Wednesday, 31 July 2013

Connectivity, Content and Consumers: Britain’s digital platform for growth

Under cover of the slightly hackneyed image at the top of this post, the Government yesterday announced their major strategy paper on the media and telecoms industry, entitled "connectivity, content and consumers: Britain's digital platform for growth".

If you are wondering why you have not been reading a lot about this exciting new paper, either it is summer, or just maybe there were almost no new government policy announcements in it at all, just a reheating of existing positions and policies.

So what is in it (if anything) for the busy copyright lawyer.  Luckily, the answer is sufficiently succinct that I am setting out the paper's every word on the topic below - other than the mention of the word copyright in the executive summary of these provisions and in the Crown Copyright notice (which is of course acknowledged), here it comes...

Intellectual Property
The ability to protect intellectual property (IP) goes to the very heart of the success of our creative industries, providing an incentive to develop, invest in and exploit valuable works. The UK’s IP framework is therefore an essential consideration for potential investors. As part of the Government’s wider programme of modernising the copyright system to meet the challenges of the 21st century following the Hargreaves Review of IP and growth, we are working with all parts of the creative economy to explore ways to make it less easy to access websites that are based on infringing copyright or that promote illegal activity. We are encouraging industry to develop its own solutions [so as to avoid having to do much ourselves??] in collaboration with enforcement authorities and key areas where we are seeing progress include:

• Payment: Credit card operators and other payment facilitators such as PayPal are working with enforcement authorities and business to remove such facilities where there is clear evidence that sites are deliberately and criminally infringing copyright. This is a voluntary approach, involving payment companies and the City of London police. Pioneered by the music industry, it is now being adopted more widely and
appears to be working well.

• Advertising: The Digital Trading Standards Group (DTSG) has launched new selfregulating principles for the digital advertising industry, and copyright owners are working with the Police to draw up a register of infringing sites from which brands may want to disassociate. DTSG’s principles will encourage increased transparency between advertising organisations and brands about placement of ads. Brands will have greater opportunity to instruct advertising agencies not to place their ads on any site on the infringement register, which will be managed by the National Fraud Intelligence Bureau.

• Search: Google has amended its algorithm and says that it now takes into account the number of takedown notices received for websites. This has, according to Google, resulted in a significant improvement on searches for “artist, song”, with infringing sites now appearing lower down the search results. Copyright owners remain concerned when an artist’s name is associated with a term such as “MP3 download”,
and we will keep this under review [while hoping we don't have to do anything?]. We expect to see Google, as well as other search engines, working with copyright owners to explore additional improvements.

• Site blocking: Copyright owners are now increasingly using s97A of the Copyright, Designs and Patents Act 1988 to tackle infringing sites by seeking injunctions that require ISPs to block access, for example, to The Pirate Bay. This takes time and money, but with more cases the court procedure is becoming increasingly streamlined, and that means that we have been able to announce that we will remove legislation that largely duplicates these provisions from the statute book. It is important that the standard of
evidence required and the discipline of requiring a court judgement is maintained so that the process retains the confidence of both ISPs and the general public [with no return to the bad old days of ACS law threatening letters]

• International: The ability to encourage creators of content to start and grow their businesses in the UK depends on supportive legislative and regulatory frameworks across the EU. We closely monitor the critical work that occurs in Brussels and beyond. The European Commission launched a structured stakeholder dialogue in 2013 to deliver rapid progress through practical industry-led solutions in: cross-border access
and the portability of services; user-generated content, and licensing for small-scale users of protected material; facilitating the deposit and online accessibility of films in the EU; and, promoting efficient text and data mining for scientific research purposes.  A review of the EU framework for legal copyright is on-going, with a view to a decision in 2014 on whether legislative reform is needed. [so nothing to do for now!]

In addition, the Government announced on 28th June 2013 that it was investing £2.5 million over 2 years to set up a dedicated new police unit, within the City of London Police, aimed at targeting intellectual property crime. The unit will be dedicated to tackling online piracy and other forms of intellectual property crime such as counterfeit goods. It will be one of the first units of its kind in the world, ensuring that the UK stays
at the forefront of intellectual property enforcement.

This is the right approach. And, in parallel, the Government continues to implement the Digital Economy Act 2010 [this year, next year, sometime...], whilst encouraging industry-led alternatives, to ensure the message reaches those who are infringing. We will keep progress under review.
Taking action against infringement is only half of the picture. The legitimate market must also keep up to speed with consumer’s expectations. Legitimate offers need to be compelling and material needs to be made available in attractive, affordable and competitive ways to reduce the attractiveness of illegal offers. Education can play an important role here, and industry needs to keep up their efforts to communicate their
messages, particularly to young people. [I wonder whether government has any role in education which it could use to encourage the dissemination of such messages to young people? They don't maybe control the curriculum or school budgets or anything?  No, it must be industry that needs to keep up these efforts.]

And a bonus prize for anyone to spot the IP reference in the following section...

Access to Public Service programmes
PSB channels are brought to our living rooms by various TV platforms, such as Freeview, Sky, Virgin, and Freesat. Platforms benefit from having must-see content distributed across their services, while broadcasters benefit from having access to mass market audiences. But there is a growing debate around the payments that are made between broadcasters and platforms. The Government wants to see zero net charges, where the fees for access to the main platforms and for PSB channels cancel each other out. This is not too far removed from the current market position, and recognises the benefits to platforms, the PSBs, and audiences from being able to access awardwinning, PSB content. This mirrors the arrangement already in place for PSBs and cable platforms, where no charges are made – an arrangement that we want to see preserved. We are looking closely at how we can help achieve this without allowing other kinds of online services to exploit PSB content, with no benefit flowing to the PSB. We will launch a consultation on this in the autumn, before bringing forward legislative proposals if required.

Yes - you got it "without allowing other kinds of online services to exploit PSB content, with no benefit flowing to the PSB" is government speak for "we need to rethink section 73 CDPA in the light of the TV CatchUp case" - a topic that was also raised in Parliament at Report stage in the IP Bill on 23 July.

So now MPs and peers can all go off for their summer holidays at peace knowing that they are putting the IP world to rights - MPs return to Parliament on 2 September and peers on 8 October.  Happy Holidays!!

Tuesday, 30 July 2013

A Collection of Copyright Carry Ons with the CopyKat

The House Judiciary Committee, which launched a “comprehensive review” of copyright law earlier this year - continues with it's epic task. The Subcommittee on Courts, Intellectual Property, and the Internet has now had a hearing on the role of copyright in innovation although commentators noted that the line up before the Committee was a little 'one sided' with the Washington Post noting "innovators are almost entirely absent from the list. The witnesses include the executive directors of the Copyright Alliance and the American Society of Media Photographers, and the general counsel of Getty Images. These groups represent established copyright interests that are likely to resist any serious reforms to copyright law. Slightly more innovative: the co-founder of an independent music record and distribution company (Yep Roc Records and Redeye Distribution), and the president of Stereo D, a company that produces 3-D versions of 2-D films. One website pointed out that completely absent were: representatives from the information technology industry, whose innovations have transformed the market for copyrighted works over the last two decades, and who have repeatedly argued that overly-broad copyright law has stifled innovation" as well as actual creators - who often end up with very little from the copyright pie but in whose name much is argued. More here and here and here

Queensland Health Minister Lawrence Springborg has defended a letter from his Director-General threatening to sue the Nurses Union for breach of copyright if it failed to destroy anti-privatisation brochures which use an image of the Sunshine Coast University Hospital.

Youngsters from Downham Academy, in East Anglia, have had to call off their production of Flowers for Algernon due to a copyright wrangle between English and American companies. The 23 pupils were due to take to the stage to showcase the two months of hard work in rehearsal, and whilst the school had permission to perform the piece by the playwright – representatives of the original author of a short story on which it was based (Daniel Keyes) seemingly initially objected to the performances. Ironically, after calling off tour, which was due to take in Nordelph Village Hall, the Barn Theatre in Swaffham, and the Studio Theatre in Springwood before finishing at the Downham Academy, a text came through reversing that decision. But by then it was too late and only the final show could take place. Somewhat unsurprisingly the school said ““Next time, we will do a classic text, such as Shakespeare, which is out of copyright, to avoid these problems”. Hooray for copyright?

Copyright reform is back on the agenda in China with news that the Government will look at whether parodies should be exempt from legal liabilities, “as long as they do not make money or damage copyright owners' economic interest”. The South China Morning Post says “Unlike last year when both the government and legislature were due for a change, the current atmosphere is less politically charged. A three-month consultation can provide the platform for rational discussion” and looks to strike a balance between freedom of expression and copyright protection.

Here's something I didn't know but Bradford Brady and John Maron from On The Record did : Knowledgeable gentlemen! U2's live album  “Under a Blood Red Sky” was edited intentionally and some 27 seconds from the middle of “The Electric Co.” were removed: On the original vinyl album, as the band falls quiet, Bono sings to the crowd to the tune of Stephen Sondheim’s “Send in the Clowns” from the musical “A Little Night Music.” When the vinyl album was first released, this use was without permission and it seems no royalty was paid: Sondheim asserted his rights, and the band had to pay over $50,000 and agreed to excise the clip from all future versions of the album.  

UK cyber commentators are buzzing with the news that David Cameron's voluntary agreement with the leading ISPs to block pornography might also be used to block copyright infringing sites as well, and customers might (at least) be able to turn off links to file sharing sites.

Medical news: Does this worry you - not as a lawyer - but as a possible patient? "Doctors and medical researchers are seemingly scrambling to adapt to the recent assertion of copyrights in a popular screening method that has been used for decades to measure cognitive impairment. Although the assertion of this particular set of rights is relatively new, doctors are increasingly facing copyright claims in a variety of tests, including those for depression and for pain" and "Doctors and researchers are quietly acquiescing to the demands of those asserting copyright in medical tests, for fear of becoming entwined in lengthy and expensive legal proceedings" : hmmmmm - very interesting - as is the clash of copyright law and patent law - and there much more on the IPWatchdog here

And turning to teeth - here's a salutary tale from ArtsTechnica of when legal agreements go horribly wrong: Dentist Dr. Stacy Makhnevich, the “Classical Singer Dentist of New York", reportedly made patient Robert Lee sign an agreement back in 2010 that included provisions that the patient would refrain from publishing any “commentary” online or elsewhere: The contract, created by a firm called Medical Justice,  also specified that Lee should “not denigrate, defame, disparage, or cast aspersions upon the Dentist.”  and if Lee did write such reviews, the copyright would be assigned to the Dentist. Of course you can guess what happened - Lee was a very unhappy customer and subsequently posted a Yelp review saying "Avoid at all cost!” and  alleging “Scamming their customers! Overcharged me by about $4000 for what should have been only a couple-hundred dollar procedure.” In September 2011, staff members acting on behalf of Dr. Makhnevich sent DMCA takedown notices to Yelp and another website called DoctorBase to have the messages removed:  In response in November 2011, Public Citizen, acting for Lee, filed a lawsuit seeking class action status (others had also complained about the Medical Justice 'Mutual Agreement to Maintain Privacy') arguing that Lee’s reviews were fair use and non-defamatory. The lawsuit also alleged that Makhnevich’s “don’t criticize me” contracts were violations of New York business laws and dental ethics rules. But somewhat quickly Medical Justice withdrew the Mutual Agreement from use, and Dr Makhnevich closed her practice and disappeared - it seems even her own lawyers don't know where she is, and US District Judge Paul Crotty has now held a case conference to decide if the dentist's lawyers should be allowed to withdraw from the case - although Lee is seemingly left nursing $3,000 in legal costs to date.

The Associated Press said Monday that it has settled a US copyright-infringement lawsuit against digital news distributor Meltwater and that the two companies will begin developing products together.  

Australia has reportedly  recommended changes to copyright law that would allow Australians cheaper access to IT hardware, software and digital downloads after a parliamentary inquiry found no good reason for prices to be so high Down Under - prices for computer products are often 50 percent higher in Australia than elsewhere. Adobe has claimed that its products cost more because of local packaging and transports costs, while Apple cited copyright fees. The report suggests a handful of potential moves to rectify the problem, such as removing restrictions on imports and changing the Copyright Act to "secure customers' rights to circumvent technological protection measures." There is also mention of creating a "right of resale" for digital goods.

Six-time Grammy Award winner Toni Braxton has been unsuccessful in her bid to buy back ownership of some of her most famous hits - including 'You're Making Me High,' 'How Many Ways,' and 'Always' - after making an agreement to resolve her bankruptcy issues. As part of the agreement, Braxton was given the opportunity to buy back some of her personal property by paying monthly instalments and enter an auction to purchase the copyright of 27 songs for $20,000 when they were put up for sale on July 15 - as long as as no one out-bid her. However, buyer Ross M. Klein doubled the offer made by the 45-year-old singer and gained ownership.

Literary agent Samuel Pinkus, who was accused of engaging  in a scheme to dupe Harper Lee, the author of To Kill A Mockingbird, out of the valuable copyright to her book, has indirectly answered criticisms in a defence filed in a separate action where he is being sued by literary agency of McIntosh & Otis, which is demanding almost $780,000 and asks to being appointed as a receiver of Pinkus' company's assets. According to a motion that was filed on behalf of Pinkus and his companies: "Ms. Lee's assignment of the Mockingbird copyright specifically retained to her 'all rights to any revenue, financial benefit, royalties, or any benefit whatsoever derived from the exploitation of the Property, now or in the future.' The inconvenient real facts make for a much less interesting story.

Thursday, 25 July 2013

HADOPI Inventory and Analysis on Access to Works

One of the recent Lescure mission's policy recommendations was to further investigate the feasibility of a global licence scheme for non-commercial sharing of copyright works.  In that spirit, HADOPI has just published its inventory and review (qualitative and quantitative) of the various uses that may potentially qualify, from a legal, economic and technological standpoint.

Link to document (in French) here

HADOPI is inviting comments that can be sent to the following email address: .

The CopyKat - bandits, kiwis, sharks, Finns and hoppers in this weeks dish of the day

67 international law academics have endorsed a letter to Colombian leaders expressing concern over copyright legislation intended to implement the country’s obligations under  the country's Free Trade Agreement with the U.S. The letter warns that the provisions in the legislation “restrict the activities of information consumers more than is necessary or appropriate, more than the FTA requires, and more than do the provisions U.S. copyright law itself.” The letter goes on to recommend that Colombia give “serious consideration” to a “flexible approach to limitations and exceptions” and offers other suggestions for provisions that protect user rights in copyright.
When freelance journalist Sheron Boyle wrote a piece for the PressGazette detailing her concerns about a worrying practice which has become increasingly more prevalent in the newspaper she opened up the can of worms that is “byline banditry.” This is when a freelance journalist sells their first rights of publication to a paper, only to find after publication that their work is being accredited to the staffer for whom the freelancer had written the piece. Now others are commenting on the practice: Andy J alerted me to an excellent blog post on Mediabelf here . More in this to follow on this on the 1709 Blog shortly! Image, and more on banditry from Wikipedia here.

The Government of New Zealand is delaying a review of copyright laws until the Trans-Pacific Partnership (TPP) negotiations are over, saying it would not be practical while the talks are underway. The setback has frustrated the Telecommunications Users Association which says the review is long overdue after already being delayed for five years – and wants action now. Association chief executive Paul Brislen has grave fears for the current copyright laws, which he says are being flouted by “just about anybody with an internet connection”.
Grammy-nominated singer-songwriter  Aimee Mann has told the Hollywood Reporter that artists are being systematically robbed of digital royalties. Mann is brining a legal action against MediaNet, the 1999 venture, originally called Musicnet set up by EMI and BMG and joined by AOL Time Warner and RealNetworks and then sold to a private equity firm in 2005. Today it is essentially a "white label" that serves up more than 22 million songs to over 40 music services, including Yahoo Music,, eBay and various online radio services. According to Mann's lawyer, Maryann Marzano of Gradstein & Marzano, "Not only does this case seek redress for Aimee Mann against one of the world's largest but least known providers of online music, it also serves as a call to other artists to follow the lead set by Radiohead and Pink Floyd to put an end to the unlicensed, uncompensated use of their music by online services." According to Mann's lawsuit, not all of the music being provided by MediaNet is properly licensed. Mann is demanding statutory damages for wilful copyright infringement of some 120 songs, MediaNet has said that the claim is "meritless". The history of MusicNet and Pressplay (set up by the then other  majors - Sony, and UMG) is another story which I must come back top one day.

Crowdsourced Finnish draft legislation that aims to reduce penalties on small-scale private downloading from peer-to-peer networks has now reached enough backers to be discussed by the Finnish Parliament. The necessary threshold of 50,000 backers to send the bill to Parliament was reached on Monday 22nd July, said Heini Huotarinen, senior officer of the Finnish Ministry of Justice. The initiative is called the Common Sense in Copyright Act. By Tuesday it was up to nearly 53,000!

It seems Google has added controversial music streaming service Grooveshark to it's autocomplete blacklist, meaning that the search engine won't make suggestions to a user that they might be looking for pages on the controversial streaming website when searching for music content. I just tried and had to type in the entire word - interesting - and a distinct disadvantage in the age of ferociously short attention spans!

And finally, Techdirt reports that the US  Ninth Circuit appeals court has ruled in the Fox v Dish case - over Dish's AutoHopper technology - that "broadcasters can't use copyright to block commercial skipping" - and that plaintiff Fox had no interest in copyright in adverts - rather the programmes they are placed between.

Collective rights management in the UK: can you help?

Asking questions, but is "Beethoven!" the (only) answer?
1709 Blog's friend and esteemed academic Prof Estelle Derclaye is conducting research in the exciting field of collective rights management and would be grateful if readers could help her addressing a few points by providing some insider information.

Estelle's main question is the following:

Is collective negotiation a common practice in the UK as regards creators? If so, what are the existing agreements (collective bargaining agreements, framework contracts, Memorandum of Understanding, etc), their legal effects (mandatory/voluntary, extended) and their scope?

Also, do you have any practical information about:
  • The articulation between waivers (or legal presumption of waivers) to exploiters and collective management;
  • Dual licensing in the hypothesis of CMO membership;
  • The problem of the so-called buy-out contracts and creators’ remuneration.

You can deliver your help by email to estelle.derclaye{at} Estelle needs the answers by 2nd August. This means that you have just a few days to tell her everything you know about UK collective rights management.

Wednesday, 24 July 2013

Crime Without a Remedy: The Destruction of Artworks

Is it possible to die twice? When a painter dies, his body dies; but a part of the artist lives on in his paintings. That is one of the seductions of art, the possible boon of immortality – or at least, the illusion of immortality.

But what happens when an artwork is destroyed? In a sense, a piece of the artist dies again. The occurrence is a disturbing one, because, somewhat analogous to a human death, it signifies the destruction of something that will never come again. This holds true whether we are speaking of ancient artworks like the Buddhas of Bamiyan, destroyed by the Taliban in Afghanistan, or the paintings of Picasso or Monet.

It's not just pictures that burn. This one, c.1670, depicts
the damage wreaked by the Great Fire of London
In a stunning recent case involving the destruction of artworks, a Romanian woman claimed to have disposed of seven paintings stolen from the Kunsthal Museum in Rotterdam by incinerating them in her oven. In a bizarre demonstration of maternal affection, she claimed to have destroyed the paintings to remove evidence linking her son to the theft (Liz Alderman, “Romanian’s Tale Has Art World Fearing the Worst” 18 July 2013, here). She now asserts that her story was not true, possibly because the “crime of ‘destruction with very serious consequences’” is the most serious of the offenses with which she has been charged in Romania (Andrew Higgins, “Romanian Denies Burning Stolen Art,” 22 July 2013, here). But investigators were crestfallen to discover paint, and other debris that would have been difficult to fabricate, in the oven.

Can the law do anything to address acts such as these? Ideally, it should accomplish two purposes: providing some kind of deterrent to the destruction of artworks, and offering a legal basis for prosecuting those involved in the destruction. While recognizing the value of both goals, their fundamental futility must also be acknowledged: action can only be pursued after the work has been destroyed. It is too late to find a true remedy for the crime.

The question of liability for the destruction of an artwork is a thorny legal issue. In many jurisdictions, copyright law includes the moral right of an artist to protect the “integrity” of his or her work. The international model for this right can be found in the Berne Convention for the Protection of Literary and Artistic Works. Article 6bis of Berne specifically emphasizes the artist’s right to act when the mistreatment of the work may damage his or her “honor or reputation”.

Curiously, this very provision has limited the applicability of the integrity right to the destruction of artworks. When a work of art is destroyed, so the argument goes, the key question of how the mistreatment of the work might affect the artist’s reputation becomes irrelevant. The work no longer exists. How can there be any question of damage to artistic reputation?

For many art-lovers, this result will leave a bitter taste on the lips. But this knife-edge approach to the integrity right is far from arbitrary: it probably reflects confusion at the heart of the Berne Convention, itself.

In fact, breaking down Article 6bis of Berne is a helpful exercise. The provision ostensibly protects the “integrity” right. But, in reality, it recognizes two related, yet distinct, interests: the preservation of the integrity of the work, and the reputation of the artist.

The language of Berne creates a sort of interpretive bridge between the two interests. It links the protection of reputation with the integrity of the work by asking the artist to prove damage to his or her reputation as a pre-requisite to the integrity claim. In other words, the Berne framework can be seen as setting a threshold for the level, and type, of damage to a work that will trigger the moral rights protections in Article 6bis. If the damage to the work is egregious enough, and of such a kind that it will harm the artist’s reputation, then a cause of action can be established.

The link between integrity and reputation is a construction of Berne: there is no obvious legal or conceptual reason why the two interests must be linked in this way. In fact, if our true goal is to protect the integrity of an artwork, it may not matter whether, or how, the handling of the work affects the artist’s reputation. And, indeed, a number of countries, including France and, at one time, India, have had open-ended integrity rights in their copyright laws that did not impose a burden of proof on the artist to show damage to his or her reputation.

What was the rationale behind these laws? In France, commentators usually talk about an author-centric approach, which means that the author’s opinion regarding mistreatment of the work is sufficient proof of mistreatment for the court. No argument can be made that the mistreatment “improves” the work (its marketability, for example), or that the impact of the mistreatment is negligible, and therefore, not worth the fight. In India, the approach was slightly different: the tacit goal of the old moral rights provisions was to give recognition, not only to artists, but also, to artworks themselves. The aim was to protect cultural heritage, and this goal, implicit in the Indian legislation, was ultimately articulated by the Delhi High Court in the seminal case of Amar Nath Sehgal v. Union of India.

The Sehgal case involved the destruction of a famous sculpture. In its decision, the court outlined two reasons why, in its opinion, protection of the integrity right should protect this artwork from outright destruction. The first of these, in French style, is an artist-focused point. The court argued that destruction of a single work reduces the overall “creative corpus” of an artist, leading to a decline in quantity and, possibly, quality – and, therefore, to possible damage to the artist’s reputation (Sehgal, paras 31 & 56). But the court’s second line of reasoning raised an issue of much broader scope: the purpose of moral rights, said the court, is to protect the integrity of cultural heritage. In the case of Amar Nath Sehgal’s sculpture, the work in question was considered to be a national treasure of India. It clearly merited protection as an important part of Indian cultural heritage. The sculpture would therefore be protected from destruction by the moral right of integrity under Indian copyright law.

This conclusion was all the more remarkable because, while the Sehgal litigation was ongoing – 1979-2005 – the government had amended the moral rights provisions in section 57 of the Indian Copyright Act. The goal of the 1994 amendment? To redraft the integrity right to match the Berne provision – making it depend on the artist’s ability to prove damage to his or her “honor or reputation” (Sehgal, paras. 34-35). But, said the court, regardless of these changes, the protection of cultural heritage had to take precedence. In its determination, the court relied on India’s membership in international conventions on cultural property.

In paragraph 56 of the judgement, the court stated:
“There would therefore be [an] urgent need to interpret Section 57 of the Copyright Act, 1957 in its wider amplitude to include destruction of a work of art, being the extreme form of mutilation, since by reducing the volume of the author’s creative corpus it affects his reputation prejudicially as being actionable under said section. Further, in relation to the work of an author, subject to the work attaining the status of a modern national treasure, the right would include an action to protect the integrity of the work in relation to the cultural heritage of the nation.” (author’s italics)
The Sehgal case sets a strong international precedent for arguing that the destruction of artworks should be prevented as one of the protections available under the rubric of the moral right of integrity. Another approach to the same problem may be seen in Russian law, which provides for the “indefinite” protection of the integrity right, allowing it to be asserted by the artist’s “heirs, successors or other persons concerned”. This type of provision could be seen as a way of empowering the public to act on behalf of artworks that have become part of the nation’s cultural heritage. The integrity right, which starts out as a personal right of the artist, ultimately becomes, like the work itself, a part of the public domain.

In the case of the paintings stolen from Rotterdam, this approach to the integrity right would allow both the art thieves and the woman who destroyed the paintings to face prosecution, not only for the theft, but also, for the irredeemable act of destruction itself.

This article, composed by Mira T. Sundara Rajan, was posted on her behalf by Jeremy

Monday, 22 July 2013

Mass digitisation is the new black: lawsuits, laws, films, books and T-shirts

Going shopping?
Why not showing your enthusiasm?
Impressionist painter Claude Monet used to say that colour was his daylong obsession, joy and torment.

If something similar can be said also of copyright, then in my shopping list of daily obsessions/joys/torments I would certainly include (at least) EU copyright harmonisation, the principle of exhaustion, orphan works and Google - or, to be a bit more specific, Google News and the Books Library Project.

Speaking of the latter, it was just yesterday that I found out about the existence of a docu film on its Library Project, which was part of the official selection of this year's Sundance Film Festival. If the other Google film (The Internship) is slightly more light-hearted, Google and the World Brain looks almost like a thriller, possibly one of those Hitchcock-style films you may end up regret watching after your second night in a row spent wide-awake because scared.

The Google Library Project officially launched in 2002 (although it may be argued that the project is as old as Google itself) and, since 2005, litigation has ensued before US courts (for latest developments see here and here).

Mass digitisation projects have de facto unsettled traditional understanding of copyright, particularly with regard to its exceptions and limitations. So, if in the US a project like the Google Library has called into question issues of fair use, in Europe recent debate has focused on how to allow access to orphan works. The relevant Directive adopted last year provides cultural institutions with a new exception or limitation to the rights of reproduction and making available to the public. In addition, mass digitisation is central to debates on automated text processing, including specific exceptions for text and data mining (see this Nature article here and UK proposed legislation on data analysis here).

Amidst both excitement and concerns surrounding digitisation projects, a new book written by Maurizio Borghi and Stavroula Karapapa and entitled Copyright and Mass Digitization (OUP:2013) has just appeared in the copyright literature galaxy.

According to the publisher's website these are the key features of this book:
  • The first work to propose new solutions for how to regulate the use of works through developing a regulatory framework for the lawful use of works in the mass digital age
  • Assesses comprehensively and systematically the collision of traditional copyright principles with the emergence of new technologies
  • Considers the important question of whether copyright law needs to be redefined
  • Considers the legitimacy of activities underlying mass digitization in the context of projects such as Google Books, the Internet Archive, and Europeana, looking at both European and US law

I have personally enjoyed reading this work. The book is carefully researched and innovative in its analysis of the various issues surrounding mass digitisation. In addition, its fresh and engaging prose and style make it a pleasure to read. 

Papasavvas heads for CJEU

The attention of this member of the 1709 Blog team has been drawn to another set of questions that a national court has referred to the Court of Justice of the European Union for a preliminary ruling -- a further sign of the increasing uncertainty at national level as to what are the legal principles that national courts are to apply consistently across the 28 Member States when dealing with old problems which roost in the lofty heights of the so-called new technologies [which are not really so new any more]. This reference is Case C-291/13 PAPASAVVAS E.A, a reference from Cyprus. This case was swiftly posted here on the EU Law Radar weblog and, as readers can see, it's a reference relating to Directive 2000/31 -- the E-Commerce Directive.

The questions referred to the Court of Justice are as follows:
1. Bearing in mind that the laws of the Member States on defamation affect the capacity to provide information services by electronic means both at national level and within the European Union, might those laws be regarded as restrictions on the provision of information services for the purposes of applying Directive 2000/31?

2. If the answer to Question 1 is in the affirmative, do the provisions of Articles 12, 13 and 14 of Directive 2000/31, on the question of liability, apply to private civil matters, such as civil liability for defamation, or are they limited to civil liability in matters concerning business to consumer transactions?

3. Bearing in mind the purpose of Articles 12, 13 and 14 of Directive 2000/31 relating to the liability of information society service providers and the fact that, in many Member States, an action must exist in order for a prohibitory injunction to be granted which will remain in force pending full completion of the proceedings, do those articles create individual rights which may be pleaded as defences in law in a civil action for defamation, or must they operate as an obstacle in law to the bringing of such actions?

4. Do the definitions of 'information society service' and 'service provider' in Article 2 of Directive 2000/31 and Article 1(2) of Directive 98/34 [laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services], as amended by Directive 98/48, cover online information services the remuneration for which is provided not directly by the recipient, but indirectly by means of commercial advertisements posted on the website?

5. Bearing in mind the definition of 'information service provider', laid down in Article 2 of Directive 2000/31 and Article 1(2) of Directive 98/34, as amended by Directive 98/48, could the following, or any of them, be regarded as a 'mere conduit' or 'caching' or 'hosting' for the purposes of Articles 12, 13 and 14 of Directive 2000/31:

[or 5]

(a) a newspaper that operates a free website on which the online version of the printed newspaper, with all its articles and advertisements, is posted in pdf format or another similar electronic format;

(b) an online newspaper which is freely accessible but the provider obtains money from commercial advertisements posted on the website, where the information contained in the online newspaper comes from the newspaper's staff and/or freelance journalists; 
(c) a website which provides (a) or (b) above for a subscription?
Substitute 'copyright infringement' for 'defamation' and you have an interesting topic or two for discussion. If you want to tell the UK government what you think, and whether it should seek to make representations to the Court of Justice, just email by 25 July 2013.

Droit de suite in the US: can you help?

1709 Blog readers will be aware that artist resale right - also known as droit de suite (right to follow) - laws vary (sometimes quite considerably) from country to country.

At the moment there are rumours (here and here) that, following the EU and Australia, also the US is considering adopting a law that would allow resale rights at a federal level.

As far as this blogger is aware, the only US state that has ever had a law on resale royalty is California. However, last year the US District Court for the Central District of California struck down the California Resale Royalty Act, holding that it violated US Constitution's Interstate Commerce Clause. An appeal is currently pending before the Ninth Circuit, which is expected to issue its decision later this year.

The proposed US law is based on the implementation of resale rights at a rate of 7%, only applicable to resales conducted in auction houses whose annual turnovers is over $25m, on the condition that the price of these sales corresponds to the original sale price, allowing for an inflation of $10,000. Half of these sums would go towards artists and their beneficiaries, and the rest would go towards non-lucrative organisations, in order to increase their budgets for contemporary art.
The 1709 Blog has received a request from its Australian friends to learn more about what is going on in the US. Can any readers provide further details of this proposed piece of legislation, in particular what kind of resale right the US is considering introducing?

Sunday, 21 July 2013

What's NOT in a quote? The answer is: copyright infringement

A few months ago this blog reported news of an interesting lawsuit that the owners of the rights to the literary works of William Faulkner filed against Sony Pictures over Woody Allen's 2011 film Midnight in Paris

This unusual and lovely (at least in this blogger's opinion) film features Hollywood screenwriter Gil Pender (Owen Wilson) who, while on holiday in Paris with his fiancée, finds himself going back to the 1920s every night at midnight, thus meeting great expatriates of that time, including Hemingway, the Fitzgeralds, Gertrude Stein, Picasso, Cole Porter, Dalì and Gertrude Stein.
The film includes a scene in which Gil says "The past is not dead. Actually, it’s not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party."

Apparently Sony had not sought permission to include this quote from
Requiem for a Nun, which contains the statement "The past is never dead. It's not even past.” Therefore, the owners of the rights to the book decided to file a lawsuit, claiming copyright infringement, commercial appropriation and violation of the Lanham Act.

As also reported by Ben, a couple of days ago Judge Micheal Mills of the US District Court for the Northern District of Mississippi (quite unsurprisingly) ruled that use of a single line from a full-length novel singly paraphrased and attributed to the original author in a full-length Hollywood film did not amount to copyright infringement.

"The past is never dead.
It's not even past."
The judge recalled the Fifth Circuit's approach to questions of copyright infringement: “the substantiality of the similarity is measured by considering the qualitative and quantitative significance of the copied portion in relation to the plaintiff’s work as a whole.” This mirrors the third factor of the fair use defence in §107 of the US Copyright Act (“the amount and substantiality of the portion used in relation to the copyrighted work as a whole”). 

The Court considered indeed whether Sony could claim fair use of Faulkner's quote. Pursuant to the seminal decision in Campbell v Acuff-Rose, the judge held that use of Faulkner's nine words in Midnight was transformative, in that it "undoubtedly adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message”. The court also considered transmogrification in medium (serious novel as opposed to film comedy) as a relevant factor to hold use of Faulkner's quote transformative.

"Alas, I wish it was" - thought Peter -
"At least when it comes
to certain outfits I have to wear"
Among other things, the Faulkner Estate argued that Sony had received permission from other artists for use in Midnight, such as Cole Porter’s song Let's Do It (Let’s Fall in Love) and 
Pablo Picasso’s artwork. The judge held that "This court’s inquiry is whether the use of Faulkner’s quote is fair use, not whether the rest of the work used in the film would have required a license agreement ... The court notes the obvious distinction between the use of Cole Porter and Pablo Picasso’s work at the outset, however: they are used in their entirety while Requiem is used by fragment only. Thus, the court finds this consideration to be irrelevant."

This blogger is pleased with the outcome of this case. She wonders however if it is because of lawsuits like these being filed in the first place that sometimes copyright may not enjoy such a great reputation and be actually perceived as rather a bothering and risky obstacle along the way to producing new creative works. Just to use another Faulkner's quote, the end result might be to think along the following lines: "I'm bad and I'm going to hell, and I don't care. I'd rather be in hell than anywhere where you [and copyright] are".