Saturday, 31 May 2014

Copyright in Dublin: an event

Calling all copyright enthusiasts who will be in Dublin on 20 June 2014!

That day the Copyright Association of Ireland will run one of its popular “Updates” seminars. 

On that occasion I will have the honour and pleasure to join legendary Bob Clark [Professor Emeritus in Law at UCD and co-author of Intellectual Property Law in Ireland]. Bob will cover a range of copyright developments from common law jurisdictions, while I will look into recent EU copyright policy activity and topical decisions from everyone's favourite court, ie the Court of Justice of the European Union.

For further information and reserve your place, just click here.

Friday, 30 May 2014

CopyKat - to the scratching post - and beyond

The CopyKat does love an extra terrestrial copyright conundrum. And indeed whilst man may not have reached Mars quite yet, that has never prevented lawyers at the major record labels from extending their tentacles to reach outside the exosphere - initially by inserting clauses claiming ownership of their artiste's catalogues across the solar system  - then the Galaxy - and now the Universe. Who says the law doesn't keep up with technology? Here it's the other way around!  Now Russia’s Ministry of Economic Development has proposed a new legislative move to protect photographs taken from space - protection by copyright law: “The data from Earth Remote Sensing (ERS) and derivative materials are widely used. They are usually bought for a fee, but there is no clear legal regulation for ERS,” a ministry representative told newspapers. Reports says that Article 1225 of the Civil Code, Protected Results of Intellectual Activity and Means of Identification would be amended to include a new clause protecting “materials and/or data acquired through earth remote sensing.” NASA takes a very different approach saying this "NASA still images; audio files; video; and computer files used in the rendition of 3-dimensional models, such as texture maps and polygon data in any format, generally are not copyrighted. You may use NASA imagery, video, audio, and data files used for the rendition of 3-dimensional models for educational or informational purposes, including photo collections, textbooks, public exhibits, computer graphical simulations and Internet Web pages. This general permission extends to personal Web pages". To that end the illustration I have used is of the Russian MIR Space station - but from a NASA satellite.

In completely unrelated news - but still with the extra-terrestrial theme, singing astronaut Commander Chris Hadfield's recording of David Bowie's classic Major Tom, made on the International Space Station, has been removed from YouTube as his agreed (earthbound) term of use from Bowie has now expired with Hadfield saying:  "It has been a year since my son and I created and released the Space Oddity video. We have been amazed and delighted that so many people enjoyed it—and maybe saw what spaceflight can really be like. It helped show that humans have left Earth, and that the Space Station is a new stage, for not just science and exploration, but for our art and music too. With exploration comes insight—with perspective comes self-realization.We had permission from David Bowie’s people to post the video on YouTube for a year, and that year is up. We are working on renewing the license for it, but as there are no guarantees when it comes to videos shot in space, we thought you might want to have one last look before we take it down. Thanks for everything. You’ve all been incredible throughout.". More here

The UK's Police Intellectual Property Crime Unit (PIPCU) has had infamous sharing website's internet domain was already one of 21 websites blocked by UK ISPs last October after a court order directed them to put up a "virtual wall".

In the US, the Center for Copyright Information (CCI) has released its first report on the Copyright Alert System (CAS), the voluntary collaboration between entertainment and technology companies aimed at reducing copyright infringement. For the first time since the system's launch, specific information about the size of the program has been made available: Specifically, the report showed that 1.3 million Alerts were sent out in the initial 10 months of the program, most in the initial educational phases. 265 people challenged the Alerts under an arbitration system and 18 percent of those (47 people) were successful, mostly by showing that someone else had used their account - with no findings of false positives in which the content owner had misidentified the account.  Only three percent, or 37,456 of the accounts, reached level 6, which results in reduced internet speed. 
CCI also noted that the CAS is expected to double in size in the second year of operation, and CCI will begin an online awareness campaign to increase public awareness of the system. Jill Lesser, Executive Director of CCI, said : "We are encouraged by the initial data from the Copyright Alert System's first 10 months suggesting that the program has the potential to move the needle in deterring copyright infringement. Our initial research into consumer attitudes – along with what we have seen in our own data – shows that consumers do respond to this kind of educational system that alerts them to infringing activity on their account and helps them find the content they want easily and legally."  The majority of peer-to-peer copyright infringement is fuelled by a small group of younger, predominately male digital consumers”. More on Digital Journal

And there seems ti be LOTS of lobbying going on in the U.S. music industry right now.  A new group  formed from the Nashville music industry hopes to be able to influence ongoing debate on the future role and reform of copyright law. The group, called Interested Parties Advancing Copyright (IPAC), consists of about 50 independent publishers, administrators, business managers and entertainment attorneys.

Elsewhere in the USA, A2IM, the organisation that represents indie record labels have criticised Sony and Universal Music Group in "the fight over digital dollars". The American Association of Independent Music, whose artists include Mumford & Sons, Taylor Swift and Adele, argues that Universal and Sony are in effect a de facto “duopoly”— and use their dominance to grab a disproportionate share of streaming music royalties. Streaming services just have to deal with Sony and UMG, who control well over 50% of the recorded music sector (and yes - EU and US regulators let that happen!). The group, which represents around 325 indie labels in the US, has been lobbying lawmakers to take a fresh look at music licensing and outlined its issues in a filing submitted to the federal Copyright Office: The New York Post say that A2IM contends that the streaming music business "is essentially a zero-sum game: The music majors use their distribution muscle to extract the lion’s share of dollars from services such as Spotify and Pandora, leaving the indie labels to settle for whatever is left".

SoundExchange is making a push to change how pre-1972 recordings are treated is the U.S, The Washington D.C. based collection society for digital performance royalties has launched a multi-pronged campaign called Project72 - aimed at changing the federal law that excludes pre-1972 sound recordings from coverage under statutory licenses used by many digital music services. The campaign features a microsite and an advertisement -  a call to digital radio services to “pay for all the music they play” in the form of an open letter from over 70 artists including B.B. King, the Supremes, members of Steely Dan, the Beach Boys, Roseanne Cash, Martha Reeves, Cyndi Lauper and Al Green. the RESPECT Act was introduced by Rep. John Conyers (D-MI), ranking member of the House Judiciary Committee, and Rep. George Holding (R-NC). The bill would place pre-1972 sound recordings under federal law. Conyers stated the bill would give "a fair shake" to legendary artists and their lesser-known backing musicians. SoundExchange President and CEO Mike Huppe told Billboard the issue with pre-1972 royalties amounted to "a real and urgent problem that's happening right now."

And the Recording Industry Association of America has responded to the US Copyright Office's call for comments on a "Music Licensing Study: Notice and Request for Public Comment," by explaining why terrestrial radio should pay more in royalty payments.
Setting the current US system in a historical context (in particular the fact that terrestrial radio stations are exempt from paying royalties for broadcasting sound recordings) the RIAA says "We propose to replace the current overlapping musical work licensing systems with a single, simple and efficient system that incorporates marketplace royalty payments. As described below, such a system would have many potential advantages, including: (1) market rates for publishers and songwriters; (2) more consumer choice through easier funding and development of innovative services; (3) more revenue for services and higher royalties for creators due to savings from simplified licensing procedures; (4) improved accuracy of payments and transparency for publishers and songwriters; and (5) viability for ASCAP and BMI, and the revenue streams they administer."

And on the matter of who gets paid what from any revenues from downloads ..... Universal have now responded to the multiple lawsuits it is facing from its own artists over its controversial policy of treating a download (or even streaming income) as a 'sale' rather than licensing income - attracting the far lower 'per unit' royalty from a sale. The Hollywood Reporter explains that the new motions to dismiss from UMG  "stems from a 2010 appellate ruling in F.B.T. Productions v. Aftermath that suggested that record labels should be treating digital download income off of venues like Apple's iTunes as "licenses" rather than "sales." The difference could mean a lot of money because under typical licensing or leasing provisions of artist-label contracts, about 50 percent of collected revenue gets handed over to artists. Under sales provisions, it's usually not more than 15 percent - if they are lucky." UMG says that the F.B.T precedent is wrong and that a sale on iTunes should be like any other sale of physical product - and that in fact when the this all started UMG were generous to artistes as it waived its 'packaging deduction' for download sales - and that many artists and their representative hailed the new royalties model - albeit one based on the old - as preferable to wholesale piracy. A few artist attorneys are said to have brought forward the argument that these downloads were "licenses," an interpretation which Universal Music rejected. Then came the F.B.T. decision, and subsequently "the firestorm of litigation" with Chuck D. of Public Enemy, Rick James (by way of trust), Dave Mason of Traffic, Whitesnake, Andres Titus of Black Sheep, Ron Tyson of The Temptations and Bo Donaldson all still ready to challenge Universal Music's accounting. UMG have put up numerous other arguments rejecting the claims:  that lawsuits alleging that consumers were hurt by royalty arrangements are invalid because consumers aren't aware of these dealings; that some of the artists suing under Californian law had contracts that were governed by New York law; that 1970s singer Bo Donaldson couldn't sue because of an agreement with his former bandmates that majority participation was required to litigate; and Ron Tyson of The Temptations wasn't party to the crucial contracts because he didn't join the group until 1983. The the article on the Hollywood Reporter is well worth the read

And finally, UK Music Industry think tank Music 4.5 is hosting a seminar to examine the future of Intellectual Property (IP) and music licensing in the growing digital marketplace. The event, from 14.00 - 18.00 on the 25th June 2014 will bring together thought leaders, including Raoul Chatterjee (7Digital), Will Page (Spotify), Peter Bradbury (Sky) and Kim Bayley (ERA), to discuss current IP issues facing the music and music technology industries. The seminar will be hosted against a backdrop of change for IP and music licensing, as the European Commission examines the wider EU copyright. More here.

Wednesday, 28 May 2014

No go for John Doe show

Dominic Purcell as John Doe in the
eponymous 2002-2003 TV series
AF Holdings LLC, which claims to own numerous copyrights to pornographic films, and has been described as an 'arm' of the rather controversial copyright trolling law firm Prenda Law, has been rebuffed in it's bid to obtain subpoenas identifying information on 1,085 allegedly illegal downloaders. The District Court had ruled that AF could subpoena Internet service providers including Verizon Communications Inc. and Comcast Corp for identify information on subscribers whose computers were linked to downloads of the movie via the BitTorrent file-sharing protocol.  

The United States Court of Appeals for the District of Columbia Circuit said that AF was not entitled to contact information for people whose Internet addresses were linked to downloads of the film “Popular Demand” because few of them live in the District of Columbia, where the case was filed, and it’s unlikely any connection exists among all of the Internet addresses subject to the subpoena: “It is quite obvious that AF Holdings could not possibly have had a good faith belief that it could successfully sue the overwhelming majority of the 1,058 John Doe defendants in this district” U.S. Circuit Judge David Tatel wrote, adding that “AF Holdings clearly abused the discovery process” and that the action was "a quintessential example of Prenda Law's modus operandi". The judgment is well worth a read and ends with

"Accordingly, we vacate the district court’s order and remand for further proceedings consistent with this opinion.  We leave it to the district court to determine what sanctions, if  any, are warranted for AF Holdings’s use of a possible  forgery in support of its claim. "

With a headline of "Crushing Blow for Copyright Trolls: Appeals Court Halts AF Holdings' Extortion Scheme" The EFF had this to say: "The case is one of hundreds around the country that follow the same pattern. A copyright troll looks for IP addresses that may have been used to download films (often adult films) via BitTorrent, files a single lawsuit against thousands of "John Doe" defendants based on those IP addresses, then seeks to subpoena the ISPs for the contact information of the account holders associated with those IP addresses. The troll then uses that information to contact the account holders and threatens expensive litigation if they do not settle promptly. Faced with the prospect of hiring an attorney and litigating the issue, often in a distant court, most subscribers-including those who may have done nothing wrong-will choose to settle rather than fight."

And over on the Register under the headline "Smut-spreading copyright trolls lose John Doe case" it's explained that 

"AF Holdings' last smackdown was in November 2013, when the US District Court of Minnesota found that it hadn't demonstrated ownership of the content claimed in a previous shakedown. That court ordered that the company return the money it had obtained from punters, as well as paying their legal costs. That ruling, however, didn't stop one of the two movies, Popular Demand, being the subject of the Columbia and then US Court of Appeals case.

AF Holdings was represented by Paul Duffy, who at the previous lower court hearings as associated with Prenda Law." 

More on the Washington Post here

(What's the Story) Copyright Glory? An event on 12 June

Looking for a copyright seminar in June?
Interested in copyright law and policy? Wish to discuss recent developments with your fellow copyright enthusiasts?

On 12 June from 14:00 to 18:00 pm I am running another copyright event in London entitled (What's the Story) Copyright Glory? [have I infringed Oasis's copyright? Register and we can discuss that!]

Topics will include:
  • Recent copyright decisions of the Court of Justice of the European Union, including Case C-360/13 Meltwater (Does internet browsing fall within the scope of copyright? We will know on 5 June 2014);
  • Copyright revision around the world, including EU Commission's Public Consultation and leaked Impact Assessment;
  • The parody, caricature and pastiche exception under UK and EU laws;
  • Orphan works in the EU, UK and US;
  • The Collective Rights Management Directive and the new landscape for collective rights management in the EU.
This event will be limited to 20 participants, so to provide everybody with the opportunity to discuss fully the present and future of copyright law and policy.

If you wish to register, just follow this link!

Tuesday, 27 May 2014

IP in Music and Film: it's happening in Glasgow sooner than you think

Apologies for the extremely short notice, but here's something to warm the hearts of IP enthusiasts who live within popping-in distance of Glasgow.

1709 Blog team member Professor Mira Sundara Rajan (Glasgow Law School; CREATe copyright centre) is organizing a series of special events this week in Glasgow, on the theme of IP in Music and Film.

Guest speaker Martha de Francisco, an eminent sound engineer who has worked with classical music greats including Alfred Brendel, Jessye Norman, and the Philadelphia Orchestra, is currently an Associate Professor of sound recording at McGill University in Montreal, Canada. She will be providing her insights on music production and will lay the groundwork for discussion of the musical and legal implications of technology for authorship, ownership, collaboration, and creativity. Martha’s talk is scheduled this Friday afternoon, 3-5, in the Gloag Lecture Theatre at the Law School.

In preparation for Martha’s seminar, Mira will be hosting a pre-event session on Wednesday afternoon, 4-5, in the Walker Room at the Law School, discussing Copyright Issues in Sound Recordings. Her short presentation will be followed by ample time for questions, comments, and discussion. And let’s not forget Thursday: as part of the IP music and film fest, the independent film "Timelock" will be screened. Produced by Dr. Inge Sorensen of the Centre for Cultural Policy at Glasgow, and directed by David Griffith, it also features music by RM Hubbert, who won the SAYAwards (Scottish Album of the year) last year. The film is described as
“an aesthetically innovative, Tartan-noir thriller about a safe that doesn't open, a robbery gone wrong, and lives going off the tracks. Written and directed by David Griffith and produced by the CCPR’s Dr Inge Sorensen, TimeLock is micro-budget, filmmaking at its best. A digital film for the digital age - with a menacing, minimalist soundtrack courtesy of Dave McAulay, Howie Reeve and RM Hubbert winner of the Scottish Album of the Year Awards 2013. The screening will be followed by Q&A with the director.”
David and Inge will be on hand to present their film at 8:00 on Thursday evening, venue to be announced.

For further details, please link to the website of the newly established student IP Society at Glasgow (, and to the CREATe website ( All IP, music, and film enthusiasts are welcome!

Newzbin: "unlawful means" conspiracy claim upheld

Twentieth Century Fox Film Corporation and other companies v Harris and others [2014] EWHC 1568 (Ch), a Chancery Division for England and Wales decision of Mr Justice Barling a couple of weeks ago, is the latest (will it be the last?) bit of the Newzbin saga to hit the British courts.

All of the claimant companies, members of the Motion Picture Association of America, owned copyright in many films and television programmes. These proceedings arose from two earlier actions -- Newzbin 1 and Newzbin 2,  on which see this Katpost here.  Newzbin 1 was a copyright claim concerning the operation of a website by Newzbin Ltd for the purpose of making unlawful copies of copyright works available to its users, in which the court held that there had been extensive infringement of the claimants' copyrights.  Newzbin 2 involved the 'reincarnation' of the offending website as a similar website operating outside the jurisdiction. Here the court made an order requiring the major UK internet service providers to take steps to prevent subscriber access to the reborn site. The claimants, having become increasingly convinced that Harris, the first defendant, was actively involved in the operation of the later website, brought proceedings against him and persons and companies linked to him. According to the claimants:
(i) between mid-December 2009 and the end of November 2012 Harris had been the driving force behind mass deliberate infringements of the claimants’ copyrights;  
(ii) the various corporate defendants were Harris's corporate creatures, being owned and/or controlled by him, and  
(iii) he had used those companies for the purposes of channelling to himself or for his benefit the revenues earned from those infringing activities, as well as for syphoning off funds from Newzbin and thwarting the claimants’ ability to recover costs and compensation for the infringement by Newzbin of their copyrights, the entitlement to which had been established by the earlier proceedings.
According to Harris and the other defendants:
(i) although Harris had been the sole director and owner of Newzbin from December 2009 to May 2010, he had no intention to infringe copyright and did not believe that infringing activity was occurring until the first Newzbin judgment;

(ii) Harris had had nothing to do with the setting up or running the Newzbin2 website, which had been operated by hackers who had stolen data from the Newzbin1 website in order to do so and

(iii) there had been no conspiracy between the defendants.
What's more, argued Harris, in making him a party to the proceedings, the claimants were re-litigating matters against a new defendant whom they ought to have joined in the original trial and this was an abuse of process.

Barling J allowed the film companies' claim.

(i) There was no evidence from which it could be properly concluded that there had been sufficient material available to the claimants in Newzbin 1 and Newzbin 2 to justify holding that they ought reasonably to have joined Harris as a defendant in Newzbin 1 at any stage and there was no substance in the argument that commencing these proceedings against Harris was an abuse of process.

(ii) Harris was a joint tortfeasor with Newzbin in respect of the Newzbin 1 copyright infringing operations. He also masterminded and directed all Newzbin's actions in the period in question, including those that had been found to constitute infringing conduct. If ever there was a clear case of a company director intending, procuring and sharing a common design to commit an infringement with the company, this was it. Much the same applied to Newzbin 2, where he was either the sole tortfeasor or a joint tortfeasor.

(iii) All four elements required for an "unlawful means" conspiracy had been made out. These were (i) a combination of two or more persons; (ii) to take action which was unlawful in itself; (iii) with the intention of causing damage to a third party; and (iv) damage being caused to the third party.

Barling J's judgment is 178 paragraphs long,

Monday, 26 May 2014

A conference in search of speakers: Copyright and Technology 2014!

Gregory is already preparing his abstract:
what are YOU waiting for?
Do you wish to contribute to the cutting-edge Copyright and Technology conference, which will be held at the beautiful London offices of ReedSmith LLP on 1 October 2014? 

Here's your chance!

Like last year [which was great fun], this blogger will be there. There will be a morning full of plenary sessions [including a keynote address by 1709 Blog friend Maria Martin-Prat, Head of Copyright Unit, Intellectual Property Directorate, Internal Market and Services, European Commission], after which the conference will separate into Technology and Law & Policy tracks.
Here are the panels for the Technology track:
  • New Challenges and Responses to Online Piracy
    The proliferation of cyberlockers, cloud storage, and BitTorrent sites has led to new challenges for media companies looking to reduce the amount of infringing content stored online. Piracy monitoring services must keep up with new data storage and distribution schemes as well as new ways in which large-scale infringers can make content available. We’ll review some of the new challenges and responses to online piracy as well as the nature of demands on piracy monitoring services.
  • Content Protection for 4K Video
    The next frontier in digital video, known as 4K, offers four times the pixels of HD. Although movie studios are capturing content in 4K, the ecosystems for delivering it to consumers are still being defined. Along with superior viewing experiences, 4K gives Hollywood an opportunity to call for redesigned content protection schemes that remedy some of the deficiencies of existing ones. In this session, we’ll discuss Hollywood’s objectives for 4K content protection and hear about some proposed solutions and their tradeoffs.
  • Rights Expression Languages: Automating Communication of Content Rights
    The idea of machine-readable languages for expressing rights was introduced with some of the first DRM systems some time ago. But more recently, rights expression languages have found their ways into various interesting applications for conveying rights information among links in content value chains, to support commerce and licensing agreements efficiently and unambiguously. In this session, we’ll hear from organizations who are developing schemes to apply machine-readable rights expressions to digital images, news, and other forms of content.
Something that is more challenging than
addressing large-scale online infringements?
And here are the panel sessions for the Law and Policy track:
  • Should Internet Service Providers Be Copyright Cops?
    Internet service providers (ISPs) are beginning to take responsibility for copyright infringement that occurs over their networks – whether voluntarily (as in the UK and USA) or by force of law (as in France and Austria). On this panel, we will discuss developments that have taken place both in courts and behind the scenes that chart the progress of the content industries in getting ISPs to take responsibility for the copyright behavior of their subscribers, and whether educational or punitive measures are necessary to reduce infringement online.
  • Ripples Across the Pond: The Influence of American Copyright Reform
    The United States has begun the long journey of reviewing and reforming its Copyright Act, which dates back to 1976. Although opinions on how or whether to revise the law differ greatly, most agree that the law is a poor match for today’s rapid developments in digital content and services. Our panel of multi-national experts will speculate on the areas of the law that are most likely to change during the ensuing review process, and on how those changes will be likely to affect developments in law and technology in the UK, Europe, and beyond.
  • Copyright and Personal Digital Property
    Recent legal activity throughout Europe has profound reverberations concerning citizens’ rights to the data they put up online – or that is put online on their behalf.  European courts have decided that people have certain rights to have their personal information removed from online services.  Meanwhile, the European Commission is reopening debate around a Notice-and-Action scheme for removal of copyrighted material online, similar to the U.S. Notice-and-Takedown regime, which some advocates claim impinges on free speech while others claim is ineffective at curbing infringement.  Are we headed toward an online society that respects information as personal property, and if so, is this a good idea?  We’ll discuss these issues.
At this point conference organiser Bill Rosenblatt is accepting proposals to chair or speak on any of these panels.  Deadline is Friday, 13 June.  Please email your proposal(s) to with the following information:
  • Speaker’s name and full contact information
  • Panel requested
  • Chair or speaker request?
  • Description of speaker’s experience or point of view on the panel subject
  • Brief narrative bio of speaker
  • Contact info of representative, if different from speaker
The agenda is subject to change, so if you have another idea for a panel do let Bill know!

Saturday, 24 May 2014

Is Disney thawing in the public glare of fan fiction?

It seems that Disney may be softening it's approach to perceived copyright infringements in the form of user generated content and fan fiction and other fan created content. A number of bloggers have noticed that people from all over the world have taken copyrighted content from “Frozen”, Disney's hit animated movie, including the infectious song “Let It Go” and have uploaded content onto YouTube and other social media - postings that undoubtedly infringe Disney’s intellectual property - fair use or no fair use. 

On YouTube, you can find versions of “Let It Go” that are sing-alongs, mashups, covers and parodies. Some of these videos have "racked up millions of pageviews". But it seems that there has been a shift at Disney -  rather than viewing the postings as mass piracy - Disney has let it stand with no known DCMA takedowns. Interestingly, one blogger noted that Disney’s own efforts to establish an online presence has thus far only had a lukewarm reception - until the company recently purchased Maker Studios, a company that produces YouTube videos, tapping into amateur creators to provide content and it maybe that Disney has accepted the popularity of fan-created content - as a way to expand the brand and engage fans. That said - Disney’s position on copyright infringement won't have softened completely. Whilst Disney may well be aware of the anecdotal evidence that the same people who are buying soundtracks and merchandise and DVDs for Disney movies are the same people who are making and sharing YouTube videos - the company has always battled to protect (and extend) it's copyrights - from Mickey Mouse to Bambi, From the Little Mermaid to Beauty and The Beast - and indeed just after the cinema release of Frozen the company took immediate legal action when Phase 4 Films changed the name of one of it's own films, The Legend of Sarila,  to Frozen Land, seemingly repackaging their DVD release with some rather similar artwork along with a new logo and new promotional material - to allegedly mimic Disney's movie - and Disney say this:

The Walt Disney Company and its subsidiaries own the intellectual property rights to the characters, brands, titles and properties popularly associated with the Disney name and with Disney's affiliates. This includes a large number of titles, characters and other elements from Disney's television programs, feature-length motion pictures, animated productions, publications, games and music.

Disney takes the enforcement of these rights very seriously. We protect these rights so that we can continue to provide quality entertainment that measures up to the standards that our audience has come to love and expect. We welcome reports of suspected infringement of any of these rights. Please direct reports to us via one of the following methods:

More here

Friday, 23 May 2014

EUScreenXL: Overcoming the copyright hurdle for access to European audiovisual heritage

Have you ever thought about the peculiar legal issues surround digitisation of EU audiovisual archives? Have you ever wondered whether there is any specific archive network of EU audiovisual archives and broadcasters? Wonder no further.

1709 Blog friend Erwin Verbruggen works as project lead at the Research and Development department of the Netherlands Institute for Sound and Vision, where he is involved in issues of digital access and preservation of audiovisual archives.

In this guest contribution, he explains what EUScreenXL is all about and what happened during the Strategic Workshop on IPR Issues for the Audiovisual Domain, that took place in The Hague on 13 May 2014:

"Making the sounds and images music cassettes, video tapes and film materials survive the ages requires a specific kind of care. Making them accessible requires a firm grasp on copyright rules and regulations. At conferences that involve audiovisual heritage - say, a 1918 version of Puss in Boots, or cameras tilting through landscapes past - one could interrupt any on-going conversation by saying: “But what about the copyright?” and leave the participants struggling to come to terms with it. 

A plethora of laws and exceptions apply audiovisual materials. The creation of the product always involved a wide amount of people. During their lifetime, companies may have changed ownership and contracts may have gone lost, were unclear from the beginning or never intended for use in a digital environment.

EUscreenXL is a network of audiovisual archives and public broadcasters all around Europe. All participants have a public mission: to inform and entertain the public of the Member States where they operate. Yet, these have increasingly had to find ways to fund their production or preservation activities by making use of the assets that their archives hold. For some this means that copyright equals part of their income - and free access is a potential danger to their livelihoods. Questions such as how long after an author’s death copyright should stay in place strike a sensitive nerve. Nonetheless, their mutual goal is to explore the different ways in which archives can make their holdings accessible. 

EUscreenXL is funded by the European Commission and one of the tasks of this network, covering all but a few EU Member States, is to explore how we can increase and beef up the availability of audiovisual heritage resources on the world wide web. An estimated 11,4 million hours of moving image materials are kept safely in vaults. Much of it has been digitised over the past decade - but far from all of it is and even fewer is accessible for general audiences throughout the continent. Initiatives have been piling up: the EUscreen portal, the European Film Gateway, archives experimenting with YouTube channels [such as Italian CinecittaLuce] … 

The EUscreen portal makes accessible a wide range of film and video materials that cover a wide range of events, culture, folklore, every day life and news items from Europe’s history. The project explores new ways of contextualising historical film and video materials, providing them with unified and clear background information and making them appealing to various kinds of users: researchers, educators, web surfers or creative industries. The project also wants to bring broadcasters and audiovisual collections closer to Europeana - a European effort from museums, libraries, galleries and archives who make their collections findable and accessible through a common platform.

There are, as loyal readers of this blog are well aware of, a number of copyright-related discussions and initiatives at the EU level that are currently being undertaken and are relevant to EU archives. For instance, EUscreenXL reported on the final licenses for Europe session, which had mixed outcomes for the audiovisual sector. The consortium also formulated a response to the recent EC’s consultation on copyright.  

Last week, 1709 Blog team member Eleonora attended the workshop organised by the project that explored how the network could contribute to the copyright debates and improve the accessibility of audiovisual heritage materials online. The workshop focused on the question: what can we, as a mixed group of rights holders, heritage keepers, and public media participants, do to propagate a wider availability of audiovisual materials online? And what are the main reasons why so little of our audiovisual heritage is accessible to users and creative industries online?

As a presenter Francisco Cabrera (European Audiovisual Observatoryreminded us that the stakes for copyright are all a matter of perspective. The outlook always depends on whom you ask to, and from what angle you approach, say, the discussion about term extension.

Eleonora put it aptly: bringing audiovisual works online is rarely, if ever, sooner said than done. Europe, with its fragmentary character, is tricky terrain to explore for archives in the digital realm. What is allowed in country A oversteps the rules of country B and so forth. The workshop participants enthusiastically embraced the image Eleonora borrowed from Prof Hugenholtz of Article 5 of the InfoSoc Directive working somewhat like a “shopping list” of exceptions and limitations that Member States can choose to implement into their national laws. 

Krisztina Rozgonyi (PRK Partners) presented a solution at a national level that led to the creation of Hungary’s national audiovisual archive, thanks to a media law policy developed over ten years ago. By means of secure VPN connections and established entry points in combination with a legal deposit regulation, it allows audiovisual archives to give unlimited, certified access to the nation’s television and film history to schools and educators.

The workshop gave the participants a chance to discuss what parameters could or should be moved to make navigating audiovisual cultural heritage a more manageable task, and whom should provoke and guide the moving. Different approaches were discussed. Some participants firmly believed in extending the country of origin principle. Coming from the broadcast world, where the Satellite Directive has been a starting point for discussions about cross-domain access, the European Broadcasting Union’s advocacy group firmly stands for the clarity of this sort of ruling. It is wary of the risks of further harmonisation of copyright. On the broad, general question whether or not an EU-wide copyright title should be pushed for, the general answer was that such an undertaking would at least take us 20 –30 years, well beyond the project term of EUscreenXL. It may well be beyond our project horizon, but the materials once carefully crafted by AV professionals and now responsibly taken care of by archive specialists, might still benefit. After all, it’s them who we hope to keep alive in 30, or 100, or 500 years from now, not us." 

Hot news from a cold climate? Canada does some signing-up

13 August is a red-letter day in Canada, if you consider the many and varied occurrences that have graced the country since it emerged from the swirling primaeval mists of recorded time (if you want to know what happened in Canada on that date, just click here). What's more, this very year sees two more momentous events that will grace that date.

The first is spelled out in WCT Notification No. 81: WIPO Copyright Treaty. The title is a bit of a plot-spoiler, since this notification celebrates the deposit by the Government of Canada, on May 13, 2014, of its instrument of ratification of the WIPO Copyright Treaty, which will enter into force, with respect to Canada, on 13 August 2014.

The second, something of a sequel, is recorded in WPPT Notification No. 86: WIPO Performances and Phonograms Treaty, which produces the same effect regarding ratification of the WIPO Performances and Phonograms Treaty. This instrument of ratification has a bit more to it: The said instrument of ratification was accompanied by the following declarations:
- "Pursuant to Article 3(3) of the Treaty, the Government of Canada will not apply the criterion of fixation with regard to exclusive rights of producers of phonograms;

- "Pursuant to Article 3(3) of the Treaty, the Government of Canada will not apply the criterion of publication with regard to the remuneration right of Article 15(1) of the Treaty; and

- "Pursuant to Article 15(3) of the Treaty, the Government of Canada will not apply Article 15(1) of the Treaty with regard to the retransmission of phonograms".
Let's hear from our Canadian friends: what's the story?

CopyCamp update

The International CopyCamp Conference 2014, subtitled "Understanding the Social Impacts of Copyright" (see earlier 1709 Blog post here), is being hosted by the Modern Poland Foundation, which has launched an Open Call for speakers. The event takes place from 6 to 7 November (and not as previously stated) this year in Warsaw, Poland, and the deadline for responding to the Open Call is 15 June 2014.  Full details of the event can be obtained here.

In this blogger's earlier post, he noted the commitment to discussion which was "multi-sided, balanced and unrestrained" and he wondered how easily these criteria would be fulfilled if the pro-copyright side in the great debate is unrepresented or under-represented. He has since received an impressive email from the organisers which has reassured him that the desired balance should certainly be achieved, given the range of views represented.  Thanks!

The CopyKat - global copytreats - with a distinct lack of divine inspiration

A German court has ruled that an American psychologist — and not Jesus Christ — is the author of a book that she said Christ dictated to her in a "waking dream." Well, at least for the purposes of authorship in copyright law. The late Helen Schucman said she was a vessel for the words of Christ in her book A Course in Miracles, and a German Christian group called the New Christian Endeavour Academy argued that they were therefore free to put text from the book up on their website without permission or payment, saying "For many there is no doubt that Jesus of Nazareth is the author of the course and that copyright law therefore doesn't apply to his work." The Higher Regional Court in Frankfurt  disagreed and ruled that the rights go to the actual writer of the book regardless of "divine inspiration".

Its evolution Charles,
but not as we know it
This from the Guardian: "There were some funkybeats at Imperial College London at its annual science festival. As well as opportunities to create bogeys, see robots dance and try to get physics PhD students to explain their wacky world, this fascinating event included the chance to participate in a public game-like experiment called DarwinTunesParticipants select tunes and "mate" them with other tunes to create musical offspring: if the offspring are in turn selected by other players, they "survive" and get the chance to reproduce their musical DNA". The experiment is online:  - and should it be repeated with music that is in copyright would raise all sorts of interesting challenges for copyright lawyers as the music 'evolves'. 

In New Zealand a summary of the FBI's case against Kim Dotcom has been made public. It alleges the German millionaire knowingly infringed copyright, monetarily rewarded other people for doing so and made more than $175 million in the process. Judge Nevin Dawson in the District Court lifted the prohibition order on publicising the FBI's case against Dotcom, which the Megaupload founder "had hoped to keep secret. Stuff explains that Dotcom's has issues with a document called the "Record of Case", a summary document from more than 22 million emails obtained by the FBI. The summary of the FBI's case was released by a United States district judge to potential victims at the end of last year. The summary is now no longer subject to prohibition orders in New Zealand.

The Bookseller reports that the International Publishers’ Association (IPA) and the Federation of European Publishers (FEP) have warned that Europe's creative industries risk being "severely" prejudiced by measures taken by the World Intellectual Property Organisation's (WIPO) committee on copyright: How so? Well WIPO's Standing Committee on Copyright and Related Rights (SCCR) is currently looking at limitations and exceptions to copyright internationally, with a particular focus on educational activities, libraries and archives, and on people with disabilities, particularly those with visually impairments - and the trade groups 
have joined others including the International Association of Scientific, Technical and Medical Publishers and the European Grouping of Societies of Authors and Composers, in calling for the European Union to clarify the mandate of the SCCR before it commits to further work on copyright limitations and exceptions. An open letter signed by the organisations stated that a "broad range of divergent views" exists among WIPO member states. The “future direction of the SCCR may have far-reaching implications for the international copyright framework”, especially in relation to topics including the limitations and exceptions for libraries and archives, it said.

The U.S. Supreme Court has given the daughter of deceased screenwriter Frank Petrella a second chance to fight movie studio Metro-Goldwyn-Mayer Inc over her claim it infringed the copyright of an early screenplay for what became the iconic boxing movie "Raging Bull." MGM had invoked "laches", the doctrine that an unreasonable delay in pursuing a claim is a defence against that claim. MGM moved for summary judgment, asserting the equitable defence of laches based upon the long and unreasonable delay in bringing suit. The District Court agreed, then the Ninth Circuit Court of Appeals affirmed. Justice Ruth Bader Ginsburg wrote on behalf of the majority (6-3) of the Supreme Court that the Copyright Act bar on lawsuits more than three years after a claim arises did not bar the lawsuit because Petrella has argued that  there was an ongoing infringement and Petrella was only claiming damages for the three years preceding the filing of her lawsuit saying " Laches, we hold, cannot be invoked to preclude adjudication of a claim for damages brought within the three-year window. As to equitable relief, in extraordinary circumstances, laches may bar at the very threshold the particular relief requested by the plaintiff. And a plaintiff’s delay can always be brought to bear at the remedial stage." The court was clear that equitable estoppel may also apply, but that generally requires some affirmative act by the rights-holder. More on Laches and as Jeremy explains on the IPKat - laches cannot bar legal claims for actual damages or profits arising out of copyright infringement

Vimeo CEO Kerry Trainor has told Billboard that the video streaming service is launching a "Content ID" system which will allow the company to be "a little more controlled" in terms of making sure that copyrighted material is not infringed. Simply referred to as Copyright Match, Vimeo’s system subjects uploaded content to a scanning algorithm that attempts to pick up on any conflicts of interest, like clips of movies or songs not intended for free use. Vimeo said “Over the last nine years, Vimeo has grown into one of the most visited video destinations in the world. We now have more than 26 million registered members, with over 170 million people swinging by monthly to watch awesome videos. At our size, we need a semi-automated system to help us enforce those beloved guidelines.”

The South China Morning Post says that one of China's most popular online platforms, Qvod, will be fined 260 million yuan (or a rather large £24.7 million or US $41.6 million
as I make it) by the Shenzhen Market Supervision and Administration Bureau for linking to pornographic material and copyright infringement. Qvod, founded in 2007, has been accused of allowing users to watch pirated material and pornographic content on the company's peer-to-peer video-player technology. Early last month, Qvod was compelled to shut down its servers after the National Copyright Administration said it continued to violate copyrights. On April 22nd Shenzhen police raided Qvod's headquarters and seized computers and equipment.

Rightscorp Inc  the "provider of monetisation services for artists and holders of copyrighted Intellectual Property" has announced  the addition of 500,000 new copyrights to it's representation catalogue, bringing its total ownership portfolio to over 1.5 million copyrights. According to Rightscorp, it has been actively increasing the number of copyrights that it can protect and monetise by constantly adding new copyrights into its system.

In France it seems that the French record industry is following its UK counterpart in seeking a web-block injunction against The Pirate Bay, which would force internet service providers in the country to stop their customers from accessing the controversial file-sharing site via its principle (albeit ever changing) domains. According to NextINpact, a lawsuit filed by the French Civil Society Of Phonographic Producers back in February is now being shared with France's net sector at large and the suit names over a hundred Pirate Bay proxies which would otherwise be used to avoid primary blocks.

And finally, Music Week reports that new copyright amendments are being prepared by the Ministry of Communications in Russia that could lead to entire websites being blocked by court order - even if they comply with takedown requests. With many feeling that some sites pay lip service to take down requests and indeed are turning a blind eye to a mass of infringing content elsewhere on their domains, Ministry of Communications deputy Alexei Volin said: “Unscrupulous illegal sites should be blocked entirely.”

Thursday, 22 May 2014

Picasso and Potato Chips

Le Tricorne (detail)
In the lobby of the Four Seasons Hotel on East 57th Street in New York, hangs a mural. Anyone who has visited the hotel has walked by it, and many may have stopped for a moment, at least, to look. It is known as “Le Tricorne,” and was painted by Picasso as a set decoration for a performance of Diaghilev’s Ballets Russes. It has adorned the lobby of the hotel since 1959.

Not everyone thinks that it’s a good Picasso. The current owner of the hotel, reportedly, has never liked it. As part of a renovation planned in the hotel at large, he now hopes to remove it. And, strangely enough, the proposed move has caused an outcry in New York City. The owner is dealing with his own property. Why would his rights to do so be limited?

In New York, two answers to this question seem to be emerging: first, that the public may have some interest in the Picasso as an artwork in a public locale, even if that locale is privately owned; and, secondly, that undertaking the risk of destroying an artwork, particularly one by a major artist, may violate that public interest. It is curious that both of these views seem to take precedence so readily, for at least some New Yorkers, over private property interests.

The problem is a practical one: the painting is mounted on a wall, and removing it is almost certain to cause damage. The work is so delicate that attempting to remove it could, apparently, make it “crack like a potato chip”. If the project goes ahead, we could witness a a potential replay on American soil of the scenario in the notorious Indian case of Amar Nath Sehgal v Union of India. In that instance, a mural painted by one of India’s most eminent artists, appreciated by then-Prime Minister Jawaharlal Nehru and considered a “national treasure of India,” was removed from the walls of a government building in Delhi. The mural was badly damaged in the process – even the part of the mural containing the artist’s signature was broken off the artwork – and Mr Sehgal spent the better part of three decades pursuing action against the Indian government. His claim was grounded in moral rights, strongly protected in the Indian Copyright Act of 1957, but the litigation raised a number of interesting questions about the interpretation of an Act closely based on Article 6bis of the Berne Convention in most relevant respects. Notably, given the scale of the damage to Sehgal’s work, and the potential for further damage, was outright destruction of an artwork prohibited under Indian law? In 2005 the Delhi High Court responded with a resounding “yes.” The Court’s reasoning was innovative, revolutionary: it said that a high standard of protection must be applied to artworks of national importance, confirmed, in this case, by India’s membership in international treaties for the protection of cultural heritage. Indeed, membership in these treaties constitutes the background to India’s section 57 provisions on moral rights, and the context in which they are (now) subject to judicial interpretation.

Where the destruction of artworks is concerned, American law, which generally does not recognize the moral rights of authors, is exceptionally strong. Many readers will be aware that the United States has no generalized protection for moral rights in its copyright law – and, arguably, after the Dastar case, no strong alternative doctrine for the protection of an author’s right to attribution and the integrity of his or her work, either. However, it does have a well-known statute for the protection of the moral rights of artists who create works of visual art, the Visual Artists Rights Act of 1990, known as VARA. The enactment of VARA followed closely on the heels of U.S. membership in the Berne Convention in 1989, and probably owes its pedigree, at least to some extent, to art protection statutes in U.S. states such as California’s Art Preservation Act (CAPA, 1979) and New York’s Artists Authorship Rights Act (1984). The provisions of VARA are controversial in some respects. For example, if a work is treated derogatorily, a possible solution is for the artist to request the removal of his or her name from public presentations of the work in the altered form (as in the earlier New York statute). In this regard, the provision offers protection to the artist’s reputation, but not to the integrity of the work per se, which may well be compromised in these circumstances. VARA also introduces the balancing concept of intention, superimposed on the requirement of showing damage to the artist’s honour or reputation as in Article 6bis of Berne, and effectively replacing it (1); where intention to harm is shown, the requirement of damage to reputation is waived.

This statute may be unique in the world in prohibiting the destruction of artworks. This applies particularly to “works of recognized stature.” William Landes, writing in 2002, commented that the idea of “recognized stature” had a “relatively well-settled meaning[...],” and case law at the time supported that view; but the recent incident of the destruction of the 5Pointz mural complex in New York City [discussed on the IPKat by Miri Frankel, here] brings out some potential difficulties. The 5Pointz muralists are now suing for damages, and may well be able to show that the court got things wrong – though nothing, of course, can now bring the works back (see here and here).

Where does this leave things with Picasso’s mural? Given its authorship, the ease of establishing that the Picasso is a work of “recognized stature” seems fairly straightforward. Accordingly, VARA could be invoked by the New York Landmarks Conservancy, which owned the Picasso after it was donated to the group in 2005, to prevent its possible destruction by removing it from its place in the Four Seasons Hotel. Such a ruling can be predicted with reasonable assurance in only a few jurisdictions in the world – including India, strongly pro-moral rights, and the United States, strongly ambivalent, which both agree on the principle that destruction of a work should be prevented, in so far as possible, by artists’ moral rights.

Above all, the case fascinates because of Picasso’s absence from the debate. Moral rights are often said to serve the aggrandizement of individual artists or (gasp) their heirs. In this case, however, the dispute would seem to have little impact on Picasso’s reputation or the wealth of his heirs. On the other hand, the painting has aptly been called “Picasso’s most readily accessible painting” (Terry Teachout in the Wall St J, cited here), and it presents the alluring image of art interwoven with the fabric of life in ways that are not usually possible in Western cities. In this case, at least, moral rights are widely perceived as a public interest issue. Mr. Rosen finds himself in the eye of an unusually powerful storm.
(1)  (3) subject to the limitations set forth in section 113 (d), shall have the right—(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
This blogpost, composed by Professor Mira T. Sundara Rajan, was posted for her by Jeremy.