1709 Blog: for all the copyright community

Monday, 30 April 2012

Just When [Europe] Thought It Was Safe to Go Back In the Water

And just as the Brasilian collecting society satellite model starts to be talked about as a "desirable" option for Europe - with all its cross-border licensing conundrums (see previous post here) - trouble erupts in Brasil with Cory Doctorow on boingboing reporting of collecting societies in Brasil that "15 directors have been indicted for various types of fraud" and that Brasil's Senate is proposing a new law to revamp the collection system.  Is there any good news out there?

Is Titanic 3-D a new work?

Les Demoiselles d'Avignon
An interesting article recently appeared in The New York Times. It concerns the use in both the 1997 Titanic film and its 2012 3-D version of a copy of Pablo Picasso's most celebrated 1907 painting Les Demoiselles d'Avignon
As is well known, the painting did not sink with the Titanic, but placidly hangs on the walls of the Museum of Modern Art (MoMA) in New York. 
Picasso died in 1973 and the rights (including image rights) in the huge artistic legacy the Málaga-born artist left behind are now administered by the Picasso Estate.
At the time when the original Titanic film was made, the estate refused to grant film-maker James Cameron permission to include any images of Les Demoiselles d'Avignon. However, Cameron used an image of the painting anyway and Titanic features a scene in which Rose-Kate Winslet looks at what is presumably a copy (?) of the painting.
Rose while admiring Picasso's revolutionary painting
It was only after the Artists Rights Society complained that the film-maker agreed to pay a fee for the use of the image of Picasso’s 1907 work.
Now that Cameron has released a 3-D version of Titanic, the Artist Rights Society has asked him to pay again for the use of the painting's image, asserting that the 3-D version of the film is a new work and, as such, is not covered by the previous agreement.
I don’t expect we’ll have any difficulty,” said Theodore Feder, president of the society, who contacted James Cameron a few days ago.
Arguing that a 3-D version of a film released a few years earlier is a new work may have interesting consequences, which go far beyond requests for using the image of a painting. 
Copyright: king of the world?
This view implies that Titanic 3-D is a derivative work, as per §101 of the US Copyright Act, according to which
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications,which, as a whole,represent an original work of authorship, is a “derivative work”.
However, as is made clear by §103(b), 
The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
One may wonder whether the use of 3-D techniques is sufficient to a finding that "new" copyright subsists in the entire 3-D version of a film and be such as to trigger new requests for the use of images which featured in earlier 2-D version. 
Certainly, if this was the case, then would it be sufficient to release 3-D versions of films in which copyright is about to expire to extend the duration of protection almost indefinitely? In other words: is 3-D the new colourisation as far as copyright is concerned?

Saturday, 28 April 2012

MPAA spare the rod with plundering nonagenerian pirate

Whilst the Australian film and TV industry group AFACT may have lost it's protracted battle with peer-2-peer file swappers who used Aussie internet service provider iiNet, their American cousin, the Motion Picture Association of America, seems singularly reticent to take any sort of action against one of the most prolific film pirates in American history - 92 year old retired stockbroker Hyman Strachman, who freely admits to copying many Hollywood blockbusters and sending out upwards of 300,000 pirate DVDs to American forces. It get worse - and proving that new is not always best - Strachman's distribution is just as efficient as the digital domain, as he uses a network of army chaplains to distribute the bootleg bounty to a willing audience of serving soldiers in Iraq and Afghanistan. The Times reports that the headquarters of the counterfeit champion known as 'Big Hy' by his affectionate customers is not some sleazy back alley sweat shop, but a "white clapboard house on the shore of South Oyster Bay, Long Island" where Mr Strachman can run off up to seven DVDs at a time. Whilst it seems the MPAA is fully aware of Mr Strachman's infringing activities, it has so far declined to take any action, although Big Hy acknowledges that "if I were younger, maybe I'd be spending time in the hoosegow [jail]". Mr Strachman's illegal day job is now drawing to a close as the US army prepares to withdraw its personnel from Afghanistan.

Friday, 27 April 2012

Heard melodies are sweet, but those ephemeral are sweeter

An IP enthusiast fully dressed-up
to celebrate World IP Day
There are many ways to celebrate World IP Day on 26 April every year, ranging from the traditional to a proper IP extravaganza. 
For this year's celebrations WIPO decided to remember all those 'visionary innovators' who contributed to the progress of humanity, and also contributed to the creation of valuable IP-protected materials.
The Court of Justice managed to celebrate World IP Day in more style than WIPO by publishing another of its many recent copyright judgments (just to have an idea of the numbers, see the data provided by Head of Unit - Copyright, DG Internal Market & Services Maria Martin-Prat here).
Case C-510/10 DR and TV2 Danmark A/S v NCB - Nordisk Copyright Bureau (on which see the post Jeremy published yesterday on the IPKat) was a reference from Danish Østre Landsret (Eastern Regional Court).
Danish courts appear to have a fascination with the InfoSoc Directive, and they are very keen on having its many obscure meanings somehow clarified by the CJEU, as happened (indeed ...) with Infopaq, which was a reference from Danish Højesteret.

The reference in Case C-510/10 concerned the interpretation of Article 5(2)(d) of and recital 41 in the preamble to the InfoSoc Directive, which provide for an exception to the exclusive reproduction right of the author in his work in respect of ephemeral recordings of works made by broadcasting organisations by means of their own facilities and for their own broadcasts.
The proceedings pending before the Danish court are between, on the one hand, broadcasting organisations DR and TV2 Danmark A/S and, on the other hand, copyright management company NCB – Nordisk. They concern recordings made in connection with TV programmes commissioned from a third party by those broadcasting organisations for use in their own transmissions.
To make long story short, the dispute was whether the exception for ephemeral recordings also covers recordings made by legally independent external TV production companies in cases where those recordings have been commissioned from them by DR or by TV2 Danmark for initial broadcast on DR or TV2 Danmark.
The questions which the Østre Landsret decided to refer to the CJEU were three.
EU copyright provisions shall be given an EU-wide meaning
The first question concerned whether the term by means of their own facilities in Article 5(2)(d) of the InfoSoc Directive, as clarified by recital 41 in the preamble to that directive, is to be interpreted with reference to national law or to EU law.
EU meaning, or non-EU meaning - that is the question
The CJEU answered the question by referring to Article 2 in that directive, according to which Member States are, in principle, to grant to authors the exclusive right to authorise or prohibit direct or indirect, temporary or permanent, reproduction by any means and in any form, in whole or in part, of their works. However, pursuant to Article 5(2)(d), Member States may provide for an exception or limitation to the authors exclusive reproduction right in his work in respect of ephemeral recordings of works made by broadcasting organisations by means of their own facilities and for their own broadcasts. This proviso, recalled the Court, was directly inspired by that of Article 11bis(3) of the Berne Convention. The EU, although not a party to such Convention, is nevertheless obliged, under Article 1(4) of the WIPO Copyright Treaty (to which it is a party) to comply with the provisions in the Berne Convention.
As Article 11bis(3) of Berne expressly states that it is a matter for legislation in the countries of the Berne Union to determine the regulations for ephemeral recordings made by a broadcasting organisation by means of its own facilities and used for its own broadcasts, by adopting a specific exception for ephemeral recordings in the InfoSoc Directive, the EU exercised the competence previously devolved on the Member States in the field of IP.
Therefore, in line with its earlier decison in Luksan, the CJEU held that the EU must be regarded as having taken the place of the Member States, which are no longer competent to implement the relevant stipulations of the Berne Convention.
The need for a uniform application of EU law and the principle of equality are such that the terms of a provision of EU law (which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope) must normally be given an independent and uniform interpretation throughout the EU.
This said, the expression by means of its own facilities must be regarded, for the purposes of applying that directive, as covering an autonomous concept of EU law, which must be interpreted in a uniform manner throughout the EU.
Alternative or cumulative conditions in Article 5(2)(d)? Alternative, also on account of the Charter, says the Court
By its second question, the Danish court asked subtly whether Article 5(2)(d) of the InfoSoc is to be interpreted as meaning that a broadcasting organisations own facilities include the facilities of a person acting on behalf of and under the responsibility of the broadcasting organisationor as meaning that a broadcasting organisations own facilities include the facilities of a person acting on behalf of or under the responsibility of the broadcasting organisation.
Having said that there is a divergence between the different language versions of recital 41 in the preamble to the InfoSoc Directive, the CJEU held that the term own facilities includes the facilities of a person acting on behalf of and/or under the responsibility of the broadcasting organisation. Therefore, that provision does not require the ephemeral recordings to be made by the broadcasting organisation itself, but states that, if a third party makes those recordings, the latter are deemed to have been made with the own facilities of the broadcasting organisation.

Nothing ephemeral in his recordings
This interpretation, found the Court, also ensures that broadcasting organisations have a greater enjoyment of the freedom to conduct a business, as per Article 16 of the Charter of Fundamental Rights of the European Union, while at the same time not adversely affecting the substance of copyright.

How to ascertain the ephemeral nature of a recording?
By its third question, the Danish court asked what the applicable criteria are for ascertaining whether a recording made by a broadcasting organisation, for its own broadcasts, with the facilities of a third party, is covered by the exception laid down in Article 5(2)(d) of the InfoSoc Directive in respect of ephemeral recordings.
The Court deemed it to be crystal-clear that a recording is ephemeral if the person who makes it may be regarded as acting either on behalf of or under the responsibilityof the broadcasting organisation. Therefore, it is necessary to determine (and this is up to national courts), first, whether the third party in question may be regarded as acting on behalf of the broadcasting organisation. If the third party cannot be deemed to be acting on behalf of the broadcasting organisation, it will then be necessary to determine whether that third party could be regarded, at the very least, as acting under the responsibility of the broadcasting organisation.


Dear Readers, could you think of any way to celebrate World IP Day which could be more amusing than a party of CJEU judges engaging in lively discussions as to whether the recordings they are listening to are ephemeral and, in any case, what is to be meant by ephemeral?

Wednesday, 25 April 2012

Better late than never: UsedSoft gets the Curia treatment

Yesterday morning, when news broke of Advocate General Bot’s Opinion in Case C-128/11 Axel W. Bierbach (liquidator of UsedSoft GmbH) v Oracle International Corp, many of us were rushing to Google Translate in order to fill in those gaps in our knowledge which resulted from the initial absence on the Court of Justice's Curia website of an English-language text.  This deficiency has since been made doubly good. Not only is the English version now available but, for those who can't be bothered to read it, Curia has kindly provided the press release which appears below:
According to Advocate General Bot, creators of computer programs may oppose the resale of 'used' licences which allow their programs to be downloaded from the internet again
However, he suggests that they may not oppose the resale of 'used' copies, downloaded by their own customers from the internet, given that their exclusive right of distribution relating to those copies is 'exhausted' 
Oracle develops and markets computer software, in particular, by download from the internet, by concluding "licence" agreements with its customers, which provide that the customer receives a non-transferable user right, for internal business purposes and for an unlimited period. UsedSoft is a German company which sells licences bought from Oracle customers. UsedSoft's customers, who are not yet in possession of the Oracle software concerned, download the software directly from Oracle’s website after acquiring the ‘used’ licences. Customers who already have the software and who purchase licences for additional users download the software to the main memory of the workstations of those additional users.

Oracle having brought proceedings against UsedSoft before the German courts to prevent the continuation of these practices, the Bundesgerichtshof (Federal Supreme Court, Germany), which has final jurisdiction over this dispute, referred a question to the Court of Justice in order for it to interpret, in this context, the Directive on the legal protection of computer programs. That directive, which ensures the protection of computer programs by copyright as literary works, provides that the first sale in the EU of a copy of a program by the right holder or with his consent shall "exhaust" the right of distribution within the EU of that copy, with the exception of the right to control further rental of the program. Under this principle, the intellectual property right holder who has marketed a copy in the territory of a Member State loses the right to rely on his monopoly on exploitation in order to oppose the resale of that copy. Whereas UsedSoft claimed that the principle of exhaustion validated the practice of reselling used computer software, Oracle contended, to the contrary, that the principle was not applicable in the event of the downloading of a computer program from the internet, in the absence of a sale of a tangible object.

According to the Advocate General, the principle of exhaustion applies where the right holder, who allowed that copy to  be downloaded from the internet to a data carrier, also granted, for consideration, a right to use that copy for an unlimited period of time. Noting that the marketing of computer software most commonly takes the form of user licences, he considers that an excessively restrictive interpretation of the term "sale", within the meaning of the aforementioned directive, would divest the exhaustion principle of all scope and undermine its effectiveness. He also proposes to define the term "sale" as any act by which a copy of a computer program is made available in the EU, in any form and by any means, for the purposes of being used for an unlimited period and in return for a lump-sum payment. He is therefore of the opinion that a "licence" for the use of software should be considered as a sale where the customer thereby permanently secures the right to use the copy of the computer program in return for a lump sum payment.

He considers, for the same reasons, that a distinction  should not be made between computer programs sold on a CD-ROM or any other tangible article and those sold by download from the internet. In his view, allowing the supplier to control the resale of a copy and demand, in that event, further remuneration, on the sole pretext that  the copy had been downloaded from the internet, would have the effect of extending the right holder's monopoly on the exploitation of that right.

Nevertheless, the Advocate General does not conclude from this that the resale of user licences should be held to be valid. He submits that such resale is precluded since the principle of exhaustion relates to the right of distribution and not the right of reproduction, and the assignment of Oracle's user licences allows UsedSoft's customers to  reproduce the computer program by creating new copies, in particular, by connecting to Oracle's website.

Hence, whereas the resale of a downloaded copy by the first acquirer falls within the ambit of the right of distribution and may be carried out without the consent of the supplier under the principle of exhaustion, the assignment of a user licence, independently of the downloaded copy, allowing the program to be reproduced by creating a new copy by download from the internet, does not fall within the scope of the exhaustion principle.

According to the Advocate General, that practice, which is liable to alter the very substance of copyright, cannot find a basis in the Directive, which only permits the reproduction of the computer program without the consent of the right holder in order to allow a person who already possesses a copy to use the computer program for its intended purposes.

The Advocate General thus concludes that in the event of resale of a licence, the second acquirer cannot rely on exhaustion of the  right to distribute the copy initially downloaded in order to reproduce the computer program by creating a new copy, even if the first acquirer has erased his copy or no longer uses it.
This blogger would expect the Court to take much the same line.

Tuesday, 24 April 2012

Hocus Pocus! Is there copyright in magic?

Magician Teller while performing Shadows
As reported by celebrity gossip and entertainment news website TMZ, Teller of the American illusionist duo Penn & Teller has brought a lawsuit against Dutch magician and current Spain resident Gerard Bakardy claiming, among other things, copyright infringement in his dramatic work Shadows.

Penn & Teller have enjoyed major national and worldwide success, including Broadway shows, world tours, Emmy-winning TV specials, appearances on popular shows such as those of David Letterman and Jay Leno, as well as their own acclaimed TV series Penn & Teller: Bullshit!.
At the moment, the duo is busy with Las Vegas live performances of their Show, which has been running for eleven years.

Teller has created many tricks for the Show, including a "highly innovative and unusual dramatic work" known as Shadows, for which he obtained a US copyright registration in 1983.

As explained in the complaint brought before the US District Court for the District of Nevada, 
"Shadows" essentially consists of a spot light trained on a bud vase containing a rose. The light falls in such a manner that the shadow of the real rose is projected onto a white screen positioned some distance behind it. Teller then enters the otherwise still scene with a large knife, and proceeds to use the knife to dramatically sever the leaves and petals of the rose's shadow on the screen slowly, one-by-one, whereupon the corresponding leaves of the real rose sitting in the vase fall to the ground, breaking from the stem at exactly the point where Teller cut the shadow projected on the screen behind it.

Another case when magic was spoiled:
the wonderful Wizard of Oz 
Shadows is said to be "one of the rare plots in the canon of 20th Century magic and is Teller's principal claim to fame in magic history".

Apparently Bakardy, after seeing the Show in Las Vegas, created a magic routine which he called The Rose & Her Shadow. In addition, he recorded a video of himself performing the trick and uploaded it on YouTube, with an adv offering to sell his magic trick to consumers at the approximate price of $3,000. In the video, Bakardy also says (in Dutch apparently), that he “has seen the great Penn & Teller performing a similar trick and now [he is] very happy to share [his own] version.”

Last March, Teller found the video and instructed his attorneys to send a DMCA takedown notice to YouTube, which eventually removed the video. In parallel to this, the illusionist approached Bakardy to inform him that The Rose & Her Shadow infringed his own copyright in Shadows. However, no agreement was reached at that time.

Today Toto would certainly upload
a video on YouTube to expose the Wizard of Oz,
instead of just pulling back the curtain
Now it's up to the Court to say - inter alia - whether (a) copyright subsists in Shadows as a dramatic work as per §102(a) of the US Copyright Act and, if so, (b) whether The Rose & Her Shadow is tantamount to an infringement of copyright in Teller's work.

A very interesting analysis of this fascinating case can be found on James Grimmelmann's The Laboratorium. Prof Grimmlemann recalls that the leading case as far as magic and copyright are concerned is 2003 Ninth Circuit’s decision in Rice vs Fox Broadcasting. This was a copyright infringement case brought unsuccessfully by the owner of copyright in The Mystery Magician (a home video which showed how various tricks were done) against Fox, which aired a series of how-tricks-are-done TV specials. The Ninth Circuit, confirming the judgment of the district court, held that what had been taken by the defendant was either foreclosed by the limiting doctrines of merger and scènes à faire, or too abstract to constitute copyright infringement.

Let’s wait and see whether Teller’s lawsuit has a better fate than The Mystery Magician.

Monday, 23 April 2012

GEMA holds a mirror to the You Tube decision

Following on from Monika Bruss' excellent coverage and follow ups, collecting society devotees and You Tube employees may wish to read Der Spiegel's interview with GEMA CEO, Harald Heker.

GEMA v YouTube continued


The GEMA v YouTube case is making quite extraordinary waves. Among other things, the GEMA website was hacked on Friday and has been inaccessible on and off since. The notion that GEMA and the Hamburg judges have got it all wrong appears to be shared by many. In response to my admittedly slightly provocative quip that I did not think anyone actually needed access to any particular YouTube video to lead a happy life, one of our readers has accused me of missing the entire point of the case, arguing that 

"[i]f service providers are required to monitor user activity in this manner, they never would go into business in the first place. YouTube's Content-ID program is supererogatory in the extreme and wasn't available when it started. With this requirement there would be no Google, YouTube, Ebay, Facebook or any other innovative service that involved user generated postings."

This raises an interesting point. I fully agree that the services mentioned might not have been developed if they had had to comply with the standards set by the Hamburg judges in GEMA v YouTube. However, I am pretty sure many industries would never have developed if they had had to comply with today's health and safety standards, but that does not necessarily mean that current health and safety standards should be abolished. 

The secondary liability concept of "Störerhaftung" that the court applied asks whether there is a duty of care in any particular situation and, provided there is, if that duty has been breached. A duty of care is only assumed to the extent that it can be reasonably expected. Something that is impossible cannot be expected; something that is economically unfeasible can only be expected in extreme circumstances. 

For instance, it would be excessive to expect supermarkets to have all their vegetables tested for e.coli before selling them. Similarly, YouTube is not expected to monitor all videos before they are uploaded. Once a supermarket has been informed that its sprouts are contaminated with e.coli, though, it can reasonably be expected to destroy those sprouts. If possible, it must also make sure that its supplier's sprouts are e.coli-free before selling any more of that particular supplier's sprouts. Similarly, upon being informed by the right holder of clearly infringing content, YouTube is expected to take down that content immediately (and not after more than six weeks, as happened in the case at hand). It is also expected to use its Content ID program and word filters to monitor for future identical infringements, since that is both technically possible and economically feasible these days. It does not matter if something was technically impossible or economically unfeasible ten years ago as long as it can be done today. 

I know GEMA is one of the pet hates of many people, and there are certainly issues, for example whether the system for distributing royalties is fair, that are worth addressing. Before leading a revolution in the name of Internet freedom, though, maybe people should ask whether their reaction to the judgment would be same if the claimant had not been GEMA but a musician who is trying to generate advertising revenue from streaming her songs on her own website and therefore does not want them to be available on YouTube. Still not convinced? How about the victim of a breach of privacy who wants to make sure that the video showing them in some intimate act or as the victim of a violent crime does not crop up again and again?

YouTube is certainly free to provide the service it does, but the thing about freedom is that it comes with responsibilities attached. To my mind, the Hamburg judges have struck the right balance between the interests of the proprietors of YouTube in running their business and the interests of right holders to protect their rights.

Friday, 20 April 2012

YouTube needs a Monitor


YouTube today lost a dispute before the Regional Court of Hamburg (LG Hamburg) against German collecting society GEMA (court press release here, and some media reports hereherehere). YouTube was held liable under the principle of 'Störerhaftung' ('disturbance liability' - secondary liability for contributing to someone else's breach of a third party's rights) and was issued with a permanent injunction to take down a number of songs in which GEMA administers the making available rights, and to ensure that the songs in question do not reappear on the platform in the future. 

At the preliminary stage of the proceedings in 2010, the court had refused to issue an injunction. The only reason for that was lack of urgency, though, so today's judgment is hardly surprising. What is interesting, however, is the rhetoric surrounding the case. Apparently, GEMA, YouTube and the Bundesverband Musikindustrie (Federal Association of the Music Industry) all expected great things from the judges.  According to an article in the FAZ (here), they were all hoping for clarification of the complex legal area of copyright, collecting societies and the Internet. What the court did do was point out that, upon being informed of a particular infringement, YouTube not only had to take down the file in question, but also use its Content-ID program and a word filter to monitor possible future reappearances of the respective song and take them down as well. Simply telling the copyright owners to do their own monitoring for repeat infringements did not suffice to avert liability.

To my mind, the judgment is fair enough, but Internet forum reactions to the judgment of course display the usual mix of cries over going back to the digital stone age, Internet censorship, content mafia, etc. Personally, while I admit to feeling a bit miffed when I want to watch a video on YouTube and cannot because 'this content is not available in your country', I have never had the impression that the ready availability of pop songs on YouTube is a precondition for the pursuit of happiness in general and freedom of speech and information in particular - but maybe I'm just weird that way...

In any case, it will be interesting to see whether YouTube and GEMA will resume negotiations now and finally come to a sensible agreement, with or without the help of the Arbitration Board under the Copyright Administration Act (see here), or continue their dispute through the instances for the next two to five years - after which they will probably need to go to the Arbitration Board anyway, which will then decide what a reasonable payment scheme would be. Intriguingly, GEMA does have per-click payment schemes agreed with streaming services Simfy and Deezer (see FAZ article here), which makes the assertions by YouTube/Google representatives that GEMA's claims are ludicrously overpriced a bit less easy to believe.

Hollywood’s Copyright Wars: From Edison to the Internet: a review

Hollywood’s Copyright Wars: From Edison to the Internet, by Peter Decherney, an associate professor of Cinema Studies, English, and Communication at the University of Pennsylvania whose research focuses on media and internet policy, especially government regulation of Hollywood. Unlike those who pursue the now gradually fading but still clearly discernible European tradition of displaying one's academic credentials by taking an inherently sexy subject and then giving it the anaconda treatment, crushing every ounce of human interest out of it, Decherney follows the American tradition of producing a book in which scholarship and style go hand in hand, its subjects are allowed to speak for themselves and the verbs are generally active. The references, which appear at the end of the book rather than where this reviewer prefers them -- at the foot of each page -- are sufficient to support the author's narrative and do not serve as monuments to bibliographic seal.

Starting with the title, the "from Edison" theme is one which appeals to authors; trade mark expert Frederick Mostert chose the same allusion in From Edison to iPod (noted here) in his book on demsytifying profitable IP exploitation and Nicholas G. Carr ran "from Edison to Google" as a subtitle to his up-in-the-Cloud book The Big Switch.  There may be others. In a different world, in which we were more accommodating of science than religion, we might have numbered the years of our calendar from the birth of Edison. However, while the great inventor gets plenty of space in Peter Decherney's enjoyable analysis, it's probably fair to say that the Hollywood bit sells more copies.  The publisher's blurb confirms this:
"Copyright law is important to every stage of media production and reception. It helps determine filmmakers’ artistic decisions, Hollywood’s corporate structure, and the varieties of media consumption. The rise of digital media and the internet has only expanded copyright’s reach [Only? It has also expanded the reach of infringers, consumers, creators of derivative works ...]. Everyone from producers and sceenwriters to amateur video makers, file sharers, and internet entrepreneurs has a stake in the history and future of piracy, copy protection, and the public domain. 
Beginning with Thomas Edison’s aggressive copyright disputes and concluding with recent lawsuits against YouTube, Hollywood’s Copyright Wars follows the struggle of the film, television, and digital media industries to influence and adapt to copyright law. Many of Hollywood’s most valued treasures, from Modern Times (1936) to Star Wars (1977), cannot be fully understood without appreciating their legal controversies [some would assert that much of Star Wars actually can't be understood at all-- but that's a discussion for another time]. Peter Decherney shows that the history of intellectual property in Hollywood has not always mirrored the evolution of the law. Many landmark decisions have barely changed the industry’s behavior, while some quieter policies have had revolutionary effects [this conclusion shows a bit of independent judgment on Decherney's part. It's so easy to see behaviour changes when one expects them, whether they happen or not]. His most remarkable contributions uncover Hollywood’s reliance on self-regulation. Rather than involve congress, judges, or juries in settling copyright disputes, studio heads and filmmakers have often kept such arguments “in house,” turning to talent guilds and other groups for solutions [here's a subject for comparative research: is this trend reflected in other countries that had sizeable movie industries at the beginning of the Edison era and, to the extent that the answer is yes or no, can that be correlated with the success or failure of those industries in fighting their own copyright wars]. Whether the issue has been battling piracy in the 1900s, controlling the threat of home video, or managing modern amateur and noncommercial uses of protected content, much of Hollywood’s engagement with the law has occurred offstage, in the larger theater of copyright. Decherney’s unique history recounts these extralegal solutions and their impact on American media and culture".
A fun exercise for readers is to read this book just before or after Bill Patry's How to Fix Copyright.  Both focus on the effects of technological change. Decherney writes from the standpoint of a specific industry evolving over a lengthy period of time, while Patry writes in general terms and addresses the present. Enjoy!

Bibliographic data: hard covers, x + 287 pages, ISBN: 978-0-231-15946-3. Price $34.50 or £24. Book's web page here.

iinet comes down on the side of ISPs

Australia's High Court -- the nation's highest -- has given a clear ruling that internet service providers are not liable for authorising copyright infringement by making their services available to people who do infringe copyright. The High Court unanimously dismissed the appeal in the case and the Court observed that iiNet had no direct technical power to prevent its customers from using the BitTorrent system to infringe copyright in the appellants' films. Rather, the extent of iiNet's power to prevent its customers from infringing the appellants' copyright was limited to an indirect power to terminate its contractual relationship with its customers. Further, the Court held that the information contained in the AFACT notices, as and when they were served, did not provide iiNet with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers' accounts. For these reasons, the Court held that it could not be inferred from iiNet's inactivity after receiving the AFACT notices that iiNet had authorised any act of infringement of copyright in the appellants' films by its customers. Its all on the IPKat, in a blog written by Jeremy and rather than repeat this, just click here for the full story. ROADSHOW FILMS PTY LTD & ORS v iiNET LIMITED [2012] HCA 16 and more here http://www.zdnet.com.au/iinet-afact-plot-the-way-forward-339336379.htm

Thursday, 19 April 2012

Internet openness and copyright: Google and EU Commission agree

Sergey Brin
So far, this week has been very interesting as regards internet openness, also because of converging views from industry and politics.

Last Sunday, Google co-founder Sergey Brin had an interview with The Guardian, in which he talked about the challenges facing the principles of openness and universal access. These have been considered as cornerstones of the internet for three decades. Brin explained that there are "very powerful forces that have lined up against the open internet on all sides and around the world". Because of this, he is "more worried than [he has] been in the past ... It's scary." Threats to internet openness come from a combination of factors, these being (1) attempts by governments to control access and communication; (2) efforts by the entertainment industry to crack down on piracy; and (3) the rise of restrictive walled garden such as Facebook and Apple, which are busy controlling what software can be released on their platforms.
Neelie Kroes
Very similar concerns have been expressed today by Neelie Kroes, Vice-President of the European Commission responsible for the Digital Agenda, at the World Wide Web Conference in Lyon. Indeed, her opening remarks echoed those of Sergey Brin:

The best thing about the Internet is that it is open. Indeed it's built on the idea that every device can talk to every other, using a common, open language. That's what explains its seemingly endless growth."

Commission's Vice-President further elaborated on this:

Does getting these in the mail
qualify as harassment?
"Only the other day, the Free Software Foundation wrote to me about open standards. With their letter they enclosed something I don't normally get in the mail, a pair of handcuffs. Because they're worried about 'digital handcuffs', and wanted to know if I am with them on openness. And the answer is yes. Let me show you, these handcuffs are not closed, not locked. I can open them if and when I want. That's what I mean by being open online, what it means to me to get rid of 'digital handcuffs' ... The benefits of openness are clear. And when it’s as simple as an oppressive government trying to turn off the Internet, it's clear that we need to do what we can to prevent that."


Cutting-edge techniques to change one's own mindset
In Kroes’s speech there was room for copyright, too. Perhaps a bit cryptically, but there was a reference to the need for new rules in the digital environment.

"Sometimes the problem is ancient, pre-digital rules that we need to cut back or make more flexible. Other times, openness actually flows from strengthening regulation. And sometimes it's not about changing the rules at all, but about changing a mindset. People need to realise: they don't have to look backwards to the constraints and habits of the past; they can look forward to the open opportunities of the future. But that can take time."

Speaking specifically of copyright, Ms Kroes confirmed what the Head of Unit - Copyright, DG Internal Market & Services, Maria Martin-Prat, mentioned last week at the Fordham IP Conference (see earlier 1709 Blog post here). In particular, the complicating licensing systems for copyrighted material in Europe is deemed to prevent Europeans from enjoying great content and discourage business innovation, thus failing to serve the creative people in whose name they were established.

"Indeed, whether you're talking about audiovisual works or scientific information, current systems don't respond nearly well enough to online realities. And these are both areas we are looking at, including through updating EU copyright rules. And through new recommendations on access to publicly funded scientific research results and data."

Having said this, Ms Kroes, in line with Mr Brin, added that openness does not come at the expense of privacy or safety, as fundamental rights, liberty and security are guaranteed together. Being born very suspicious, this blogger spotted here a reference to legislative initiatives which are now discussed in Europe and the US. In particular, it is not difficult to think of ACTA and all the bustle it has been creating worldwide. The reference can also include other ongoing initiatives, at the level of EU Member States and the US alike. As to the former, one may think of the debate in the UK over email and web use monitoring (here). As to the latter, it may not be difficult to spot a reference to new US proposed legislation (now that SOPA and PIPA are in disgrace) known as Cyber Intelligence Sharing and Protection Act, or CISPA.    

Stay tuned for the next moves.

"Do bad things happen when works fall into the public domain?" A sequel


Readers of this weblog may remember "Do bad things happen when works fall into the public domain?", the 1709 Blog seminar held just over a year ago in which Professor Paul J. Heald gave a spell-binding account of the gap between myth and reality when books drop out of copyright protection and become free to all to exploit.

Well, prompted by some questions and constructive comments from an unusually well-informed audience, Paul has built upon his earlier work, as you can see from the chart above, which is explained in The Atlantic and Slate.  He explains:
"Preliminary data from a random sample of new books available from Amazon (each from a unique ISBN) shows that works in the public domain are more widely available than works protected by copyright. Copyright owners seems substantially less willing to make their titles available to the public. The data needs to be adujsted to account for the number of books published per year, but I suspect that adjustment will likely exaggerate the positive public domain effect."
Paul reminds us that the chart does not measure sales -- just the availability of titles.

Wednesday, 18 April 2012

Out of Step? Are Musicians Unsporting if They Want to be Paid?

Can it be true that the London Olympics organising Committee is asking musicians to provide their services for free of charge for the forthcoming games? Are the PRS and PPL being asked to waive licence fees for the public performance of copyright works at the events? Is this an amateur sporting event or could it be mistaken for dancing?

Tuesday, 17 April 2012

EU copyright at Fordham: a report (part II)

Having highlighted the position of the Commission as to EU copyright harmonisation (here), an assessment of the last twenty years of harmonisation was provided - inter alia - by Prof Bernt Hugenholtz of the University of Amsterdam.

First, he divided the harmonisation process into three phases, these being (1) 1991-2000, when core copyright directives were issued; (2) 2002-2008, when Member States transposed such directives into national laws; (3) 2009-, in which the CJEU has been playing a pivotal role in interpreting such directives. 

Bernt Hugenholtz
Overall, copyright harmonisation has had positive effects, in that approximating the laws of EU Member States has enhanced legal certainty, favoured the emergence of common principles, as well as the establishment of EU external competence in this field. The negative effects of copyright harmonisation can be held to be the following: (1) slow response to technological development; (2) harmonisation has always moved upwards (see databases); and (3) the overall process has been fairly intransparent, thus favoring lobbying (see the case of term extension(s)).

As to the future of EU copyright, Prof Hugenholtz indicated that lawmaking at the EU level has the potential to become increasingly difficult, due to the following aspects: (1) ever growing number of Member States; (2) increasingly central role of the European Parliament; (3) ongoing discussions as to social legitimacy of copyright; (4) lack of normative constitutional mandate in primary EU law to legislate in the area of copyright. 

This said, the alternatives on the table are substantially two: do nothing or unify copyright at the EU level.

Trevor Cook
Speaking of copyright reforms, Trevor Cook of Bird&Bird LLP offered an enlightening insight into copyright's exceptions and limitations and dealt with the heated topic concerning whether something like US fair use should be pursued in Europe too. This, claimed Trevor, would be inconsistent with the InfoSoc Directive and it is not sure that it would be desirable to introduce in the first place. This is beacuse of the unpredictable outcome of fair use defences in the US. In any case, exceptions and limitations may be extended and updated at the EU level, even lacking an initiative of EU legislative. Reliance on fundamental rights has increased, both before national courts and the CJEU. The latter is because of the new status of the Charter of Fundamental Rights following the Lisbon Reform Treaty (as very recent examples, see the decisions in Scarlet and Netlog). This view was upheld also by Mr Justice Peter Charleton of the High Court of Ireland, Dublin.

Graham Smith
An analysis of recent CJEU decisions was offered in the presentations by Graham Smith of Bird&Bird LLP and Professor Lionel Bently of the University of Cambridge.

Graham has offered a thoughtful overview of aggregating and related cases in the EU.

Lionel Bently
Prof Bently, who has called the harmonising effects of CJEU case law 'harmonisation by stealth' (see earlier 1709 Blog post here), has highlighted how CJEU activism is likely to cast ambiguities on the scope and meaning of EU copyright. This may result in Member States asking the Commission to be more active in the future, so to prevent contradictory and ambigous outcomes. Despite this, harmonisation via CJEU case law has had positive effects too, as it has touched upon aspects which could have not been harmonised with legislation alone. Above all, the outcomes of CJEU decisions are legitimate, though it is doubtful in the first place whether the Court was legitimated to act in lieu of EU legislative. In addition to this, doubts persist as to whether the harmonising effects of CJEU judgments are consistent with national legislation. Finally, the effects of these decisions have contributed to transitional uncertainty in the laws of some Member Stares, notably the UK.

In conclusion, from the presentations offered at Fordham, EU copyright is in need of amelioration. At the moment, there are no ambitious EU legislative initiatives. In any case, these are regarded cautiously and are deemed to require careful consideration before being undertaken. So, at the end of the day, it is not clear whether CJEU activism is the result of unavoidable gaps in legislative instruments or whether, instead, harmonisation via CJEU case law has been made necessary to supply lack of legislative initiative tout court. The best guideline for future action at the EU level? Directly from the LEGO store at the Rockfeller Center: