Adding to databases: your thoughts are invited

I have just been asked an interesting question and, while I think I know the answer, the question is worth sharing. The object of the question is a database. At this stage it is not clear whether the database is protected by copyright or sui generis database right under the Database Directive (Directive 96/9): both are possibilities. The act to which the undisputed owner of the database objects is not however the unauthorised extraction or re-utilisation of the database but, curiously the unauthorised addition of fresh data.

The question is this: what sort of protection does the law provide for against such an act?

The Copy Cat - marvellous mousetastic morsels to muse over

Hot off the press comes news regarding the litigants in Meltwater. A media monitoring company has referred the Newspaper Licensing Agency’s pricing structure to the Copyright Tribunal because it says charities are required to pay "spectacularly unfair" fees. Cutbot, which provides media monitoring services in the form of online links to news stories, said the NLA’s pricing structure, which Cutbot said is based on the number of employees organisations have, was unfair on charities, which pay a combined total of more than £1m a year to the NLA.

And in other copyright news, Walt Disney Co’s Marvel Entertainment must go to trial to defend itself against a copyright claim by Gary Friedrich, who claims he now owns the comic book character “Ghost Rider”, a motorcycle-riding superhero with a flaming skull. Friedrich claims he first came up with the idea for Ghost Rider in 1968, then assigned his rights to Marvel, which published the first “Ghost Rider” comic book in 1972. Friedrich claims in his suit that the rights to Ghost Rider automatically became his after the initial copyright term expired in 2000. Marvell argued that Friedrich assigned his renewal rights to it in a work-for-hire agreement he signed in 1978. The U.S. Court of Appeals in Manhattan have now reversed a lower-court ruling by Judge Katherine Forrest in favour of Marvel, allowing Friedrich’s claim to go to trial.

Chinese national Xiang Li has been sentenced to 144 months in US federal prison on charges related to a website which distributed more than $100 million worth of pirated software.  U.S. Immigration and Customs Enforcement said this was one of the most significant copyright infringement cases ever uncovered. Between April 2008 and June 2011, Li engaged in over 700 transactions through which he distributed over $100 million worth of  pirated software to over 400 customers located in at least 28 U.S. states and over 60 foreign countries. These software products were owned by approximately 200 different American software manufacturers, ranging from large corporations to small businesses.  Li’s customers included those in embargoed countries in the Middle East, employees of foreign governments and federal government employees and contractors holding security clearances in the United States. More than one-third of the unlawful purchases were made by individuals within the United States, including small business owners, government contractors, students, inventors and engineers. Li will be deported to China after serving his sentence.

Pandora, the US based digital innovator that has just bought  FM radio station KXMZ-FM, in Rapid City South Dakota, seemingly for a seat at the table of the Radio Music Licensing Committee (RMLC) and presumably to attempt to reduced the online royalties it pays to the American music publishers via the music collecting societies, ASCAP and BMI, is facing a new legal challenge from BMI. Pandora itself launched legal action against ASCAP late last year when negotiations failed to go its way, and now Billboard reports that BMI has filed a lawsuit after Pandora terminated its licence with the collection agency in October last year, seeking a new agreement: BMI had proposed an increase in fees to Pandora that it felt were consistent with market rates and the growth in popularity of streaming music, and accounted for those music publishers which were withdrawing from the collective licensing system in the digital domain which included Sony who then directly licensed Pandora – but at higher rates than BMI.   http://www.billboard.com/biz/articles/news/digital-and-mobile/1566909/bmi-files-suit-against-pandora

Two Arab TV stations that allegedly broadcast pirated content have been taken off air by a major satellite provider, as legitimate media firms step up a campaign for better copyright enforcement in the region. Panorama Comedy is no longer broadcasting via the Nilesat satellite, while a related channel Panorama Action also came off the air this weekend. Industry figures allege that both channels, which are believed to be based in Egypt, are involved in illegal broadcasting of films to which they do not own the rights. 

As Russia braces itself for the introduction of a tough new anti-piracy law, the major labels have begun blitzing Russia’s social networks, including Russia’s main social networking site vKontakte, with copyright takedowns. The removal en masse of illegal music by the huge social networking site causing outrage among its users, who are now attempting to ‘encrypt’ their music uploads. Russian-hosted services – vKontakte included – will soon face a new legal environment due as responsibility for illegal uploads shifts towards them A new law approved by  the State Duma on Friday pushes the responsibility of swiftly removing infringing content to the services and service providers, who otherwise may find themselves blocked at the ISP level. VKontakte, with 40 million visits a day,  allows its users to upload music to their accounts for anyone to play and as a result the site has become one of the largest repositories of unlicensed music anywhere in the world. The scale of the takedowns become apparent when searches for popular artists such as Rihanna, Adele, Beyonce, Amy Winehouse and Coldplay all began to draw blanks. The user backlash was swift and vocal, with some complaining that their entire collections had been deleted. More on Torrent Freak.

The Screen Production Association of Australia has warned about a proposed easing of copyright laws with SPAA’s executive director Matthew Deaner blasting recommendations by the Australian Law Reform Commission (ALRC).  That “thinking is out of touch with commercial reality and shows no understanding of the issues facing our sector,” he told Screen Australia’s Jobs, Dollars, Hearts and Minds conference in Canberra. “These views, if left uncorrected, would undermine many legitimate sources of income.”

And finally - who can't resist this headline “This One Page Could End The Copyright War Over Happy Birthday” .

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

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

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

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

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

                                                                          

                                                                

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!

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.