1709 Blog: for all the copyright community

Friday, 31 October 2014

The CopyKat ..... hoping for a new public

The Drum reports that Google's move to "strangle" websites which publish copyrighted material has seen some sites suffer a 98 per cent collapse in visibility as a result of the measure - that's according to data from Searchmetrics.  The worst affected websites have been those which display links to, or directly host, copyright protected music, TV and movies. Searchmetrics has released a "top 30 loser" list, to highlight which sites have seen their rankings plummet since the changes, with Movie4k.to among those to see a 98 per cent drop.  Thepiratebay.se saw a 48 per cent fall in its Search Engine Optimisation (SEO) visibility.

And more on Google: Günther Oettinger, the man who will become the European Union’s digital economy and society commissioner in place of Nolie Kroes, is said to be considering taking the so-called “Google tax” law from his native Germany and applying it across the EU. Germany’s Leistungsschutzrecht für Presseverleger (LSR), or “ancillary copyright for press publishers” law was passed in 2013 at the behest of publishers such as Axel Springer. The LSR gives publishers the right to demand royalties from aggregators such as Google News for the use of copyrighted text in their listings. the Spanish Parliament has passed a law to levy a charge on  aggregators and search engines for using snippets or linking to infringing content - with TechDirt saying "As plenty of folks have described, the bill is clearly just a Google tax".  In his future role, Oettinger won't be responsible for EU competition policy, but he has been a vocal critical of Google's search antitrust settlement with the EU and may have more influence over negotiations during the next phase of negotiations. Previously, he's suggested that Google could be forced to display search results objectively and neutrally, the FT noted. 

It's all about linking right now! Now with both Svensson and Bestwater out, in their  recently published opinion, ALAI believes that the CJEU got it very wrong in Svensson, in particular, the adoption of the "new public" criterion - and on that very matter, Eleonora has just posed a very interesting piece on the IPKAt here .  Some early thoughts here.

And following on from the above, BLACA are hosting what looks like a very very interesting seminar simply titled "linking" with a distinguished trio of speakers:  Prof Dr Silke von Lewinski (Max Planck Institure) will be speaking about the CJEU's concept of the  'new public', Prof Dr Jan Rosen (Stockholm University) will be speaking about the ALAI opinion and Svensson, and Prof Lionel Bently  (University of Cambridge) will be speaking on the the basis of the opinion of the European Copyright Society. It's on Thursday 13th November at 18.30 at the offices of Berwin Leighton at London EC3R 6HE - and we are promised details on the BLACA website soon http://www.blaca.org/

And finally, every three years, the U.S. Copyright Office accepts petitions on what activities should get an "exemption" under the 1998 Digital Millennium Copyright Act (DMCA). The sixth tri-annual rulemaking is now upon us, and the deadline is this Monday, November 3. Public Knowledge say they will be submitting petitions asking to legalize consumer ripping of DVDs, as well as allowing circumvention of DRM-based input to 3D printers. 

Thursday, 30 October 2014

Designs, copyright and UK law reform post-Flos

A perplexed 1709 Blog-reader has written to us with the following request for clarification. If any reader(s) would like to respond by posting their comments below, our reader would be hugely gratified, though possibly no less perplexed.  The request runs as follows:
I understand that the CJEU’s decision in Case C-168/09 Flos is about pre-1989 designs that have copyright protection because they were protected according to the law of an EU member state at the relevant time. In response, the UK Government is proposing to repeal section 52 of the Copyright, Designs and Patents Act 1988 (CDPA) which restricts copyright protection for some artistic works that have been industrially exploited to 25 years (instead of 70 years post mortem auctoris).

The repeal of section 52 applies (I believe) to pre-1989 designs that were the subject of Flos, but I am sure that it applies to post-1989 designs that have copyright protection, such as being works of artistic craftsmanship.

As noted in a recent IPKat post, ACID’s consultation on the topic focuses on the effects on pre-1989 designs only, which is consistent with Flos but ignores the totality of the effect of the repeal of section 52; Peter Smith’s comments on that post on the other hand referred mainly to works of artistic craftsmanship, which is all very well post-1989, but seems irrelevant to Flos-derived reason for the repeal of section 52.
(1) The repeal of section 52 seems to be much wider in ambit than is required to address the mischief identified in Flos – why is this? and has there been any consultation about the appropriateness of the repeal of section 52 as a means to achieve the UK’s obligations under Flos?

(2) Does the effect of the repeal have the same effect, or a different effect, vis-à-vis designs pre- and post- CDPA 1988?

(3) Is there anything else I have missed?
Do let us know what you think!

Wednesday, 29 October 2014

Starting today, UK has new licensing scheme for orphan works

Orange (or Orphan Works
So spring/summer 2014!
The Orphan Works Directive? So last season! Even if the deadline for implementation is today [but how many Member States have transposed it into their national laws yet? Not all, The 1709 Blog is told ...] and this means that there should be a new exception to the rights of reproduction and making available to the public [see Article 6] that would allow [very] limited uses of orphan works, excitement for prospective users of orphan works might be even greater in the UK.

The orphan works licensing scheme pursuant to s77 of the Enterprise and Regulatory Reform Act 2013 [the lawfulness of which this blogger questioned here] launched in fact today. This means that it is now possible to apply for a licence to use "at least 91 million culturally valuable creative works - including diaries, photographs, oral history recordings and documentary films." 

UK IP Minister, Baroness Neville Rolfe, said: "The UK's trailblazing orphan works licensing scheme enables access to a wider range of our culturally important works. The scheme has been designed to protect right holders and give them a proper return if they reappear, while ensuring that citizens and consumers will be able to access more of our country's great creations, more easily."

Apparently, "[t]his ground breaking scheme builds on UK and international best practice and is the first to use an electronic application system and searchable register of the licences granted. It is being implemented alongside the EU Orphan Works Directive that enables cultural institutions to digitise certain orphan works in their collection and display them on their websites.Together these two schemes will help to display more of the UK’s cultural work at home and across Europe."

The UK scheme will be administered by the UK Intellectual Property Office.

In all this, if you are wondering about the meaning of one of the key concepts in orphan works jargon, ie 'diligent search', just click here.

Tuesday, 28 October 2014

Who framed the CopyKat?

The UK government has confirmed another two years of funding for the City Of London Police's Intellectual Property Crime Unit, or PIPCU, which has been spearheading a number of anti-piracy initiatives since its launch last year.

Finnish Parliamentarians have voted to reject a proposal to reform copyright laws by reducing infringements by private individuals to a misdemeanour. The bill reached the attention of lawmakers by way of a citizen’s initiative following a highly-publicised case in which anti-piracy authorities fined a 10-year old girl for illegally downloading pop music on to her home computer. The Finnish Parliament's Education and Culture Committee had already proposed rejecting the Bill.

Napoleon Crossing the Alps,
Jacques-Louis David (1805)
"Napoleon's conquest of Italy led to a copyright-fuelled opera boom" - well that caught my eye! And it seems a new study provides evidence of how copyright laws inspire more and higher-quality artistic works. Michela Giorcelli and Petra Moser, Stanford University economists, studied Italian opera from the late 1700s through 1900 and found that after Napoleon invaded Italy — bringing with him French copyright laws — those copyright laws were associated with both more and higher-quality operas. More here

Over on the IPKat, Eleonora has alerted all CopyKats to a new decision from the CJEU which follows in the wake of Svennson: in the  BestWater  case the Court of Justice of the European Union handed down a "landmark" verdict - ruling that embedding or framing copyrighted videos is not copyright infringement, even if the source video was uploaded without permission. The CJEU said (this is a translation from German and may not be wholly accurate) as long as the original video not altered or communicated to a new public.- and in this case the original video was already available on YouTube - embedding it is not seen as a new communication with the court saying "“The embedding in a website of a protected work which is publicly accessible on another website by means of a link using the framing technology … does not by itself constitute communication to the public within the meaning of [Article 3(1) of the EU Infosoc Directive] to the extent that the relevant work is neither communicated to a new public nor by using a specific technical means different from that used for the original communication”. The CopyKat thinks this is an important decision - with major ramifications for owners of audio visual content - Eleonora has already updated this breaking news with a second post over on the IPKat with some assistance from a guest contribution from Oliver Löffel who says this was the answer to the question posed by the  Bundesgerichtshof (as translated):

The embedding, within one’s own website, of another person’s work made available to the public on a third-party website, by means of a link using the framing technology, such as that at issue in the main proceedings, does not by itself constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29 of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [the InfoSoc Directive], insofar as the work concerned is neither directed at a new public nor communicated by using specific technical means that differ from that used for the initial communication. 

This means that embedding videos which are freely available on, for example (and is it was the case here) YouTube, does not constitute an infringement of the right of communication/making available to the public if the work concerned is neither directed at a new public nor communicated by using specific technical means different from that used for the initial communication.

Another case referencing Svennson is the recent decision by Mr Justice Arnold in 1967 Ltd & Others v British Sky Broadcasting Ltd & Others [2014] EWHC 3444 (Ch) (23 October 2014). Here - in another clear judgment on how website blocking injunctions should be applied for pursuant to section 97A of the Copyright, Designs and Patents Act 1988 (itself a result of Article 8.3 of the InfoSoc Directive which provides that  "Member States shall ensure that rightsholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right) Arnold J noted that the following four matters had to be established: (1) that the Defendants are service providers; (2) that users (i.e. consumers) and/or the operators of the target websites infringe the Claimant's copyrights; (3) that users and/or operators of the target websites use the Defendants' services (here ISPs - the big UK five of BSkyB, BT, EE, Talk Talk and Virgin) to do that; and (4) that the Defendants have actual knowledge. These four matters had been covered by the record label claimants and so Arnold J had no difficulty in finding all four matters established.  And Arnold J found that users infringe by copying and communicating the Claimant's works to the public and also found that the website operators infringe by communicating those works to the public - and here held that in the case of the 13 target websites, it is a communication to a new public, "...which is to say a public which was not considered by the rights holders concerned when they authorised the original communication or other act of dissemination of the recordings." (emphasis added).

Monday, 27 October 2014

CopyrightX returns

Brian Stevens (Senior Intellectual Property Consultant, Danfoss Limited) writes to tell us how much he enjoyed the 2014 CopyrightX online course offered by HarvardX, Harvard Law School, and the Berkman Center for Internet & Society, which will be offered again in 2015. Says Brian: "Their use of real-time online discussion was very helpful and overall it provided a very useful and interesting educational experience".

The 12-week course begins on January 26. The application process for the online sections opened on October 15 and closes on December 15. Information about this course is available here.

No "controlling mind"? Never mind, you can still be liable ...

Phonographic Performance Ltd v John Nash (T/A Charlie Wrights International) is another Chancery Division, England and Wales, ruling from judicial "super-sub" Judge Pelling QC, who has picked up quite a few intellectual property cases without being one of the jurisdiction's specialist IP judges. This decision, on 23 October, is extempore and has been noted on the Lawtel subscription-only service.

In this action the PPL sued Nash, the premises licence holder and designated premises supervisor of a music bar, for copyright infringement and sought summary judgment on the basis that Nash had either played musical recordings at the venue without being licensed or permitted to do so, or had authorised others to do so -- or both. Said the PPL, Nash was perfectly aware that PPL held the public performance rights in the relevant recordings. The company sought a final injunction on the basis that Nash was going to carry on infringing its copyrights unless he was restrained from doing so. Nash resisted the application for summary judgment and argued that (i) the venue was operated by a company that employed him as a manager, (ii) he never traded from the premises on his own account, and that (iii) he was not the "controlling mind" of any company operating from that address. He also applied for two previous orders to be set aside on the ground that they violated his right to a fair trial since they were made in his absence.

Judge Pelling QC granted the relief sought by PPL. In his view:

* Even if the court proceeded on the assumption that Nash had not traded in the manner alleged, that was not going to help him since being an employee was not a defence to copyright infringement and Nash could not avoid personal liability on that basis.

* In any event, the suggestion that Nash was only ever an employee was unreal and fanciful given (i) evidence of his continuing, intimate involvement in the operation of the business at the premises, plus (ii) evidence of his continuing role as the responsible office holder under the licensing legislation.

* PPL had shown that there was a continuing risk of Nash's direct infringement, so the company was entitled to a final injunction restraining him from continuing to infringe its copyrights.

* Nash's application to set aside the two previous orders failed. One of the orders actually permitted Nash to apply to set it aside, and so it plainly did not violate his right to a fair trial and, so far as the judge could see, the other order had not been made in his absence.

This decision offers a useful reminder that being in the employ of someone else is no defence to an action for copyright infringement in the UK (though the employer may be vicariously liable too).

Friday, 24 October 2014

Donaldson v Becket(t): revising the revisionists?

H. Tomás Gómez-Arostegui (Kay Kitagawa & Andy Johnson-Laird IP Faculty Scholar and Associate Professor of Law, Lewis & Clark Law School, Portland, Oregon) has recently sent me a copy of an article that he thought might be of interest: "Copyright at Common Law in 1774", 47 Conn. L. Rev. 1 (2014). This article takes a look at one of the seminal pieces of English litigation on common law copyright: Donaldson v Becket(t). According to the abstract:
As we approach Congress’s upcoming re-examination of copyright law, participants are amassing ammunition for the battle to come over the proper scope of copyright. One item that both sides have turned to is the original purpose of copyright, as reflected in a pair of cases decided in Great Britain in the late 18th century—the birthplace of Anglo-American copyright. The salient issue is whether copyright was a natural or customary right, protected at common law, or a privilege created solely by statute. These differing viewpoints set the default basis of the right. Whereas the former suggests the principal purpose was to protect authors, the latter indicates that copyright should principally benefit the public.

The orthodox reading of these two cases is that copyright existed as a common-law right inherent in authors. In recent years, however, revisionist work has challenged that reading. Relying in part on the discrepancies of 18th-century law reporting, scholars have argued that the natural-rights and customary views were rejected. The modified account has made great strides and has nearly displaced the traditional interpretation. Using a unique body of historical research, this article constitutes the first critical examination of the revision. Ultimately, it concludes that the revision is incorrect and that we must return to the orthodox view.
The article also contains information regarding, more generally, appellate procedure in the House of Lords and the publication of appeals, particularly in newspapers and periodicals. Tomás also includes an appendix that traces the numerous newspapers and periodicals that published material on Donaldson v. Beckett.

I welcome this approach, having sometimes been faced with revisionist propositions that seemed to me to be so far from my recollection of old cases that I have had to return to the original sources in order to reassure myself that my memory was not at fault.

You can read this article via SSRN here.

There's also a spot of further background reading in a very much shorter piece which I wrote several lifetimes ago, noted in "Past historic 5: common law copyright in England".

Thursday, 23 October 2014

More copyright creation opportunities for women? Not if they are film directors in Europe

The European Audiovisual Observatory has been at it again.  This time it has published Female directors in European films, which it describes as a "first-of-its-kind pan-European analysis of films by female directors".

This slender (61 page) report reveals that only 16.3% of the European films produced between 2003 and 2012 were shot by female directors -- a percentage which is even lower when it comes to the share of admissions, with European films by women directors accounting for 8.9% of the total admissions in Europe during the same period ["admissions" in this context is not a synonym for "confessions", but rather a reference to the number of viewers admitted to cinemas to watch the films].

The report is available in English with an executive summary in French and German -- something that might make French and German women directors feel even more discriminated against.

You can check out the further particulars of this work and even order it by clicking here [it's a good old-fashioned 484-character URL, so we're not reproducing it in full ...].