1709 Blog: for all the copyright community

Wednesday, 4 May 2016

The CopyKat

Maurice Ravel in 1925
There were a myriad of reports that almost 90 years after it was first performed in Paris, the copyright in Maurice Ravel's "Bolero" expired on May 1st. Ravel died in 1937.  Written in 1928 and performed on November 22nd of that year at Paris' Opera Garnier, the symphonic work, which grows steadily louder as it progresses, was originally a ballet piece ordered by Russian dancer Ida Rubinstein, a friend and sponsor of the French composer Ravel and famously was danced to by Olympic gold medal winning ice skaters Torvill & Dean in 1984.  More here. HOWEVER ...... France’s Society of Authors, Composers and Music Publishers (SACEM) has now been presented with a dossier which seeks to take advantage of a legal loophole which could extend Bolero’s international copyright - worth an estimated €1m a year - for another 20 years. The challenge is based on the fact that Bolero was originally a score for a ballet and whilst it is not disputed that Ravel wrote the music, the challengers claim that the original choreographer, Bronislava Nijinska, and the director and scene-maker, Alexandre Benois should be credited as joint authors. As Benois died in 1960 - the argument is thus the final term of copyright must run from HIS death? SACEM, the body that administers copyright payments in France, said that it had rejected the claims as baseless. The copyright of Bolero belonged to the composer Ravel alone, the organisation told the Independent.

Germany's lower house of parliament, the Bundestag, overwhelmingly passed a bill for a new Act on Collective Management Organisations (CMO Act) on Thursday, April 28. The new law replaces the 50-year-old Copyright Administration Act. More here

Canadian singer/songwriter Nelly Furtado, who has sold more than 40m records worldwide is the latest artiste to hit out at Google's seeming reluctance to 'play fair' with payments to artistes from YouTube streaming - rightly pointing out that as a technology company YouTube has been fairly poor at developing software that can identify and remove infringing content. In a blog the Grammy Award-winner discusses the recent wave of artists standing up to YouTube over royalty payouts – and adds her name to the cause. 

The US Supreme Court has agreed to hear Star Athletica, LLC v. Varsity Brands, Inc. where the court will rule on the appropriate test to determine when a feature of a useful article is protectable under section 101 of the Copyright Act [text]. The case deals with designs on cheerleader uniforms, but the case is expected to have a broader impact. The US Court of Appeals for the Sixth Circuit had ruled that Varsity Brand's designs were copyrightable. Image by Jeff Hitchcock from Vancouver, BC, Canada.

A new bill in the U.S. House of Representatives is being introduced in Congress this week which would give producers, engineers and mixers a piece of the digital royalty pie. The Allocation for Music Producer Act, or AMP Act (H.R. 1457), is being formally introduced by congressmen from both sides of the aisle: Reps. Joe Crowley (D-New York) and Tom Rooney (R-Florida). The AMP Act would create a statutory right for producers to receive royalties that would be managed through CMO SoundExchange.

An Australian government commission, the Productivity Commission, has published a new reports on copyright exploring how well Australia's intellectual property laws are working. Titled  "Copy(not)right" you can probably guess that the report is not very sympathetic to current regime and holds the opinion that Australia’s copyright arrangements are "weighed too heavily in favour of copyright owners, to the detriment of the long-term interests of both consumers and intermediate users. Unlike other IP rights, copyright makes no attempt to target those works where ‘free riding’ by users would undermine the incentives to create. Instead, copyright is overly broad; provides the same levels of protection to commercial and non-commercial works; and protects works with very low levels of creative input, works that are no longer being supplied to the market, and works where ownership can no longer be identified."  More on TechDirt

The New York Appellate Court has agreed to rule on the case which Flo & Eddie from 60's band The Turtles have brought against Sirius XM Radio over the issue of whether the copyright owners of recordings made before 1972 have a common law right to make radio stations and others pay for their use. The case has been referred to the Court of Appeals from a federal appeals court. Federal law established limited copyright protections to recordings after Feb. 15, 1972, while preserving state law property rights on earlier recordings.

Green members of the French National Assembly have voted to strike Hadopi from France's lawbooks - and with just 7 MPs in the house, they had  enough members to see the motion to remove the law from the statute books in 2022 passed. It's unlikely the motion will pass the Senate, but the Greens have used the opportunity to call attention what they say is the "uselessness and expense of Hadopi." French President François Hollande called for the end of Hadopi before his election, a position he later retracted.

The leaders of two major Android app piracy groups have pleaded guilty to copyright infringement charges. Aaron Blake Buckley (22) and Gary Edwin Sharp II (29), ran the Applanet and SnappzMarket groups before they were shut down by the FBI in 2012. U.S. District Judge Timothy C. Batten Sr. of the Northern District of Georgia will pass sentence in August.

And finally - The CopyKat's profound thanks to qurgh lungqIj who made some wise and lucid comments, correcting my headline for the article on the Klingon Language. I have never been advised on and in Klingon - thankfully this time with translations into English! Forbes have also published a very interesting article on WHY the film companies behind the Star Trek series and films (CBS and Paramount) are taking action - having previously ignored or tolerated fan fiction, fan films and the like. 

Tuesday, 3 May 2016

Universal and Capitol fly high with copyright win

Universal Music and Capitol Records have obtained summary judgment against IFP and parent company Global Eagle, an in flight music licensing company, and the two recoded music companies can now look forward to a jury deciding the quantum of damages to be awarded, with reports saying this "could be worth hundreds of millions of dollars."

IFP is a worldwide provider of in-flight entertainment from movies to songs and IFP provided American Airlines (and later US Airways) with music playlists obtained via physical CDs and digital downloads. In 2008 the company approached the major labels for a deal and what followed has been described as a "few years of painstaking negotiations over advances and revenue apportionment, complicated by some catalogs not being available for in-flight licensing as well as IFP not wishing to let the cat out of the bag about the lack of licenses."

Added to this was the fact that although IFP was based in Los Angeles, and had completed some of the early reproduction work there, the company said that duplication and encoding was taking place in the U.K. under a different licensing regime. Added to this was the position advanced by IFP that it had reached oral or implied license and that the record companies committed fraud and tortiously interfered with its contracts with American and United. 

In his summary judgment ruling, U.S. District Judge George Wu wrote: "At best, there is evidence that the parties discussed various terms, but never reached any final agreements" and further, "There is ample evidence that IFP knew it had no licenses from Plaintiffs and that it could be sued for copyright infringement, and no evidence that Plaintiffs ever indicated to IFP that any such licenses were forthcoming or misrepresented any existing fact."

Wu also found that IFP acted wilfully by collecting money from airlines for copyright licenses in anticipation that it would one day have to make amends. The judge wrote: "As Plaintiffs aptly state, '[i]f IFP’s infringements were not wilful, no infringements could ever be.'”

Judge Wu also had to decide on the issue of pre-1972 sound recordings not protected by federal copyright law, but now being interpreted under state law to protect against misappropriation. To this, IFP threw up an argument that such claims were pre empted by the federal Airline Deregulation Act, but that argument failed because in-flight entertainment is deemed as a "service" under the statute and that the connection with state law claims is substantial. 

The case is now set for a damages trial on May 10 with more than 4,500 copyrights involved. 



Image: CuriMedia  https://www.flickr.com/people/14035760@N03

Monday, 2 May 2016

q bljeghbe'chugh vaj blHej (our first headline in Klingon)

The lawsuit between Paramount Pictures, CBS studios and the producers of the crowdfunded Star Trek spin-off "Prelude to Axanar" just keeps giving. And this week the not for profit Language Creation Society submitted an amicus brief in support of the filmmakers - arguing that the use of the Klingon language shouldn't be restricted in any way by the film company rights holders. The brief notes that “No court has squarely addressed the issue of whether a constructed spoken language is entitled to copyright protection,” and conclude that “Klingon gave Star Trek characters convincing dialogue. But, it broke its chains and took on a life of its own— a life that the [US] Copyright Act has no power to control.”  

The suit, filed by attorney Marc Randazza argues that while Paramount Pictures created Klingon, the language has "taken on a life of its own" as a real language - and a real language is incapable of being protected by copyright - so "Paramount Pictures lacks the 'yab bang chut' or 'mind property law' necessary to claim copyright over the Klingon language":

The language was created by Mark Okrand who was commissioned to develop the language by the two claimant film companies, and the language was adapted and extended in subsequent films and TV programmes.  But the language does seems to have taken on a life of its own: There is (after all) the Klingon Language Institute in Pennsylvania, which promotes the Klingon language and culture - and you can study the language at the Osric University, "a non-accredited degree granting institution" that conducts Klingon studies via the internet, Back in 1995, Anita Karr taught herself Klingon and submitted her degree dissertation on the Klingon Language when she studying at Portsmouth University for her BA in applied linguistics: There are Klingon dictionaries, phrase books, on line tutorials and poetry. You can attend conventions dressed up in your finest Klingon battle armour ... teach your child Klingon ..... and there are even Klingon weddings. 

Charles Duan from consumer group Public Knowledge said in a Blog post: "There would be great danger to allowing the copyright power to extend to prevent others from speaking a language" 

This brief might have legs!  Paramount and CBS take note - q bljeghbe'chugh vaj blHej - Surrender or die is a popular Klingon phrase. Is it time for CBS and Paramount to leave this particular battle at warp speed? 

But let's remember the claim includes some 57 instances of infringement - its not just about the Klingon language:  These similarities are divided into categories like characters (including Garth of Izar and Vulcan Ambassador Soval), races and species such as the Vulcans, Romulans and Tellarites, costumes, settings like the planet Axanar and the Klingon planet Qo’noS, as well as spacedocks and the Starship Enterprise, logos like the Federation logo, and plot point similarities including the concept of dilithium crystals, phasers, and the Klingon Empire.

Torrentfreak explains all.


Some useful phrases in Klingon here: http://www.omniglot.com/language/phrases/klingon.php

Thursday, 28 April 2016

The CopyKat.

The decade-long legal fight over Google’s effort to create a digital library of millions of books is finally over ... the Supreme Court has declined to hear a challenge from authors who had argued that the tech giant’s project was ‘brazen violation of copyright law’ — effectively ending the legal battle in Google’s favour. Without the Supreme Court taking up the case, a federal appeals court ruling from October, which found that the book-scanning program fell under the umbrella of fair use, will stand.” More here

Getty Images has filed a formal antitrust complaint with the European Commission about Google image search. According to reports, Getty claims that high-resolution Google image search results, “scraped” from its customers’ sites, are “siphoning traffic and profits from photographers.” Getty argues, because people can view high-quality versions of its photos in image search results, consumers don’t need to click through to publisher sites, and traffic and revenues are suffering accordingly.  Google and Getty Images had been in talks for some time over Getty’s concerns about high-resolution images in Google image search. However, Getty says that Google ultimately told the company to “accept the new image format or opt out of image search”. According to the Financial Times Getty said it felt coerced by Google’s market power into participating. Something it clearly now regrets doing. More here.

According to the IFPI's head of anti-piracy, calling illegal downloading "piracy" has become somewhat of a negative. The problem is that the concept of piracy is, well, just too 'romantic' and exciting. What's not to like about Pirates of the Caribbean (well quite a lot BUT the franchise got Keef in it). Graeme Grant is suggesting a name change -  but can simply changing the name of something really change the beast?

Baroness Lucy Neville-Rolfe, the UK's Minister for Intellectual Property, has confirmed that the British government is leaning toward the idea of increasing the sentence for online piracy,  to bring it into line with that for physical infringement: “Last year the government consulted on increasing the maximum term to 10 years. We received over a thousand responses, which have played a significant part in helping to shape the discussion” she said.

Baidu, China’s largest search engine, has signed a formal agreement with the United Kingdom concerning the platform's management of intellectual property rights. There are no clear details of the new Memorandum of Understanding about IP infringement, except that the signing was witnessed by Dr Ros Lynch, Director of Copyright and Enforcement at the UK Intellectual Property Office, who is currently in China to promote UK-China copyright week, and that also attending were Baidu president Ya-Qin Zhang and Robin Li, Baidu’s co-founder, chairman and CEO of Baidu. The MoU concerns ‘Copyright Protection Collaboration’. We await details in the next IPO China newsletter! More here!

Republican Congressman Bob Goodlatte has put out a statement and a video claiming that the House Judiciary Committee which he chairs is finally ready to start releasing some proposals in response to US Copyright Registrar Maria Pallante's call for Congress to create the "next great Copyright Act". Goodlatte says he is currently focussing on reforms where there is consensus, saying: "In the weeks ahead, we will identify areas where there is a likelihood of potential consensus and circulate outlines of potential reforms in those areas. Then we will convene stakeholders for further work on these potential reforms.  And you have my personal commitment that as the review shifts to more focused work on potential reforms, the process will be transparent and the Committee will continue to ensure that all interested parties have the opportunity to weigh in on issues of concern to them. Our copyright system deserves no less." and "...it is critical that Congress understand the overall impact of any changes in copyright law before proceeding with formally introduced legislation. It is also clear that neither a solely copyright owner focused bill, nor a copyright user focused bill, could be enacted by Congress today, nor should they be. Goodlatte said that the review of the country’s copyright law, which included 20 formal hearings as well as public roundtables in Nashville, Santa Clara and Los Angeles, helped "develop a comprehensive record of the issues facing the American copyright system today.” TechDirt has its own opinion here and more on MusicWeek here.

Friday, 22 April 2016

Richard Hooper to stand down as Chairman of the Copyright Hub

The 1709 Blog has just learned that Richard Hooper, currently the Chairman of the Copyright Hub, has decided to leave his position.

According to the relevant press release:

"Today, at the WIPO conference The Global Digital Content Market in Geneva, Richard Hooper CBE announced that with effect from 1 May 2016 he will stand down as Chairman of the Copyright Hub Foundation after nearly 5 years. He will hand over the rôle to Mark Bide who is currently an adviser to the Foundation’s Board.

This marks the transition of the Copyright Hub Foundation to the next phase of its development, in which its principal focus will be on building trust in the market place and effective self-regulation; as well as continuing to facilitate the roll-out of applications and sister hubs. Mark Bide has previously led the governance work strand on behalf of the Foundation’s board. 

In recognition of his standing as the founding father of the concept of a digital copyright hub, the Foundation Board has invited Richard Hooper to become Honorary President of the Copyright Hub Foundation an invitation he has accepted. The idea of a hub with the capability of linking copyright owners and users at effectively no transactional cost was first set out in his report for the UK government entitled Copyright Works: streamlining copyright licensing for the digital age.

Richard Hooper
Richard Hooper said: “It has been an extraordinary time leading the Copyright Hub Foundation as it has built the foundation of a technology platform that will [will? Shouldn't this have happened already?] make licensing easier and cheaper for all creators and rights holders. I want to thank all our many supporters and funders in the UK and around the world: this is a truly global project as relevant to creators and creativity in developing economies as to Western countries like the UK.   A big thank you also to Dominic Young who brought a precise technology vision to the Hub, building on existing initiatives such as the Linked Content Coalition. I am delighted to remain engaged with the Foundation as its President and look forward to supporting its work as it moves into new and exciting times.”

Mark Bide added: “I am honoured to have been asked by the Board of the Copyright Hub Foundation to take the chair of the organisation at this critical moment in its development.  Succeeding Richard will be no easy task. I very much look forward to working with Dominic Young, the other members of the staff and the Board of the Foundation. Together, we will be working to ensure the delivery of the objectives of the Copyright Hub Foundation and its technology platform of simplifying and extending copyright licensing by providing a trusted market place in the digital environment.”

Dominic Young, CEO of the Copyright Hub, said: “It has been a pleasure to work with Richard over the past few years to get the Copyright Hub to the position it is in today. I think I can speak for the whole team in saluting the energy, enthusiasm and sheer determination that Richard has put into the creation and work of the Hub. I am delighted that he will continue to be involved in the future.” 

Thursday, 21 April 2016

Are Languages Created by One Single Homo sapiens Protected by Copyright?

You may remember that Paramount Pictures and CBS Studios are suing Axanar Productions and its principal Alec Peters over the short movie Prelude to Axanar (see here and here). Plaintiff claims the movie is an unauthorized derivative work, and that it infringes their copyright in Star Trek. Plaintiff filed an amended complaint last month, which details further what they consider to be infringement.

The complaint alleges that one of the infringing elements of Prelude to Axanar is the character of Garth of Izar, the legendary Starfleet captain who won the battle of Axanar, and later became insane, as shown in one of the original Star Trek episodes, Whom Gods Destroy. The Complaint also alleges infringement in the characters of Soral, a Vulcan ambassador, Starfleet captain Richard Robau, and historian John Gill.

Plaintiffs also claim copyright infringement in the Klingon race (a “warrior race”) and their appearance, and in the Vulcans, which “are a humanoid race with pointy ears from the planet Vulcan that are responsible in a large part for the founding of the Federation” and their appearance. Plaintiffs also claim copyright infringement in the Andorians, the Tellarites, and the Romulans, the last a species from the planets Romulus and Remus.

Plaintiffs also claim copyright in the costumes worn by the Enterprise crew, the Vulcan robes, the cowl neck and Starfleet command insignia, and triangular medals on uniform. If a court would recognize such infringements, it would set a precedent for fashion designers to claim copyright in their own works. However, this is highly unlikely, and claiming copyright in a cowl neck, especially, takes gumption, to say the least.

Can an Invented Language be Protected by Copyright?

The list of the claims goes on, and it is an interesting read. I would like to concentrate in this post on the claim in the Klingon Language, “Klingonese or Klingon, the native language of Qo’noS” (p.31). Can an invented language be protected by copyright?

I read online this interesting post by Cory Doctorow about the issue, wich provides links to other interesting articles on the Klingon language. Cory Doctorow does not believe it can be protected by copyright. I learned reading the post and its linked articles that the Klingon language was created by linguist Marc Okrand, and is a combination of Hindi, Arabic, Yiddish, Turkish, and Mohawk. It has its own dictionary.

There is no doubt that a natural language cannot be protected by copyright. A language is a combination of signs, which have meanings, and the language is organized using a syntax. Natural language evolve over time, and are created by member of particular tribes of the human species, following an organic process. As such, natural languages can be described as “procedure, process, system, method of operation, concept, principle, or discovery” which are not protected by copyright (§ 102. 2 of the Copyright Act).

But what about a language which is “created”? Cory Doctorow argues that the Klingon language “admittedly borrows phonemes from Hindi, Arabic, Tlingit, and Yiddish and grammar from Japanese, Turkish, and Mohawk” which makes claiming a copyright in it dubious.

However, the Supreme Court explained in 1879, in its Trade-Marks case, that “[t]he writings which are to be protected [by copyright] are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like.” That does not mean that mere “sweat of the brow” is enough to claim protection of a compilation by copyright, as explained by the Supreme Court in Feist Publications, Inc. v. Rural Telephone Service Co. The Supreme Court ruled in this case that a compilation of facts may be protected by copyright only if such selection, coordination and arrangement is original enough. However, a modicum of originally suffices.

Is the Klingon Language an Original Compilation of Facts?

Feist could be cited by Plaintiffs to argue that the Klingon language is protected by copyright. Is the Klingon language merely an unoriginal combination of data? In that case, it would not be protected by copyright under Feist. But the Klingon language is original, and original work is protectable by copyright. The Supreme Court defined originality in Feist as meaning “that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity” (at 345). It can easily be argued that this is the case with the Klingon language.

Even if one argues that the Klingon language is merely a combination of natural languages, it can still be protected by copyright under Feist, as the Supreme Court explained in this case that factual compilation may be protected by copyright:

Factual compilations… may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws” (Feist at 348).

In our case, it could be argued that Marc Okrand compiled facts, the natural languages, and decided in which order to place them, and how to arrange them. This work certainly entailed a minimal degree of creativity. I would say that the Klingon language may be protected by copyright.

Klingon is Not the Only Original Language Ever Created

The issue of whether a language which has been created is protected is topical: the television series “Game of Thrones” features its own language, the Valyrian, which was created by David Peterson and has even a high and a low level of language (hear them here). David Peterson wrote a book named “The Art of Language Invention” (he speaks about it here) and has created several other languages for the movie industry.

Mark Okrand himself has been asked if the Klingon language is protected by copyright and he answered that he does not own the copyright, as he created it as a work for hire, but that he is not sure if Paramount owns it either. And you, what do you think?

Picture of the Klingon Dictionary courtesy of Flickr user geraldford under a CC BY-SA 2.0 license.

Picture of Sign courtesy of Flickr user Aaron Gustafson under a CC BY-SA 2.0 license.

Monday, 18 April 2016

The CopyKat

It been eight years since the publisher John Wiley & Sons sued Supap Kirtsaeng for re-selling Asian market textbooks in the USA - and now despite his ultimate win in the Supreme Court under the 'first sale' doctrine, his textbook business is shuttered and he has moved into academia - BUT in his first print interview he makes clear his conviction that he wasn’t doing anything wrong by reselling those textbooks, and that the lawyers who helped him prove it are entitled to be paid for their work because he found counsel willing to represent a student and small business owner against a global company with billions of dollars in annual revenue. So he now wants almost $2 million from John Wiley - but so far he has been knocked back by the trial court and the 2nd U.S. Circuit Court of Appeals. Now the Supreme Court will hear Kirtsaeng’s second petition for certiorari, this time to resolve uncertainty among the federal appellate courts on the appropriate standard for fee-shifting in Copyright Act litigation. 

The song that inspired one of America’s greatest freedom fights is now the subject of a battle over its own. A California non for profit organisation has filed a class-action lawsuit against Richmond Organization and Ludlow Music over the copyright to “We Shall Overcome,” a song the Library of Congress calls “the most powerful song of the 20th century.” “It’s an important part of our political and social history and we certainly see the irony in the fact that this song, which has represented the civil rights movement, needs to be emancipated itself,” says Mark Rifkin, an attorney and partner with Wolf Haldenstein Adler Freeman & Herz, who is representing the We Shall Overcome Foundation in the suit who will argue that “The basic story is the song was written well before anybody copyrighted anything” - that " the song belongs in the public domain", and seeks a return of "unlawful licensing fees" from the publishers. Could be fun!

Justin Bieber’s 2010 hit song ‘Somebody To Love’ faced a claim back in 2013 when he and his producer Usher, were accused of copyright infringement.  The lawsuit was brought forward by singer De Rico and songwriter Mareio Overton.  De Rico and Overton’s track was also titled ‘Somebody To Love,’ from their similarly-titled album, My Story II. In 2014 the court dismissed the case finding significant differences in the songs. However, in June of 2015, the US Court of Appeals in Virginia re-opened the lawsuit and since then, the case has been ongoing. But Bieber keeps failing to show up to depositions and having cancelled twice said he was ‘unable to sit for deposition’. As a result, the singer has now been ordered to pay over a whopping $10 million and the court has scheduled discovery to be completed by April 18th. Errrrrr, that's TODAY JUSTIN!

With a retrial scheduled for May, Oracle and Google have failed to settle the copyright lawsuit over Android operating system. Reports said that the CEO of global software major Oracle, Safra Catz and Google Chief Executive Sundar Pichai met for six hours on April 15 in a court-ordered settlement conference before a U.S. magistrate in San Jose, California, in an attempt to stave off retrial in May. U.S. Magistrate Judge Paul Grewal, who mediated the talks issued a statement saying the talks were unsuccessful.

And finally: Universal Music Australia, Warner Music Australia, Sony Music Entertainment Australia and Albert Music have combined in an effort to combat offshore site Kickass Torrents, filing an application in the Federal Court of Australia to have Kickass blocked from local access. The action is under Section 115A of the Australian Copyright Act 1968 and the companies are seeking to have Kickass Torrents and its affiliated proxy sites blocked by Australian ISPs in an effort to tackle local and global music piracy.

Thursday, 14 April 2016

Some copyright events of interest

Our friends at the IPKat and Queen Mary Journal of Intellectual Property Law regularly update their lists of IP events, in which also 1709 Blog readers will find something of interest.

Among the forthcoming copyright events, here's something for our readers: