Saturday, 30 March 2013

Copyright wars are damaging the health of the internet

Freedom is Slavery
Ignorance is Strength
War is Peace
I don't always agree with what Cory Doctorow has to say, and indeed I disagree with some fundamental points he makes in the article I am linking to here - but it is food for thought: if nothing else. Like Mr Doctorow, I do sometimes wonder if governments use the "fight against piracy" and the threat of internet porn (for example) as little more than useful excuses to increase surveillance and control on the internet, and censor and govern cyberspace.  But I don't see why existing content owners and those who have invested time energy and money in creating copyrighted works should see these used in new services and business models without some form of recompense - or be forced to participate in schemes so haphazard an stupid that they will never survive. I am not convinced 'internet freedom' rests on the wholesale infringement of other's rights. But, enough of that, you might well find the article linked to of interest, and as a taster, Mr Doctorow writes 

 "I've sat through more presentations about the way to solve the copyright wars than I've had hot dinners, and all of them has fallen short of the mark. That's because virtually everyone with a solution to the copyright wars is worried about the income of artists, while I'm worried about the health of the Internet 

Oh, sure, I worry about the income of artists, too, but that's a secondary concern. After all, practically everyone who ever set out to earn a living from the arts has failed – indeed, a substantial portion of those who try end up losing money in the bargain."

More at

Friday, 29 March 2013

Danish artist guilty of copyright infringement for pornographic collage

von Hornsleth in front of one of his works
A Danish court has found the artist Kristian von Hornsleth guilty of infringing the copyright of the photographer Lizette Kabré by using one of her shots in a pornographic collage - which was designed to criticise a journalist who Von Hornsleth had taken issue with over a critcal review.

The High Court in Denmark upheld an earlier decision by the Copenhagen City Court and ordered Von Hornsleth to pay Kabré DKr30,000 (approximately €4,000), plus DKr20,000 (€2,700) to cover the photographer’s legal costs.

Denmark's 'most controversial' artist, who has widely used pornographic images combined into his work, as well as images of celebrities such as Kylie Minogue and Matthew McConaughey, said he produced the collage, which features a photograph of the arts journalist Camilla Stockmann superimposed onto a sexually graphic scene, in response to an article Stockmann wrote for the Danish newspaper Politiken. In court, Von Hornsleth said the collage was his artistic reaction to Stockmann’s article and shoukd be protected by freedom of expression. He said he wanted to reply to her in his own language and the pornographic work showed how critics “fuck” others when they criticise their work. Kabré described the collage as “a personal attack motivated by revenge”. 

von Hornsleth’s latest work 'Deep Storage Project', which was built using the DNA of thousands of volunteers, has taken him many years to complete. He now plans to throw it into the Mariana Trench where it will be buried 11,000M under the sea. 

From The Art Newspaper

Thursday, 28 March 2013

Tattoo artists bask in rise of their craft, deal with copyright in tech age

Back in April 2011 Jeremy posted an interesting and much commented on blog about the ownership of copyright in  tattoos - and also asking how moral rights might apply to tattoos - and back in 2010, Aurelia J Schutltz posted a blog that partially looked at the topic in tattoos - too.

But we were not the first! Brooklyn based lawyer Marisa Kakoulas,  Editor in Chief of the tattoo blog, began writing about tattoos and copyrights in 2003, and she has clients who have sued defendants such as clothing companies for appropriating their tattoo designs,  with Kakoulas telling that in the past five years its all grown up, "It was almost a law school hypothetical, everyone laughed when I would bring this up ...... but in the past five years, people are taking the issue of proper licensing seriously.” 

Voxxi highlight the 2011 case against Warner Bros after the design of the tattoo tha adorns boxer Mike Tyson’s face appeared on an actor’s face in the movie "The Hangover: Part II”: Tattooist S. Victor Whitmill sued Warners, and although the case was eventually settled, the judge in the case said the artist had a “strong chance of prevailing . . .” during a preliminary hearing in California. also quote attorney Laura Handman who says “Clearly, there can be copyright of the tattoo,” adding “But some of the standard longtime forms would already be in the public domain. [Mike Tyson's tattoo was] derived from tribal art and arguably had copyright status in the sense of originality.”. It all makes for an interesting read and you can find the full article using the link below

Wednesday, 27 March 2013

Spain targets advertisers to crack down on piracy

Whilst the debate as to how piracy affects sales of legitimate content continues  (see Ben's recent post ), the Spanish government is taking positive action to crack down on piracy by using a method that all businesses respond to: money. It has proposed a new law which would include sanctions against companies paying to advertise on pirate sites.

The new provisions would include increased fines of 30,000 euros to 300,000 euros for websites failing to take down infringing content as well as sanctions against companies which fund pirate websites by way of advertising revenue and payment service companies, such as credit card companies, that work with websites that carry pirated material.
It isn't clear yet how this will play out in practice. According to Reuters, the Education and Culture Minister, Jose Ignacio Wert, has said that the proposed law constitutes a new effort to increase copyright protection in the country by going after large-scale distributors of illicit material. This may be as a reaction to the International Intellectual Property Alliance (IIPA) recommendation in February that the US Trade Representative put Spain on a watch list for potential trade sanctions for lax copyright protection.

Spain currently relies on its Sinde Law, passed in 2011, to block access to infringing websites (rather taking the three-strike approach seen in most other countries) which has had mixed success. Opponents say that the law is an unconstitutional attack on freedom of expression whilst rightsholders say that the web-blocking provisions have been ineffective.
The new so called "Lassalle law" is now open for public consultation for the next two to three months. It will then be subject to review and will be presented to parliament for approval later in the year.

More on the Lasalle law in Spanish here.

Monday, 25 March 2013

Copyright Hub gets £150,000 Government funding

The IP Minister, Lord Younger, today announced that the Government will provide £150,000 funding to create the much discussed Copyright Hub, a one-stop-shop copyright licensing website. The goal is to cut costs for consumers and businesses by creating a more efficient online market place where they can easily license copyright protected works.

The Copyright Hub was proposed by Professor Hargreaves, in his review of IP and Growth in May 2011, in which he examined how best to ensure that UK digital markets for copyright works were" transparent, contestable and supportive to innovation", so that transaction costs were minimised and investment signals clarified. His goal was "a functioning online licensing market to support delivery of legitimate content to consumers."
Whilst this initial investment in designing the Copyright Hub is a step towards Hargreaves' proposed licensing system we shouldn't forget that previous work by KPMG has suggested it could take over two years to build the Copyright Hub and depending on the functionality and funding available it could cost £10-20m. However for Hooper, Director of Copyright Hub Ltd, this first funding is an important step towards making the Copyright Hub a reality. He has said:

"The Copyright Hub, linking to a wide array of databases and digital copyright exchanges, has the clear aim of helping consumers, rights users and small businesses find their way through the complexity of copyright and thus allow them to license copyrighted works much more easily and at a lower transaction cost. The Copyright Hub until today has been just an idea. Today it begins to become an exciting reality. We are especially grateful for the speed with which the Department of Business/IPO provided some start-up funding thus giving a real boost to this whole idea that emanated from the Hargreaves Review."
Lord Younger has said:

"The funding announced today will help industry to start building the Hub website sooner and engage with schools and Further Education colleges to help streamline educational licensing. Above all, it chimes with government's aim to provide a further portal to assist businesses to grow faster and to boost our creative industries."
Lord Younger continues:

"Databases of copyright works such as those held by collecting societies and publishers, and designs such as the Register of Designs at the IPO already exist. However, Government has listened to concerns that consumers are unsure who they should go to if they are looking for information about obtaining a licence, particularly if multiple rights are involved."
Kevin Fitzgerald, Chief Executive Officer, Copyright Licensing Agency has said:

"CLA are keen supporters of the Copyright Hub because it will simplify access to copyright works, benefiting both consumers and creators. And that will have a positive economic impact on the whole UK economy."
Jo Dipple, UK Music Chief Executive Officer said:

"The copyright hub is very welcome and it is something the music industry has enthusiastically embraced as we try to push for further growth in the global digital marketplace. I've recently been at SXSW in Texas and witnessed first hand the hunger and appetite for the music made by British artists and bands and the potential for its growth, which the hub can only help to serve.
With this new funding the project has been given a real kickstart and it also demonstrates a further, very welcome commitment from the Government, whose continued support - in partnership with our industry - is needed to underpin the hub's success."

Sunday, 24 March 2013

Emma Thompson's Effie Gray script is clear of second claim

Effie Gray
(Thomas Richmond 1802-1874)
A New York federal court has decided that a screenplay by actor Emma Thompson, a fictional work based on historical facts, was not a copy of an earlier work. The case, which was decided by Judge Thomas Griesa, a U.S. District Judge with the Southern District of New York, revolved around a screenplay, "Effie," by the Academy Award-winning actor. 

Effie is based on the romantic life of Euphemia "Effie" Gray, who was married first to Victorian-era art critic John Ruskin and then John Everett Millais, a painter and founder of the pre-Raphaelite art movement who had painted her. The annulment of her first marriage to Ruskin, which was never consummated by Ruskin, caused a scandal at the time. Gregory Murphy, an author, claimed that the Effie screenplay infringed on a copyright for a screenplay that he had written, also about Gray's love life, based on his West End play "The Countess" and his claim is perhaps best summed up in a 2011 article in the Daily Mail titled "The Day I Sat in Emma Thompson's Kitchen and Accused Her of Stealing my Movie".  Murphy is sure his screenplay was sent to Thompson and her husband through a mutual friend, and by the casting director of his play.

Murphy had said that he felt Thompson;s screenplay was "distinctly related to my screenplay in its time-frame, character development, structure and tone". Rather than wait for Murphy to file a lawsuit, Effie Film LLC, which was producing Thompson's movie, pre-emptively sought a declaratory judgment in 2011 from the court in Manhattan against Murphy, not least as the film was at a critical stage in the funding process. Effie Film then moved for a judgment on pleadings last May.
Effie Gray by Millais
In a 42 page decision Judge Griesa granted Effie Film's motion for judgment on the pleadings after a lengthy review of both screenplays saying "The two works have no dialogue in common, no characters in common that are not historical figures, and though they contain the same settings, the two screenplays give these episodes vastly different levels of attention". Judge Griesa acknowleded "The works contained some similarities apart from the shared historical background, including a young manservant infatuated with Effie and a common theme of "the idealization of women and a denial of their humanity" but when on to say that the test in his decision was whether the works were "substantially similar" in their total concept, and by that standard Murphy's allegations fell short. Judge Griesa concluded that the two works have "greatly differing internal structures", and are "quite dissimilar in their two approaches to fictionalising the same historical events" 

Mr Murphy responded to the decision saying "we are reviewing all options, and our first will be to request a copy of the finished film" . Thompson's movie is in post-production and stars Dakota Fanning as Effie Gray, Tom Sturridge as Millais, and Thompson as Effie's supporter, Lady Eastlake.

Last year, District Judge Paul Oetken, also in the Southern District of New York, ruled that Thompson's screenplay did not infringe a copyright on another screenplay about the same love triangle by author Eve Pomerance. 

"We are pleased that Judge Griesa's decision confirms that copyright does not protect history and every author is free to draw from the historical record" Thompson's lawyer Andrew Deutsch (DLA Piper) said in a statement 

Effie Film LLC v. Murphy, U.S. District Court, Southern District of New York, No. 11-00783.

Friday, 22 March 2013

Book notice: three new copyright titles

The publication of three new books is noted here.  In an ideal world I would read and review them, but I'm fast disappearing under a pile of incoming work and it seemed a good idea to post something about their publication now, so that blog readers can at least have the chance to find out more about them and read them while they're fresh.

The Law and Economics of Intellectual Property in the Digital Age: the Limits of Analysis, by Niva Elkin-Kore and, Eli Salzberger, came out on 31 October 2012.  It is published and belongs to that publisher's Routledge Research in Intellectual Property.

According to the publisher:
"This book explores the economic analysis of intellectual property law, with a special emphasis on the Law and Economics of informational goods in light of the past decade’s technological revolution. In recent years there has been massive growth in the Law and Economics literature focusing on intellectual property, on both normative and positive levels of analysis. The economic approach to intellectual property is often described as a monolithic, coherent approach that may differ only as it is applied to a particular case. Yet the growing literature of Law and Economics in intellectual property does not speak in one voice. The economic discourse used in legal scholarship and in policy-making encompasses several strands, each reflecting a fundamentally different approach to the economics of informational works, and each grounded in a different ideology or methodological paradigm.

This book delineates the various economic approaches taken and analyzes their tenets. It maps the fundamental concepts and the theoretical foundation of current economic analysis of intellectual property law, in order to fully understand the ramifications of using economic analysis of law in policy making. In so doing, one begins to appreciate the limitations of the current frameworks in confronting the challenges of the information revolution. The book addresses the fundamental adjustments in the methodology and underlying assumptions that must be employed in order for the economic approach to remain a useful analytical framework for addressing IPR in the information age".
Bibliographic data: xii + 286 pages. Hardback. ISBN 978-0-415-49908-8. Price £80. Web page here,


Copyright Industries and the Impact of Creative Destruction: Copyright Expansion and the Publishing Industry by Jiabo Liu, was published at the tail end of November 2012 by Routledge and, like the book above, is also part of the series Routledge Research in Intellectual Property.  The publisher's web-blurb describes it as follows:
"This book examines the relationship between the legal extension of copyright duration as an enduring means of copyright protection and the growth of the UK book publishing industry as a typical creative industry reliant on copyright. The book draws on Schumpeter’s theory of creative destruction to analyse the implications of copyright law and policy on the book industry and illustrate the dynamic interaction between copyright expansion and the growth of the creative industries. The book reviews the historical development of UK copyright expansion and also considers copyright in the digital age. It explores the legal and economic concerns about copyright protection in general, and the expansion of copyright duration in particular. Using an innovative empirical method, it explores whether the expansion of the duration of copyright promotes or precludes the growth of book publishing industry. It goes on to suggest changes to copyright policy which would have an impact on the economics of innovation in the creative industries".
Bibliographic data: xviii + 286 pages.Hardback. ISBN 978-0-415-52388-2. Price £85. Web page here.


International Copyright Law and Access to Education in Developing Countries International Copyright Law and Access to Education in Developing Countries: Exploring Multilateral Legal and Quasi-Legal Solutions, by Susan Isiko Štrba, is Volume 10 in its Graduate Institute of International and Development Studies. According to the publishers:
"In International Copyright Law and Access to Education in Developing Countries: Exploring Multilateral Legal and Quasi-Legal Solutions, Susan Isiko Štrba offers an understanding of the legal relationship between copyright regulation and access to education in developing countries, and explores both institutional and normative ways to facilitate access to printed educational and research materials".
Bibliographic data: xvii + 237 pages. Hardback. ISBN  13: 978-9-0-042-2899-3. Book's web page here/

BitTorrent file-sharing website isoHunt "induces" copyright infringement

The US Court of Appeal for the 9th Circuit (California) unanimously ruled yesterday that Gary Fung, the Canadian owner of BitTorrent website isoHunt, had "induced" users to download and distribute films and TV programmes, and that he could not rely on the DMCA safe harbor provisions for protection.
Various film studios alleged that and related websites, all run by Fung, induced third parties to download infringing copies of the studios' works. The websites were all BitTorrent sites which enabled file sharing and IsoHunt, Fung's "flagship" site, went a step further by modifying torrent files to make them more reliable than when they were uploaded to the site. IsoHunt also hosted a forum where users could post comments; Fung would post comments and also moderated the forum.

The Court of Appeal affirmed the District Court's decision on liability, confirming that Fung had induced users to illegally download and distribute content and that the safe harbor provisions set out in the DCMA offered no protection.
Two types of supporting evidence corroborated the conclusion that Fung "acted with a purpose to cause copyright violations": first, Fung took no steps "to develop filtering tools or other mechanisms to diminish the infringing activity" by those using his services. Second, Fung generated revenue almost exclusively by selling advertising space on his websites.

As regards whether Fung could make use of the safe harbor provisions, the Ninth Circuit was clear that it would be difficult for any defendant who induces copyright infringement to rely on safe harbor. It went on to say that Fung was ineligible because:
1. He had "red flag knowledge" of the infringement. Red flag knowledge turns on whether a website provider is subjectively aware of facts that would have made the infringement "objectively" obvious to a reasonable person  The court found that films and TV shows were "sufficiently current and well-known that it would have been objectively obvious to a reasonable person that the material solicited and assisted was both copyrighted and not licensed to random members of the public, and that the induced use was therefore infringing."

2. Fung profited from the infringement through advertising while having the "right and ability to control" infringing activity occurring through the various websites.
The case will now go back to the District Court for a decision on damages and to finalise the injunction.

The decision is not surprising. Henry Hoberman, Senior Executive Vice President and Global General Counsel for the Motion Picture Association of America (MPAA) has said:
"This ruling affirms a core principle of copyright law: those who build businesses around encouraging, enabling, and helping others to commit copyright infringement are themselves infringers, and will be held accountable for their illegal actions. It also strikes an important blow in the fight to preserve the jobs of millions of workers in the creative industries, whose hard work and investments are exploited by rogue websites for their own profit."

However, according to Advanced Television, despite the injunction, will continue to operate through private servers in Canada and it is the fourth most popular BitTorrent site on the Internet.
The decision is available here.

Meltwater - AP score first victory in the US

Melwater, the subscription based news clip aggregator for corporate customers who want to monitor news coverage of their industries and themselves, has lost a case for copyright infringement brought by The Associated Press. The case, filed just over twelve months ago, concerned the unlicensed use of material from AP within Meltwater's services. AP said that Meltwater has built its business on the wilful exploitation and copying of the AP’s and other publishers’ news articles for profit.

In Manhattan U.S. District Court Judge Denise Cote granted AP's motion for summary judgment with one exception holding that  "AP has shown through undisputed evidence that Meltwater's copying is not protected by the fair use doctrine." Meltwater's application for summary judgment was dismissed. Judge Cote said "Through its use of AP content and refusal to pay a licensing fee, Meltwater has obtained an unfair commercial advantage in the marketplace and directly harmed the creator of expressive content protected by the Copyright Act".

The judge noted that whilst commercial Internet news clipping services like Meltwater perform an important function for their customers, that "does not outweigh the strong public interest in the enforcement of the copyright laws or justify allowing Meltwater to free ride on the costly news gathering and coverage work performed by other organizations. Moreover, permitting Meltwater to avoid paying licensing fees gives it an unwarranted advantage over its competitors who do pay licensing fees".

AP CEO Gary Pruitt said in a statement  "This ruling makes it crystal clear that Meltwater wrongly used news content from AP to create its own content, while paying none of the costs associated with creating original news content," 

Vowing to appeal, Meltwater CEO Jorn Lyseggen said in a statement “We’re disappointed by the court’s decision and we strongly disagree with it”  adding “We’re considering all of our options, but we look forward to having this decision reviewed by the Court of Appeals, which we are confident will see the case a different way.” The company also stated in its press release that it "believes the ruling misapplies the fair use doctrine and is at odds with a variety of prior decisions that have paved the way for today’s Internet.”

In July 2011 the United Kingdom  the Court of Appeal upheld the ruling of Mrs Justice Proudman that end-users of media monitoring service Meltwater required end-user licences to access and use search results consisting of the headline of each article which mentions the search term (which hyperlinks to the article), the opening words of that article and an 11-word extract showing the context in which the search term appears.

The Associated Press v Meltwater U.S. Holdings Inc, 12-cv-1087, U.S. District Court, Southern District of New York.

The Newspaper Licensing Agency Ltd & Others v Meltwater Holding BV & Others [2011] EWCA Civ 890)  

Thursday, 21 March 2013

Resale royalties in Australia: here are some figures

It's not just data that can be concrete.  Here's
a piece of concrete artwork from Italy which,
embedded in the pavement, is unlikely ever
to be resold ...
From Anne Sanders comes news that, with regard to Australia, we now have some concrete data relating to that country's resale royalty scheme (thanks, Anne!).  This is really useful, since it provides a factual background for the debates that continue to take place as to (i) whether such a scheme should exist at all and, if so (ii) whether it should exist in its current form and whether its current benefits reach its intended beneficiaries.

The figures come from Senator Lundy, on behalf of the Minister for the Arts, in response to a set of questions from Senator Humphries  Readers will doubtless form their own opinions.

Minister representing the Minister for the Arts in the Senate 
Resale Royalty Scheme 
Question No. 2677 
Senator Humphries asked the Minister representing the Minister for the Arts in the Senate on 24 January 2013: 
With reference to the artists resale royalty scheme and the Copyright Agency Limited (CAL): 
1. What is the total value of royalty collections to date, including figures for each quarter.
2. What percentage of the total value of royalties collected has gone to Indigenous artists, including figures for each quarter. 
3. What are the annual Art Centres figures for first sales of Indigenous art. 
4. What is the total value of the top 600 individual royalty payments to date. 
5. How many individual right-holders received the top 600 individual payments. 
6. How many of the top 600 individual royalty payments have gone to Indigenous right-holders, including figures for each quarter. 
7. To date, what is the total value of the lowest 2 000 individual royalty payments. 
8. If the scheme can deliver the smallest individual artist royalty payment at $50, with a 10 per cent administration fee of $5, why does the scheme charge an administration fee of $1 000 to deliver an individual royalty payment of $10 000. 
9. After deducting non-recurrent set-up costs, what is the average cost of the CALs individual royalty payments to date.
Senator Lundy – The Minister for the Arts has provided the following answer to the honourable senator’s question: 
1.The total value of royalty collections is $805,115.70. Data is collected on a six monthly basis. 
Period Royalty Collected/Value of Royalties2010 July – December: $26,191.80
2011 January – June: $128,323.80
2011 July – December: $204,811.20
2012 January – June: $153,670.50
2012 July – December: $292,118.40 
2. Since the commencement of the scheme, 59 per cent or $440,042 has been paid to Indigenous right-holders. Actual payment data is only available as a total. A disaggregation would require an unreasonable diversion of resources. 
3. The Department does not have the requested information. 
4. $296,772 
5. 150 
6. 301 payments for 91 right-holders. 
The data below shows the number of payments for each period according to when the eligible resale was reported. 
Period Resale Reported/Number of payments2010 July – December: 17
2011 January – June: 61
2011 July – December: 59
2012 January – June: 76
2012 July – December: 88
Total: 301 
7. $115,379 
8. The scheme allows the collecting society to charge a 10 per cent administration fee on each royalty paid to contribute to the scheme becoming self-sustaining over time. 

Wednesday, 20 March 2013

Head of US Copyright Office wants reform

This afternoon the US Committee on the Judiciary will hear from Maria Pallante, head of the US Copyright Office, on "The Register's Call for Updates to U.S. Copyright Law". Pallante's message is simple: the law is showing the strain of its age and requires the attention of Congress.

Pallante says that "a central equation for Congress to consider is what does and does not belong under a copyright owner’s control in the digital age. I do not believe that the control of copyright owners should be absolute, but it needs to be meaningful. People around the world increasingly are accessing content on mobile devices and fewer and fewer of them will need or desire the physical copies that were so central to the 19th and 20th century copyright laws."
The list of issues which need to be addressed will surprise no-one: clarifying the scope of exclusive rights, revising exceptions and limitations for libraries and archives, addressing orphan works, accommodating persons who have print disabilities, providing guidance to educational institutions, exempting incidental copies in appropriate instances, updating enforcement provisions, providing guidance on statutory damages, reviewing the efficacy of the DMCA, assisting with small copyright claims, reforming the music marketplace, updating the framework for cable and satellite transmissions, encouraging new licensing regimes, and improving the systems of copyright registration and recordation.

When it comes to specific changes to be made to the Copyright Act, Pallante suggests that the copyright term be reduced from 70 years plus life to 50 years plus life. A small reduction, but one which Pallante hopes will "alleviate some of the pressure and gridlock" on copyright.
She goes on to suggest that instead of the general principle that copyright owners should grant prior approval for the reproduction and dissemination of their works, the law be flipped so that copyright owners would need to specifically opt out to prevent certain uses. It seems that this suggestion could be viewed as a radical change to copyright law which Pallante discusses only in relation to educational institutions and libraries but which has the potential to go further. Alternatively it could simply be seen as an extension of the fair use exception, even though Pallante does not use those words.

Although Pallante's statement is general and on the surface uncontroversial, and any changes implemented will not happen any time soon, it is good to see that the US is looking to modernise its copyright laws, and will be interesting to see what (if any!) changes are made.
Pallante's statement can be found in full here.

For those who are interested, all House Judiciary Committee hearings are webcast live here. At 15:30 EST (19.30 GMT) on 21 March 2013, Pallante will testify before the Subcommittee on Courts, Intellectual Property and the Internet on amending the U.S. Copyright Act.

New research says that music piracy should not be a “concern for copyright holders”

New research by two European Commission researchers finds that “digital music piracy should not be viewed as a growing concern for copyright holders in the digital era" and that the results "indicate that new music consumption channels such as online streaming positively affect copyrights owners.” The results fly in the face of a recent report that said  the closure of online platform MegaUpload almost certainly directly led to a decrease in online film piracy and an increase in legal digital sales of movies. Brett Danaher and Michael D. Smith, professors at Wellesley College and Carnegie Mellon University (CMU) said that “the closing of a major online piracy site can increase digital media sales, and by extension [we] provide evidence that Internet movie piracy displaces digital film sales.”

The two authors of the new report, Luis Aguiar and Bertin Martens, from the EU's Information Society Unit, now say "Although there is trespassing of private property rights (copyrights), there is unlikely to be much harm done on digital music revenues" adding "This result, however, must be interpreted in the context of a still evolving music industry. It is in particular important to note that music consumption in physical format has until recently accounted for the lion’s share of total music revenues. If piracy leads to substantial sales displacement of music in physical format, then its effect on the overall music industry revenues may well still be negative."

The authors highlight the differences in the five countries investigated commenting: “The most striking differences appear when looking at the determinants of download. Compared to Germany, Spain show 230% more clicks on illegal downloading websites. Italy presents an important difference of 134% while the UK and France have 43% and 35% more clicks respectively. France stands out when it comes to streaming, with 150% more clicks than Germany. Spaniards have 20% more clicks than the Germans, while Italians have 25% less. The UK presents a small difference with Germany in terms of streaming, with only 9% more clicks.

The authors also suggest that the lack of a legal alternative for a given piece of content may have a lot to do with whether or not its pirated. The authors also note that while music revenues have fallen steadily since 1999, last month the International Federation of the Phonographic Industry (IFPI) reported its 2012 global recorded music revenue is up for the first time in 14 years. It rose 0.3% during 2011, to reach $16.5 billion. 

The authors conclude: “After using several approaches to deal with the endogeneity of downloading and streaming, our results show no evidence of sales displacement (emphasis added) Overall, our different estimates show relatively stable, positive, and low elasticities of legal purchases with respect to both illegal downloading and legal streaming" adding "All of these results suggest that the vast majority of the music that is consumed illegally by the individuals in our sample would not have been legally purchased if illegal downloading websites were not available to them.”

On Monday, BPI Chairman and former EMI UK chief Tony Wadsworth told the Radiodays Europe conference in Berlin that he is very optimistic about the future of the music business. Predicting that the UK recorded music industry will pass the 50/50 point in terms of digital versus physical revenues this year, Wadsworth pointed to the growth of the mobile and in-car internet as providing even bigger digital opportunities for music services, and their music right owning partners, and the start of a new sustainable period of growth.

and for the 'MegaUpload' research the see 

Supreme Court says copyright law does not protect publishers in discount re-sales

The Supreme Court has ruled that textbooks and other goods made and sold abroad can be re-sold online and in discount stores without violating U.S. copyright law. In a 6-3 opinion, the court overturned a copyright infringement award to publisher John Wiley & Sons against Thai graduate student Supap Kirtsaeng, who used eBay to resell copies of the publisher’s copyrighted books that his relatives first bought in Asia at cut-price rates.  

Kirtsaeng sold $900,000 worth of books published abroad by Wiley and others, and made about $100,000 in profit. The international editions of the textbooks were essentially the same as the more costly American editions. A jury in New York awarded Wiley $600,000 after deciding Kirtsaeng sold copies of eight Wiley textbooks without permission.

The District Court had held that Kirtsaeng could not assert the “first sale” defence because that doctrine does not apply to “foreign-manufactured goods” (even if made abroad with the copyright owner’s permission) and on appeal, a split panel of the Second Circuit agreed with the District Court. The Supreme Court has now said that the "first sale doctrine" applies to copies of a copyrighted work lawfully made abroad.

Enough from me - there are two excellent blogs on the IPKat giving more detail on the judgment and comment - the first by Eleonora Rosati here and a guest blog by Miri Frankel here

Comment from the Washington Post here

And there is now an update by Eleonora Rosati on the IPKat at

And its worth comparing this decision with 2010 case of Costco Wholesale Corp v Omega SA where the Ninth Circuit held that the first sale rule in the US copyright statute did not apply to foreign sales as a matter of law, since that statute lacked extraterritorial application. The Supreme court split 4-4 on appeal - perhaps showing just how difficult this whole area is.

Kirtsaeng v.  John Wiley & Sons   No 11-697 (Decided March 19, 2013)

Monday, 18 March 2013

Patents, copyright or something new for computer software protection?

Today this blogger came across an interesting article published on the New Scientist's website, entitled: "Should business be allowed to patent mathematics?" Beginning with the philosophical question of whether mathematics is invented or discovered, the article quickly moves to the real reason that some argue that mathematics should be patentable: money. In particular the article asks, should computer software be patentable?

Patents are granted for inventions, and because most mathematical formulae are deemed to be abstract ideas rather than inventions, formulae are not patentable in many countries. An express exclusion of computer software from patentability is provided for both under the European Patent Convention (EPC) and the UK Patents Act 1977. The EPC tends to take a liberal approach to this exclusion whereas the UK tends to be more restrictive, making it difficult for owners of computer programs to be sure of what protection they will be afforded by patent law.
Copyright on the other hand is relatively straightforward: in the EU the Software Directive clearly states at Article 1 that: "Member States shall protect computer programs, by copyright, as literary works". Of course the protection offered by copyright is limited to original works, and protection extends only to the program exactly as it is written down. SAS v World Programming Ltd confirmed that neither the functionality of a computer program (i.e. the look and feel of the program when used) nor computer languages may be protected by copyright. Still the limited protection offered is clear, and in the UK copyright protection arises automatically without the need for an expensive application process as is the case for patents.

Computer software must be one of the few areas where patents and copyright overlap, making it interesting to look at the pros and cons of each type of protection. In particular the convergence of copyright with patents in the world of computer software indicates to this blogger that once again, we are trying to fit rules developed for art, music, scientific inventions and processes to the new world of computer science and the internet. The two do not always sit easily together so perhaps it is time for a new law, drafted specifically with the internet and computers in mind. What do readers think? Is it a question of square peg, round hole or can we (in common law jurisdictions at least) rely on case law to bring older legal concepts up to date?

Sunday, 17 March 2013

Bollywood pays the price for Phone Booth copy

NDTV has reported on a successful challenge brought by Twentieth Century Fox against the producers of the 2010 Bollywood movie, Knock Out, which they had claimed was a blatant copy of the 2003 Colin Farrell classic Phone Booth, a suspense thriller where the star is held hostage in a telephone booth by a sniper. 

Now NDTV reports that whilst “Bollywood is known for brazenly borrowing 'inspiration' from Western films”, this may be changing after the Bombay High Court decreed in favour of  20th Century Fox who had brought the action against the producers of the 2010 release Knock Out which stars Sanjay Dutt, Irfan and Kangna Ranaut - although it has taken 3 years to reach a conclusion. The case was first filed just before Knock Out was about to release, and at that time the court had issued an injunction against the release after watching both the films. On appeal, the producers were allowed to release the film, subject to the deposit of R 1.5 crore (which I make as approximately £180,000 or US $280,000) with the court. 

Now the court has awarded Rs 1.25 crore (£152,000 or $230,000) to Fox and, say NDTV, "Furthermore, the producers of Knock Out are not permitted to exploit their film in any manner whatsoever from March 5, 2013 onwards” adding “This is possibly a landmark judgment in the history of such litigation in India as it also constitutes the highest payment for copyright infringement in the country".  

Is this right? I struggled with currency conversion and the concept if the "crore" –  I am told by the great god Google that 100 crores is a billion Rupees - and the “lakh crore” is a trillion Rupees. If any of our Indian friends can add to this, or the details of the judgment,  I would be most grateful.

Apologies for reversing the film titles in the penultimate paragraph of my first posting of this update - yes - this made no sense at all (!) and a big thank you to our eagle eyed readers for promptly alerting  me 

Friday, 15 March 2013

Parody, Pastiche, Private copying: UKIPO's "three-P suite"

Never willing to let this blogger catch up with his perennial backlog of unanswered emails, the UK Intellectual Property Office has just sent him a really interesting one, since it deals with two of his favourite creative phenomena - pastiche and parody.  The email was a media release -- and it runs like this:
The Intellectual Property Office (IPO) has today published reports entitled "Parody and Pastiche" and "Private Copying". 
 "Parody and Pastiche" focuses on the economic, cultural and legal effects of parody and helped inform the development of impact assessments on copyright exceptions and the introduction of the ERR bill [that's the Enterprise and Regulatory Reform Bill, here.  Can you imagine any bill in the acronym-conscious United States being allowed to go through both Houses with the word "err" at its helm?]. 
 "Private Copying" was commissioned to collect data on how four copyright industries have adopted private copying measures and whether the cost of the product reflects a right to copy privately. 
 Link to the IPO research page/latest publications:   
1. Evaluating the impact of parody on the exploitation of copyright works: Report 1 (1.06Mb)   
2. The Treatment of Parodies Under Copyright Law in Seven Jurisdictions: Report 2 (2.52Mb)   
3. Copyright and the Economic Effects of Parody: Report 3 (638Kb)   
4. Private copying (420Kb)
 This blogger has not yet had time to open any of these documents and taste their contents, but it seemed a good idea to spread the word to 1709 Blog readers that they are available. It looks as though, prima facie, empirical and evidence-based research is here to stay. 

Veoh ruling adds clarity to US 'safe harbor'

The Ninth Circuit Court of Appeals in the US has issued a clarifying judgment in the action brought by Universal Music Group (UMG) against Veoh. The case explores issues similar to Viacom vs. Youtube and gives further clarity to how the doctrine of "safe harbor" protection from copyright claims under section 512 of the Digital Millennium Copyright Act will be applied.

The clarification follows on from the December 2011 judgment the court gave, where it said that Veoh was protected from copyright liability, and broadly brings the Veoh decision into line with the Second Circuit’s more recent decision in YouTube.

UMG  had pushed three main arguments against Veoh’s right to qualify for safe harbor: 

1.  The appellant argued that the functions performed automatically by Veoh's software didn't fall within the plain meaning of "infringement of copyright by reason of the storage [of material] at the direction of a user." Universal had promoted the theory that the DMCA should be interpreted narrowly to apply to web hosting services, rather than more general services that including hosting capabilities. 

For the Ninth Circuit, Judge Raymond Fisher disagreed :

"UMG's theory fails to account for the reality that web hosts, like Veoh, also store user-submitted materials in order to make those materials accessible to other Internet users. The reason one has a website is so that others may view it. As amici note, these access activities define web hosting - if the web host only stored information for a single user, it would be more aptly described as an online back-up service." 

See no evil, hear no evil .....
2.  UMG also challenged the contention that Veoh was never made aware of infringing material on its network. One reason why the music giant was unsuccessful in the lawsuit at the District level was because Veoh was able to show that it had removed materials after receiving takedown notices; However Universal also pointed to other ways Veoh could had gained knowledge of infringements on the website. 

Judge Fisher noted there are music videos that could legally appear on Veoh and that it's the responsibility of the copyright holder to let the ISP know of what's not legal. 

Safe? With all those rocks?
"Requiring specific knowledge of particular infringing activity makes good sense in the context of the DMCA, which Congress enacted to foster cooperation among copyright holders and service providers in dealing with infringement on the Internet. Copyright holders know precisely what materials they own, and are thus better able to efficiently identify infringing copies than service providers like Veoh, who cannot readily ascertain what material is copyrighted and what is not". 

The ruling continues:

"We therefore hold that merely hosting a category of copyrightable content, such as music videos, with the general knowledge that one's services could be used to share infringing material, is insufficient to meet the actual knowledge requirements....We reach the same conclusion with regard to the [DMCA provision's] inquiry into whether a service provider is 'aware of facts or circumstances from which infringing activity is apparent...'. We hold that Veoh's general knowledge that it hosted copyrightable material and that its services could be used for infringement is insufficient to constitute a red flag." 

Judge Fisher added that a service provider cannot "wilfully bury its head in the sand" -- known as wilful blindness - but saw no evidence of this 

3.  Finally, Universal Music challenged whether Veoh qualified for safe harbor under the provision that entitles an ISP only if it "does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity. Here Judge Fisher seems to put the Ninth Circuit in line with the Second Circuit and the YouTube case: 

"We agree with the Second Circuit and hold that, in order to have the 'right and ability to control such activity' the service provider must 'exert substantial influence on the activities of users.' 'Substantial influence' may include, as the Second Circuit suggested, high levels of control over activities of users, as in Cybernet. Or it may include purposeful conduct as in Grokster" and Veoh's interactions with users didn't rise to that level, the judge said. and

Thursday, 14 March 2013

Jersey Boys' use of Ed Sullivan clip IS fair use

A short clip of Ed Sullivan's TV show, used in "Jersey Boys" the smash hit musical about the Four Seasons, has been held to be "the very definition of fair use" by a US court in what some will feel is a very liberal interpretation of the doctrine. The 9th Circuit Appeals Court has ruled that a 7-second video which Ed Sullivan's introduction of Frankie Valli & the Four Seasons on the night of January 2nd, 1966, in an episode of his eponymous variety TV show, was not an infringement of copyright. 

Dodger Productions and Dodger Theatricals used the clip in the "Jersey Boys" to show how the US band thrived in a pop music scene dominated by the "British Invasion". SOFA Entertainment, which owns the rights to "The Ed Sullivan Show" thought otherwise and sued Dodger for copyright infringement - after the company's founder, Andrew Solt, attended a performance in Los Angeles. At first instance District Judge Dolly Gee granted Dodger summary judgment based on the doctrine of  fair use, and awarded $155,000 in attorneys' fees. 

The federal appeals court has now unanimously affirmed the decision after hearing oral arguments last month. It found that the clip had been properly transformed into a "biographical anchor" and to "mark an important moment in the band's career" according to Judge Stephen Trott for the three-judge panel: "At that point in rock and roll history, many American bands were pushed into obscurity by the weight of the 'British Invasion' which was kicked off by the Beatles' performance on The Ed Sullivan Show. The Four Seasons, however, thrived. Being selected by Ed Sullivan to perform on his show was evidence of the band's enduring prominence in American music. By using it as a biographical anchor, Dodger put the clip to its own transformative ends. SOFA failed to show Dodger used the clip to "capitalize" on Sullivan's distinctive style of introducing pop acts, which SOFA considers the "central and most beloved" part of the show."  

It is Sullivan's charismatic personality that SOFA seeks to protect" Judge Trott wrote - "Charisma, however, is not copyrightable"  adding "In the end, we are left with the following conclusion ..... Dodger's use of the clip did not harm SOFA's copyright in 'The Ed Sullivan Show,' and society's enjoyment of Dodger's creative endeavor is enhanced with its inclusion. This case is a good example of why the 'fair use' doctrine exists." and more on the 1709 blog on the gestation of the show here .

European Court of Human Rights rejects Pirate Bay founders appeal

Two of the founders of the Pirate Bay have failed in what I presume is their final appeal against their convictions for copyright infringement in the Swedish criminal courts, with the European Court of Human Rights finding that Sweden had rightly convicted the pair.

Fredrik Neij and Peter Sunde were sentenced to one year imprisonment by the Stockholm District Court in April 2009 for crimes against the Copyright Act. Together with two other defendants they were also found liable for damages of approximately K30 million (US$4.3 million). Their prison sentences were reduced in November 2010 by the Svea Court of Appeal, but the joint damages were increased by that court to K46 million (US6.8 million). The Swedish Supreme Court denied them an appeal hearing in February 2012. 

Neij and Sunde complained that their convictions infringed their freedom of expression under Article 10 of the European Convention in Human Rights and that as their website facilitated the exchange of information, they could not be held liable for their user’s infringing acts. The ECHR had to balance Article 10 - the freedom of expression (even if such included material that infringed copyright) with the legitimate interests of copyright owners. The Court held that sharing, or allowing others to share, files of this kind on the Internet, even copyright-protected material and for profit-making purposes, was covered by the right to 'receive and impart information' under Article 10.  However, the Court considered that the domestic courts had "rightly balanced the competing interests at stake and that the necessity to protect copyright rightly prevailed over the rights of the applicants to receive and impart information when the applicants were convicted": Since the shared material was protected under the Swedish Copyright Act, the ECHR held that the interference with the freedom of expression by the Swedish authorities had been prescribed by law.

In particular the court looked at the nature of the information shared and said "In this connection, the Court would also underline that the width of the margin of appreciation afforded to States varies depending on a number of factors, among which the type of information at issue is of particular importance. In the present case, although protected by Article 10, the safeguards afforded to the distributed material in respect of which the applicants were convicted cannot reach the same level as that afforded to political expression and debate. It follows that the nature of the information at hand, and the balancing interest mentioned above, both are such as to afford the State a wide margin of appreciation which, when accumulated as in the present case, makes the margin of appreciation particularly wide".   In addition the Court held that considering that Neij and Sunde "had not removed the copyright-protected material from their website despite having been requested to do so, the prison sentence and award of damages could not be regarded as disproportionate". And that "Therefore, the interference with the right to freedom of expression had been "necessary in a democratic society”. 

The seven judge court unanimously rejected the application as "manifestly ill-founded". 

Neij continues to evade Swedish justice, living in Laos. Sunde lives in Berlin. The third defendant, Gottfrid Warg was deported from Cambodia on visa irregularities and is currently in custody in Sweden. The fourth defendant, millionaire Carl Lundstrom, has made a relatively small ($35,000) payment towards the damages owed, and served his four month sentence under house arrest in Sweden.