1709 Blog: for all the copyright community

Tuesday, 29 July 2014

Beijing signs up for ... Beijing

This blogger was pleased to see, by Beijing Notification No. 5: Beijing Treaty on Audiovisual Performances, that the People’s Republic of China has ratified this treaty. According to this notice:
The Director General of the World Intellectual Property Organization (WIPO) presents his compliments to the Minister for Foreign Affairs and has the honor to notify the deposit by the Government of the People’s Republic of China, on July 9, 2014, of its instrument of ratification of the Beijing Treaty on Audiovisual Performances, adopted at Beijing on June 24, 2012.

The said instrument contained the following declarations:

– “The People’s Republic of China shall not be bound by Article 11(1) [bad news for performers: "Performers shall enjoy the exclusive right of authorizing the broadcasting and communication to the public of their performances fixed in audiovisual fixations"] and (2) [ditto: "Contracting Parties may ... declare that, instead of the right of authorization provided for in paragraph (1), they will establish a right to equitable remuneration for the direct or indirect use of performances fixed in audiovisual fixations for broadcasting or for communication to the public. Contracting Parties may also declare that they will set conditions in their legislation for the exercise of the right to equitable remuneration"] of the Beijing Treaty on Audiovisual Performances.

– “The Beijing Treaty on Audiovisual Performances shall not apply for the time being to the Hong Kong Special Administrative Region of the People’s Republic of China until otherwise notified by the Government of the People’s Republic of China.”

The date of entry into force of the said Treaty will be notified when the required number of ratifications or accessions is reached in accordance with Article 26 of the said Treaty.
China joins Syria, Botswana, the Slovak Republic and Japan, but there's still some way to go before the treaty comes into force. as Article 26 states:
This Treaty shall enter into force three months after 30 eligible parties referred to in Article 23 have deposited their instruments of ratification or accession.

Friday, 25 July 2014

The CopyKat - the pain in Spain means no blocking - again

A  court in Spain has overturned a previous ruling that had led to the blocking for a number of file-sharing sites. Back in May this year the anti-piracy group FAP secured injunctions in court forcing internet service providers in the country to block various file-sharing set-ups, including SpanishTracker, PCTorrent.com, NewPCT.com, PCTestrenos.com, Descargaya.es and TumejorTV.com - but in a blow to the content industries - who had celebrated the earlier ruling - an appeals judge in the wonderfully named Court of Instruction No.10 (well that's according to TorrentFreak)  has said there are "insufficient grounds" for blocking the offending sites in order to protect intellectual property rights - although thus will no doubt prompt fresh calls to extend or revise the so called Law Sinde in Spain which was meant to have allowed web blocking as a remedy against internet piracy from March 2012


It seems Amazon is trialling a 'Spotify' type service which will allow Kindle users to subscribe for ebooks - paying $9.99 a month to have access to 640,000 books and nearly 7,000 audio books. Richard Mollet, the Chief Executive of the Publishers Association in the UK has said that it is essential that any subscription service properly rewards writers and publishers. Kindle Unlimited joins Scribd, EnTitle and Oyster - but with the potential a far far bigger library of books available to subscribers - although no books from any of the 'big five' publishing houses (Penguin Random House, Simon & Schusterm, Harper Collins, Hachette and Macmillan are featured in the prootional video which had been seen by Gigam - although Lord of The Rings, books from the Harry Potter series and Life of Pi were apparently seen in the video.

And Google is possibly experimenting with a new system that would see adverts for legitimate content platforms positioned at the top of searches for unlicensed movies or music. Google has been widely criticised by the music and movie industries for not doing enough to steer web-users to legitimate rather than illegal sources of content.

Bornstein & Bornstein, a firm of attorneys in San Francisco are being accused of censorship after reportedly using a DMCA copyright takedown notice to remove a controversial and secretly filmed video from YouTube. A certain Jackson West had attended one of the firm's sessions  on how to progress local evictions of longterm tenants, and video taped people protesting at a seminar given by the lawfirm . However you can still see the video via Vimeo - for now - from a link on TechDirt.


US fashion and make up blogger and YouTube star is facing a copyright infringement action from Ultra Records and Ultra International Music Publishing, home of Calvin Harris and Deasmau5. The case, filed in the United States District Court in Los Angeles, makes it clear the label has only begun its search of Phan’s many online productions, but has so far uncovered dozens of infringements, according to the complaint. Those videos have been viewed more than 150 million times, the plaintiffs said. However at lest one Ultra artist, Kaskade, the globally renowned US DJ who was nominated for a Grammy last year, is not happy with his label's stance tweeting "Copyright law is a dinosaur, ill-suited for the landscape of today’s media.”   “I’m not suing @MichellePhan + Ultra Records isn’t my lap dog. I can’t do much about the lawsuit except voice my support for her.".


And finally, Malibu Media, perhaps wrongly accused of being a copyright troll, has succeeded in an infringement action against Don Bui, an immigrant from Vietnam who is now a naturalized US citizen, after the judge in the case gave short shrift to his explanation that the reason he downloaded and kept 57 Malibu Media porn movies from Kickass Torrents was because he had no idea how torrents work - and saw nothing wrong in "ordering movies" from Kickass Torrents. The erotic film studio has filed thousands of lawsuits against "John Doe" defendants in the U.S., in many cases "collecting a couple of thousands of dollars from "scared file sharers who do not want to go to court." US District Judge Robert Jonker reportedly said this "Defendant has some quarrels with the details of how BitTorrent works, but nothing that the Court sees as a fundamental or material issue of fact. Even as Defendant describes the facts, using BitTorrent technology, he ultimately winds up with 57 unauthorized copies of Plaintiff's works--copies that did not exist until Defendant himself engaged the technology to create new and unauthorized copies with a swarm of other users. True enough, the process is not identical to the peer-to-peer file sharing program in Grokster. It is, however, functionally indistinguishable from the perspective of both the copyright holder and the ultimate consumer of the infringed work. In both situations, the end user participates in creating a new and unauthorized digital copy of a protected work. It makes no difference from a copyright perspective whether the infringing copy is created in a single wholesale file transfer using a peer-to-peer protocol or in a swarm of fragmented transfers that are eventually reassembled into the new infringing copy." Bui's attorney also suggested his client was a "poor immigrant" who didn't understand English very well" - that argument was shot down as well. More on TechDirt.

Thursday, 24 July 2014

Getting to grips with reality: when copyright claims grow out of proportion

Victor Lilley v Euromoney Institutional Investor plc and Metal Bulletin plc; Victor Lilley v Chartered Institute of Management Accountants; Victor Lilley v Aspermont UK Ltd [2014] EWHC 2364 (Ch) is actually a trilogy of actions on which Mr Justice Birss ruled in the Chancery Division, England and Wales, last week. In all three he was required to determine issues in relation to damages claims made by Lilley against against three publishers for copyright infringement.

Back in the 1990s, Victor Lilley wrote articles for various publications, for which he was paid a fee. Some time after their publication in traditional print format, copies of these articles appeared on the internet, without his permission. Lilley maintained that making his articles available on the internet infringed his copyright.  However, he claimed some extraordinary sums of damages: £27 million from Aspermont, £117 million from Euromoney and £450 million from CIMA. The claims were heard together.

Lilley applied for Birss J to recuse himself on various grounds, one of which was that he had executed what Lilley described as "yet another arbitrary, oppressive and unconstitutional action by servants of the government and the Court".  Lilley also sought an adjournment in respect of his claims against CIMA and Aspermont and for an order compelling Euromoney to answer a request for further information. In response, CIMA and Aspermont applied for Lilley's claims to be struck out on the ground that his claim for damages was "ludicrous".

In these proceedings Birss J had to determine (i) whether he should have recused himself due to apparent bias; (ii) whether the claims against CIMA and Aspermont should be adjourned on the basis that Lilley could not deal with all the claims together; (iii) whether to strike out Lilley's claims against them; (iv) whether the damages claim was indeed ludicrous; (v) whether Euromoney should be compelled to provide further information and (vi) whether a civil restraint order (CRO) should be made against Lilley.

Mr Justice Birss held as follows:

Recusal

Lilley had objected to the listing arrangements. However, the way his objections were dealt with would not lead a fair minded and informed observer to conclude that there was any real possibility that the judge making those directions was biased against him. What's more, the fact that judges reached the same or similar conclusions to questions they themselves had decided in an earlier case would not lead the fair minded and informed observer to think that a judge in that case was or would be biased.

By far the most proportionate, cost-effective and fair way to resolve the various issues arising in such closely related cases was to hear the applications together. It was important that the parties were on an equal footing, but Lilley's difficulties in preparing for the hearing were of his own making.

Striking out of Lilley's claims

Most of Lilley's claims against CIMA had already been struck out on the basis of the Limitation Act 1980. He had also been given the opportunity to provide further information in relation to any infringing acts on which he intended to rely which had taken place within the limitation period, but had not done so. Accordingly the rest of his claim against CIMA would be struck out.  His claim against Aspermont would not however be struck out; most of it was caught by the limitation period, just as happened with CIMA, but he still had a chance to provide particulars of alleged infringements falling within the limitation period.  The fact that his pleading was far too long, unclear and argumentative was not of itself a ground for strike out at this stage,

Calculation of damages

Lilley's damages would be calculated on an objective, willing licensor/willing licensee basis, at a sum which properly compensated Lilley for the infringements. This figure would be compensatory, not punitive in nature, looking at actual, commercially realistic rates for the appearance of articles on the internet.

The fair thing to do was to give Lilley one last chance to advance a proper case and set out a realistic claim relating to the quantum of damages.

Request for information

Lilley's request for further information was 22 pages long, argumentative and unclear, and Euromoney had gone to considerable lengths and cost to explain its position to him. Since requiring the company to set out yet further explanation of its position would achieve nothing, the request would be refused.

The CRO

Lilley's recusal application had been dismissed as totally without merit, as had his applications for adjournment and his request for further information. The very least that the court could do in such circumstances was to make a limited CRO.

In deciding whether a litigant had persistently issued claims or made applications which were totally without merit for the purposes of an extended CRO, the court should consider his conduct as a whole, so far as it could. All aspects of the litigant's conduct could be relevant, and not just his conduct in the proceedings in question.  Since Lilley had shown an irrational refusal to take no for an answer on numerous occasions, there were ample grounds for concluding that he had persistently issued claims or made applications which were totally without merit. An extended CRO would be made in each of the three cases before the court. This has the effect that, for two years, Lilley would be restrained from issuing claims or making applications in the High Court and the County Court without first obtaining permission.

Cases like this are always sad.  A claimant who knows or believes that his copyright has been infringed will often be ablaze with anger and resentment, especially when it appears that the infringer is well-resourced and has profited from the infringement.  However, it is important to retain a sense of proportion and that is what Birss J has done.

How much do European scriptwriters earn?

Last week on the 1709 Blog we reported that the Authors' Licensing and Collecting Society (ALCS) in the United Kingdom had commissioned a survey on authors' earnings, "What Are Words Worth Now? A Survey of Authors' Earnings", by Queen Mary, University London's Phillip Johnson, Johanna Gibson and Gaetano Dimita. The most recent ALCS News is now promoting a further survey, this time on behalf of the European Commission, and also relating to authors' earnings -- particularly scriptwriters. Says the ALCS:
The European Commission has asked Europe Economics and the Institute for Information Law of the University of Amsterdam to undertake a study on the remuneration of authors and performers. The study will focus on audiovisual and musical works and is therefore of most relevance to scriptwriters.

The results are likely to influence future EU policy on the remuneration of scriptwriters so the survey gives writers in audiovisual fields the chance to have their say in this.

The survey can be found at: http://ec.europa.eu/eusurvey/runner/remuneration_survey2014

Please note that all responses will be confidential: neither Europe Economics, the Institute for Information Law of the University of Amsterdam nor the European Commission will be able to identify you.

The deadline set for the survey is 8 August 2014 but this may be extended.
If you are a scriptwriter, act for one or know one, do please encourage them to participate.

Wednesday, 23 July 2014

Taylor Swift is incredible

Richard Tomasi
at the Lago di Caldonazzo ...
A few days ago the Wall Street Journal (WSJ) published an imaginative piece by American singer-songwriter Taylor Swift bearing the charming title For Taylor Swift, the future of music is a love story, in which she discussed the future of music and music industry. 1709 Blog friend Richard Tomasi (@FathersNotCool) analysed it for us. As his Twitter handle suggests, Richard is a fun Italo-Irish living in London. He has now cemented a passion for copyright with a PGDip in UK, US & EU Copyright Law, having previously achieved a BEng in Telecommunications and an MA in Mass Communications. A professional career in IP Law is the path he now wants to take, having just completed the GDL.

Here's what Richard writes:


Taylor Swift is incredible. There, I said it. No, not that the 24-year-old country singer is so extraordinary as to seem impossible, but in the sense that she is not credible or, if you prefer, hard to believe. 

I am not, however, talking about her music. 

I do not know her music. 

I am sure I have probably heard some of her tunes, by chance, on the radio whilst waiting in a barber shop or whilst watching TV and it popping up in an advert. And I am sure it was delightful and creative. 

I can definitely say I know what she looks like, but that is because she dated one of the boys from One Direction. 

... and Taylor Swift
at LA airport
(note the mutual passion
for check shirts)
And Twitter was not happy when they broke up. 

But she is also a known and renowned cantautrice, having won many an award from an industry that likes giving out awards. 

An industry that she sees as just coming alive, according to the column she wrote for the Wall Street Journal earlier this month. The article was to be, it seems, yet another fuse, ignited by her, of a stick of dynamite labelled ‘Internet’. If this was the WSJ’s intention, well, kudos! The internet clambered to shout and scream its opinion. And sifting through the white noise, there are some very valid points made

But this was to be expected, though, when a successful performer – in music industry terms – decides to predict the future of her industry. She becomes somewhat of an easy target. Solely because the industry goes way deeper than the faces we see on the various platforms that flood our daily lives.

 “Where will the music industry be in 20, 30, 50 years?” she opens wistfully. A question which she does not particularly answer, but not because it is quasi-impossible to answer (just think, 50 years ago the Phillips tape cassette recorder – the little device that would release unprecedented piracy – was only one year old) but she attempted to do so without mentioning the word ‘copyright’ once. Not once in 1,174 words. 

As I said, the girl is incredible.

Copyright is the law that governs who can commercially exploit cultural creations and to what extent. Musical creations are one of the subsets in the category. To quickly understand how much copyright, the foundations of the music industry, has evolved in the last 53 years (that way we coincide nicely with the Rome Convention yet stay within Taylor’s predictive order of magnitude) one need only know that when Thin Lizzy signed to Decca in 1970 their contract was three and half pages long whilst the Gorillaz had to plough through over 100 pages when signing to EMI in 2003. 

So, you see, not to consider how copyright may evolve from now to 2064 when considering the future of the music industry is a bit of an oversight. An oversight made by someone who goes on to say that “Music is art, and art is important and rare. Important, rare things are valuable. Valuable things should be paid for.” 

This, in itself, is a massive statement, something I may ask the next song-writing busker I see in London about. 

The 80s are over
(thank goodness)
Yet it does not cross her mind to question or explain how the scarcity of her intangible product is created? 

The music industry, as we know it, will be fine as long as the copyright owners, usually the record labels, find ways to exploit their ‘property’. That is, it must be prepared to change and evolve. We must stop comparing the now to the 1970s/80s. Copyright and methods of distribution have changed quite significantly since. Historically, this has been done through lobbying for a more owner-friendly legal approach, at the expense of the consumer, instead of actually coming up with new viable business models. For example, the very robust anti-circumvention elements that popped up in US DMCA and the parallel EU InfoSoc Directive seem to have come about via the creative industries’ – or as I like to call them, entertainment industries’ – lobbying. Was it pressure from the very same lobbyists that led to the US Congress passing the Sonny Bono Act? Napster, well, we know what happened there, hashtag Metallica.

The industry will survive. It has always come through significant technological changes somewhat unscathed. It does so by finding new means to exploit its property, property that was created via copyright. That is, it does eventually find new methods of exploitation but only after it realises that it is probably best to adjust to the new ways of distribution/consumption that have evolved. The day of album sales as the primary source of revenue, and as a financial indicator to how well a performer is faring, is now well in its twilight zone. It is naive to write about the health of the music industry by simply looking at the decline in album sales. The diagnosis will inevitably be terminal

The big artists are now brands, their image managed and merchandising looked after by a team of IP lawyers. New streams of revenue have developed and are growing as I write, from the concept of crowd-funding where music is treated like a commissioned work – a kind of first-you-pay-then-I-will-create basis – to the idea of ‘fairtrade music’. It shows that perhaps some of the people behind the exploitation of copyright-protected music are as creative, if not more in some cases, as the actual songwriters. 

This business creativity, financially successful or not, is nothing new, from David Bowie issuing bonds on his future income in 1997 to Radiohead’s pay-what-you-want experiment, via the internet, with In Rainbows ten years later (the band actually made about $0.15 more per album than it would have had through a conventional label release). 

Yet using the internet to disperse your songs had been done before then by the Grateful Dead, Beastie Boys and Bowie. Radiohead, however, gave the decision on how much their work was worth to the listener – successful this time, because of their superstar status. 

It's all about the balance ..
But how do you keep it?
But this can’t last forever as copyright must also endeavour to keep a balance between the author and a public that has quicker and ‘illegal’ ways to access the author’s works. 

The industry depends on copyright, and therefore the real question Taylor Swift should have been posing is: will copyright survive? 

I believe that it can only do so if it retains its flexibility, via its exceptions. The real issue, I believe, is not if the industry will survive but the music that can be exploited, and the fact that some of that music is actually protected by law and for such long terms – "The forms of hit songs are so strictly standardized, down to the number of beats and the duration, that no specific form appears in any particular piece", wrote Adorno in 1938. 

Perhaps it is time to better divide the different categories that can enjoy the protection of copyright and perhaps develop different tests of originality. That is, develop a clearly defined off-shoot set of rights just for musical creations, under the copyright tree. As it stands now, as music is art and art is rare and valuable, and if by valuable we use a monetary standard, well, then Happy Birthday is the most artistic piece of music ever written. 

And remember, the 1980s was a golden age for the industry and not the norm. How excited were the labels when they knew they could get a listener who owned a tape to buy the same album on the spanking new CD? 

Tuesday, 22 July 2014

My Little Pony gets 3D printed

3D printing is a bit of a buzzword at the moment and its not the first time that this blogger has written about protection of IP rights in the 3D printer world. Rightsholders need to be thinking about how best to exploit 3D printing rather than how to avoid it, and one company that has done just that is Hasbro. 

Rather than targeting creators of fan art to stop them customising the popular My Little Pony range (because, really trying to stop your fans from enjoying your product is not a great business proposition), Hasbro is going to partner with 3D printing company Shapeways to sell fan art.

Five artists will design My Little Pony figurines which can be printed to order. John Frascott, chief marketing officer at Hasbro, describes the process as "mass customisation" - the figurines don't make sense for mass manufacture but enough people will buy them that Hasbro can justify allowing the artists to create and sell them.

It's not clear whether the artists will be employed by Hasbro or whether they are merely granted permission to create fan art (likely the former, for Hasbro to retain control of any copyright created) but it is clear that this is a clear demonstration that we will see more and more customised goods in future, meaning more and more 3D printing.

What has this got to do with copyright?

Well ignoring any trade mark rights which Hasbro may have in My Little Pony, it is likely that the main IP rights subsisting in the figurines are copyright and/or design rights. This raises a few important questions, namely:

1. Are figurines artistic works for copyright purposes (the Storm Trooper helmets were not)?

2. If not, could they be works containing the author's own intellectual creation and so subject to copyright protection in the rest of Europe? (Or in the UK if the concept of a work is found to be harmonised…)

3. If copyright does subsist, will the proposed private copying exception allow people who have access to the design files to make copies for private use at home?

4. Will the files appear on P2P file-sharing sites, and if so how long before we see an application for a blocking injunction against counterfeit My Little Pony files?

Answers on the back of a postcard please!

Now Thailand, Vietnam and the UAE avail themselves of Berne Appendix

Last week this blog recorded the renewal by Yemen of its declaration relating to the renewal of its facility to take advantage of Articles II and III of the Appendix to the Berne Convention's Paris Act of 1971. A week later, from Berne Notification No.264, we learn from WIPO that Thailand has declared that it is renewing its decision to avail itself of Article II for a further decade. That's not all: Vietnam has renewed its Article II and Article III rights according to Berne Notification No.265, as have the United Arab Emirates -- apparently one of the world's richer jurisdictions -- under Berne Notification No.266.

Monday, 21 July 2014

Tuscan mayor orders destruction of cannabis-made art installation

Is there anything more reinvigourating than flying back to one's own native hometown to catch up with family and friends and realise - once again - that copyright is all around us? 

This is what happened to me last weekend when, arrived in my native Tuscany or - to be more specific - the town of Arezzo [also hometown to Piero della Francesca, Petrarch, Vasari, and popular contemporary musicians, to name just a few], I asked my non-copyright parents the usual question: "Any news from Arezzo?". 

Having started with their usual list of major and minor occurrences, they also casually mentioned that a few days ago something happened in the context of major contemporary art public initiative Icastica

Icastica outdoors
Now on its second edition, Icastica is a cultural festival that includes indoors and outdoors exhibitions and art installations, as well as performances, recitals, and lectures. 

A few days ago, not only did some representatives of an animal protection league protest against a black sheep by Damien Hirst and urge actress Anna Falchi not to visit the offensive display, but the mayor ordered the destruction of an art installation named Promenade.

Back in May it was announced that artists Valentino Carrai, Luca Mauceri and Carlo Trucchi would have started working together with art critic Danilo Sensi on an art installation that would consist of a labyrinth made of cannabis sativa

The idea was to re-discover old traditions - notably that a couple of centuries ago cannabis sativa was grown in Tuscany also for use in clothing and paper - and convey the message that any material may become art. The labyrinth would have been ready by mid-July, when plants would have reached a height of 2 meters and could be thus given an artistic shape.

The 3 artists who tried to realise Promenade
(disclaimer: background *not* cannabis)
Sadly none of the above will happen, as the mayor of Arezzo ordered the destruction of Promenade, on fear that - despite previous authorisation and the results of chemical analyses - the plants might be dangerous for the health of visitors. 

The mayor stated: "It was not possible to exclude the toxicity of those plants, even if chemical analyses excluded it; however, lacking absolute certainty, I could not allow them to grow in our town."

As soon as I heard this piece of news, of course I thought: but what about the moral rights of the artists?

Promenade before ...
Among other things, Article 20 of the Italian Copyright Act (Legge 633/1941) states that independently from the economic rights, and also after these have been waived, the author has the right to object to any deformation, mutilation or any other modification of or any act that is meant to damage his/her work, and which may prejudice his/her honour or reputation.

It is not difficult to imagine that destruction of their work of art would likely infringe the three artists' right of integrity, especially if it is true (as the lab analyses suggested) that the installation would not be dangerous for the health of visitors.

However, subsequent Article 22 states that the author who has known about and accepted the modifications to his/her work cannot prevent their execution or seek removal. 

Is this what happened with regard to Promenade?

From the report of local newspaper La Nazione, the response would appear in the negative. Art critic Danilo Sensi stated: "I was requested a certificate that would attest the non-toxicity of the seeds used, which I asked Assocanapa to produce ... Without waiting [for the certificate], the work has been demolished. It's all very depressing, but this story is not over."

... and after its destruction
What does this mean, that the artists are planning to sue Arezzo municipality for copyright infringement, notably infringement of their right of integrity?

Stay tuned for further updates from Tuscany - Copyright Chapter. 

Meanwhile, another pressing question arises: what has happened to all that cannabis? Has it been destroyed or not? If not, who has it?