Friday, 24 February 2017

Swedish appellate court allows web blocking

The Swedish Court Of Appeal has overturned the ruling in the District Court Of Stockholm in 2015 which had dismissed an application that would have forced internet service providers to block The Pirate Bay and other platforms linked to music and other piracy  - a move opposed Swedish ISP Bredbandsbolaget

The Patent And Market Court of Appeal has now ruled in favour of music and movie companies, ordering Bredbandsbolaget to implement web-blocking of both The Pirate Bay and another piracy site called Swefilmer. The court confirmed that their judgement was in part influenced by the web-block injunctions that have been ordered elsewhere in the European Union.

Torrentfreak reports that judge Christine Lager said in a statement: "In today's judgment, the Patent And Market Court held that right holders such as film and music companies can obtain a court order in Sweden against an ISP, which forces the ISP to take measures to prevent copyright infringement committed by others on the internet. The decision is based in EU law and Swedish Law should be interpreted in the light of EU law. Similar injunctions have already been announced, such as in Denmark, Finland, France and the UK, but the verdict today is the first of its kind in Sweden".

The verdict decision is not open to appeal. 
The Advocate General Maciej Szpunar recently opined to the Court of Justice of the European Union (CJEU) that The Pirate Bay makes acts of communication to the public on a referral by the Dutch Supreme Court (Hoge Raad der Nederlanden) in Stichting Brein, C-610/15, and that web blocking by depriving internet users of access to The Pirate Bay would be proportionate to the significance and seriousness of the copyright infringements committed on that site.

AND see this new article on the IP Kat from Nedim Malovic (Sandart & Partners) on the decision and that he court noted that it is indeed possible under EU law for rightsholders to obtain an injunction [pursuant to Article 8(3) of the InfoSoc Directive] against an intermediary whose services are used to commit a copyright infringement, even if the ISP only provides its customers with internet access.

ITV loses Copyright Tribunal appeal

UK national broadcaster ITV has lost its appeal to the  High Court appeal against the 2016 Copyright Tribunal ruling that set rates for the current (2014-2017) period with PRS for Music, the collection society which represents composers, lyricists and music publishers in the United Kingdom. The Tribunal agreed that PRS could increase the tariff beyond the 2013 fee payment of £23 million per annum to a new base rate of £24 million for all ITV uses (including breakfast TV) adjusted by (a) BARB viewing figures for ITV during each year and (b) the percentage change in RPIJ (the RPI inflation measure). On appeal the High Court told ITV that the Tribunal  "had not made an error of law in reaching its decision".

Commenting on the decision, PRS Commercial Director Paul Clements said: "In June 2016, the copyright tribunal decided a dispute over the terms of ITV's broadcast licence in PRS For Music's favour. The tribunal decision set down clear and compelling reasons for an increase in the licence fee, reflecting the right value for our members' music". "While ITV chose to appeal this decision, I am pleased that the High Court has now rejected their arguments and upheld the original tribunal decision" adding "This result is very real evidence of our commitment to secure the right value for our members' work".

European Copyrigh Reform: Open Letter from European Research Centres

On 14 September 2016, the European Commission published a package of reform proposals, including two Regulations (that have direct effect in Member States) and two Directives (that will have to be implemented into national laws).


EU Copyright Reform Proposals Unfit for the Digital Age

We are independent legal, economic and social scientists, and represent the leading European centres researching intellectual property and innovation law.

It is likely that you personally are being lobbied with regard to a complex Copyright Reform package that extends to 3 Regulations and 2 Directives (supported by over 400 pages of Impact Assessments).

The proposals say the right words on the cover: “EU Copyright Rules Fit For The Digital Age. Better choice & access to content online and across borders. Improved copyright rules for education, research, cultural heritage and inclusion of disabled people. A fairer online environment for creators and the press.”

While the Proposed Directive on Copyright in the Digital Single Market (COM(2016) 593 final) contains a number of reasonable, common sense measures (for example relating to cross border access, out-of-commerce works, and access for the benefit of visually impaired people), there are two provisions that are fundamentally flawed. They do not serve the public interest.

Article 11 seeks to create an additional exclusive right for press publishers, even though press publishers already acquire exclusive rights from authors via contract. The additional right will deter communication of news, obstruct online licensing, and will negatively affect authors.

Article 13 indirectly tries to amend the E-Commerce Directive (2000/31/EC) that arranges the liability of online intermediaries for user generated content into a shared responsibility of rights holders and service providers. The proposals will hinder digital innovation and users’ participation.

With respect to both provisions, independent empirical evidence has been ignored, consultations have been summarised in a misleading manner, and legitimate criticism has been labelled as anti-copyright. We urge you to look inside the copyright package and seek out independent expertise.

In order to facilitate debate, we have produced two short appendices to this letter, setting out the key flaws of the proposals, and listing sources of evaluation. There is independent scientific consensus that Articles 11 and 13 cannot be allowed to stand.

First signatories include academics of the following Research Centres: The Centre for Intellectual Property and Information Law (CIPIL), University of Cambridge, United Kingdom; Centre d’Etudes Internationales de la Propriété Intellectuelle (CEIPI), University of Strasbourg, France; RCUK Copyright Centre (CREATe), University of Glasgow, Scotland, UK; Chair for Civil and Intellectual Property Law, Humboldt University, Berlin, Germany; Institute for Information Law, University of Amsterdam, Netherlands; Max Planck Institute for Innovation and Competition, Munich, Germany; Center for Internet & Society (NEXA), Politecnico di Torino, Italy; Universitat Oberta de Catalunya (UOC), Barcelona, Spain; SciencesPo Paris, France; Tilburg Institute for Law, Technology and Society & Tilburg Law and Economics Center, University of Tilburg, Netherlands

You may agree with the letter - you may disagree! But it's well worth a read and you can download the letter here

and here's a link  to the form where academics can join the letter

Wednesday, 22 February 2017

T Bone Burnett takes aim at DCMA safe harbours

T Bone Burnett by Kulturvultur (2007)
Congress enacted the Digital Millennium Copyright Act (“DMCA”) nearly two decades ago, aiming to provide a  balance between the needs of content creators, who were struggling to protect their intellectual property in the digital age, and fledgling Internet companies, who feared being held liable for the misdeeds of  their customers - giving the technnology companies the benefit of 'safe arbour' protection provided service providers “reasonably implement” a policy that provides for the termination of “repeat infringers” in “appropriate circumstances.”
But is that balance right? 

Singer, songwriter and producer T Bone Burnett has delivered a telling contribution to the US Copyright Office's review of Digital Millennium Act 'safe harbour' 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".

"The problems are familiar", he adds. "[And] they are well described in the record of these proceedings, from the broken Sisyphus climb of 'notice and takedown' to the gunpoint negotiations and pittance wages forced upon creators by the Google monopoly. The Big Tech ITOPIANS can track us across dozens of networks, devices and profiles to bombard us with micro-targeted ads, but they can't even identify unauthorised copies of our work and keep them off their own servers and systems. Or they won't".

"The problem here isn't technology", T Bone adds, saying "Creators welcome the digital revolution and its power to connect, amplify, and inspire. A modern recording studio looks more like a cockpit than a honky tonk, and that's just fine. The problem is business models - designed to scrape away value rather than fuel new creation, focused on taking rather than making. To restore technology's place as the rightful partner of tomorrow's creators, we need change".

"The safe harbours must be restored - so only responsible actors earn their protection, not those who actively profit from the abuse and exploitation of creators' work. Technology must be enlisted to make the system work better, not to roadblock progress in a pointless arms race of whack a mole and digital deception. Creators must be given meaningful tools to earn a living from their art". 

"The false prophets of the internet may have imagined an egalitarian open source creative wonderland - but what we got was a digital playground for a handful of mega corporations and web moguls living fat off the artistic, cultural and economic value everyone else creates online".

"It's time for Congress to close the loopholes in section 512 of the DMCA. Our culture is at stake. And it's time for musicians to join with us, the Content Creators Coalition, to make that happen. Your career depends on it. On behalf of music creators, thank you to the Copyright Office for this proceeding and for considering these views".

On the same matter, the recent decision of the Second Circuit Court of Appeals  in the MP3tunes case is of interest: the Second Circuit noted that copyright infringement is a strict liability offence with no requirement to prove unlawful intent. Moreover, both uploading and downloading can constitute infringement. Because the DMCA does not define “repeat infringer,” the court adopted this ordinary meaning and held that “all it [takes] to be a ‘repeat infringer’ [is] to repeatedly [upload or download] copyrighted material for personal use.”

The Second Circuit also found that MP3tunes’ repeat infringer policy was not reasonable as a matter of law because, whilst the site did respond to takedown notices from copyright owners and terminated the accounts of some users, “MP3tunes did not even try to connect known infringing activity of which it became aware through takedown notices to users who repeatedly sideloaded files and created links to that infringing content in the index.”

Image:  Kulturvultur

Monday, 20 February 2017

Search Engines act to demote pirate results

The UK IPO has announced today that Google and Microsoft have signed an anti-piracy agreement with the creative industries, in the form of the UK record industry trade body, the BPI and the US Motion Picture Association.

The government has been facilitating the talks (which have apparently been going on for several years)  which have now led to a Voluntary Code of Conduct.
The objective is to reduce the visibility of pirate sites to those casually searching for content.  Currently if one searches for music and film titles, often pirate sites appear high up in the search results.

The Code was agreed on 9 February 2017, will come into force immediately, and sets targets for reducing the visibility of infringing content in search results by 1 June 2017.
Minister of State Jo Johnson MP will oversee the implementation of this Code of Practice, and the IPO will work with all parties to evaluate progress.  The implication is that, if progress is not made, legislation may follow.  The announcement handily arrives just before the issue was due to be debated by the House of Lords as part of the progress of the Digital Economy Bill.  The full IPO press release is here.

The Code is currently limited to the UK, but the creative industries hope that it will become a model adopted throughout the world.  You can hear Eddy Leviten from the Alliance for IP talking about it on the BBC Radio 4 Today programme at [at about 06.50am]


This CopyKat from David Laio


VG Media, an association of publishers including Handelsblatt and Axel Springer, has brought a claim against Google in relation to the German 2013 Ancillary Copyright Law. This law was designed to compel Google to pay for publishing summaries of news content in web searches, which Google argues is only for indexing purposes. In addition Google claims its search service helps publishers reach a wider audience.

This is the fifth claim VG Media has made against Google, with three of those claims having been decided in Google’s favour (with the rest still pending). In 2014 Google had previously removed snippets in relation to one such claim made by VG Media, but the consortium responded by characterising this behaviour as an abuse of Google’s dominant position. Some have suggested VG media had hoped to compel Google into licensing agreements, see here

The Berlin District Court has recently asked the European Court of Justice for clarity on a technical point, whether the law had been properly submitted to European Commission authorities under a process of review called “notification”. This could be a potential stumbling block for the lawsuit – the ruling is currently expected on the 9th of May this year so stay tuned.

Paul McCartney sues Sony/ATV

Paul McCartney will be able to reclaim the rights to music which Sony/ATV currently hold as of October 2018 under US Copyright Act (the right discussed here in relation to Duran Duran, which also involved Sony/ATV). McCartney has previously asked Sony/ATV to acknowledge his rights to terminate copyright transfers of his music but did not receive this confirmation. As such, McCartney is seeking a judicial declaration allowing him to reclaim his copyright. No doubt this will be influenced by the Duran Duran case, which was granted leave to appeal by Mr Justice Arnold earlier this month.

Copyright Law Reviews 

Canada: The Canadian government plan to review copyright laws next year and commissioned a study on views of Canadian businesses (reported here). In particular the study found that follow-the-money strategies (which focus on methods such as reducing online advertising revenues and disabling payment to intermediaries) have a mixed record of success, especially with the continuing popularity of online advertisers who prioritise reaching large audiences over enforcing copyright. It is also interesting to note rights holders tended not to give fighting online piracy a high priority, as many believe that “their scarce resources are better invested in other battles and counted on global organizations to pursue the fight.”

US: In a recent speech, House Judiciary Committee Chairman Bob Goodlatte said that several copyright policy proposals would be voted on during the current legislature. Goodlatte said one of the first proposals will focus on the US Copyright Office to ensure that it "keeps pace in the digital age", including granting the Office autonomy and the creation of a searchable database of all copyright works – a monumental task indeed. Industry observers also suggested that music licensing and a small claims tribunal would be possible other proposals. See here for more details.


The estate of the late Anthony Barré (known as Messy Mya) is suing Beyoncé for the use Barré’s voice in the song “Formation”. Sample audio clips were allegedly taken from a hit YouTube videos including one named ““Booking the Hoes From New Wildin”. The claim is for more than $20 million in back royalties and other damages, as well as credit for being a writer, composer, producer, and performer. Listen to the clips here.

Thursday, 9 February 2017

Going for Gold': 3D Scanning, 3D Printing and Mass Customisation and the Future of Intellectual Property Law

Another free seminar from the City University Law School - but you do need to register. 

13.00  Wednesday 1st March 2017

College Building
City, University of London
St John Street

United Kingdom

The growth of 3D technologies impacts on intellectual property law, leading to a number of implications including copyright, design and licensing issues amongst others. Such challenges question the enforcement, object and purpose of IP laws whilst exploring the opportunities presented through this technology.

Building on the Commissioned Research carried out for the UK Intellectual Property Office (UKIPO) (2013-2015), the paper will first set out the findings, conclusions and recommendations from this project before moving on to a consideration of the AHRC-funded project titled 'Going for Gold: A Legal and Empirical Case Study into 3D Scanning, 3D Printing and Mass Customisation of Ancient and Modern Jewellery' . 

In presenting the two funded projects and its findings, the paper will outline the IP issues arising from this emerging technology, whilst questioning the impact of 3D scanning and 3D printing on the future of IP law.

The Speaker is Professor Dinusha Mendis (Professor of Intellectual Property Law and Co-Director of the Centre for Intellectual Property Policy and Management (CIPPM)). 

Sign  up here,-3d-printing-and-mass-customisation-and-the-future-of-intellectual-property-law

Image: 3D-printed propeller for model airplane

Online Platforms and Intermediaries in Copyright Law

23-24 March 2017

Ludwig Maximilian University Munich
Geschwister-Scholl-Platz 1
80539 München

Intermediaries play an essential role in internet communication. They allow us to access the net, to exchange information and to enjoy entertainment. But at the same time their services are used by infringers. This raises the issue of liability, particularly in copyright law. The EU law framework dates back to the late 1990s, when modern types of intermediaries were still unknown. The line between liability for primary infringement and the liability of intermediaries is difficult to draw. Injunctions against intermediaries whose services are used by infringers must be available, but EU law leaves the conditions of such relief to the Member States. Arts 12-15 of the E-Commerce Directive provide safe havens, which are, however, of limited and uncertain scope. In this normative vacuum, the CJEU has become the engine of harmonisation, creating rules and principles of liability step by step and by trial and error. The Commission has proposed new, but very cautious regulation concerning copyright in the Digital Single Market.

Against this background, this conference will focus on the economic, EU law, constitutional and competition law framework, take stock of the present law, compare different national approaches in the EU, the US and Asia and consider potential ways forward.

Speakers include Joost Poort (Institute for Information Law, University of Amsterdam), Andreas Paulus (Federal Constitutional Court), Maciej Szpunar (Court of Justice of the European Union), Sir Richard Arnold (High Court of England and Wales), Maria Martin-Prat (EU Commission), Matthias Schmid German Ministry of
 Justice and Consumer Protection, Jonathan Griffiths Queen Mary, University
 of London and Peter Yu Texas A&M University School of Law