1709 Blog: for all the copyright community

Thursday, 27 November 2014

Harmonising the unharmonisable? Maybe it's not so impossible after all

Harmonising Copyright Law and Dealing With Dissonance: a Framework for Convergence of US and EU law is a slim, attractive volume composed by two of this blogger's friends -- Sheldon W. Halpern (Emeritus Professor of Law, Moritz College of Law, The Ohio State University) and Phillip Johnson (Professor of Commercial Law, Cardiff University, Wales). Another in the seemingly unending sequence of bright and challenging IP books coming off the presses of Edward Elgar Publishing, this is neither textbook nor compendium but a clever, well-researched and constructive text that is enjoyable to read. It would appear to be the child of a happy combination of accurate scholarship and manifest but overstated enthusiasm.

According to the web-blurb:
This insightful study explores the constitutional, institutional, and cultural barriers to harmonisation of the copyright laws of the United States and the European Union [this structural-cultural approach makes a refreshing change from the studies focused on the effects of unharmonised substantive copyright law and the commercial issues surrounding their resolution: this blogger may have missed something, but he doesn't see a large and pre-existing literature on this topic]. It considers these matters in the real world transnational environment in which copyright law operates and suggests that the reality transcends the differences, offering a framework for meaningful harmonisation.

The authors examine in detail and offer a critique of the sporadic and historic attempts at one or another form of harmonisation, via treaty and otherwise, from the creation of a minimal standards regime to the proliferation of substantive treaties. They similarly examine the respective competencies of the US and the EU to adopt a transnational regime, and propose a workable framework consistent with these competencies.

Offering a critical analysis of treaties and other prior attempts at forms of harmonization, this book will have special appeal to governmental and nongovernmental individuals involved in the ongoing efforts of WIPO and the WTO, as well as copyright and intellectual property practitioners with internationally oriented practices.
The must-read bit of this book is Chapter 5, which sketches out the framework for harmonisation and concludes that the obstacles to harmonisation, despite appearances, are more theoretical than real -- and can therefore be overcome.

Bibliographical data: publication date December 2014. x + 195 pages. Hardback ISBN 978 1 78254 418 0, ebook ISBN 978 1 78254 419 7. Price US$110 (online from the publisher, US$99). Web page here.

"IP Management: Copyright in the Digital Age": a webinar

"IP Management: Copyright in the Digital Age" is the title of a forthcoming Oxfirst webinar conducted by Bruce Lehman, taking place on Monday 1 December 2014 at 15:00 GMT​. For many IP folk, Bruce is indelibly associated with registered IP rights since he was Director of the United States Patent and Trademark Office for half a decade back in the 1990s, but he has a long and distinguished involvement with copyright: from 1974 to 1983, as Counsel to the Committee on the Judiciary of the U.S. House of Representatives, he was the Committee's principal legal counsel on copyright matters, in which capacity, he advised it during the process of consideration and final passage of the 1976 Copyright Act. According to Oxfirst:
This talk examines modern copyright in the context of historical practice, with a particular focus on the EU and the WIPO copyright treaties, as well as on the global implications for current digital and multi-national copyright issues. Mobile technologies, social media, on-demand services, internet streaming, and user-created content have become the norm across the internet and all over the world. The global nature of these industries and technologies has brought new opportunities and challenges that transcend traditional borders and cultural barriers. At the same time, there is an asymmetry between countries with robust cultural and innovation economies and countries with emerging economies. The former boast strong copyright enforcement and economic incentives [this is true, but they also boast better techniques for infringing or circumventing copyright and the technical means of protecting it], while the latter lack a well-developed system or even a market from which copyright-related stakeholders can benefit. This dichotomy signals an urgent need to reexamine our national and international copyright principles, laws, and treaties. We must help and incentivize creators to protect and promote their work, domestically and abroad [this blogger appreciates this sentiment, but wonders what evidence exists as to whether the present uncertainty and free-for-all has failed to incentivise creators, particular now that we are so accustomed to the phenomenon of user-generated content. Worth discussion?].
The webinar is free, but space is limited. Click here to register.

Wednesday, 26 November 2014

UK Private Copying Exception faces Court Challenge

As readers will know, on 1 October 2014, the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 came into force. This introduced the UK's private copying exception, as contemplated by Article 5(2)(b) of the Copyright Directive (2001/29/EC). At its heart, the purpose of the UK exception was said to be to legitimise format-shifting i.e. it allows consumers to copy music from their CDs onto their MP3 players (which, as you may well be thinking, people have been doing for years anyway, regardless of lawfulness) although it also covers cloud lockers and other types of personal copying. 

The Government now faces judicial review over its implementation of the legislation. The claimants are the British Academy of Songwriters, Composers and Authors (BASCA), Musicians' Union (MU) and UK Music. Whilst they support the introduction of a private copying exception to keep up with the development of technology and practice, the government has introduced the exception without means of 'fair compensation' for musicians, composers and rightholders, as required by the Copyright Directive. 

The lack of compensation sets the UK apart from other EU Member States, whose exceptions provide for fair compensation, usually in the form of a levy on blank media or devices used for copying.  As the UK Music press release puts it  "It is the compensatory element of a private copying exception that lies at the heart of EU law and underpins common respect for the songwriters, composers and musicians whose work is copied."

Or as "The Register" chooses to put it "For reasons known only to itself, officials at the Intellectual Property Office (IPO) insisted that the UK government didn’t have to [introduce a levy], arguing the value of the music was “priced in”.

The judicial review will (if the applicants are granted leave to pursue the case) analyse the government's decision-making leading to the introduction of an exception without the critical element of 'fair compensation', and ascertain whether this means the legislation is ultra vires due to incompatibility with EU law. The complainants' intention is for the law to be re-made, to provide compensation for rightholders. 





The Copykat - Dotcom surprised by criminal charges ........

Remember John Steele, Paul Hansmeier and Paul Duffy, best known from reports as being the attorneys behind controversial 'troll' company Prenda Law ? Well - they are back in the news!  And still annoying judges! However its not all bad news after an Illinois federal judge denied motions for contempt and sanctions against the trio after a defendant in a copyright case said the attorneys for so-called porn troll Lightspeed Media Corp had blocked discovery and lied about being insolvent to avoid attorneys’ fees, saying he had not presented sufficient proof. U.S. District Judge David R. Herndon said that while individual defendant Anthony Smith had “uncovered questionable financial activity” on the part of Lightspeed’s counsel —  Steele, Hansmeier and  Duffy,  — and that the arguments raised and the records cited left the court suspicious of their previous representations, Smith had failed to show enough evidence to have his contempt motion granted. “The court does not believe that Lightspeed’s counsel have conducted themselves in a professional manner,” the opinion states. “However, suspicion is not a sufficient basis for a finding of contempt.” In March, Judge Herndon held the attorneys in contempt for violating a November sanctions order requiring them to pay $188,000 in legal fees and costs to Comcast Cable Communications LLC and AT&T Internet Services and $72,000 to Smith. The court further sanctioned the attorneys in the amount of 10 percent of the original sanction. More on Law 360 here

One of the USA's top cybersecurity and intellectual property officials says he knows how to make sure artists and musicians reap all the benefits from their works – by making illegal streaming of music and movies a felony. “[W]e believe that federal criminal law should be modernized to include felony criminal penalties for those who engage in large-scale streaming of illegal, infringing content in the same way laws already on the books do for reproduction and distribution of infringing content,” Alex Niejelow, an intellectual property and cybersecurity official, wrote in response to an online White House petition.

TV-over-the-Internet startup Aereo has filed for bankruptcy, bringing to a close its long-running copyright battle with US television networks.

Spy Ghana reports that Ghanaian musicians are being asked to get involved in copyright issues; Bessa SimonsVice President of the Musicians Union of Ghana (MUSIGA), has urged up and coming musicians to get involved in copyright related issues saying that most musicians of the older generation retired from music with little because they never took interest in copyright related issues. Bessa was a member of the band Osibisa andd said that that even though the collection of royalties by Ghana Music Rights Organisation (GHAMRO) on behalf of the right owners seems to be in its infant stages, it will get better with the young great musicians pushing it forwards noting “When UK started PRS for music, the first collection was about GBP 1, 900 and they had members up to the tune of 190. Now as we speak, they have collected over GBP £666 million and they are sharing it to about 100,000 musicians; and that is where we want to get to telling musicians "You are the only people who can propel it. So please get interested in the copyright issues”.

The author and creator of Padding Bear, Michael Bond, has revealed that he once considered suing the parents of Top gear presenter Jeremy Clarkson after learning they were selling soft toy versions of the famous bear.  In an interview with The Sunday Times Bond said that he was alerted to the fact that Shirley and Eddie Clarkson were selling the toys when a Surrey shopkeeper called him with the news in the early 1960's. 

Also in the UK, and perhaps unsurprisingly, cross-industry trade body UK Music, working with the Musicians' Union and British Academy Of Songwriters, Composers And Authors, is set to fight the private copy exemption added to British copyright law earlier this year through the courts saying "The MU, BASCA and UK Music welcome the purpose of the new measures, namely to enable consumers to make a copy of their legally acquired music. However, this is a bad piece of legislation as it incorrectly implements the law by failing to include fair compensation for musicians, composers and rightsholders" expaining "The private copying exception will damage the musician and composer community. It contravenes Article 5 (2) (b) of the [European] Copyright Directive which includes a requirement that where a member state provides for such a copyright exception - as the UK now has - it must also provide fair compensation for rights holders".

Judge Denise Cote has denied Microsoft’s request to dismiss a lawsuit filed by Getty Images for copyright infringement resulting from a feature of Microsoft's Bing search tool that allowed people to easily embed digital photographs onto their websites. Court documents filed in New York’s federal court show that Microsoft’s request to dismiss the lawsuit has been denied. In a statement, a Microsoft spokesman said: “We’ve already disabled the Bing image widget beta and believe there is no need for this case to continue.”


And finally - a rather staggering 'confession' from none other than Kim Dotcom, the former boss of Megaupload. The larger than life figure has told an online forum that he underestimated the threat of legal action that's left him fighting extradition from New Zealand to the USA and the 'surprised; 40-year-old said he regretted not taking threats over copyright from the Motion Picture Association of America seriously enough. Dotcom said that he and his advisers had monitored civil copyright cases and never foresaw the likelihood of criminal charges saying "No one ever for a minute thought that anyone would bring any criminal action against us" and "We had an in-house legal counsel. We had three outside firms working for us and not once - and they've reviewed our sites completely - not once had any of them suggested any criminal risk at all." Hmmmmm! 

Monday, 24 November 2014

Fair compensation for private copying: another EGEDA reference

EGEDA is no stranger to this weblog, having featured in this post on Case C-387/09 Entidad de Gestión de Derechos de los Productores Audiovisuales (EGEDA) v Magnatrading S.L., a private copying "fair compensation" reference for a preliminary ruling from the Spanish Juzgado Mercantil that was lodged on 1 October 2009 and resolved by a brief Order just over a year later.  Another EGEDA "fair compensation" reference is in the air, as a media release from the UK Intellectual Property Office tells us:
CJ case: C-470/14: EGEDA and others

We have received notification of a new case referred to the Court of Justice of the European Union (CJEU): C-470/14: A reference from the Spanish Court concerning its domestic scheme for the payment of fair compensation for private copying.

The questions referred to the Court of Justice (CJ) for a preliminary ruling are:
1. Is a scheme for fair compensation for private copying compatible with Article 5(2)(b) of Directive 2001/29/EC where the scheme, taking as a basis an estimate of the harm actually caused, is financed from state resources, and the cost of compensation is therefore not borne by the users of those private copies?

2. If yes, is the scheme compatible with that provision where the total amount allocated via state resources to fair compensation for private copying has to be set within budgetary limits established for each financial year?
This case and the questions referred to the Court can also be viewed on our website at:

https://www.gov.uk/government/publications/references-to-the-european-court-of-justice/references-to-the-european-court-of-justice-2014

If you would like to comment on this case please e-mail policy@ipo.gov.uk by 01 December 2014.
The media release adds the following information:
We understand how difficult it is to provide detailed comments in the time available. The IPO has tight time limits in which to consider and provide advice to ministers on CJ cases. In order to help us provide the right advice, we just need a short email by the deadline stating whether you think the UK should intervene and some general points about how you think we should answer the questions.

You are welcome to follow this email up with more detailed comments after the deadline, which can be taken into consideration if we have chosen to submit observations or if we decide to attend a hearing.

If you are aware of any references to the Court of Justice that are not currently included on our website, you are also welcome to send us your views. If you choose to do this, please include clear information about the case to help us to identify it.

Further information on intellectual property CJ cases can be found on our website https://www.gov.uk/government/publications/references-to-the-european-court-of-justice.

Wednesday, 19 November 2014

Do you want to hear about the UK Copyright Tribunal?

If so, then somewhat belatedly, this blog has discovered, thanks to Justin Watts, that the place to be next Monday, 24 November, is at a meeting of the UK chapter of the AIPPI (Association Internationale pour la Protection de la Propriété Intellectuelle), where there will be a presentation from a man who knows - Henry Carr QC.

This is what AIPPI says:

Since its inception in 1988, the primary purpose of the Copyright Tribunal has been the resolution of commercial licensing disputes in relation to the use of copyright material, often dealing with licensing schemes offered by collecting societies. Standing at the interface between collecting societies and copyright users, the Copyright Tribunal is no stranger to controversy. The subject of swingeing criticism in a 2007 IPO Review and accused of having rules and procedures that were “pernickety” and “otiose”, it was challenged to improve. 

Henry Carr QC, elected as a Deputy Chairman of the Tribunal in 2010, will describe the work of the Copyright Tribunal as it has risen to the challenge of improving its procedures and has navigated the growing digital landscape. He will discuss major disputes on which the Tribunal has adjudicated, including BPI v MCPS [Blogger's note - a superb judgement from Robin Jacob QC, as he then was] and Meltwater v NLA.  

Baker & McKenzie LLP has kindly agreed to host this event (100 New Bridge Street, London, EC4V 6JA) and to provide drinks afterwards. 

We are told that attendance is free for UK members of AIPPI and new applicants for membership, and a bargain at only £25 for non-members.  The event qualifies for 1.5 CPD hours, for those who are ken to collect such things.

If you would like to attend this event please register at: https://copyright-tribunal.eventbrite.co.uk

BLACA - a interesting evening trying to find the new public

Last Thursday saw a packed house at the BLACA evening seminar simply titled Linking. The topic was primarily aimed at learning from the differing opinions the speakers had on the decision by the Court of Justice of the European Union in Svennson v. Retriever Sverige AB (C-466/12)(Svensson), a case that addressed the issue of hyperlinking and that ruled that the owner of a website may use hyperlinks to redirect users to copyright protected works which are freely available and accessible on another site, without the permission of the copyright owner. The 1709's first blog on this was in February 2014 here. A trio of professors were on hand to offer their expert opinions, and the panel was ably chaired by a fourth, Professor Paul Torremans from the University of Nottingham. 

First up was Prof. Dr. Jan Rosen, Professor of Private Law at Stockholm University, who explained the facts behind the Svensson case and the ALAI paper that preceded it, including the fact that the original website that featured the copyright protected works in question only made them freely available for three weeks (at www.gp.se) and then the site restricted access. As the case was ultimately settled (with Prof Rosen saying that as far as he was aware the claimants in the case, two journalists, were happy with the end result) we are left with the CJEU exploring a new approach to the exhaustion of rights that which may or may not - be entirely rational. ALAI's  ten-page paper Report and Opinion on the making available and communication to the public in the internet environment – focus on linking techniques on the Internetwas adopted unanimously by ALAI's Executive Committee back on 16th September 2014 concluding that with hyperlinks: (i) The making available right covers links that enable members of the public to access specific protected material; (ii) the making available right does not cover links that merely refer to a source from which a work may subsequently be accessed, and, accordingly, courts should not introduce a general presumption of the rightholder’s consent to further communication to the public of what initially has been posted on the Internet with the rightholder’s consent, since this would amount to introducing an exception or limitation to the right, while general exceptions to the scope of the “making available” right require legislative action not least because the provisions of the 'making available' right and 'communication to the public' found in WCT, the Berne Convention, the 1996 WIPO Copyright Treaty as well existing EU Directives and CJEU decisions. "This finding does not exclude that a court may be inclined to infer such consent to permit the link based on the individual circumstances of a case".

Article 3(1) of of the InfoSoc Directuve of course provides that Member States shall provide authors with the exclusive right "to authorize or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them."

Prof. Dr. Silke von Lewinski, Senior Research Fellow, Max Plank Institute for Innovation and Competition, spoke on CJEU's "new public" approach and one thing that stood out from this talk and indeed from the questions at the end of the seminar from a very distinguished audience (with a glittering array of judiciary, practicioners and academics )was how open this concept could be. Whilst a "new public" could be defined as "an audience not envisaged by the copyright owner when authorising the initial communication to the public" if seems to defy detailed definition. If protected content is 'communicated' by the internet to say a London focussed audience even if for a restricted period of time, or even if for example geo filtered - is that audience then the whole of England and indeed is Europe then the envisaged public so there is no 'new public' left? And what will be the effect of technological restrctions placed on content by rights owners? Does the "new public" approach mean that the only way to protect content is to have technological measures in place to restrict acceess - even where the author has not targeted this new public or indeed wanted their work to be under some form of "compulsory licence" once its made available  - a copncept which eats at the very heart of the notion of 'authorisation'. 

Four other cases were mentioned in the discussions: Case C-306/05 Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SL where Advocate General Eleanor Sharpston held that communication of TV programmes to hotel guests by means of television sets which are fed a signal initially received by the hotel constitutes ‘communication to the public’ within the meaning of Article 3(1), The then ECJ went on to hold that "communication to the public" should be interprested broadly and that on the facts the clientele of a hotel formed a new public. The linked cases of C-403/08 Football Association Premier League Ltd and Others v QC Leisure and Others and C-429/08 Karen Murphy v Media Protection Services Ltd where the CJEU held that copyright owners must authorise any communication to the public and such authorisation was required where a person makes the protected work "accessible to a new public", and then finally the TVCatchup case C‑607/11 ITV v TVCatchup  which found that the InfoSoc Directive provides a high level of protection to authors and that it followed from this broad interpretation that the author's right of communication to the public covers any transmission or retransmission of the work to the public not present at the place where the communication originates by wire or wireless means, including broadcasting.  Authorising the inclusion of protected works in a communication to the public does not exhaust the right to authorize or prohibit other communications of those works to the public as made clear by Article 3(3). 

Finally, and before questions, Prof. Lionel Bently, Herchel Smith Professor of Intellectual Property, University of Cambridge, gave a fascinating insight into the European Copyright Society (reavealing that whilst it was composed of renowned scholars and academics from various countries of Europe, seeking to promote their views of the overall public interest, it was "undemocratic", "self selected" and perhaps more importantly, that not all of its opinions are agreed by all of the members. Thoe that agree sign up. The Opinion of the European Copyright Society (ECS) puts on record its views on the questions before the CJEU in Svensson, "which relate to the hugely important question of liability of those who create hyperlinks to material on the Web without the permission of the copyright holder in that material." The Opinion argues that "hyperlinking in general should be regarded as an activity that is not covered by the right to communicate the work to the public embodied in Article 3(1) of Directive 2001/29. The Opinion offers three reasons for this conclusion: firstly, that hyperlinks are not 'communications' because establishing a hyperlink does not amount to 'transmission' of a work, and such transmission is a pre-requisite for 'communication'; secondly because the rights of the copyright owner apply only to communication to the public 'of the work', and whatever a hyperlink provides, it is not 'of a work'; and thirdly because, even were a hyperlink to be regarded as a communication of a work, it is not to a 'new public.' This does not mean that creating hyperlinks in no circumstances involves liability. In fact, as is clear from national case-law, different forms of hyperlinking may indeed give rise to the following forms of liability, such as accessory liability (particularly in respect of knowingly facilitating the making of illegal copies); for unfair competition; and for infringement of moral rights; and possibly for circumvention of technological measures. Only the last of these has been the subject of harmonization at a European level, and thus falls within the competence of the Court of Justice.". Professor Bently made it clear he and perhaps other members of the ECS who has signed the opinion had thought some more on the topic and that the ECS is not saying that hyperlinking means you can "get your music for free" or that "anti circumvention of protection technology is OK". 

It would have been interesting to have heard the panellists views on the recenty decision by the CJEU in BestWater International GmbH v. Michael Mebes and Stefan Potsch (C-348/13) where the Court held that that framing content - here  copyright protected videos - is not a copyright infringement, even if the framing occurred without the permission of the copyright owner because it is not a “communication to the public” within the meaning of Article 3(1) of the Copyright Directive (2001/29/EC)

But time was against us, and whilst this is not a criticism of the seminar or indeed the speakers, to this blogger the matter at hand felt unresolved. Unsurprising perhaps where there seemed to be a general acceptance that Svensson has left us with 'a bit of a mess', that the 'new public' is an as yet to be properly defined concept - and what constitutes legitimate and illegitimate hyperlinking is still not crystal clear. Whilst initially many thought Svensson was 'opening up' the internet, there is now a fear that worried content owners might begin to place more technological barriers to access - paywalls, log ins etc - to avoid the possibility that content had already been made freely available to the public at large.

Previous thoughts on the 1709 blog http://the1709blog.blogspot.co.uk/2014/02/hyperlinks-making-available-and-new.html

Tuesday, 18 November 2014

Still thinking of Deckmyn, parodies and EU copyright? You are not alone!

The original work ...
On 3 September 2014 the Grand Chamber of the Court of Justice of the European Union (‘CJEU’) issued its decision in Deckmyn [here, here, here]

As 1709 Blog readers will remember, this was a reference for a preliminary ruling from the Brussels court of appeal, seeking clarification as to the notion of parody under Article 5(3)(k) of the InfoSoc Directive

This provision allows Member States to introduce into their own copyright laws an exception or limitation to the rights of reproduction, communication and making available to the public, and/or distribution, for the purpose of caricature, parody or pastiche. It does so without providing a definition of these concepts.

Having clarified that ‘parody’ is an autonomous concept of EU law, in its ruling the CJEU held that this must be understood according to its usual meaning in everyday language. A parody has just two essential characteristics: first, to evoke an existing work while being noticeably different from it and, secondly, constitute an expression of humour or mockery. 

... and its alleged parody
The CJEU also stated that the person who owns the copyright to a work has a legitimate interest in ensuring that this is not associated with the message conveyed by its parody if it is discriminatory/racist.

I was very much intrigued by Deckmyn, as it also seems to me that this decision is not limited to parody, but is indeed topical to EU debate on copyright exceptions and limitations in Article 5 of the InfoSoc Directive, as well discourse around activism – rather than mere activity – of the CJEU in this area of the law.

Similarly to what has happened in relation to other aspects of copyright, eg the originality requirement and the notion of work – also in this case the Court might have pursued some sort of de facto harmonization, notably with regard to moral rights.

So, I decided to write an article on this (entitled Just a matter of laugh? Why the CJEU decision in Deckmyn is broader than parody), which has now been accepted for publication in the Common Market Law Review.

My contribution is divided into two parts. The first part explains the background to this reference, and summarizes the Opinion of Advocate General Cruz Villalón on 22 May 2014 [hereand the subsequent findings of the CJEU. The second part discusses specific aspects of the Opinion and the ruling. First, the practical implications of the decision are reviewed. Secondly, the systematic impact of the Deckmyn case is addressed, including the actual harmonizing force of Article 5 of the InfoSoc Directive, as well as whether this ruling has introduced trade marks concepts into EU copyright (notably tarnishment), or even harmonized moral rights.

If you are interested in these issues, you can find my article on SSRN here.