Thursday, 11 January 2018


Copyright - Where are we now? What is on the Horizon?

At the start of this year this CopyKat looks to bring together various pieces of news that demonstrate; the current challenges facing copyright, a look to how those challenges are being addressed and finally new challenges that could be on the horizon. Here goes!

When people upload original content to YouTube, there should be no problem with getting paid for that content, should it attract enough interest from the public.

Those who upload infringing content get a much less easy ride, with their uploads getting flagged for abuse, potentially putting their accounts at risk.

That’s what’s happened to Australia-based music technologist Sebastian Tomczak, who uploaded a completely non-infringing work to YouTube and now faces five separate copyright complaints.

Following on from the above, we can see further evidence here of how the video reporting tools within YouTube are being abused.

YouTube’s copyright rules are being abused by the Azerbaijan government in an attempt to censor content from the global video-sharing site according to one of the country’s few independent news services.

The Meydan TV network says four of its video reports, which highlighted allegations of official corruption, were removed on the grounds that they infringed YouTube’s copyright rules. And under the Google-owned giant’s terms, this brought the channel close to being taken off the site altogether.

YouTube is one of the few remaining mediums Meydan TV has for reaching audiences in Azerbaijan. The government blocked its website last year, and it has also jailed the network’s journalists.

Though both the RFE and Meydan TV videos have been restored, Milli is concerned that the threat to his network’s content remains. At the moment, he says YouTube is “failing badly” in policing its own rules.

The UK's Intellectual Property Office (IPO) has outlined the impact new EU rules affecting online content services could have on copyright holders in a new consultation paper published ahead of the new rules taking effect.

The IPO's explained (24-page / 4.72MB PDF) that rights holders will lose an element of control over how their material is accessed once they have entered licensing agreements with providers of online content services with paid subscribers.

Under the new rules, which come into force on 1 April this year, online content service providers must ensure that they make their service available to paid subscribers "in the same manner as in the member state of residence" when those subscribers are "present in a member state other than the member state of residence for a limited period of time".

By taking necessary steps, online service providers (OSP) can avoid legal litigation. The U.S. Copyright Office has instituted a new electronic registration system, where online service providers can protect themselves from copyright infringement lawsuits.

Companies that have an online presence can unknowingly be liable for intellectual properties, such as poetry, novels, songs and movies, that are posted on their websites by users or any third party. The Digital Millennium Copyright Act (DMCA) offers a “safe harbor” protection.

“The Digital Millennium Copyright Act provides OSPs an opportunity to remain innocent middlemen in a dispute between copyright holders and any user who posts infringing content, provided the OSP meets certain criteria,” said John Saint Amour, a supervisor at the U.S. Copyright Office.

Starting on January 1st, all OSPs are responsible for users’ posts, whether they post original content or copyright infringing content on their website, unless they electronically register with the U.S. Copyright Office.

When swapping files over the Internet first began downloading of material wasn’t a particularly widespread activity. A reasonable amount of content was available, but it was relatively inaccessible. Then peer-to-peer came along and it sparked a revolution.

From the beginning, copyright holders felt that the law would answer their problems, whether that was by suing Napster, Kazaa, or even end users. Some industry players genuinely believed this strategy was just a few steps away from achieving its goals. Just a little bit more pressure and all would be under control.

Then, when the landmark MGM Studios v. Grokster decision was handed down in the studios’ favor during 2005, the excitement online was palpable. As copyright holders rejoiced in this body blow for the pirating masses, file-sharing communities literally shook under the weight of the ruling. For a day, maybe two: On an almost continual basis rightsholders are calling for tougher anti-piracy measures on top of more restrictive and punitive copyright law. It's undoubtedly a threat to current Internet freedoms as we know them. But really, is anyone truly surprised that entertainment companies still hate their content being shared for free? TorrentFreak has some strong opinions on this!

Admittedly this article does seem to directly contradict the above. However it demonstrates the entirely divided approach that seems to be prevalent when considering the future of copyright and how we manage our creative material.

On January 1, 2019,  books, films, and songs published in 1923 will fall out of copyright protection - something that hasn't happened in 40 years. At least, that's what will happen if Congress doesn't retrospectively change copyright law to prevent it - as Congress has done two previous times.

Until the 1970s, copyright terms only lasted for 56 years. But Congress retroactively extended the term of older works to 75 years in 1976. Then on October 27, 1998—just weeks before works from 1923 were scheduled to fall into the public domain—President Bill Clinton signed legislation retroactively extending the term of older works to 95 years, locking up works published in 1923 or later for another 20 years.

Will Congress do the same thing again this year? To our surprise, there seemed to be universal agreement that another copyright extension was unlikely to be on the agenda this year.

Though this has been an identified issue in the past, recent developments in this field are leading people to think again regarding our approach to copyright and AI.

Self-aware robots, androids or call-them-what-you-will have been part of science fiction almost from its beginnings. Recently in science reality, there’s been early, speculative discussion about “creative” works generated by these types of machines, and how copyright would apply.

It’s easy — and tempting! — to get wrapped around the axle when it comes to the prospects for artificial intelligence (AI) programs and their creation of original works. When works created by self-running software applications become more common, the result is both more possibilities and more challenges to existing copyright law. But let’s take a step back and consider what we know already, and then move on to what may soon be coming.

Finally, where would any 2018 online blog post be without mentioning Blockchain at least once!

Former photo pioneer Kodak is turning to blockchain technology as part of an initiative to help photographers control their image rights.

The firm said the launch of ‘KODAKCoin’, in collaboration UK tech firm WENN Digital would help photographers receive payment for licensing their work immediately in cryptocurrency form.

KODAKCoin will use blockchain technology that settles transactions using computer algorithms, used by bitcoin and other virtual currencies.

Jan Denecke. WENN Digital chief executive , said: “It is critical photographers know their work and their income is handled securely and with trust, which is exactly what we did with KODAKCoin.

CopyKat Fights

To round this CopyKat off, below are three copyright disputes that have made recent headlines. Maybe not the most auspicious start to the year for these individuals….

Lana Del Rey sued by Radiohead over plagiarism claims - Lana Del Rey has confirmed that she is being sued by Radiohead over similarities between the final track on her current album ‘Lust For Life’ – which is called ‘Get Free’ – and the band’s 1992 hit ‘Creep’. There has been a recent update on this story which you can see here - is there actually a lawsuit?

BBC insists "no breach of copyright" over use of Brigadier's grandfather in Doctor Who special - Andy Frankham-Allen, creative director of Brigadier Lethbridge-Stewart creator Mervyn Haisman's estate, has now downplayed any row with the BBC,  and also explained how the Brigadier's daughter Kate Stewart (Jemma Redgrave) was approved for Doctor Who - and the Radio Times reports that any dispute over his grandson (Captain Archibald Hamish Lethbridge-Stewart, played by Mark Gatiss) who was in the recent Doctor Who Christmas special Twice Upon a Time had been settled with a "amicable, and non-financial, solution to the issue".

Ed Sheeran-Penned Song for Tim McGraw Is Target of Copyright Lawsuit - Two  Australians are asserting that Ed's "The Rest of Our Life" is the result of blatant copying and say it's hardly a coincidence that the musician who performed their own work is in a relationship with a Sony executive tasked with marketing the defendants' song. Gosh!!!!

This CopyKat by Matthew Lingard

Ps: As my time as an intern at 1709 comes to an end, I would like to thank the entire 1709 team for their insight and for giving me this opportunity. I would further like to wish the entire team and all of our readers a happy and prosperous 2018.

Tuesday, 9 January 2018

French State Ordered to Pay €26,100 to Bouygues Telecom

In a recent decision (4 December 2017), the French Conseil d'Etat (the Supreme Court in respect of administrative and public law cases) ordered the State to pay French Internet Access Provider Bouygues Telecom the sum of €26,100.

The context is that of the so-called graduated response system overseen by HADOPI.  It will be recalled that an Act of 2009 implemented the system under which a series of warnings are issued by HADOPI (an administrative body) to infringers using peer-to-peer networks to unlawfully share protected content.  Upon the "third strike", sanctions may be taken.

In order for the system to work properly, the law mandated that the IAPs collect certain identifying data on their subscribers and turn over same to the public authority (which then issued the warnings).  The Act further provided for the adoption of a decree setting out the regulatory framework under which the IAPs could then seek reimbursement for the specific costs incurred in carrying out such tasks.  

In the absence of the adoption of such a decree, Bouygues Telecom brought proceedings against the State which culminated in a ruling in December 2015 whereby the court ordered the Prime Minister to take the necessary reulatory measures within six months.  The ruling went on to state that the order was subject to an "astreinte" (civil penalty) of 100 euros per day after the deadline.  The relevant decree was signed on 9 March 2017, i.e., 261 days after the expiry of the court-imposed deadline.  Accordingly, Bouygues Telecom sought - and obtained - liquidation of the "astreinte" for this time period in the amount of €26,100  (261 x €100).

Link to ruling here

Monday, 8 January 2018

Introducing our new Interns

Kelsey Farish
The 1709 Blog is delighted to announce that, for the next 6 months, Kelsey Farish and Mateusz Rachubka will join the team as interns.

Kelsey Farish is currently a trainee solicitor in the IP/IT team at Taylor Vinters LLP. 

She studied American law (BA) at Washington State University, and EU law and politics (MSc) at the London School of Economics. 

Kelsey is passionate about the film and entertainment industries, and is particularly interested in digital media platforms, content distribution and licensing. 

You can read more about Kelsey here.

Mateusz Rachubka
Mateusz Rachubka is currently an LL.M. student in Intellectual Property and Information Law at King’s College London. 

He received his bachelor’s degree in Law from Lancaster University, during which he also spent a year on academic exchange at the University of Vienna.

Matt holds a keen interest in current developments in the area of copyright protection, data privacy and new technologies. 

Having watched over 180 Formula 1 races in his life, he is a person to ask any questions you might have. 

You can learn more about Mateusz here and follow him on Twitter here

Welcome Kelsey and Mateusz!

Friday, 5 January 2018

SEMINAR: Fundamental Rights and Copyright Law in the EU

Fundamental Rights and Copyright Law in the EU

Wednesday 7th February 2018, 6pm – 8pm at the CITY LAW SCHOOL

Event Location A110, College Building
City University of London
St John Street, London  EC1V 4PB

Seminar Series: Intellectual Property

In addition to giving copyright holders the right to prohibit reproductions, transmissions and performances of the protected works, European copyright law now regulates issues such as linking to content in the internet, blocking internet sites and providing open WiFi networks, among others. The Court of Justice of the EU (CJEU) has addressed these and other important questions related to copyright and fundamental rights in its recent case law. Professor Mylly will discuss this significant development and how the CJEU has used fundamental rights in its judgments, in particular.

Professor Tuomas Mylly’s research analyses informational and communicative power from the perspective of intellectual property, fundamental rights and competition law. His current research addresses the copyright case law of the CJEU from a fundamental rights perspective. He is the principal investigator in a research project funded by the Academy of Finland, Constitutional Hedges of Intellectual Property. He is currently a Visiting Fellow at Mansfield College. He is attached to the Oxford Intellectual Property Research Centre and Bonavero Institute of Human Rights at Oxford.  More information, links to his publications and research projects can be found from his profile page at the University of Turku.

SIGN UP for this event here

Music Modernization Act launched in the US

COPYRIGHT: Two US Congressmen have launched a proposed new statute that has the support of both music owners and music users in an effort to overhaul of the mechanical royalties system in the US. Doug Collins and Hakeem Jeffries say that the Music Modernization Act would "bring music licensing its first meaningful update in almost 20 years".

With no collecting society offering a blanket licence covering the so called 'mechanical rights' in songs, music users must identify the owners of every song they copy, and make sure those owners receive the licensing paperwork and fixed royalty rate set out in American copyright law. Its not easy - the streaming platforms, which concurrently exploit both the performing right and mechanical right elements of the song copyright. Last May, Spotify came to a proposed $43 million settlement to resolve a class action from songwriters led by David Lowery and Melissa Ferrick. The plaintiffs in that case had alleged that Spotify hasn't adequately paid mechanical licenses for song compositions. In July, Spotify was hit with two lawsuits, including one from Bob Gaudio, a songwriter and founding member of the group Frankie Valli and the Four Seasons. Now Spotify has been hit with a $1.6 Billion copyright lawsuit from Wixen Music, publisher of songs by Tom Petty and Neil Young amongst others, which amongst other claims argues that the Lowery/Ferrick settlement was far too low. Apple Music has faced similar claims

The proposed legislation will be an overhaul of the compulsory licence system that governs mechanicals in the US, with Collins and Jeffries saying: "Under the Music Modernization Act, the digital services would fund a Mechanical Licensing Collective, and, in turn, be granted blanket mechanical licenses for interactive streaming or digital downloads of musical works". Although paid for by the digital services, the new collecting society would be run by music publishers and (self-published) songwriters. The law would also: change the way the statutory boards and courts that regulate US collective licensing are organised; the way judges are selected to consider the royalty rates would be changed; and the criteria employed when setting rates would be altered to reflect market realities.

With Wixen's claim against Spotify alleging that Spotify outsourced its work to a third party, licensing and royalty services provider the Harry Fox Agency, which was "ill-equipped to obtain all the necessary mechanical licenses", surely this proposed legislation is much needed? Some say yes, some say maybe!

The Digital Media Association (which includes Apple, Spotify, YouTube, Pandora, Amazon, Napster and Microsoft as members) is backing the proposals, as are the US music publishing and songwriter community. David Israelite for the National Music Publishers Association said "The Music Modernization Act brings the laws that govern songwriters into the modern age. This legislation will lead to improved rates for songwriters and will streamline digital music companies' ability to license music. While there is still more to do to free songwriters from oppressive government regulation, this is a major step forward". The NMPA also put its name to a joint statement alongside collecting societies BMI and ASCAP, plus Songwriters Of North America and Nashville Songwriters Association International. Together they declared that the Music Modernization Act represents "months of collaboration and compromise between the songwriting and tech industries". However the National Association of Broadcasters (NAB) said it has serious concerns about unrelated provisions in the bill that may unjustifiably increase costs for many music licensees, including local radio and TV broadcasters, who otherwise receive no benefit from the legislation” the organisation said in its statement adding “NAB looks forward to working with the bill sponsors and impacted parties to resolve our outstanding concerns” and  the Songwriters Guild of America said that while the proposed legislation has many good points, it also has a “number of serious problems” that will need to be addressed before SGA and thousands of its members can support the bill. 

Other proposed music sector focussed legislation in the US includes moves to ensure AM/FM radio stations to pay royalties to artists and labels as well as songwriters and publishers (the Fair Play Fair Pay Act), and moves to sort out the pre-1972 'quirk' in US copyright law (the CLASSICS Act), and the Transparency In Music Licensing & Ownership Act proposed by Congressman Jim Sensenbrenner earlier this year. That proposal also seeks to overcome some of the issues around digital licensing and the problems caused by the lack of a workable publicly accessible database detailing accessible music rights ownership information.

An interesting take on how this may have influenced Wixen Music's recent filing of it's $1.6 billion lawsuit against Spotify (and how this might impact on Spotify's planned IPO) here and here

Thursday, 4 January 2018

Law Professors Amicus Brief Filed in Support of Take-Two Interactive

Professor Eugene Volokh and his Scott & Cyan Banister First Amendment Clinic at UCLA School of Law recently filed an amicus brief on behalf of several law professors in the Lindsay Lohan v. Take-Two Interactive case currently pending at the New York Court of Appeals.

Lindsay Lohan sued in 2014 Take-Two Interactive, the maker of the “Grand Theft Auto V” video game, claiming that it had used her image when creating the character Lacey Jonas, see here and here, and thus violated her right to privacy under New York Civil Rights Law § 51 by misappropriating her likeness.

Reality show star Karen Gravano filed a similar suit, claiming that the character Andrea Bottino was modeled after her.

Both of these actions failed, as Take-Two did not use Plaintiffs’ names, portraits or pictures. The game did not refer to Plaintiffs by name, did not use their actual names in the video game, did not use them as actors, and did not use their photographs either, see here. Plaintiffs have appealed.

Characters are protected by the First Amendment

The brief concentrates on the free speech issue, arguing that video games are expressive works and thus protected by the First Amendment.

The authors of the brief argue that “[c]elebrities like Gravano and Lohan are significant parts of that “popular culture,and Take-Two must be free to use even their literal names

and likenesses (as was done in Forrest Gump, for example) to capture the essence of that culture.”

The brief cites  the Comedy III Productions, Inc. v Gary Saderup, Inc., where the California Court of Appeals found that the right of publicity “has the potential of censoring significant expression by suppressing alternative versions of celebrity images that are iconoclastic, irreverent, or otherwise attempt to redefine the celebrity’s meaning.

New York law only protects against unauthorized use of likeness in trade

Authors of the brief also argued that the New York right of privacy is generally limited to commercial advertising, and does not extend to creative works.  Indeed, New York state does not recognize a common law right of privacy, only a statutory right of publicity, and New York right of publicity statute only forbids the use without consent of a person’s name, portrait, picture or voice “for advertising purposes or for the purposes of trade.

The New York courts have consistently interpreted the law narrowly and the Appellate Division held in September 2016 that the Grand Theft Auto V video game, “does not fall under the statutory definitions of ‘advertising’ or ‘trade.’”

The authors of the brief also argue that only explicit use of a person’s name or likeness is protected by New York right of publicity statute. A mere suggestion is not enough.

A recent attempt to expand the scope of New York right of publicity law

The New York Legislature is trying to expand the scope of New York right of privacy by enacting Assembly Bill A08155. The bill would make the likeness of an individual a personal property, freely transferable.

It defines the “likeness” of an individual as “an image, digital replica, photograph, painting, sketching, model, diagram, or other recognizable representation of an individual's face or body, and includes a characteristic.” A “characteristic” is defined as “a distinctive appearance, gesture or mannerism recognized as an identifying attribute of an individual.”

Is a video game protected by the First Amendment?

The bill has not been enacted. Plaintiffs’ claims may prosper under this law, or may not, as it provides a First Amendment defense. The main issue would then no longer be whether the creators of the game indeed used Plaintiffs’ likenesses, but whether a video game is worthy of the protection of the First Amendment.

Plaintiff Gravano seems to have anticipated this hypothesis, as she argues that “a video game that is primarily a commercial product [is] not afforded absolute protection as a creative work.”

However, authors of the brief cite the Supreme Court City of Lakewood v Plain Dealer Publ’g Co where the court explained that “the degree of First Amendment protection” of speech “is not diminished merely because the . . . speech is sold rather than given away.

Stay tuned…

Image courtesy of Flickr user Fred Miller under a CC BY-SA 2.0 license.

Wednesday, 3 January 2018

Pirates receive Christmas gift from Arnold J

On 21 December 2017, the last day of the English High Court term, Arnold J issued a short judgment in the case of Union Des Associations Européennes de Football (better known as UEFA) v BT and Os [2017] EWHC 3414 (Ch), available on Bailii here.   [Declaration of interest - the author's colleagues at CMS Cameron McKenna Nabarro Olswang LLP act for UEFA in these proceedings.]

This case involved the granting of an Order under section 97A CDPA 1988 requiring the main UK ISPs to take measures to block, or at least impede, access by their customers to streaming servers which deliver infringing live streams of UEFA Competition matches to UK consumers (those being the UEFA Champions League and UEFA Europa League, for non-soccer fans).  This is (as far as the author knows) only the third case involving section 97A being used to block live-streaming. 

The live-streaming cases are, in certain respects, more complex in operation than Orders involving "fixed" sites such as PirateBay, as the streaming servers change on a regular basis, each Order applies only while matches are being streamed and ISPs are required to block a list of IP addresses which is re-set each week.  This is set out in more detail in the first Judgment and Order granted by Arnold J during the last football season, in favour of the FA Premier League and discussed by Eleonora on the IPKat here) with the second Order being a further Order in favour for FAPL, granted in July on a new application for the current season (Arnold J's judgement in the second case appears to be unavailable on free sources but the case, FAPL v BT II; [2017] EWHC 1877 (Ch), is available on Lawtel).

Although the present case is nominally against the ISP defendants, it was unopposed and the three largest ISPs, BT, Sky and Virgin, filed evidence in support of the application, alongside the FA Premier League and Formula One. Nevertheless, Arnold J took care to ensure that the tests he had set out in prior cases had been met, in a concise judgment of 15 short paragraphs.

In particular, he cites the CJEU decisions in Stichting BREIN v Ziggo BV (the PirateBay case - see here and here) and in VCAST v RTI (see Eleanora's commentary here) to reinforce that the servers offering live streaming of football matches are committing the restricted acts of communication to the public.

He goes on to emphasise that the Order is appropriate and proportionate, citing three key points:
  • the scale of the problem, citing FACT and UK IPO evidence of at least 1 million boxes enabled for illegal streaming having been sold in the UK;
  • that evidence (not made public in the judgment) demonstrated the effectiveness of the FAPL Orders and that there was no evidence of "overblocking" (i.e. blcking of sites that were not carrying illegal material which should not have been blocked);
  • that UEFA had proposed an additional step to protect against overblocking.
As in the prior cases, much of the evidence and the methodology used to detect and block the illegal sites remains confidential.

The Order continues until 26 May 2018 (the date of the UEFA Champions' League final, taking place this year in Kiev).

Friday, 29 December 2017


When historians look back at the copyright world in 2017 (if our attention spans allow us to have roles such as a 'historian' in the future!) what would they make of this year? Well one of the main 'themes' of 2017 was the ongoing battle between 'big tech' and 'big content' around the globe, set in the context of possible reforms to copyright law. In Europe, the US and Australia 'safe harbour' was being re-examined, with the film studios and recorded music sector finally making some headway against the likes of YouTube and now Facebook in shrinking the 'value gap' that has propelled the technology sector to host some of the biggest businesses in the World. And finally the record labels and the platforms were doing deals! But it wasn't just technology vs content: two major platforms, Spotify and Deezer, urged European legislators to ensure that the globally dominant giant US technology companies (primarily Apple, Amazon and Google) don't abuse their position as gatekeepers to digital consumers, not least as all three tech giants make and operate devices, control transaction platforms and own content services. Spotify and Deezer are big in their sector, but dwarfed by the likes of Google. And if Rupert Murdoch has seen the writing on the wall, shouldn't we all? Does Disney's $52.4 billion acquisition of 21st Century Fox give the combined content and broadcasting behemoth a chance of competing with Netflix or Amazon Prime? It no doubt explains why Spotify and China's internet giant Tencent exchanged equity stakes of just under 10 per cent of each other, and why Tencent now has a $2 billion stake in Snapchat. The content industries might be worried about the US tech giants, but the US tech giants will be looking East, at the astonishing growth of the likes of Baidu, and Albibaba. 

Elsewhere, the Court of Justice of the European Union has defined, re-defined and refined its own and (perhaps) our understanding of what the right of 'communication to the public' under Article 3(1) of the InfoSoc Directive actually is. The topic had already been subject to nearly 20 references to the CJEU for preliminary rulings, and yes, there would be more from the court in 2017 as the decisions in Filmspeler, C-527/15, and Ziggo, C-601/15 (The Pirate Bay) loomed! And what of copyright itself? In an ever changing world, courts around the globe continue to revise our understanding on the subsistence of copyright, sometimes moving on from the classic definition (where copyright subsists in  "original literary, dramatic, musical and artistic works") to approaches such as the CJEU's 2009 concept of protecting works which are the "author's own intellectual creation'" in its decision in Infopaq. But this approach and indeed traditional approaches presume that a particular person is the author of a work - and it a world of selfie taking monkeys, animal rights and very smart robots ....... do we even know what a 'person' is any more - a conundrum confusingly explored and partially explained in Ex-Machina (pictured).
January and our first update of 2017 was news from India that three Indian music copyright collection societies were restrained by the Delhi High Court from granting any licences until April. Justice Sanjeev Sachdeva made an interim order against  the Indian Performing Right Society (IPRS), the Phonographic Performance Ltd (PPL) and Novex Communications Pvt Ltd preventing them from contravening section 33 of India's Copyright Act,  which provides that only registered societies can grant licences in respect of copyrighted work(s). In the USA, one of the major musical works collection societies (and there are now four!)  BMI filed an action in Federal Rate Court to set interim fees for radio stations represented by the radio industry's trade body the RMLC, while BMI and the RMLC negotiate the terms of a new five-year deal. Again in the US, the Second Circuit affirmed the January 2016 order of Judge Furman of the Southern District of New York (SDNY), which had found that the use of the Louis Vuitton logo and the representation of the Louis Vuitton bags on fabric totes (pictured) with one side representing a somewhat cartoonish rendition of a famous luxury bag, while the other side read “My Other Bag is…” with the Louis Vuitton ‘LV’ logo replaced by the initials 'MOB' (and retailing for $35 to $55) was fair use. And AG Szpunar issued his opinion in The Pirate Bay case, advising the CJEU to answer the question posed by the Dutch Supreme Court of whether the Pirate Bay undertakes the act of communication to the public in the affirmative saying "the fact that the operator of a website makes it possible, by indexing them and providing a search engine, to find files containing works protected by copyright which are offered for sharing on a peer-to-peer network, constitutes a communication to the public within the meaning of Article 3(1) of [the InfoSoc Directive], if that operator is aware of the fact that a work is made available on the network without the consent of the copyright holders and does not take action in order to make access to that work impossible". 

February began with Tibbie McIntyre posing the question "Should Press Publishers be Given an Exclusive Neighbouring Right?" in the context of Article 11 of the Proposed EU Directive on Copyright in the Digital Single Market. In Spain, a press publisher right was introduced which automatically made Google pay, without the press publishers having to pursue payment under an exclusive right. Google’s response was simply to close down Google News in Spain. Further consequences were felt, with online Spanish news sites garnering less traffic. Tibbie opined that the cogent opinion released by CIPIL stated that “If the real problems facing press publishers relate to licensing and enforcement, the best answer is surely to focus on licensing and enforcement rather than to create new rights” and that “Multiple rights are associated with clogging and opportunistic behaviour” wisely noting that "Realising policy objectives is a complex and difficult goal, with almost endless variables to consider", with drafting of new laws posing a particularly challenging task. The debate being played out across the globe presents many challenges, and it will be interesting to review further developments with this proposed right in future. The Turtles ongoing tri-state litigation against SiriusXM over the satellite radio broadcaster's refusal to pay to broadcast pre-1972 sound recordings reached the the Florida Supreme Court, who looked again at Judge Darrin Gayle's decision which found in favour of SiriusXM and agreed that "There is no specific Florida legislation covering sound recording property rights, nor is there a bevy of case law interpreting common law copyright related to the arts" and "If this Court adopts Flo & Eddie’s position, it would be creating a new property right in Florida as opposed to interpreting the law" adding that it's the job of the Florida state legislature to address the issue, and that a decision to plug the gap would bring up a host of other issues such as resolving who sets and administers licensing rates, who owns sound recordings for dead artists and what exceptions there might be to a public performance right. A host of impressive signatories (including the Centre d’Etudes Internationales de la Propriété Intellectuelle (CEIPI), University of Strasbourg, CREATe at the University of Glasgow and the Max Planck Institute for Innovation and Competition)  penned an open letter with the heading "EU Copyright Reform Proposals Unfit for the Digital Age".  And singer, songwriter and producer T Bone Burnett delivered a telling contribution to the US Copyright Office's review of Digital Millennium Act 'safe harbor' provisions in the USA, saying in a video that whilst the law that was supposed to "balance the internet's openness with creators' ability to earn a living wage from their work  ..... [T]hose safe harbours have failed".

We've won an WEB BLOCKING ORDER !! 
(Photo by Ben Challis)
On March 8th, a French art history student was escorted out of the Louvre Museum in Paris. His crime? He was taking pictures of the Valentin de Boulogne exhibition, a painter who has been dead for almost 400 years. Contrast that with the approach of the New York Metropolitan Museum of Art which recently made the images of it's artworks in the public domain freely available through a new open access policy, without restrictions. But French law does provide for the Louvre's actions: last December last, France's highest administrative court, the Conseil d’État, confirmed that a public entity can forbid a private entity to take pictures of works inside a public museum. But, asked Marie-Andree Weiss, is it right? In the UK in FAPL v BT [2017] Mr Justice Arnold concluded that the High Court has the jurisdiction to make an order against an access provider that would require the ISP to block access not to a website but rather streaming servers giving unauthorised access to copyright content - 'live' blocking.  One of the more incredible allegations about Prenda Law, the copyright-trolling operation that sued people for downloading movies online, was that the lawyers behind Prenda and its associated companies might have created and uploaded some of the porn, simply as a way of catching more offenders. ArtsTechnica told us in March that this may well be true, and despite repeated denials by the Prenda lawyers. The report said that John Steele [a Prenda lawyer] pled guilty in Minnesota to federal charges of "conspiracy to commit mail and wire fraud" and to money laundering. And guess what? In 2011 "Team Prenda had in fact become porn producers (they continued to have other "real" clients at that time as well") and "On at least three separate occasions in Chicago, Miami, and Las Vegas, Steele and [Paul] Hansmeier... contracted with adult film actresses and produced multiple short pornographic films". In an interesting decision, the Court of Appeal in London upheld a custodial sentence imposed on Wayne Evans by HHJ Trevor Jones at the Crown Court in Liverpool for two offences of distributing an article infringing copyright contrary to section 107(1)(e) of the Copyright Designs and Patents Act 1988 and also to a further offence of possessing an article for use in fraud contrary to section 6(1) of the Fraud Act 2006. A twelve month custodial sentence was thought right, despite Evans having no previous convictions, pleading guilty at the first opportunity and making very little (if any) financial gain from distributing thousands of copyrighted music tracks through his webite: But there was undoubtedly a real loss to the owners of the relevant copyrights and related performers - and that weighed against him as did the need for a deterrent. Can cheerleader uniforms be protected by copyright in the US even on utilitarian clothing? Well the US Supreme Court said YES - when a feature incorporated into the design of a useful article it can be eligible for copyright protection but only if the feature (1) can be perceived as a two or three dimensional work of art separate from the useful article,and (2) would qualify as a protectable pictorial, graphic, or sculptural work, either on its own or fixed in some other tangible medium of expression if it were imagined separately from the useful article into which it is incorporated (Star Athletica LLC v Varsity Brands, Inc.)  And finally, back to France where the Tribunal de Grande Instance de Paris found that Jeff Koons had infringed the copyright of French photographer Jean-François Bauret after reproducing (without authorisation) one of Bauret’s photographs to create his Naked sculpture - and that a defence of parody would fail, one of the first cases to look at the CJEU's decision in Deckmyn v Vandersteen, where the CJEU explained that a parody must “evoke an existing work while being noticeably different from it, and, secondly, to constitute an expression of humour or mockery". 

Prince by Andy Warhol (1984) Copyright AWF
In April, a group of bipartisan legislators in the US reintroduced a bill which is designed to put AM/FM radio into the same shoes as satellite radio and webcasters such as Pandora and iHeartRadio.  AM/FM radio stations pay nothing to perform music yet webcasters are required to pay a statutory royalties for playing music on their online radio platforms. A joint statement from the bipartisan group stated that "Our current music licensing laws are antiquated and unfair, which is why we need a system that ensures all radio services play by the same rules and all artists are fairly compensated". It's the Fair Play Fair Pay Act. The Italian web-blocking system was held to  just fine by Italy's administrative court which ruled that the powers granted to Italy's communications regulator AGCOM to issue web-block injunctions are not in conflict with either the EU's E-Commerce Directive or Italian copyright law, or the Italian constitution. And in Ireland, the Commercial Court ordered nine internet service providers to block access to three websites which  were alleged to have facilitated the illegal streaming of copyrighted TV shows and movies. The claimant film studios said the three sites were facilitating piracy on an "industrial scale". Mr Justice Brian Cregan granted the order being sought by the six TV and film studios against the ISPs which included Sky Ireland, Vodafone Ireland and Digiweb. The CJEU's decision in the important Mc Fadden case that  the provider of a password-free, free WiFi can be requested to have his internet connection secured by means of a password was applied with news that he Higher Regional Court of Düsseldorf had requested that  the operator of an open WiFi (and a TOR exit node)  take action against repeated copyright infringements by users of his IP-addresses. And the Court of Justice of the European Union issued its long-awaited decision in Filmspeler, C-527/15, ruling that the sale of a multimedia player was a ‘communication to the public’, with Eleonora explaining that the CJEU had substantially followed the opinion of Advocate General  Manuel Campos Sánchez-Bordona, who proposed a broad(er) interpretation of the right of communication to the public and, with it, a broader reading of what amounts to an 'indispensable intervention': the CJEU noted that the aim of the [Infosoc) Directive is to establish a high level of protection for authors and so the concept of ‘communication to the public’ must be interpreted broadly. In addition, the Court had already held that the availability, on a website, of clickable links to protected works published without any access restrictions offers users of the first website direct access to those work, and that was extended in this case to the sale of the multimedia player.  And finally, The Andy Warhol Foundation filed a pre-emptive suit against photographer Lynn Goldsmith asking the Southern District of New York Court (SDNY) to declare that the Andy Warhol Prince Series did not infringe on Defendant’s copyright, that the portraits in the series are transformative works protected by fair use, and that Defendant’s claim is barred by the equitable doctrine of laches. 

In May we said farewell to our excellent blogging interns, Tibbie McIntyre and Davis Liao, who added so much to the 1709 Blog. Thank you David and Tibbie. You were both exceptional. And we welcomed Matthew Lingard and Lolita Huber-Froment to carry on where Tibbie and David left off, not least with our regular CopyKat updates.  In Australia, in the midst of a big review of copyright, examining the impact of extending a 'fair dealing' doctrine to a wider 'fair use' approach came news that a collection society was channelling fees intended for authors into their ‘fair-use opposition fund’. The Copyright Agency had set aside a A$15 million fund specifically to oppose the implementation of a fair-use system. Astonishingly, the fund came from payments made to the Australian Copyright Agency for the use of orphan works! Staying 'down under', the Eminem song ‘Lose Yourself’ was at the centre of a trial in the Wellington High Court: a campaign advert during New Zealand's general election by the ruling party was alleged to have infringed the copyright in ‘Lose Yourself’ - but the song used was a 'sound alike' entitled ‘Eminem-esque’. Did it matter? The answer was no - the copyright in the song had been infringed and damages of NZ$600,000 were awarded. Prenda Law attorney John Steele was disbarred by the Illinois Supreme Court. And Lolita asked the question 'is the taste of a Dutch cheese protected by copyright?' Surely not ..... well maybe ....  as a case about cheese seemed to have slipped through the net and said the taste of the cheese (or specifically “Heks’nkaas”, a Dutch cheese) could be a protected creation under author rights,  but more importantly asked the CJEU (a) whether EU Law allows copyright protection of taste? and (b) if so, what requirements must be met in order to determine subsistence of copyright protection?

Jimi Hendrix by Gered Mankowitz
At the beginning of June, the Bundesgerichtshof (BGH, the German Federal Court of Justice) referred not one but two important copyright cases to the Court of Justice of the European Union for guidance on (a) the extent EU copyright allows sampling and (b) what role fundamental rights play in the copyright sphere. More specifically, what is the relationship between copyright protection, freedom of the press, and freedom of information? The first reference had been made in the context the longstanding and complex Metall auf Metall litigation concerning the unauthorised sampling by music producer Moses Pelham of a 2-second rhythmic sequence from Kraftwerk's 1977 song 'Metall auf Metall'. The second reference was made in the context of litigation between the German Government and German newspaper WAZ over the unauthorised publication by the latter of the so called 'Afghanistan Papers' (confidential military reports). And there was more on sampling with Drake, his record label and music publishers winning a difficult lawsuit that had claimed his song “Pound Cake/Paris Morton Music 2” which featured on the 2013 album “Nothing Was the Same” sampled a 1982 spoken-word recording titled the “Jimmy Smith Rap.” It was a sample, but Judge William Pauley noted that whilst in many cases of parody the average observer would need to identify the target of derision, it’s not a universal prerequisite for a finding of transformative use, commenting that Drake used Smith’s work as “raw material” for his new work. The judge also commented that the use of “Jimmy Smith Rap” was transformative regardless of whether the average listener would identify the source and comprehend Drake’s purpose. In a decision applauded by photographers around the world, and reversing the Paris Tribunal de Grande Instance (TGI) first instance decision, the Paris Court of Appeal decided that the iconic photograph of Jimi Hendrix by Gered Mankowitz was original and that, by using the altered copyright-protected work to commercially promote their products online and in two brick-and-mortar shops, the defendant electronic cigarettes sales company had infringed copyright. The Court of Appeal confirmed that the person claiming copyright protection bears the burden of proof. Here Mr Mankowitz had organised the 1967 shoot, had directed the rock star in terms of position and angle, had chosen the use of a specific camera and lens to create a wide-angle effect without distortion, and had chosen the lightning, background, framing and angle of capture - so yes, a copyrighted image embodying the expression of the photographer's own personality. It was a busy month in France as France’s Cour de Cassation ruled in favour of the 'freedom of expression' of Director Dmitry Chernyakov in respect of "Le Dialogue des Carmélites" staged for the Munich Opera in 2010 trumped moral rights - here his use did not violate the moral rights of composer and librettist Francis Poulenc. 

July, and the French courts blazed with more copyright news with another case about the importance of originality in French copyright, this time deciding that a retail stores’ layouts was original enough to be protected by copyright. The court of first instance, the Tribunal de Grande Instance de Lille, had already ruled in favour of  the plaintiffs, an Italian cosmetics store, who had claimed that its stores’ layout was original and protected by the French droit d’auteur.The Douai Court of Appeals also ruled in favour of the Italian company against the defendants, a French cosmetics and accessory company, and recognised that French copyright protects interior design such as “the rhythm of colour and the layout of a store chain” and explained that “[w]hen this protection is contested in defence, the originality of a work must be explained by the person who claims to be the author, that is the only person able to identify the elements expressing his personality…. [and that] the exploitation of a work by a moral entity under its name shall presume that this moral entity [owns the copyright].” When a group of museums and researchers in the Netherlands unveiled a portrait entitled The Next Rembrandt, it was something of a tease to the art world. It wasn’t a long lost painting - but a new artwork generated by a computer that had analysed thousands of works by the 17th-century Dutch artist Rembrandt Harmenszoon van Rijn. We've had monkeys taking photos - now asked "Should robot artists be given copyright protection?".  

Still in July and speaking of that monkey, freelance photographer David Slater, who facilitated the now infamous 'monkey selfie' taken by black macaque Naruto said he was in a dire financial situation as the appellate proceedings regarding the selfie continued in the United States courts. More photography: snapper Donald Graham, who had filed a copyright infringement suit against the notorious 'appropriation artist' Richard Prince in 2016 claiming that Prince’s use (without permission) of Graham’s Rastafarian Smoking a Joint photograph to create an Untitled (Portrait) featured in Prince’s New Portraits exhibition was copyright infringement, had some good news. Prince, who of course has that controversial but helpful judgment in Cariou v Prince behind his art, claimed his appropriation was fair use. U.S. District Judge Sidney H. Stein from the Southern District of New York allowed the case to go forward and denied Prince’s motion to dismiss the case. And the CJEU issued its much-awaited judgment in Stichting Brein v Ziggo BV and XS4All Internet BV, C-610/15 (The Pirate Bay case) and the Court developed further its construction of the right of communication to the public within Article 3(1) of the InfoSoc Directive, and clarified under what conditions the operators of an unlicensed online file-sharing platform would be liable for copyright infringement.

August began with Marie-Andree asking "Is Reconstructing a Work to Preserve It Copyright Infringement?" in an update which looked at  the law suit that followed the reconstruction of artist Cady Noland's "Log Cabin" sculpture, a life size artwork created in the nineties. Art collector Wilhelm Schurmann bought the work and loaned it to a museum which exhibited it outside for ten years. Over time the work deteriorated, and in 2010 an art conservator recommended the work should be reconstructed it entirely with new materials and new logs. The complaint alleges that Cady Noland was not informed of this decision, but instead learned in 2014 that the work had deteriorated, had been reconstructed, and the decayed material thrown away - and she said her moral rights were violated. Noland also disowned the 'new' work. Is there a claim? A federal judge ordered the dispute over the "Lady Liberty" stamp to go to trial. The United States Postal Service mistakenly produced a 2010 stamp that was based on a replica of the Statue of Liberty created by artist Robert S Davidson rather than the original.  And a New York judge dismissed a lawsuit brought the estate of promoter Sid Bernstein, who staged the Beatles’ legendary 1965 show at Shea Stadium. The Estate had argued that band’s Apple Corps had infringed on the copyright of Sid Bernstein Presents by including footage from the concert in Ron Howard's  documentary film Eight Days a Week - the Touring Years which was released in September 2016 - but the Judge noted that contract signed in 1965 “reserves no rights whatsoever for Bernstein in any filming or recording of the concert. And finally in August, the case between Solid Oak Sketches against Take-2 Software, the maker of the NBA 2K video game which claims that the latter's reproduction of several tattoos worn by famous basketball players was copyright infringement rumbled on. The defendants argued fair use, the use was de minimis - and that the law suit would "seek to hinder the ability to depict people as they appear in real life”.

That monkey selfie
What news in September? Well carrying on from August, Solid Oak's lawsuit was back in the news as ArtsTechnica took a detailed look at the issues. Elsewhere The creator of Pepe the Frog stepped up his fight against far-right activists who had appropriated the cartoon character as a meme. Matt Furie vowed to "aggressively enforce his intellectual property" after the character he created for a comic strip was plastered across social media and even merchandise, particularly by fans of US President Donald Trump as he fought his election campaign. George Chin reported that "We Shall Overcome" - labelled by the US Library of Congress as “the most powerful song of the 20th century” - was not original. A federal judge struck down the copyright for part of the civil rights anthem saying that the song’s adaptation from an older work, including changing “will” to “shall”,  was not original enough to qualify for protection with Judge Cote saying “This single word substitution is quintessentially trivial and does not raise a question of fact requiring a trial to assess whether it is more than trivial … The words ‘will’ and ‘shall’ are both common words. Neither is unusual” adding "The fact that a trivial change to the lyrics became a part of a popular version of a song does not render that change nontrivial and automatically qualify the popular version for copyright protection". Professor Lionel Bently (University of Cambridge) and Associate Professor Valeria Falce (Università Europea di Roma) were in Rome to discuss the proposed Directive on copyright in the Digital Single Marketconcluding "Ultimately, while the Commission appears to pursue a clear objective (reviewing the set of responsibilities) through a bold framework, because the proposed Directive lies within a network of pre-established instruments Article 13 is likely to become a legislative bull in a fragile legal china-shop. It will at the very least introduce “large amounts” of uncertainty, or, worse, obscure the obligations of the subjects involved.” And finally - was it really the end of the 'monkey selfie' case? It seemed so!  The People for the Ethical Treatment of Animals announced it had settled the federal lawsuit that sought to establish the right for animals to own property. In a joint statement PETA and photographer David Slater said: "PETA and David Slater agree that this case raises important, cutting-edge issues about expanding legal rights for non-human animals, a goal that they both support, and they will continue their respective work to achieve this goal. As we learn more about Naruto, his community of macaques, and all other animals, we must recognize appropriate fundamental legal rights for them as our fellow global occupants and members of their own nations who want only to live their lives and be with their families. To further these goals, David Slater will donate 25% of future gross revenue from the Monkey Selfie photographs to charitable organizations dedicated to protecting and improving the welfare and habitat of Naruto and crested black macaques in Indonesia." This may be the end of this case, but is it the end of the story? If the monkey cannot be the author, but does that mean that Mr Slater owns the copyright in the picture taken by the monkey? And if he doesn't - who does?

October - already!  The Bundesgerichtshof had been considering a case that dated all the way back to 2009 and finally decided that Google had not infringed the US adult website Perfect 10 by linking to illegally uploaded thumbnail with its image-search engine. Perfect 10 maintained that it was owed damages for copyright infringement. The Bundesgerichtshof disagreed. Under German and EU law, Google's tool was not infringing copyright by reproducing the thumbnails of Perfect 10's models., the massive Chinese e-commerce company was been hit with a US class action lawsuit claiming that its network of e-commerce websites is home to rampant copyright infringement of visual artwork.The lawsuit has been brought at the instigation of professional Indiana artist Michel Keck who was seeking to certify a class of copyright holders who have seen their work copied and sold on Alibaba’s network of websites without their permission. And it seemed web blocking was now on the cards for copyright owners in the US after Magistrate Judge John Anderson in the District Court for the Eastern District of Virginia recommended a ruling in favour of the American Chemical Society in their action against Sci-Hub (sometimes dubbed the “Pirate Bay of science”) whom the ACS accused of copyright infringement for making available online copies of the former’s academic papers without licence. In the UK the copyright (or perceived lack thereof) in TV formats was revisited in Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd [2017] EWHC 2600 (Ch). Here the court held that a TV format can be potentially protected by copyright, although in the specific case the action failed: but copyright protection will not subsist unless "as a minimum (i) there are a number of clearly identified features which, taken together, distinguish the show in question from others of a similar type; and (ii) that those distinguishing features are connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form.”

Remember - November!  First off, would the Review Board of the U.S. Copyright Office agree with a new request from T.W.N. Industries to reconsider the denial to register two of its patterns. The answer was 'no'. Even though the Board recognised that TWN's "Gold Wood" had been independently created, it was not creative enough to be protected by copyright, as “it consists of simple, minor variations on common shapes arranged in an obvious and uniform manner.” The Board explained further that Gold Wood “is made up of only a very few elements (monochromatic lines in a few shades of gold” arranged in an unoriginal manner (densely and with only minor and repeating variations throughout the pattern).” As explained in § 313.4(J) of the Compendium of U.S. Copyright Office Practices, “a work consisting of a simple combination of a few familiar symbols or designs with minor linear or spatial variations, either in two-dimensional or three-dimensional form, cannot be registered.” Next up, and in the space of under a week, there were two big decisions in the USA looking at web blocking - with differing results.  First off, a federal judge in California issued a preliminary injunction preventing Canada’s Supreme Court from forcing Google to de-list websites for Datalink on its American search engine. The Canadian Supreme Court (Google Inc v Equustek Solutions Inc, 2017 SCC 34) had ordered Google to de-list the tech company’s website(s) worldwide. Indeed the music industry trade body Music Canada welcomed the judgement saying it was “a crucial development given that the internet has largely dissolved boundaries between countries and allowed virtual wrongdoers to move from jurisdiction to jurisdiction in search of the weakest enforcement setting”. The US court disagreed - That ruling won't apply here! And Judge Leonie Brinkema confirmed  the October ruling of Magistrate Judge Anderson who had recommended a ruling in favour of the American Chemical Society. The court issued the injunction that meant US based registrars can't offer their services, and server farms can't host Sci-Hub. The order goes further, ordering “any person … including any Internet search engines, web hosting and Internet service providers, domain name registrars, and domain name registries, cease facilitating access to any or all domain names and websites through which Defendant Sci-Hub engages in unlawful access to, use, reproduction and distribution of the ACS [trade] marks or ACS's copyrighted works”. The 1709 Blog posed the French focussed question "Does a decree aiming at protecting the health of our auditory systems by making it mandatory to lower the sound level of music a violation of the moral rights of the author of the music?". An editorial published in the daily newspaper Libération, titled Faites du bruit pour sauver la musiqueMake noise to save music, and signed by several personalities and musicians, including former Minister of Culture Jack Lang, claimed that a French decree aimed at preventing risks associated with noise distorts musical works and violates freedom of creation. ResearchGate was said to moved at least 1.7 million articles to make them less easily available after legal action by a group of five publishers including Elsevier, Wiley and Brill, who issued a wave of take-down notices. Since then, 93 per cent of the CRS publishers' papers had been made less accessible and instead of being instantly downloadable, users had to request a copy from the author. And finally (and importantly) the CJEU delivered its judgment in VCAST, C-265/16: Does EU law prohibit a commercial undertaking from providing - without the authorisation of the relevant copyright owner - private individuals with cloud computing services for the remote video recording of private copies of works protected by copyright, by means of that commercial undertaking’s active involvement in the recording? The CJEU held "To the extent that the service offered by VCAST consists in the making available of protected works, it falls within communication to the public. In that regard, the Court recalls that, according to the directive, any communication to the public, including the making available of a protected work or subject-matter, requires the rightholder’s consent, given that the right of communication of works to the public should be understood, in a broad sense, as covering any transmission or retransmission of a work to the public by wire or wireless means, including broadcasting."

And we are here. The final month of the year!  At the beginning of December the EFF published a critique of the USA's CASE Act of 2017, explaining that CASE would have several unwanted consequences, and the most negative of  these was (is) the fact that the Copyright Office will become a Copyright Court as the Act would set up a “Copyright Claims Board” within the Copyright Office, staffed by three judges empowered to hear copyright complaints from all over the country. The major national sports leagues in Europe, including the English Premier League and Germany’s Bundesliga, won a reprieve from the EU who agreed to exclude them from the scope of a copyright reform that would help make content more easily available online in the EU. The World Intellectual Property Organisation said it was going to take a long hard look at the of limitations and exceptions to copyright, and provide draft action plans, one each for libraries, archives, museums, educational research institutions, and persons with other disabilities than sight impairment. As we said in our opening, a  theme that has been bubbling around for a few years (and not unrelated to a famous monkey's claim for a copyright) was explored in Eleonora's examination of artificial intelligence - and copyright: As AI machines become increasingly autonomous, can they be regarded as 'authors' in a copyright sense and, if so, can the works they create be eligible for copyright protection? If the answer was again in the affirmative, who would own the copyright in such works? In China, Lego A/S, Europe’s biggest toymaker, said it won its first copyright court case after the China Shantou Intermediate People’s Cour ruled that products under the name Bela, sold by two Chinese companies, infringed upon Lego’s copyrights. And another recurring theme in 2017, the battle between the tech giants and the content sector bubbled over again when Google and members of Australia's technology sector urged the government to reconsider excluding them from changes to safe harbour rules, while the content sector has applauded the decision to not extend the copyright provisions to digital businesses. In Canada, the House of Commons triggered a parliamentary review of Canada's Copyright Act, first passed in 1921. TorrentFreak commented that the music industry was quick to weigh in, congratulating government ministers and making it known that the so-called 'Value Gap'  and  how the tech giants seem to be good at everything except removing infringing material, and why likes of Google don't seem keen to pay for what drives the likes of YouTube should be high on the agenda. And the battle between the tech behemoths, and giants of the content industries, was in full spate in the US where the likes Google and Facebook are now facing off against Hollywood studios and major record labels over how to update the North American Free Trade Agreement to protect copyright in the digital age. Silicon Valley is pushing for exceptions to copyright rules for online platforms and Internet service providers it says are needed to keep content flowing on the web. Meanwhile, the U.S. government seems to be taking positions more favoured by companies such as Walt Disney and Time Warner who are lobbying for stronger protections for copyright owners. The new (US led) proposals for NAFTA would limit allowances for online use of copyrighted material, a position seemingly less supportive of online platforms than existing US law, in particular a watering down of fair-use exceptions and a re-evaluation of 'safe harbor'. There was an uodate on our opeming story with IPRS re-registering as a copyright society and finally, would the mess surrounding pre-1972 sound recordings in the US be sorted? Maybe! A group of 41 recording artists urged the US Congress to sort out the mess with the new "Compensating Legacy Artists for their Songs, Service & Important Contributions to Society Act"  - or (wait for it, and a a drum roll please)  the CLASSICS Act. 

Our last thoughts: what of the andriod, more intelligent than a human, stronger and faster than a human being who looks like a human but ia built in a factory. Lets say one called Miim, some 100 years from now and having lived with and outlived her creators, aspires to be the best self taught artist ever?

Miim visits Mars and paints the most stunning Marscape every seen. A real masterpiece. If Miim dreams of electric sheep - surely she is the author of this stunning work? AI and copyright -  no need to short circuit this debate - it's the wild wild Westworld out there. And more here and here and here and here

Sadly we have lost some important creative talent this year. In music, Tom Petty, Chris Cornell, Joni Sledge, Fats Domino, Glen Campbell, Gord Downie, Chuck Berry, Al Jarreau, Johnny Hallyday, Gregg Allman, composer Vladimir Shainsky, and trance DJ and producer Robert Miles were just some of those who passed. Film, TV and theatre lost a wealth of talent including the actors Sir John Hurt, Erin Moran, Frank Vincent, Sir Roger Moore, Danielle Darrieux, Robert Hardy, Kritika Chaudhary, Rosemary Leach, Aracy Cardoso, Reema Lagoo, Hiromi Tsuru and Partha Mukhopadhyay, comedian and actor Jerry Lewis, along with the film directors Jonathan Demme and George A. Romero. And we said farewell to Paddington Bear author Michael Bond, sitcom writing icon Alan Simpson, Japanese playwright Akira Hayasakathe, children's author and artist Dick Bruna, Inspector Morse creator Colin Dexter, and the cartoonist Leo Baxendale. So all we can do is wish you a happy and healthy 2017 and that you all 'live long and prosper'.
You can catch up with Eleonora's excellent and well deserved 2017 Copyright Awards on the IPKat here - and some of those are mentioned above (thank goodness!!). 

The EFF's Time to Rethink Copyright Safe Harbors? 2017 in Review

And from Motherboard: 2018 Is the Last Year of America's Public Domain Drought

As ever - readers will have their own views on what should (or perhaps should not) be included in the copyright year. The CopyKat writes from a UK/US, music industry and common law perspective: So please let us know if you think something important is missing - comment is free on the 1709 blog, but please be polite and thoughtful!