exceptions is 17 July 2013.

The IPO will also be holding a series of open meetings in the week commencing 8 July 2013, to give an opportunity for discussion of the drafts. Numbers will be limited so the IPO advises that you book your place by contacting Copyrightconsultation@ipo.gov.uk.

The CopyKat - fascinating furballs of fun

2013-06-06T09:06:00.000+01:00

The Taiwanese Intellectual Property Office, part of Ministry of Economic Affairs, have decided to 'adjust' a plan to block overseas Internet services that potentially violate copyright laws amid opposition to the plan from free-speech advocates. Wang Mei-hua, head of the Intellectual Property Office (IPO) stressed her office "never intended to challenge or acted to damage" the freedom of speech that Taiwan's people worked so hard to acquire. Our original blog here http://the1709blog.blogspot.co.uk/2013/05/my-rights-v-your-rights-cyber-wars.html

A new paper by the Analysis Group, commissioned by CCIA, looks at the impact of a 2007 legal change on investment in the webcasting industry and provides a somewhat unsurprising conclusion: when the US Copyright Royalty Board dramatically increased the royalty rates paid by webcasters for the period 2006-2010, venture capitalists perceived that as a negative change to the landscape, and accordingly reduced their investment in the industry. This article says that legal infrastructure can either incentivize or discourage investment, and the innovation that this investment produces. Whether it is the taxi industry, Internet radio, or music discovery services, the regulatory apparatus can either drive investment away, or draw it in: http://www.project-disco.org/intellectual-property/060313-further-research-showing-how-copyright-regulations-drive-investment/

TorrentFreak has an article titled "Copyright Monopoly Enforcement Today Is A Mass Psychosis" - and Rick Falkvinge is of the opinion that "That’s where we are with copyright monopoly enforcement today. Saving the old, obsolete industries at any cost, defending the copyright monopoly and obsolete distribution models against the future, and seeing legislators taking part in this neophobic race to the bottom is a clinical mass psychosis." Wow. http://torrentfreak.com/copyright-monopoly-enforcement-today-is-a-mass-psychosis-130602/

The Prenda 'troll' saga just gets more and more bizarre. Now it has been alleged by an internet expert in the Florida case of First Time Videos v Pail Oppold that "Prenda Law's principal, John Steele, is the person who uploaded the infringing pornography in the first place, listing it on BitTorrent index sites with information inviting people to download it -- people whom he then sent legal threats to for downloading those selfsame movies." A fascinating read can be found at http://boingboing.net/2013/06/03/porno-copyright-trolls-prenda-2.html . In a separate update on this story, it seems that another Prenda / Steele Hansmeier lawyer, Brett Gibbs, had pleaded poverty in court (saying he had substantial debts and no assets) and revealed he has serious brain cancer, in a move to avoid the costs and penalties awarded by Judge Otis D Wright II. http://www.forbes.com/sites/kellyphillipserb/2013/05/29/copyright-troll-lawyer-pleads-poverty-asks-to-be-let-off-the-hook/

Billboard reports that the continuing debate between protecting copyright and supporting technological innovation dominated every conversation panel at the World Creators Summit, held on the 4th June in Washington D.C., right through the end of the day when Congressman Bob Goodlatte of Virginia, who chairs the judiciary committee, explained why he wants Congress to tackle copyright revision saying “"We need to stimulate both creativity and innovation," Goodlatte said. "Both sides need to be rewarded because, as California Congressman Anna Eshoo said, they both need each other." More at http://www.billboard.com/biz/articles/news/digital-and-mobile/1565704/government-officials-publishing-and-music-execs-more

And finally,the Jamaica Gleaner reports that one of the country’s music collection society, The Jamaica Association of Composers, Authors and Publishers (JACAP), has reacted to criticism of Jamaica's compliance with copyright regulations. In early May, Jamaica was named by the Office of the United States Trade Representative (USTR) as one of the rogue countries which will remain on a Special 301 Watch List because of its inadequate payment of public-performance royalties. ACAP General Manager Lydia Rose said the collecting agency has made several attempts to educate the industry players about the importance of adhering to the copyright regulations. However, there are still those who are in breach – and some who actively oppose paying royalties. The chair of the recorded music sector’s collection society, the Jamaica Music Society (JAMMS), Danny Browne, had previously told the Gleaner that the highest level of payment resistance came from the lower-level players in the marketplace. He said the more organised companies have a higher level of compliance adding that it is easier to track commercial radio than more informal music industry players. http://jamaica-gleaner.com/gleaner/20130605/ent/ent3.html

Open academic publishing: copyright thesis needs a research student

2013-06-04T22:05:00.005+01:00

The excellent Estelle Derclaye (right), Professor of IP Law at the University of Nottingham, is looking for a PhD student to write a thesis on open academic publishing. She explains:

The School of Law has one fully-funded postgraduate research studentship available from October 2013 (funded by CREATe). This studentship is for the equivalent of full HEU fees and maintenance, providing a total of around £13,726* per annum (* estimate including Home/EU fees of £3,924). The scholarship is available for a period of one year initially, with the expectation of renewal for a further two years, subject to satisfactory performance in degree studies.

The studentship is in the field of open academic publishing. The student will choose, in consultation with the supervisor, the precise topic from a number of research gaps identified in the literature review on open academic publishing, which will be completed in July 2013 and published on the CREATE website.

The candidate should have a Masters degree, in law or other relevant social sciences (eg economics), and very good knowledge of copyright. Some knowledge of open access generally and open academic publishing particularly is desirable but not necessary.

You can find out more about this golden opportunity here.

Copyright in Space

2013-06-04T11:08:00.001+01:00

Readers are likely to have come across Chris Hadfield's rendition of David Bowie's classic song "Space Oddity". Commander Hadfield, a Canadian astronaut, performs the song whilst playing the guitar from the comfort of the International Space Station.

The Economist recently published an interesting article on copyright in space, asking which jurisdiction Commander Hadfield was in when he recorded the video, broadcast it live and subsequently uploaded it to YouTube? In practice Commander Hadfield had permission to perform and distribute the song, however for those who are interested, The Economist explains that the law which governs the International Space Station depends on which part of the station an astronaut is in. Commander Hadfield apparently made the recording in the Destiny module (owned by NASA), the Cupola (now also owned by NASA, but previously owned by the ESA) and the exciting sounding Japanese Experiment Module (developed by JAXA), meaning that US and Japanese laws could have applied.

With technology making both space travel and content broadcast more commonplace, is how the law applies in space something we need to give more thought to? Answers on the back of a postcard please!

Oracle v Google: EFF warn of threats to innovation

2013-06-04T08:28:00.000+01:00

The Electronic Frontier Foundation has joined the ongoing legal battle between Oracle and Google over whether APIs (Application Programming Interface) should or shouldn't be copyrightable. Oracle had accused Google of infringing the copyright on its Java APIs in the development of Google’s Android OS. Google denies any wrongdoing and has argued, in part, that software APIs cannot be protected under U.S. copyright law.

The campaign group has now gathered together 32 computer scientists and tech industry leaders in an amicus brief to the U.S. Court of Appeals for the Federal Circuit. The brief is signed by tech leaders including MS-DOS author Tim Paterson and ARPANET developer Larry Roberts, who support the position that APIs should not be copyrightable because they are critical to spurring innovation and inter-operability in the tech world. Other signatories include Brendan Eich, inventor of JavaScript and the CTO of Mozilla; Michael Tiemann, author of the GNU C++ compiler and an executive at Red Hat; and Samba developer Andrew Tridgell

"The law is already clear that computer languages are mediums of communication and aren't copyrightable. Even though copyright might cover what was creatively written in the language, it doesn't cover functions that must all be written in the same way," EFF staff attorney Julie Samuels said in a statement. "APIs are similarly functional -- they are specifications allowing programs to communicate with each other." In our May 2012 Blog we noted that EFF was concerned about any precedent that could be set by copyrighting any type of API when the EFF said "Treating APIs as copyrightable would have a profound negative impact on interoperability, and, therefore, innovation".

Oracle originally sued Google for copyright infringement related to Google's use of 37 Java APIs used on its Android mobile operating system. The case went to trial last May. During the trial, Google argued it used the Java APIs because the Java programming language is free to use, and the APIs are required to use the language. Oracle argued that Google knowingly used the APIs without a license from Sun Microsystems, which was bought by Oracle in 2010.

The jury handed down a verdict that partially helped Oracle when they found that Google had infringed the structure, sequence, and organization of Java's language, but offered no opinion on the matter of fair use. Judge William Alsup then ruled that the APIs were non-copyrightable, which led to the dismissal of Oracle's copyright infringement claim. Judge Alsup said "So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API. It does not matter that the declaration or method header lines are identical." The ruling found that the structure Oracle was claiming was not copyrightable under section 102(b) of the Copyright Act because it was a "system or method of operation."

Oracle filed an appeal to the judge's ruling in October 2012. In its appeals brief, the company said Google's use of Java in Android was "decidedly unfair" and that copyright is designed to protect all kinds of works, including "a short poem or even a Chinese menu," but what it created in Java was "vastly more original, creative, and labor-intensive."

But the EFF is adamant that copyright protection should not be extended: "Without the compatibility enabled by APIs that are open, we would not have the vibrant computer and Internet environment we experience today, with new products and services routinely changing the way we see and interact with the world," EFF Fellow Michael Barclay said in a statement adding "APIs that are open spur the development of software, creating programs that the interface's original creator might never have envisioned" and the brief argues that the spread of affordable PCs was made possible because IBM held no copyright on its BIOS system, allowing competitors such as Compaq and Phoenix to create their own BIOS implementations and build PC clones. The open nature of APIs was also essential to the development of the Unix OS, the C programming language and the open protocols on the Internet, the brief says. ”Should the court reverse Judge Alsup’s well-reasoned opinion, it will hand Oracle and others the ability to monopolize any and all uses of systems that share their APIs. API creators would have veto power over any developer who wants to create a compatible program,” the brief states.

You can read the complete 36-page testimony by clicking on https://www.eff.org/document/amicus-brief-computer-scientists

More comment at http://www.pcworld.com/article/2040360/computer-scientists-oppose-oracles-bid-to-copyright-java-apis.html

Apple Ordered to Pay €5 Million in Private Copy Levy on iPads

2013-06-03T16:45:00.001+01:00

In a high profile ruling handed down on May 30th, the Paris Tribunal de Grande Instance (trial court) ordered Apple to pay the princely sum of €5,000,000 to Copie France, the body tasked with collecting the private copy levy that applies to blank media and equipment capable of recording and storing such copies.

The dispute centred on "multimedia tactile tablets" (i.e., iPads in Apple's case) and decision #13 of the commission that fixes the levy rate (based inter alia on the storage capacity of the medium/equipment) which was applicable to tablets.

In its challenge against decision #13, Apple argued as follows: the decision was not based on any hard data flowing from a study of actual use and merely replicated a previous decision applicable to mobile telephones, which decision was quashed for failing to properly carve out professional use (the reference is to the Padawan decision of the CJEU of 21 October 2010); moreover, the previous decision's rates were ruled null and void inasmuch as they took into account unlawful copies (the reference is to a 2008 ruling by the Conseil d'Etat which established the principle that only lawful copying could be compensated via the private copy levy).

The Court was indeed sufficiently impressed with these arguments that it ordered a stay of proceedings pending the outcome of the administrative action directed against decision #13.

However, Copie France sought an award of a provisional amount, relying not on decision #13 but rather on the general statutory principle that such compensation is due. The Court agreed with this line of reasoning, noting that such principle was enshrined in both domestic and European law. It further noted that Apple, as supplier of the equipment at issue, was indeed the party that owed the levy. The Court thus fixed the amount of the provision at €5,000,000, to be applied against the final sum to be determined for the period between February and December 2011 (and ordered that its judgment be enforceable notwithstanding any appeal).

This important ruling comes at a time when the government is, in the wake of the Lescure report, contemplating a tax based not on recording or storage capacity per se but rather the internet connectivity of the device (thereby recognizing that, when it comes to getting their hands on cultural goods, consumers are moving away from a copy-based system to an access-based one).

See ruling here

Assessment of damages: where photo-opportunity counts most

2013-06-03T13:15:00.001+01:00

Jason Sheldon v Daybrook House Promotions Ltd [2013] EWPCC 26, a Patents County Court decision of Judge Birss QC (as he then was), sheds light on the criteria for assessment of damages for infringement of copyright in a photograph.

Sheldon, a professional photographer, was a member of the British Press Photographers Association and ran a business in which he licensed copyright in photographs. In 2011 he had obtained exclusive access to the tour bus of American pop artiste Ke$ha, who was in the United Kingdom for a tour. He took a photograph (the photograph) of Ke$ha and the group LMFAO in a back stage party atmosphere, lounging on a sofa, with Ke$ha holding a bottle of champagne. Daybrook House, which ran the Rock City nightclub in Nottingham, used the photograph in connection with posters advertising its events.

Sheldon sued for copyright infringement, citing Daybrook House's unlicensed use of the photograph. Said Daybrook House, while the photograph had admittedly been used, the company had not appreciated that it was an image which it was not entitled to use; after all, it was freely available on the tumblr social network service and Daybrook House said it genuinely held the mistaken belief that it could use it.

Initially Sheldon invoiced Daybrook House for £1,351 for what he at the time believed to be its extent of use. Subsequently he commenced infringement proceedings, maintaining that the photograph had been used extensively by Daybrook House for an extended period and that the latter's offer to pay the modest sum of £150 was not acceptable: in reality, said Sheldon, his claim was worth more than £5,000 and that the matter should not therefore be allocated to the small claims track of the Patents County Court but rather should be dealt with in the Patents County Court multi-track procedure. Accordingly, a preliminary issue arose as to the level of damages that would be awarded if the claim succeeded.

In these proceedings Judge Birss had to determine as a preliminary issue what damages would be awarded on the assumption -- which was not admitted -- that the acts committed by Daybrook House did indeed infringe his copyright. According to Sheldon, the artists featured in the photograph were award-winning and internationally renowned and that the famous subject matter and the exclusive access to the tour bus were relevant to the sums a photographer in his position would charge to licence such a photograph and would increase the price.

Judge Birss: the exclusivity is worth more than
the subject-matter

Judge Birss came down on the side of Sheldon. In his view, Sheldon was right to argue that an artist's renown and the exclusivity of the occasion were factors that increased the value of a photograph and, by doing so, the quantum of damages that the aggrieved photographer might secure. It was true that there were indeed pop stars who were more famous than Ke$ha and LMFAO; however, both were plainly very well known and were currently active in their chosen field. However, even more important than where the subjects of the photograph featured on a scale of fame was a factor of even more importance: exclusivity of access. Bearing this all in mind, the correct measure of damages was £5,682.37, exclusive of VAT and interest at the rate of 1%.

This blogger wonders whether it is realistic to separate out the subject-matter of the photograph from the exclusivity in this manner. Were it not for the fact that the photo featured Ke$ha and LMFAO in the first place, the opportunity which the exclusivity gave for the relaxed intimacy of the sofa setting to be captured by the photographer would surely be of little commercial significance. What do readers think?

Cowardy custody order as copyright is ruled partnership property

2013-06-03T04:11:00.000+01:00

Coward v Phaestos Ltd and other companies [2013] EWHC 1292 (Ch) is a Chancery Division, England and Wales, ruling of Mrs Justice Asplin on 17 May. Asplin J is a judge who has not been hitherto associated with intellectual property law -- but that may not have been a problem since so much of this case turned on partnership law. By a happy coincidence, each party had a line-up of five barristers.

This was a dispute as to the ownership of the intellectual property rights in hedge fund software used by a highly successful quantitative trading business, IKOS, which was carried on through the defendant companies. Coward, a mathematical and computer programmer with a doctorate in control theory engineering, was chairman and director of the third defendant, IKOS CIF, until his resignation on 11 December 2009. According to Coward, he had written a substantial part of the software used by IKOS in its business and owned the copyright in the software -- which was never the partnership property of IKOS partners, nor was it owned by IKOS CIF when he was employed by, and director of, IKOS. Said Coward, the IKOS business had an implied licence to use the software, but he terminated that licence in December 2009 and IKOS's continued use of it was a copyright infringement. No, said the defendants: the software became the partnership property of IKOS partners and all parts to it passed to IKOS UK as a result of the partnership dissolution in December 2006. Even if that were not the case they added, Coward had written the software in his capacity as an employee of IKOS UK.

In these proceedings the judge had to decide whether IKOS's continued use of the software amounted to a copyright infringement.Coward admitted that, if there was a partnership from September 1992, the software written by him during the period until December of that year was written as a partner. However, he denied that there was any agreement, express or implied, that the software he had written was to be a partnership asset.

The judge decided in favour of the defendants.

So far as copyright was concerned, this was not a difficult case. The judge first summarised that it was settled law that the issues arising in relation to copyright infringement were:

(i) what were the work or works in which the claimant claimed copyright?
(ii) was each such work 'original'?
(iii) was there any copying from that work?
(iv) had a substantial part of that work been reproduced?

Substantial part, in this context, was determined by whether the author had invested a substantial amount of skill and labour in what was copied. Copying was a question of fact. In the case of computer software, Article 1(3) of the Software Directive applied [reminder: that's the bit that says "A computer program shall be protected if it is original in the sense that it is the author's own intellectual creation. No other criteria shall be applied to determine its eligibility for protection"] and the requirements of the Copyright, Designs and Patents Act 1988 Act had to be interpreted accordingly.

Having summed up the relevant copyright provisions, the judge then focused on the decisive issue of partnership law. It was settled law, she said, that a partnership could be created entirely informally, and could be inferred from the conduct of the parties. Section 1 of the Partnership Act 1890 made it clear that such a relationship existed when two or more individuals or entities carried on business in common with a view to profit and that a partnership could be inferred from their conduct.

On the facts, concluded the judge, there was indeed a partnership between the parties between September and December 1992 and there could be no doubt but that the software written by Coward before December 1992 was written by him as a partner in the course of the September partnership. On that basis there was a necessary inference that the software was partnership property: it was the foundation of the business, without which there would have been no business at all. The facts supported the conclusion that the software had been both used and treated as partnership property: it was central to the carrying on of the business and could not be separated from it.

Since the software was partnership property, ruled the judge, all copies of the relevant material in Coward's possession, custody or control should be destroyed, with the completion of the destruction being confirmed on oath.

Cowardy Custard here

Towards a Google Tax in Italy too?

2013-06-02T12:53:00.000+01:00

On 22 March 2013 last, following the approval of the Bundestag, the German Bundesrat passed a piece of legislation known as Leistungsschutzrecht für Presseverlege (‘LSR’) [or also "Google Tax" law].

By adopting this new law, Germany extended press publishers’ copyright by providing them with an ancillary right over news contents.

The newly created sections 87f and 87g of the Urheberrechtsgesetz [the German Copyright Act] provide for the exclusive right of press publishers to exploit their contents commercially for one year, thus preventing search engines and news aggregators (like Google News) from displaying excerpts from newspaper articles without paying a fee.

The stated objective of the LSR is to recoup some of the revenues traditional news publishers have lost to the web. With particular regard to news aggregators, two studies of the Iowa University and ETH and Boston University respectively, have found that not only are these unlikely to have complementary effects on the number of visits to newspapers' homepages, but rather appear to have a substitution effect, which is said to have contributed to declining online traffic in the past few years (see here).

Under-secretary Giovanni Legnini

Although personally I am against laws like the LSR, in that I am afraid that they might have anti-competitive effects and push the boundaries of IP protection a bit too far (although by means of ancillary rights only), there are rumours that the German example might not remain an isolated experience in Europe.

Readers will remember that there was a time when also France was considering introducing a law similar to the LSR (here and here). However, similarly to what had happened in Belgium (here), this idea was abandoned following Google's settlement with French press publishers (here).

Now it seems that also Italy might be about to enter the "Google Tax" debate.

This morning Corriere della Sera published an interview with Giovanni Legnini (under-secretary to the Presidency of the Council of Ministers in charge of publishing and implementation of Government's agenda), in which he spoke about possible measures in favour of Italian press publishers.

Among other things, Legnini mentioned the need for search engines to give their contribution to help Italian press system's renovation and innovation.

Probably cuter than the kind of "help"
Italy might want from Google

The under-secretary highlighted that newspapers and press publishers in general have been subject to a dramatic drop in terms of advertisement revenues and public contribution [the latter is quite a heated political topic at the moment]. Those who have instead increased their revenues have been search engines.

Therefore, Enrico Letta’s Government might “ask” these subjects to "help" renovate the press publishing system. How this will be done, however, will be explained in due time.

In the meantime, Italian Communication Authority (AGCOM) president Angelo Cardani has confirmed that plans to adopt an online copyright enforcement regulation are well and alive (here), although it is currently being discussed whether Italian Parliament should legislate in the area of copyright first. As AGCOM fans will remember, the latter is no new topic (here).

Chesterton gains extra decade through Spanish transitional provisions

2013-06-02T10:32:00.001+01:00

Last month the Madrid Court of Appeal surprised the literary world when it held that the works of British author G. K. Chesterton remained in copyright, notwithstanding the fact that the author died in 1936, because his post mortem auctoris copyright term was governed by the transitional provisions of Spain's current copyright law of 1987. Under the previous law, dating back to 1879, protection was provided for a full 80 years after death. This ruling gives the copyright holders control of the still-popular Father Brown series until the end of 2016.

The decision of the Madrid Court of Appeal is available in full, in the original Spanish, here.

Source: Antonio Castán (ELZABURU, Madrid)

No UK 'three strikes' until 2017? Perhaps never?

2013-06-01T15:03:00.000+01:00

I'm going to give you a damn good thrashing!

James Firth, writing on the Slightly Right of Centre (SRoC) blog, has said that its unlikely that a UK ‘graduated response’ – or ‘three strikes’ scheme, set out in the Digital Economy Act 2010 to limit internet access to persistent online copyright infringers, will be in place before 2016 at the earliest.

Noting that two Statutory Instruments will be needed to flesh-out how the copyright infringement warning letters will be dispatched, paid for and appealed, the a so-called Initial Obligations Code, and a shorter Cost Sharing Order defining how the cost of scheme will be split between copyright owners and internet service providers, are nowhere near reaching the statute books, Firth also notes that both of these relatively ‘simple’ pieces of legislation have so far only got to the ‘notification’ stage. Citing contacts at Westminster, adds that “Two separate sources told me not to expect the remaining secondary legislation this side of the general election” with one source described the copyright provisions in the Digital Economy Act as "unimplementable".

Firth cites three different causes for the possible delay: firstly a spat between the Treasury and the Department of Culture, Media and Sport; secondly disagreements between Internet Service Providers and content owners over who pays for the cost of the scheme; and thirdly ‘politics – not least the recent growth in digital revenues for music, TV and film (which might be seen to negate the need for a three strikes approach) and concerns raised by ISPs and civil rights groups over issues such as privacy and liability with shared internet access.

Firth also adds “Additionally the Communications Bill, originally planned for 2014, is rumoured to have been postponed until after the general election. This Bill would be a natural place to overhaul the primary legislation if amendments are require to the Digital Economy Act in order for it to be implemented. But this would likely push warning letters out to 2017 or beyond.”

http://www.sroc.eu/2013/05/sources-no-digital-economy-act.html

Image: From an episode of 'Fawlty Towers' entitled 'Gourmet Night' (BBC) when Basil's car breaks down just once too often - and this time at a critical moment.in his disastrous 'Gourmet' evening at the hotel. He warns the car to start, calls it a 'vicious bastard', gives it a count of three to start, and then launches into a full on assault.

Lyrical re-write is a cacophony to the ears of a Chinese songwriter

2013-05-31T09:42:00.000+01:00

China is focussing on the rights of songwriters after an act on the celebrity reality show I Am A Singer, broadcast Hunan Satellite TV in January, moved many of the audience to tears with their performance of Mum in the Candlelight. But the singing duo of Chen Yufan and Hu Haiquan had made numerous changes to the song's lyrics and now the original lyricist, Li Chunli, is seeking legal redress againt Hunan TV and the performing duo, asking for a public apology and 200,000 yuan ($32,659) according to China Daily. Gu Jianfen, who composed the music for Li's words in the original version, has also been in talks with the Hunan, andChina Daily reported that Li told Guangming Online that "I lost my song". In response, the duo defended themselves saying "it should be the program's producers that come out to deal with it" saying that their contract with Hunan protected them.

Li's view was more forthright saying "Changing a song without any prior notice is the greatest disrespect to composers and lyricists. It's like your own kids are grabbed by others for a facelift and then their real mom is made unknown to the public." Li wrote the song at the age of 17 for her mother, who had been ill for a long time, and when her mother passed away three years ago, Li played the song as a goodbye at the funeral. Now each year she sings it to her mother on the Tomb-Sweeping Day and Li said of the song "It is of great importance to me," she said. "Its creation embodies my own experience and feelings."

Lu Junjie, an attorney representing Li, said that the contract between Hunan TV and the Music Copyright Society of China makes it clear that the song must be used in its original form and added that any change must be subject to agreement by copyright owners, Lu said. Ge Xiaoying, composer Gu's attorney, said "it is quite clear that this is an infringement" and it seems that Hunan Satellite TV has apologized, it has not been "active, complete and timely" in dealing with the issue, he said. Lyricist Li added that with copyright, "The awareness is terrible," said the songwriter now in her seventies. "I stand out to fight infringement because I don't want young musicians to lose hope."

It all reminds me a bit of Gilbert O'Sullivan's ultimately successful action against Biz Markie after Markie sampled a substantial portion of O'Sullivan's 1972 song Alone Again (Naturally) in his song Alone Again In Grand Upright Music, Ltd v. Warner Bros. Records Inc., 780 F.Supp. 182 (S.D.N.Y. 1991), Judge Kevin Thomas Duffy granted an injunction against the defendant, Warner Bros. Records, to block the use of the unauthorised sample – O’Sullivan had actually been asked and refused permission to use part of what was clearly a very personal song (although O'Sullivan has denied it is autobiographical) and the court said "it is clear that the defendants knew that they were violating the plaintiff's rights as well as the rights of others. Their only aim was to sell thousands upon thousands of records. This callous disregard for the law and for the rights of others requires not only the preliminary injunction sought by the plaintiff but also sterner measures." Judge Duffy opened his findings with "Thou shall not steal", and proceeded to clarify that samples needed to be cleared and referred the case to the District Attorney for criminal prosecution (although this never happened). I do wonder what the Undertones and Blondie thought of One Direction's recent "mash up". As an old punk it quite ruined my day.

Also in China, the country’s copyright authorities have voiced support for Yang Jiang, a centenarian who urged a halt to an upcoming auction involving private missives written between her and her late husband, Qian Zhongshu, a renowned Chinese literary scholar. Yu Cike, a senior official with the National Copyright Administration, said "Auctioning Qian's private letters may lead to the infringement of the rights of property, authorship, privacy and reputation... We support the copyright owner to protect her rights in accordance with law and will keep tracking the event". The auction was announced by Beijing-based auction company Sungari and involves 110 letters and manuscripts written in the 1980s by Qian, his wife Yang Jiang and their late daughter Qian Yuan.

With the auction scheduled for late June, the plan triggered vehement protest from Yang Jiang, now 102 and herself a literary scholar, who said she was "hurt and shocked" by the publicity and potential trade of the "most intimate personal communications" as “commodities”. Yu Cike added that there was a threat of legal action and "Those composing the missives are their copyright owners, and auction groups should not make any copyright-related use of such missives without the consent of copyright owners" adding that publicising the letters' contents might result in copyright infringement. However other Chinese commentators pointed out that "the physical ownership of the letters was quite separate from copyright issues".

http://www.chinadaily.com.cn/cndy/2013-05/29/content_16541674.htm
http://www.musiclawupdates.com/?p=199
http://www.chinadaily.com.cn/business/2013-05/30/content_16547034.htm

For a very quick and neat synopsis of the US position on music sampling, New York attorney Mita Carriman (Carriman Law Croup) has written a piece here http://www.hypebot.com/hypebot/2013/05/4-music-law-myths-that-indie-musicians-need-to-shake.html

And back in August 2011 Jeremy blogged a fascinating piece on copyright in old manuscripts and letters on the 1709 blog here http://the1709blog.blogspot.co.uk/2011/08/dead-author-old-manuscripts-live-issues.html and the appellate court decision in the 1987 US case of Salinger v Random House is a useful read too.

My Rights v Your Rights: the cyber wars escalate

2013-05-29T08:01:00.000+01:00

A proposal from the government of Taiwan to amend the Copyright Act that would require local Internet Service Providers to block illegal content on foreign Web sites yesterday has come under fire from venture capitalists and Web users alike, primarily for violating freedom of speech and people's rights. The blocks would be placed on DNS or IP addresses, and would have to be carried out by Taiwanese ISPs on instructions from the government.

The Taipei Times has reported that one venture capitalist, Jamie Lin, from the firm appWorks Ventures, told Taipei Times the proposal goes against the values of freedom and democracy, which locals hold in high regard saying "It doesn't make any sense," Lin said. "The move seems like building a firewall to prevent local Internet users from seeing illegally uploaded content, but the content would still exist in servers overseas and can be viewed by foreign Internet users." And Ching Chiao, vice president for community relations at DotAsia, a top-level domain registry operator, wrote in a Facebook post that the proposal is a "setback for democracy and a stupid policy that wastes people's money" adding "Countries which have implemented ISP-level blocking are turning the Internet into intranet, the first step for turning a modern country into a self-enclosed country." Another blogger, Tsai I-Chen, said in a blog post that the amendment violated citizens' rights saying "Can you accept the blocking of Facebook because there are too many infringed movies or the blocking of Dropbox because it is frequently used for the transmission of illegal software? This is not a copyright infringement issue, [but] it is an issue on the violation of people's rights."

Taiwan’s web users were quick to set up an online protest campaign that has already racked up more than 15,000 participants on Facebook - who are attending an online ‘event’ in protest: another 90,000 have been invited. Called “#freeandopen!, the event has been snowballing, doubling its number of supporters in the last five days, and the page invites users to contact Taiwan's Intellectual Property Office (TIPO) representatives and let them know that many people strongly oppose the plan. It lists names, contact phone numbers, and email addresses for several TIPO representatives, as well as a generic contact email and number.

The proposed changes have been compared to other legislation like the US’s Stop Online Piracy Act (SOPA), which caused massive online protests in 2012 and was widely considered a step towards censoring the internet. The bill was ultimately dropped. Techasia adds “Taiwanese net users are hoping that their protests may lead to a similar outcome”.

In the USA, a new 84 page report from the Commission on the Theft of American Intellectual Property proposes a number of ways piracy can be combated, one of which involves “infecting alleged violators’ computers with malware that can wreak havoc, including and up to destroying the user’s computer”. the Commission argue that they need to fight fire with fire and that software can be pre-installed on computers for the purpose of monitoring and identifying copyright-violating activity. If the software detects copyright-violating activities of any of those sorts, it would cause the computer or its files to being locked. Once the files and/or computer was locked, a password would be needed to unlock the system, and the computer would tell the c user to contact a law enforcement agency, which will have the password necessary to unlock the computer. The plan is to “stabilize” an infringement situation and get the police involved. A second proposal is for the computer to snap a picture of the computer users with the computers built in webcam if they are involved in alleged infringing activity.

Slashgear reports that the the malware “would allow companies to gather data from a computer, change data located on the network, and destroy it if it feels such an action is necessary – all without permission, obviously. There’s also suggestions that it could be used to do other things as well, including up to destroying the user’s computer and/or network” and the Report itself says

“While not currently permitted under U.S. law, there are increasing calls for creating a more permissive environment for active network defense that allows companies not only to stabilize a situation but to take further steps, including actively retrieving stolen information, altering it within the intruder’s networks, or even destroying the information within an unauthorized network. Additional measures go further, including photographing the hacker using his own system’s camera, implanting malware in the hacker’s network, or even physically disabling or destroying the hacker’s own computer or network.”

http://www.techinasia.com/taiwan-protests-copyright-blacklist-facebook-rally/

http://www.decryptedtech.com/news/the-copyright-lobby-wants-more-power-to-punish-pirates-without-the-need-to-file-lawsuits

RIAA calls for DCMA 'safe harbor' and takedown review

2013-05-27T17:50:00.000+01:00

Back in November 2011 we blogged that the Recording Industry Association of America (RIAA) wanted “DCMA clarity” from Congress - and now the recording industry's trade organization has urged Congress to overhaul the safe harbor provision of copyright law that shield websites from infringement actions provided they remove infringing material after being notified, saying the law is too burdensome for copyright holders.

Congress is planning a comprehensive review of copyright law in the digital era, and RIAA Executive Vice President for Anti-Piracy Brad Buckles said in a post on the organization's website that "the balance is off" in the current system and “it’s time to rethink the notice and takedown provisions of the DMCA” , going on to outline the various ways that the DMCA isn’t working.

In the blog, titled “One Year, 20 Million Links To Illegal Songs Sent To Google: This Is How It's Supposed To Work?” Buckles says “We are using a bucket to deal with an ocean of illegal downloading” in a post to mark the 20 millionth takedown notice the trade body has issued against Google, requesting that it remove from its search engine a link to unlicensed music content - urging Congress to increase the obligations of web companies which of course enjoy safe harbour protection from copyright infringement claims where they host or link to infringing content, by operating a takedown process.

Buckles is suggesting that the likes of Google and YouTube owners should be more proactive in ensuring that unlicensed content identified by rights owners is blocked or removed permanently, and from wherever it may be stored. At the moment content companies issuing takedown notices generally have to be very specific about the piece of content they object to, which is clearly perceived to be a major burden by content owners with Buckles saying “Under a controversial interpretation by search engines, takedown notices must be directed at specific links to specific sound recordings and do nothing to stop the same files from being reposted as fast as they are removed. It is certainly fair for search engines to say that they have no way of knowing whether a particular link on a specific site represents an illegal copy or not. Perhaps it’s fair for them to make that same claim at the second notice. But what about after a thousand notices for the same song on the same site?”

He goes on: “As the Congressional review of the DMCA gets underway, there should be a strong focus on what notice and takedown was supposed to accomplish. The DMCA was intended to define the way forward for technology firms and content creators alike, but some aspects of it no longer work. How could we expect it to? It was passed before Google even existed, or the iPod, or peer-to-peer file-sharing or slick websites offering free mp3 downloads. It was after the DMCA that Napster, and Grokster and LimeWire and Grooveshark and MegaUpload, to name just a few, came on the scene. In particular, it’s time to rethink the notice and takedown provisions of the DMCA”.

http://voxindie.org/RIAA-DMCA-reform

Grooveshark employees settle labels' action

2013-05-22T07:21:00.000+01:00

Four former and one current employee of the controversial streaming music service Grooveshark have signed agreements with the major music companies, led by Universal, who are suing the site and a number of individuals, agreeing in a consent judgment that they will never again infringe the labels' copyrights, or to work for a company that "systematically infringes" copyrights. Those individuals who had been targeted for infringement will now be removed from the lawsuit.

Grooveshark lets users upload music into its libraries, meaning tracks are routinely available on the streaming service without the permission of relevant copyright owners. Because Grooveshark has a takedown system, removing infringing copyright material if made aware of it, the company argues it is operating within the US's DCMA ' safe harbor' provisions, even if taken-down tracks are soon replaced by users.

Grooveshark itself is far from out of the water regarding the copyright infringement case: TorrentFreak has published the relevant court documents, and points out that Grooveshark’s co-founders Sam Tarantino and Josh Greenberg have not yet signed similar agreements and the label's case has focused on the question of whether the company’s own employees were involved in reuploading tracks taken down through that “strict compliance” policy. Tarantino recently described himself as “literally broke” and said 2012 was “a year of getting punched in the face 10,000 times”.

For their part, Grooveshark owners Escape Media welcomed the development, telling reporters: "We are pleased that the case between Universal Music and Escape Media has been narrowed and simplified by the removal of some individual defendants from the case upon their stipulation to simply obey the law - something Escape Media does every day through its active licensing of millions of tracks and its strict compliance with the Digital Millennium Copyright Act. Escape Media Group will continue to deliver innovative new solutions and services that revolutionise music consumption for its growing audience of 30 million plus fans around the world".

Last month UMG secured a judgment in the New York State appellate court that held that the DCMA "safe harbor" defence did NOT apply to pre-1972 sound recordings.

http://musically.com/2013/05/20/grooveshark-copyright-case-moves-on-with-individual-settlements/

Six Striker Struck Down

2013-05-22T07:18:00.005+01:00

The Center for Copyright Information, the organisation which administer the USA's voluntary “six strikes” graduated response scheme, has come up against a significant problem: According to the Columbia Department of Consumer and Regulatory Affairs (DCRA), the company has had it's status revoked. The revocation means that CCI’s articles of organization are void, most likely according to reports, because the company forgot to file the proper paperwork or pay releveant fees. However it seems that whilst the status was actually revoked last year, The CCI has now filed the proper paperwork, although the Copykat imagines there are some very red faces: One blogger commented "It does raise the question of who, precisely, is running this show and why they’d make such an egregious error with something taken so seriously. But we’re sure that this won’t end with the CCI shutting down the Internet of some grandmother and going down in flames due to the bad publicity. This will not happen. Surely not."

The CCI's founder members are five major ISPs (AT&T, Cablevision, Comcast, Time Warner Cable and Verizon) and four rights owners organisations - AIM (independent music), MPAA (motion pictures), RIAA (sound recordings) and ITFA (film and TV).

http://www.uproxx.com/technology/2013/05/the-center-for-copyright-information-gets-its-status-revoked/

http://en.wikipedia.org/wiki/Center_for_Copyright_Information