Friday, 31 July 2015

The CopyKat's Baked Cake Social

It seems Twitter is removing 'recycled' jokes which have been re-tweeted. First spotted by @PlagiarismBad, The Verge tell us that at least five separate tweets have been deleted by Twitter for copying this joke: "saw someone spill their high end juice cleanse all over the sidewalk and now I know god is on my side"  Olga Lexell, who, according to her Twitter bio, is a freelance writer in LA, appears to be the first person to publish the joke on Twitter. In a tweet she confirmed that she did file a request to have the tweet that copied her 'joke' removed. Eleonora has posted her thoughts on the IPKat here

The MPAA has sued MovieTube, owners of some two-dozen-plus streaming sites, alleging copyright infringement, according to a story from The Hollywood Reporter. MPAA members 20th Century Fox, Columbia Pictures, Disney, Universal, and Warner Bros. jointly filed a lawsuit in New York against a number of MovieTube-owned streaming sites. The group is asserting both copyright and trademark claims, and the complaint is filed against both John and Jane Does, and XYZ Corporations, as the MPAA is uncertain of exactly whom they are suing. In total, the MPAA lawsuit names 29 websites. The complaint asserts that the defendants are both willingly and openly breaking copyright laws, and that they are deliberately hiding their identities while doing so. More here.

This from Arts Technica: It's been two years since filmmakers making a documentary about the song "Happy Birthday" filed a lawsuit claiming that the song shouldn't be under copyright. Now, they have filed what they say is "proverbial smoking-gun evidence" that should cause the judge to rule in their favour. The "smoking gun" is a 1922 version of the "Happy Birthday" lyrics, predating Warner/Chappell's 1935 copyright by thirteen years and making the work public domain. That 1922 songbook, along with other versions located through the plaintiffs' investigations, "conclusively prove that any copyright that may have existed for the song itself... expired decades ago."   The original melody for "Happy Birthday to You" was composed in the late 1800s by school teacher Mildred Hill in Louisville, Kentucky. The song was a variation on a composition called "Good Morning to All," with lyrics penned by her sister, Patty Hill. Warner/Chappell said that there was no evidence that the Hills' successor - their sister Jessica Hill - had given up the sisters' copyright to the work. More here on the 1709 Blog and more on Above The Law here.

Librarians across Australia are cooking up a campaign to change the country's copyright laws. However, they want people to bake biscuits and cakes rather than picket Parliament. Social media users are being encouraged to cook a vintage recipe and share a photo of the result. The aim is to encourage the Attorney-General to look at changing the law so that unpublished (orphan) works are treated the same way as published ones. Executive director of the Australian Library and Information Association (ALIA) Sue McKerracher said the nation had "some rather strange copyright laws".

Thursday, 30 July 2015

Old Money, Old Navy, Fabric Copyright Infringement Suit, Oh Dear!

Sugartown Worldwide LLC, the owner of the trademark Lilly Pulitzer and the distributor of the famous fashion brand, is suing Old Navy and its parent company Gap, claiming that the retailer infringed its copyright when it sold several models of clothes and fashion accessories bearing prints which Plaintiff claims were copied from two of its original designs. The case is Sugartown Worldwide LLC v. Old Navy (Apparel), LLC et al, 1:15-cv-02633.
Lilly Pulitzer was a Palm Beach socialite who married a member of the Pulitzer family (as in Pulitzer Prize). She started designing dresses, somewhat by accident, in the late Fifties. As the story goes, she opened a citrus juice stand and needed a dress which would hide stains. The result was a simple shift cut in bright fabrics. The designs often featured animals, beach themes and sunshine, and used a colorful palette evoking life under the sun, at least for the well-heeled and well-moneyed.

The company enjoyed great success in the Sixties and Seventies. After an eclipse, the brand came back in the Nineties, and is still going strong: the complaint states that there are some one hundred Lilly Pulitzer stores in the U.S. selling clothes and accessories, which are also sold in some department stores and online. A Lilly Pulitzer collaboration with discount retailer Target recently sold out the first day of its release.
According to the complaint, Plaintiff’s design team created in 2011, as a work for hire, the “High Tide Design,“ which features the image of a beach, complete with waves and parasols, in blue tones, with some green and yellow accents. Plaintiff registered this design with the U.S. Copyright Office. The “High Tide Design” was incorporated in 2012 in several Lilly Pulitzer models of clothes and accessories.
The Lilly Pulitzer design team also created in 2013 a “Sparks Fly Design,” featuring red sailing boats over a dark blue sea, illuminated by yellow fireworks (see p. 7 of the complaint). Plaintiff also registered this design with the U.S. Copyright Office and used it on some on its models. Some of the products, however, depicted the “Sparks Fly Design” in different color schemes than the original one, such as dark blue boats over a white background.
U.S. copyright law does not protect clothes or even accessories, because they are useful articles, described by the Copyright Act as articles “having an intrinsic utilitarian function” and which are not copyrightable. However, fabric designs, if they are original enough, can be protected by copyright.
The complaint alleges that, in 2015, Old Navy manufactured and sold clothes and accessories “bearing a design copied from and substantially similar to the High Tide Design” and provides images of some of these allegedly infringing goods (see p. 10 of the complaint). The complaint also shows a side-by-side comparison of a pair of printed women’s shorts with a Old Navy pair of women’s printed shorts, which the Plaintiff claims copied the original Lilly Pulitzer design.
The complaint further alleges that Old Navy copied in 2015 the Sparks Fly Design and manufactured clothes and accessories bearing the firework print. The complaint provides a side-by-side comparison of a Sparks Fly Design Lilly Pulitzer model and an Old Navy pair of shorts featuring a firework print.
A plaintiff alleging copyright infringement must convince the court his protected work was copied by proving that defendant had access to the protected work. Access is the opportunity to view or to copy plaintiff's work. A plaintiff must also prove that the original and the allegedly infringing work are substantially similar.

There is no doubt in our case that Plaintiff could prove access to its designs, as they were sold to the public in 2011 and 2012. By showing its original designs side by side with some of the Old Navy models, Plaintiff is attempting to convince the court that the designs are substantially similar. The suit was filed in the Northern District of Georgia, which is part of the Eleventh Circuit, where the courts consider that there is a "substantial similarity" between two works if "an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work” (see SunTrust Bank v. Houghton Mifflin Co. at 1266).
This is probably the reason this suit was filed in Georgia, and not in Pennsylvania which is where Plaintiff has its headquarter, and is within the Third Circuit, where substantial similarity must be first assessed by experts before the court may determine “whether a "lay-observer" would believe that the copying was of protectible aspects of the copyrighted work (see Dam Things from Denmark at 562).
There is no need for experts in the Eleventh Circuit, and only the opinion of average lay observers is necessary. The Complaint alleges that the Old Navy models “are so striking that consumers and commentators have remarked upon them, referring to the infringing designs as Lilly Pulitzer “copies”, “dupes”, or “knock offs” and provides as evidence comments posted on Instagram personal blogs, and Poshmark, a site allowing users to sell pieces of their wardrobe, marveling about how similar the Old Navy models are to the original Lilly Pulitzer fabric designs (see here for 30 pages of such evidence.)

As “an average lay observer” is, in the Eleventh Circuit, “an individual who, without any vested interest in the governing issue, is sufficiently informed and alert to identify precisely the differences in the competing designs, yet sufficiently informed and independent to fairly identify and assess the similarities; that is, at a minimum, neither an engaged expert nor an oblivious passerby” (see John Alden Homes, Inc. v. Kangas at 1344), Plaintiff may have found online a trove of evidence in the chatter of consumers, who obliviously know the brand, yet are not fashion experts or professionals. Lilly is not pulling the Web 2.0 punches.

Image of fabrics is courtesy of Flickr user heather under a CC BY-NC-ND 2.0 license
Image of tag is courtesy of Flickr user vintinspiration under a CC BY-NC-ND 2.0 license

Of catapults and caterpillars: hubbub over the Hub

Waiting for the Champagne ...
Once upon a time, launches involved ships and smashing bottles of Champagne against their sides as they slid gracefully into the water. Launches nowadays seem to involve mainly websites and online services; the Champagne is then consumed at an appropriate reception and the guests slide off as gracefully as they can manage under the circumstances.  This blogpost brings news of a launch and also information about the UK's Copyright Hub, for which we have been waiting for development for what seems like the time it takes Harper Lee to publish her sequels. The news, embargoed until the very moment that this blogpost went live, reads like this, in relevant part:
New UK copyright system launched by IP Minister Baroness Neville-Rolfe [this is a bit of an overstatement: most of the UK copyright system remains regrettably much the same today as it was yesterday. Never mind ...]

* First public use of The Copyright Hub and Digital Catapult’s ground-breaking technology [this itself is a great British invention: catapults have previously only been used for hurling objects through the air. Ground-breaking is normally done by caterpillars, not catapults]

* Agreement to use new system in Australia announced

* Launch of the public information website

Intellectual Property Minister Baroness Neville-Rolfe became the first public user of The Copyright Hub and the Digital Catapult’s innovative new copyright technology at an event in London today. Using a single mouse-click, the Minister was able to secure permission to use a copyrighted [we don't normally use this word in the UK, since there is no verb "to copyright": the word "copyright" can happily used an adjective, as in "a copyright image"] image provided by project partner 4Corners Images (

The event marked the first time that The Copyright Hub’s technology – a platform developed and supported by the Digital Catapult - has gone live. The technology, which will be extended to other forms of media over the next few months, has been developed to enable creators to give permission for their work to be used both commercially and by members of the public.

Richard Hooper, Chairman of The Copyright Hub, commented: 
“This is a proud moment for The Copyright Hub team. The government has supported us since the whole process began with the Hargreaves Report in 2011, and now we are beginning to see a new era for copyright put in place. Given continuing support from industry and government, this could be a world-leading initiative on a par with the creation of the web itself.” 
There are now nearly 100 Copyright Hub applications planned, with ten under active development, including photo/picture library Mary Evans and the British Film Institute (BFI). In addition, i-publishing goes live with its first Hub application today and in the next few weeks Capture will have incorporated Hub services in their application, reaching many more picture libraries.

The international potential of the new technology was confirmed by the news that The Copyright Hub has agreed a new partnership with Australian licensing organisation the Copyright Agency. As part of this agreement, The Copyright Agency will be contributing to The Copyright Hub’s core funding.

The technology is expected to eventually be rolled out in Australia across all of the content licensed by the Copyright Agency – text, images, art, and survey plans. It continues the successful international work of The Copyright Hub, which is also working in the U.S. with the Copyright Clearance Centre and the Motion Picture Association of America and with an increasing number of other public and private partners across Europe and the world.

The Copyright Hub has also announced that it has launched a new website, to generate support for its activities. It highlights the support already received from over 45 organisations and many individuals, and invites others to get involved by contributing funding, time, Hub Applications and code [it's a lovely, friendly website but is it keeping its teeth well hidden? Key Supporters include Getty Images and Bridgeman Images ...].
It's good to find out what has been happening -- and it's even better to see some constructive efforts being made to facilitate the licensing of copyright rather than its infringement. We shall be watching with interest to see what the Hub can deliver and how greatly the copyright-consuming public takes to it.

Tuesday, 28 July 2015

Photographer Claims Harley Davidson Used Photograph without Authorization

Lisa Michael, a North Carolina professional photographer, filed a complaint on July 21 against Harley-Davidson and three of its dealers, alleging that their use of one of her photographs in an advertising brochure had not been authorized and thus infringed her copyright. The case is Michael v. Harley-Davidson, Inc. et al, 5:2015cv00346.
In September 2014, Plaintiff took a picture of a man sitting on a Harley-Davidson motorcycle and licensed it to a local Harley Davidson dealer, for limited use only in online advertising. The photographer included a digital watermark on the photograph to indicate that the picture came from her personal website.

Plaintiff later discovered that this photograph had been used as part of an “Iron Elite” advertising campaign, celebrating African-American Harley-Davidson riders. Plaintiff applied to register the copyright with the Copyright Office on July 6 before filing her suit in the Eastern District of North Carolina. The original licensee of the photograph has not been named as defendant to the suit.
Plaintiff claims that Harley-Davidson and several Harley-Davidson dealers are jointly and severally liable for damages, and she is demanding a jury trial.
The complaint alleges that Harley-Davidson created the “Iron Elite” campaign and offered a fabric patch featuring the silhouette of the rider in the original photograph. The silhouette was drawn in black and white over a black background surrounded by orange, using thus the colors of the Harley-Davidson trademark. The”Iron Elite” site explained that the patch had been created as a “special, limited edition” to pay tribute to famous African-American Harley-Davison users, and informed the public that it could be obtained at several Harley Davidson locations, which are the other Defendants to this suit.
Neither the online campaign site, nor the patch, indicated that Plaintiff was the author of the original work used to create the patch. This article states that Plaintiff had posted to her followers on Twitter that “My image chosen to represent HARLEY DAVIDSON USA IRONELITE 2015! ©", but that the tweet was later deleted. I could not verify this information, as Plaintiff’s Twitter account is now private.
The photographer filed a copyright infringement suit, and also claimed that the unauthorized use of her photograph amounts to false designation of origin and unfair and deceptive trade practices. The Complaint states that Plaintiff’s “label,” that is, the digital watermark on the photograph, “identified Plaintiff as the source of that work” and that removing it constitutes unfair and deceptive trade practice and false designation of origin.
This is an attempt to use trademark law to palliate the absence of moral rights in U.S. law. However, the court is likely to consider the patch to be reverse passing off, which is the misrepresentation of someone else’s goods or service as one’s own. In 2003, the U.S. Supreme Court held in Dastar that the phrase “origin of goods” in Section 43(a) of the Lanham Act “refers to the producer of the tangible goods that are offered for sale, and not the author of any idea, concept, or communication embodied in those goods” and thus closed the door to litigants wishing to use the Lanham Act as a way to protect their right to attribution.
The complaint alleges that the campaign featuring the infringing photograph has been reproduced and distributed on social media by third parties, but, unlike this recent case, Plaintiff did not attempt to sue these social media users for contributory infringement.
[Here is a video of Brigitte Bardot singing Je ne reconnais plus personne en Harley-Davidson, a song written by Serge Gainsbourg.

Image is courtesy of Flickr user lePhotography user under a CC BY-NC-ND 2.0 licence.

International Copyright Law: text and cases reviewed

International Copyright Law: U.S. and E.U. Perspectives Texts and Cases is the title of a handsome tome compiled by Jane C. Ginsburg (Morton L. Janklow Professor of Literary and Artistic Property Law, Columbia University, School of Law, New York) US and Edouard Treppoz (Professor, University Jean Moulin Lyon 3, France), published by Edward Elgar Publishing a little earlier this year.

According to the publisher's web-blurb:
International copyright law is a complex and evolving field, of manifest and increasing economic significance. Its intellectual challenges derive from the interlocking relationships of multiple international instruments and national or regional laws and judgments.

This ground-breaking casebook provides a comprehensive and comprehensible account of international copyright and neighbouring rights law, from the cornerstone of the 1886 Berne Convention and the Rome Convention of 1961, through to the 1994 TRIPS Agreement and the 1996 and later WIPO Copyright Treaties. It examines how national laws have implemented the international norms, and explores the issues these sources have left ambiguous or unresolved.

Ginsburg and Treppoz, two of the leading lights in international copyright law, bring their expert commentary and provocative questions to judiciously selected extracts from cases, analytical texts, and the texts of the treaties themselves, to develop a deeply nuanced understanding of this field. The approach centres on comprehending the international law and international treaties and, rather than analyzing the treaties in turn and in abstract, offers a concrete issue-by-issue treatment of the subject.
The authors focus principally on WIPO-administered treaties and TRIPS for their international material, thus leaving the Universal Copyright Convention out in the cold -- which is where it is. Included however is the little-known Austro-Sardinian Convention of 1840. The chapters adopt a methodology of addressing first the international source materials, then focusing on relevant provisions of US and European Union law, making allowances where necessary for the fact that there is not always a one-to-one correspondence between the materials contrasted. The authors also supply questions that demand a fairly acute understanding by readers of the issues highlighted in the primary materials (asking for example why a party should wish to bring proceedings in one jurisdiction rather than another). The contents are highly current and include, for example, the 22 January ruling of the Court of Justice of the European Union in Case C-419/13 Art & Allposters.

This blogger has never studied or taught international copyright law, either on its own or as a medium for a comparative study of US and EU approaches, though the subject is one that he has encountered on a one-off basis, leaving him with that uncomfortable feeling of having been slightly ambushed, on more times than he cares to recall. This book looks like just the thing he could have done with -- not merely for the content but for the direction of the questions posed.

The paperback version is a pretty hefty volume at xxviii + 849 pages. It's a good deal cheaper than the hardback (full price £45 as against £155 -- would you pay more than £100 for hard covers? -- and available with the publisher's online discount at £36 as against £139.50). The respective hard and soft soft cover ISBNs are 978 1 78347 797 5 and 978 1 78347 799 9. The book's web-page is here.

Monday, 27 July 2015

Digitised out-of-print books and authors' rights: a new question for the CJEU

Case C-301/15 Soulier et Doke is on its way from France to Luxembourg for a ruling by the Court of Justice of the European Union (CJEU). The topic involves collecting societies and the right to authorise the reproduction and the representation in digital form of out-of-print books. The court asks:
Do the provisions ... of Directive 2001/29 [the InfoSoc Directive] preclude legislation… that gives approved collecting societies the right to authorise the reproduction and the representation in digital form of ‘out-of-print books’, while allowing the authors of those books, or their successors in title, to oppose or put an end to that practice, on the conditions that it lays down?
As usual, the UK Intellectual Property Office has to take a position on whether the government should be advised to enter the fray or not. Your opinion may therefore be helpful. If you would like to comment on this case, just email by no later than Friday 7 August 2015.

The Lee Rigby portrait: a copyright dispute without any heroes

"Fury as Lee Rigby picture is removed from military memorial amid copyright row between MoD and photographer" is the lengthy title of this piece by Mail Online's Defence Correspondent Mark Nicol. In relevant part, this article reads as follows:
The disputed image reached as far as New York
"The picture used to pay tribute to murdered Fusilier Lee Rigby has been removed from an official Roll of Honour to fallen troops after the photographer who took it started legal proceedings against the Government. The image, which shows the 25-year-old wearing his ceremonial uniform, has been seen by millions since it emerged in the wake of his death at the hands of Michael Adebolajo and Michael Adebowale outside Woolwich Barracks in 2013 [you can see the image on the Mail Online website here].

Now the picture has been removed from the Ministry of Defence’s commemorative website after photographer Sam Szymanski claimed defence officials distributed the image without his permission. The photo will not be reinstated unless a settlement is agreed. The row has also led to eight pictures taken by Szymanski of British soldiers killed in Afghanistan – including Victoria Cross winner Lance Corporal James Ashworth – being removed from the Government site, in a move that has shocked bereaved relatives.

Szymanski, 62, said he regretted the emotional impact of his legal action but insisted he had tried to settle the dispute amicably before instructing lawyers to contact the MoD on his behalf. [He] said: 
‘I tried many times to get this sorted out before taking this step but officials I spoke to were dismissive. As a former soldier, I appreciate it must be awful for the families to go online and discover pictures of their sons have been removed. But the MoD took liberties and I got ripped off. I’ve made £8,000 from worldwide usage of the Lee Rigby image, that’s all. I’m not cashing in on anyone’s grief but I am entitled to make a living. My action against the MoD is about principle, not money. 
Lee liked the picture and ordered a set for his family. My understanding is, after he was murdered, defence officials obtained a copy of my photo from Rigby’s family. They then distributed it through a press agency and it went around the world. It’s been used thousands of times, most of the time without anyone bothering to credit me".
A MoD spokesman said: ‘The MoD has been approached by solicitors acting on behalf of an independent photographer regarding the use of a portrait of Fusilier Lee Rigby, which appeared on official websites. The MoD has removed this photo from official websites, pending resolution of the issues'".
The Copyright, Designs and Patents Act 1988 (CDPA), despite its length and sometimes obsessive attention to detail, contains no provision that permits the unauthorised use of an image on account of public sentiment, nor one that protects against the effects of private grief.  The Ministry of Defence in the UK has a budget that is £38 billion for 2014-5, which suggests that it could pay the sum requested -- but that massive amount represents the outcome of several years' financial stringency and the Ministry remains under pressure to reduce it further.  The payment of copyright royalties, and presumably damages where rights are infringed, may thus not be one of its highest priorities -- but maybe a bit of in-house copyright law training now could save further unnecessary expense in the future.

One can only feel sympathy for the widow of Fusilier Lee Rigby, an innocent bystander in a copyright dispute which she innocently initiated by letting the Ministry have a copy -- an act which itself falls not so far from being an infringement itself through 'authorisation' under section 16(2) of the CDPA.

Thanks to Chris Torrero for supplying the lead.

Saturday, 25 July 2015

Annotated state laws of Georgia on my Mind

An interesting legal scuffle has emerged in the US State of Georgia concerning the copyright claimed in the annotated version of the Georgia State Code, published on behalf of the State by LexisNexis.

The State of Georgia is suing Carl Malamud for re-publishing the Official Code of Georgia Annotated (OCGA) without permission. The State claims that unlike the underlying state law which is in the public domain thanks to §105 of the US Copyright Act 1976, the annotations and aggregation of the relevant caselaw by LexisNexis which, along with the statute law, comprise the OCGA, constitute an original work which is subject to copyright. Indeed according to the State's complaint (pdf) to the District Court for the District of North Georgia, the copyright has been registered with the US Copyright Office.

As LexisNexis, through its subsidiary company Matthew Bender and Co, Inc, was contracted to produce the OCGA, the claimant says it is a work-for-hire, and therefore the State is first owner of the copyright and thus has standing to bring the claim. Carl Malamud is being sued through his corporation Public Resource.Org.

In a somewhat ironic turn of events LexisNexis was itself sued back in 2012 for copyright infringement when it included legal submissions from a lawyer called Edward White in its 'Briefs, Pleadings and Motions' database. (Edward L White v Westlaw and LexisNexis SDNY 12 Civ 1340 (JSR)). On that occasion the use of the attorney's work by Westlaw and LexisNexis in this manner was found to be transformative and therefore fair use.

We don't yet know how Carl Malamud will defend this action. One has to hope he (or more likely his attorney) will do a rather more legally cogent job than the strident argument put forward by Mike Masnick on the TechDirt website. Masnick's comments largely follow those of Malamud himself (see link below) and centre on his assertion that the law should be freely available to the citizens of the State of Georgia (and others) and this move to protect the annotated version of the code somehow violates that principle. However a more considered view shows that the State of Georgia's case has some merit.

Firstly it is settled law that 17 USC §105 (Subject matter of copyright: United States Government works) which denies copyright protection to government works, includes both the statutes and the judicial opinion and rulings of the courts at Federal and State level. This follows a number of landmark cases including Wheaton v Peters 33 US (8 Pet) 591, 668 (1834), Banks & Bros v West Publishing Co 27 F 50 (CCD) Minn, 1886, right up to the case of the State of Georgia v The Harrison Company 548 F Supp 110 (N d Ga 1982). Indeed the last cited case involves many of the same factors as in the current case. Perhaps the best summary of the situation concerning the so-called Edicts of Government can be found in the US Copyright Office's Compendium Section 206.01:
206.01 Edicts of government.

Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.
It should be noted that although edicts of government include state legislation and court judgments etc, the overall purpose of §105 applies only to the Federal government and not to the States. Thus if the annotations, as opposed to the state code itself, are held to copyrightable in their own right, the State of Georgia is not legally bound to release them into the public domain. §101 of the Copyright Act says this about derivative works:
A “derivative work” is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. (my added emphasis)

So far Carl Malamud has not filed his response to the claim with the court, but from a letter he wrote to a number of Georgian politicians about the case, it appears that unless he can come up with a compelling argument that his is fair use, it would seem that all the court needs to decide is whether the annotations provided by LexisNexis amount to an original work of authorship. Given that users need to pay to access the annotated version they publish*, we have to assume that LexisNexis think it is.

* Westlaw also produce their own annotated version of the Georgia State Code which retails at $1,753 for the hardback 3 volume set, in which they claim copyright.

Friday, 24 July 2015

The CopyKat dips a paw into the fast flowing stream

In China. the the National Copyright Administration has updated its policies on music streaming, updating saying online streaming services must stop providing unlicensed music to users. Service providers were required to remove unlicensed music by the end of July . The NCA said in a stament that the move was in line with China's copyright law and regulations. Those who do not follow the order will be 'seriously punished'. Duan Yuping, an official from the NCA, said the violation of copyright is common in China. “(Music streaming providers) infringed the rights of royalty holders, disturbed the order of the online music market, and also impacted the development of our music industry” - the latter being a common thread amongst comments with artistes, record labels and music industry executives supporting the fight against piracy. 

And Jack Ma’s e-commerce giant Alibaba is launching a music division to join its existing film and video units in China. Ali Music Group will be run by singer-songwriter and TV host Gao Xiaosong, who serves as chairman, and Song Ke, a former Warner Music executive, as CEO. Alibaba already has a number of licensing deals in place with the likes of BMG, Rock Records and HIM Records for their content to play on its platforms. 

In the UK, The Intellectual Property Office (IPO) has released data that shows that the number of UK consumers accessing digital content through legal download or streaming platforms has risen 10% since 2013 - but one in five consumers continues to access music, movie, TV or gaming goodies from unlicensed sources online. The IPO survey says that 15.6 million UK internet users now access music online, with twelve million streaming and 10.5 million downloading - confirming the rise of the streams in recent years whic has been a common thread amionst recent figures from the recorded music sector showing streaming income rising at a very fast rate. whilst Spotify and Amazon are amongst the most use streaming music platforms in the UK, 54% of online music was consumed via YouTube - which whilst a licensed service certainly for songs via its licence with PRS for Music - its not seen as a primary revenue source by record labels and music publishers.  10 million UK internet users have accessed films online. Netflix, Amazon and YouTube were the top platforms for film downloads and streaming with Netflix responsible for 44 per cent of all activity. With TV, 15 million UK internet users have accessed a TV programme online. BBC iPlayer, You Tube and ITV Player were the top platforms for accessing TV programmes online with BBC iPlayer responsible for 62 per cent of activity. 21 per cent of users accessed some content illegally. The IPO survey highlighted 62% of internet users in the UK have downloaded or streamed music, TV shows, films, computer software, videogames or e-books. This is up from 56% in 2013. The survey showed that there was a 10% increase in UK consumers accessing content through legal services. One in five consumers still access some content illegally. The survey was published in parallel with research in Australia and shows that while British and Australian users consumed online media at similar rates, illegal downloading for UK consumers was half the rate of their Australian counterparts. 

Last week representatives from the UK’s creative industries, supported by the UK government confirmed the agencies that will help to deliver a major multi-media education campaign aimed at encouraging consumers to do the right thing and access content from a wide range of legal services as part of the Creative Content UK initiative.  The education programme will target 16-24 year-olds, their parents, those responsible for household internet connections, as well as others who influence young people’s attitudes to accessing content. A second part of the initiative will be a subscriber alerts programme that will be co-managed and co-funded by ISPs and content creators and due to begin at a later date.  Participating ISPs will alert and advise subscribers when their accounts are believed to have been used to infringe copyright. The four largest ISPs in the UK- BT, Sky Broadband, TalkTalk and Virgin Media are partnering with Creative Content UK: other partners include the BBC, the Independent Film & Television Alliance (IFTA), the Musicians’ Union and UK Music. 

And YouTube's dominance has prompted the major labels (Universal, Sony and Warner) to start to explore ways to loosen YouTube’s grip on free ad-supported music videos - not least by supporting rival sites like Vessel and Snapchat. The New York Post says that separately, the labels are weighing going nuclear — "potentially yanking rights to the Web’s most valuable and highly trafficked content" with one industry source telling the Post "They are not serious about monetizing music on behalf of creators and, as a result, music companies are realizing they have to reset the current relationship,” The labels are far keener on subscription streaming services such as Spotify's top tier. Industry body RIAA says ad-supported streaming services (both visual and audio) contributed just $295 million in 2014 to the US record industry — with YouTube’s contribution estimated to be about half of that sum. Google has said that YouTube has paid out billions of dollars to the music industry over the last few years and that partner revenue has increased 50 percent year on year the last three years in a row. More on Music Busines Worldwide here.

And Recent statistics explain why the record labels are so focussed: The income of Germany's recorded music market grew 4.4% year-on-year in the first half of 2015. That was mainly driven by a whopping 87% rise in streaming subscription revenues, which easily offset a decline in CD album sales. Download sales also increased. Germany’s record industry, the world’s third-biggest music territory behind the US and Japan, accrued €686m in the first half of 2015. The income of Sweden's recorded music market rose 4.2% in the first six months of 2015 - with streaming growing once again to claim 83.9% of revenues. According to new data from IFPI Sweden analysed by MBW, the market's recorded music turnover in Jan-June this year stood at 507.5m SEK (€54.6m), up from 486.9m SEK in H1 2014 (€52.4m).
And the income of the Italian recorded music market jumped up 22% in the first half of 2015, according to new figures published by Deloitte. The total revenues of the region stood at €65.55m, compared to €53.61m in H1 2014. A strong release schedule by local pop artists helped lift the total physical market by 22% to €37.3 million. Digital revenues increased 37% to €21.18m, with download sales up by 6% to €10.82m. Streaming, increased its year-on-year H1 income by 37%, up to €17.36m.

The Russian government's top Internet regulator has officially warned YouTube that it could be added to the Kremlin's Internet blacklist unless it removes unauthorised copies of Russian TV shows. It's the second time the agency has warned YouTube about the shows in question, and now the video streaming site must comply in a matter of days. A Moscow city court ruled on April 7th that YouTube was violating Russian copyright law by hosting copies of “Chernobyl” and “Fizruk.” YouTube removed the offending cntent but the shows have been uploaded again since, along with another 137 illegal videos. YouTube has until July 27 to remove the URLs in question or be included on the Russian RuNet blacklist, according to Global Voices Online, which tracks Russian media freedom.

The pit at Glastonbury (Denis O'Regan)
ImageRights International has announced the first "fully automated copyright registration service" designed specifically for the needs of professional photographers, "revolutionizing the process for registering photographs with the United States Copyright Office (USCO)". To be clear - ImageRights is a business - not a government or a free service - but makes the point that they have statistics that show that the time, cost, and complexity of registration has deterred 97% of US professional photographers from registering their work with the USCO, potentially losing out on "hundreds of thousands of dollars" in licence fees and indeed statutory damages from copyright infringement claims. There is a cost of course, but any interested (and unregistered) photographers can find out more here.

Oracle has asked a U.S. judge for permission to update its copyright lawsuit against Google Inc to include the Android operating system's current market dominance - Google's Android operating system is now the world's best-selling smartphone platform.  Oracle said it wants to update the copyright lawsuit, filed in October 2010, to add that Google continues its copyright infringement through updated versions of Android in both existing and new markets and this is resulting in harm to Oracle and (of course!)  benefit to Google. More here.  In June the US Supreme Court denied Google's writ of certiorari to re-examine the 2014 decision of the Court of Appeals for the Federal Circuit in favor of Oracle which held that application programming interfaces (APIs) in Java were subject to copyright protection. The next stop for these two companies is back to the trial court to determine whether Google has a defense to copyright infringement under the doctrine of  “fair use.” 

And finally a couple of technology updates - and sorry I have drifted into patents - not the CopyKat's field at all - but fascinating for all lovers of copyright too:

First up, Techcrunch tells us that "Researchers at the University of Cambridge have linked musical taste to thinking style, with possible implications for how future algorithms might better tailor music recommendations. Not to mention the flip side: how music streaming services could psychologically classify their users based on what they like to listen to".

And Mashable says that Apple has filed a fingerprnt sensitive patent application posted to the U.S. Patent and Trademark Office's website on Thursday -  "Apple detailed technology for a specialized TV remote control which could be used to access a person's TV preferences, bypass passcodes for services such as Netflix, enable child proofing and even control smart products in the home, such as garage doors and thermostats." 

Tuesday, 21 July 2015

Slam Dunk in Paris Court for French Sculptor Over Churchill Statue

Jean Cardot is a renowned French sculptor and is the author of a bronze statue of Sir Winston Churchill which can be seen since 1998 in Paris, Avenue Winston Churchill, close to the Petit Palais.

In 2011, the French men’s basketball team qualified for the European basketball championship and the London Olympics. In order to celebrate these achievements, Nike and Ubi Bene, an events company, adorned the 3,17-meter Churchill statue with a giant jersey of number 9 player Tony Parker, bearing the Nike trademark (see here for a picture). The picture was then published on several media, and even shown during the evening news show of a popular private television network.

Jean Cardot filed a suit in the Paris Tribunal de Grande Instance (TGI), claiming copyright infringement. Article L. 122-1 of the French Intellectual Property Code (IPC) gives the author the exclusive right to represent and reproduce the work. The author also claimed infringement of his droit moral, provided by article L. 121-1 of the IPC. The TGI ruled in his favor on May 7, 2014. The sculptor nevertheless appealed, arguing that the fines should be higher. The Paris Court of Appeals confirmed the TGI’s judgment on June 19, 2015, number 14/13108 on copyright and moral right infringement, and awarded the author higher fines.

The Paris Court of Appeals cited article L. 122-4 of the CPI, which provides that translating, adaptating, transforming, arranging or reproducing a protected work “by any technique or process” is an infringement of the rights of the copyright holder. For the Court, Jean Cardot’s work “was diverted for advertising purposes for the benefit of Nike France by affixing its mark on the statue and was distorted by affixing a sponsored shirt, without his consent and without his name being mentioned” and these actins infringed both the copyright and the moral right of the author.

The sculptor had argued that the image of his statue bearing the jersey had been “widely distributed and had generated extremely important benefits for the infringing companies.” Indeed, Ubi Bene had billed 22,245 Euros to Nike for the promotional event, and, as noted by the Court, had also benefited from the publicity given to this event. Nike also benefited from this event, as the image of the statute had appeared on prime time news on a private channel, at a time where the network charges 92 000 Euros for 30 seconds.

The Court of Appeals also noted that such act “has undermined the spirit of the work which pays homage to the British Statesman who, in time of war, helped France to restore democracy, even if his message “We Shall Never Surrender,” reproduced on the players’ tee-shirts, was thus being integrated by their exceptional achievements and thus demonstrated an awareness of the work of Jean Cardot.” The famous Churchill phrase is indeed engraved on the base of the statue.

Ubi Bene and Nike were sentenced to pay 60,000 Euros each for copyright infringement and 7,500 Euros each for moral right infringement.

Image is courtesy of Flickr user Javier Lastras under a CC BY 2.0 license.

Monday, 20 July 2015

Japan: land of the rising sun and the shrinking copyright?

"Japan trying to end wartime copyright extensions under TPP" is a snippet of news that this blogger would surely have missed, were it not for the eagle eye of Chris Torrero (thanks!) who kindly furnished this link to the Japan Times. In short:
The Abe government is seeking to abolish wartime copyright extensions in negotiations on the protection of intellectual property rights as part of Trans-Pacific Partnership multilateral free trade talks. In talks with the United States, Japan is demanding that the special arrangements be scrapped if the period of protection for copyrighted works of art is extended under a TPP deal, informed sources said.

Under wartime copyright extensions, the copyright protection period is set about 10 years longer than usual for music and literary works created in the victor countries of World War II, including Britain, the United States and France. Japan was required to honor the extensions when it signed the 1951 San Francisco Peace Treaty on the grounds that the copyrights of productions in the allied nations had not been protected in Japan during the war.

Among the 12 countries participating in the TPP talks, the United States, Australia and New Zealand are covered by the wartime copyright extensions.

TPP minister Akira Amari, told a meeting of the Liberal Democratic Party in early July that talks with the United States were touching on the advisability of ending the wartime copyright extensions.

The TPP negotiations have been exploring extending the period of copyright protection from the current 50 years to 70 years.

“Japan should not miss this opportunity to demand the correction of the situation that only selected countries have the benefit of very long copyright protection,” a specialist on the Copyright Act said.

Abolition of the wartime copyright extensions for European countries such as Britain and France may be discussed in negotiations between Japan and the European Union on concluding an economic partnership agreement.
This blogger has not hitherto come across anything about Japanese wartime copyright extensions and wonders if readers can contribute any useful information or practical experience of it/

Consultation mania sweeps UK -- again

It's consultation time again in the United Kingdom, a jurisdiction which may not be able to put together a credible cricket team but which leads the world when it comes to "what should we do about copyright law?" consultations. First, there's the news that
The Copyright, Designs and Patents Act 1988 (CDPA) provides copyright owners with a range of rights allowing them to control the use of their works and to seek payment for this use. Among these rights are rights to control the showing, playing and other communication of works to the public. This includes the showing of a film or broadcast to a public audience.

Section 72(1) sets out an exception to these rights. It allows organisations which do not charge for admission to show television programmes to the public without permission from the owners of film and broadcast copyright in those programmes. If an organisation wishes to show broadcasts that contain other copyright elements, for example any original literary, artistic, musical or dramatic works, as well as most commercially produced sound recordings, it still needs the permission of the relevant owners of those works.

Recent court cases have highlighted both legal and policy issues in relation to the provision set out in Section 72, which the proposals set out in this consultation seek to address.

The proposals set out in this consultation will be of particular interest to sports right holders, music right holders, broadcasters, and commercial premises which show television broadcasts to the public. The IPO invites those interested to provide their views. You can do this by [contacting us here].
There's also a proposal for changes in the penalties that may be inflicted upon those who commit online copyright infringements [discussed in greater detail by Andy here]. As the IPO explains
The proposed new measures will increase the sanctions for criminals who infringe the rights of copyright holders for large-scale financial gain and will make clear that online copyright infringement is no less serious than physical infringement.
To contribute your thoughts on the subject, just click here.

Sunday, 19 July 2015

Should the Pirates get 10 Years, or just walk the Plank?

Some considerable time after the Gowers Review (pdf) recommended (recommendation 36) that the maximum term of imprisonment for online criminal infringement should be increased, the IPO has launched a consultation [pdf) on whether the term should be raised from the current 2 years to a maximum of 10 years. In an effort to stick to its policy of evidence-based decision making, the consultation document exhorts would-be respondents to say rather more than just Yes or No when replying. However the same document is very thin on justification, its argument being mainly the fact that the penalty for infringing copyright in physical objects or designs is 10 years and so it would be neater if the penalty for online piracy was the same.

Would-be respondents therefore need to go to the 98 page Report on the subject commissioned, and published in March 2015, by the IPO, for some more detail about the pros and cons of the proposal.

While there is no denying that online piracy remains a significant problem, one can't help feeling that this has more than a hint of political grand-standing. The former MP and IP advisor to the Prime Minister, Mike Weatherley put it like this:
"There is currently a disparity in sentencing between online and offline crime that needs to be harmonised. This sends out all the wrong messages. Until this is changed, online crime will be seen as less significant than traditional theft". (My added emphasis).
While deterrence is all about sending messages, one has to be clear about whether the target audience will in fact be impressed by such demonstrations of muscle flexing.

Given that Mr Weatherley's remarks were contained in a report entitled Follow the Money, it could be argued that the current judicial initiative of using section 97A to take down or block sites containing infringing material, is cheaper, quicker and more effective than relying on the rather more ponderous and over-stretched criminal justice system, especially as in many cases it will need to rely on extraditing individuals from other jurisdictions. One has only to look at the Kim Dotcom saga to see how long criminal cases of that sort can take to get to court. In contrast, Mr Justice Arnold can knock out an injunction in a morning's work. And of course criminal cases require a higher standard of proof compared to civil ones.

The Report provides some interesting analysis of the current situation with regard to past criminal cases in the UK:
"The available court data from 2006-13 makes it clear that over the last few years, all prosecutions and convictions under CDPA 1988 have been going down. Online offences constitute a small, and apparently decreasing, fraction of copyright prosecution activity as a whole. Separate evidence provided by the Crown Prosecution Service and Trading Standards showed that neither have brought any cases at all under the online provisions of CDPA 1988." (second paragraph, page 5).
While I don't have a problem with tidying up the law, and goodness knows the Copyright, Designs and Patents Act is in dire need of tidying up, just tinkering at the margins for political rather than good evidence-based reasons is not really constructive. Let us hope that the IPO make a better job of conducting this consultation that they did over the recently-quashed private copying for personal use secondary legislation. The consultation closes on 17 August 2015.

Saturday, 18 July 2015

The Queeen and that salute

UK readers of this blog will by now be aware of the Sun newspaper's dramatic scoop this morning (even if they are not habitual readers of that paper) concerning the Queen's activities as a six-year-old. No doubt if it is a slow news day elsewhere, readers around the world will also have been made aware of the story.
Buckingham Palace staff have been relatively and characteristically restrained in their response, saying that they are disappointed that the Sun has seen fit to intrude into the Royal family's private life. But others have not been so reticent in their comments. The BBC, for example, has speculated that the Palace may try to sue the Sun for infringement of copyright by releasing the film clip via their website. Stills taken from the film which appeared in the paper would not constitute fair dealing for the purposes of news reporting because photographs are excluded from this exception.

Apart from the political and public relations issues with the Queen starting a private civil case of this nature, there are also considerable legal problems with this course of action, should it be seriously considered.

Prior to the 1956 Copyright Act, films were not protected by copyright. The 1911 Act mentioned cinematograph films (in section 1(2)(d)) but only in the context of being one form of the performance of literary, dramatic or musical work, but they were not protectable per se. So films of a factual or documentary nature (such as the Royal film at issue here) were not protected at the time. This of course did not matter then because presumably the film was made for purely private consumption. The 1956 Act provided some retrospective protection by treating a film made before 1957 as a series of still images, each of which would be protected as a photograph. If there was a sound track then this would have separate protection as a sound recording. So once the 1956 Act had come into force in 1957, this piece of film would have gained protection as a series of photographs. This would seem to lead us to the next step which would ordinarily apply to copyright works, namely who was the author and when did he or she die?
However this is not the case for photographs created prior to 1 June 1957. Section 21 of the 1911 Act afforded special treatment to photographs, namely that the term of protection was fixed at 50 years from the making of the original negative, and then ceased. This applied equally to published and unpublished photographs.  What is more, although the film (reputedly shoot in 1933 or thereabouts) would still have been protected under section 21 when the 1956 Act came into force, the transitional provisions (in Schedule 7) of the later Act did not change the provisions for photographs made before 1 June 1957, and so copyright in the film would have expired around 1983, some time before the current 1988 Act appeared on the statute books.

Hang on though, what about Crown Copyright? The 1911 Act, although not using the exact term, introduced what we think of as Crown Copyright, which lasted for fifty years from the date of first publication of the individual work. Since this film (we presume) has never previously been published, that would mean that the copyright term has not yet commenced (unauthorised publications such as that by the Sun newspaper don't count). But could the film attract Crown Copyright? The wording of Section 18 of the 1911 Act says:
"Without prejudice to any rights or privileges of the Crown, where any work has, whether before or after the commencement of this Act, been prepared or published by or under the direction or control of His Majesty or any Government department, the copyright in the work shall, subject to any agreement with the author, belong to His Majesty, and in such case shall continue for a period of fifty years from the date of the first publication of the work".

It seems unlikely that the then King, George V, would have directed that this film be made, although it is possible. From the circumstances and individuals shown in the film, it seems probable that the person filming the goings-on was the King's second son, Prince George, who later became King George VI. Given the private nature of the film, and following the dicta of the court in the case of the Black Spider memos, this private activity would not constitute the duties or authority of the 'Crown'. Arguably had a decision on this sort of issue been required back in the middle of the last century when deference was rather more in vogue, things might have been handled differently (see the case of Prince Albert v Strange 1849 discussed by Jeremy here).

However I suspect that all this will be hypothetical, and that no such copyright case will ever be contemplated, let alone go forward to litigation. But if it did, the Sun would undoubtedly advance the little-developed defence of public interest under Section 171(3). The Sun is of course no stranger to the public interest defence in a copyright case, since it was argued in the case of Hyde Park Residence Ltd v Yelland and others [1999] which the Sun lost on appeal.

High Court quashes UK's right to private copy Regulations

The High Court in London has quashed provisions in the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 introduced by the UK government in October 2014 to allow members of the public to lawfully copy CDs and other copyright material bought for their own private use. 

In June in  BASCA v Secretary of State for Innovation and Skills [2015] EWHC 1723 (Admin) the High Court ruled against the UK Government in a Judicial Review brought by the British Academy of Songwriters, Composers and Authors (BASCA), the Musicians’ Union (MU) and UK Music. These three bodies challenged the Government’s decision to introduce a private copying exception into UK copyright law, arguing that it was unlawful because it failed to provide fair compensation to rightholders in line with European law.

The Department for Business, Innovation and Skills said when introducing the new regulations that they would cause only zero or insignificant harm, thus making compensation unnecessary. But Mr Justice Green, sitting in London, ruled last month that the evidence relied on by the government simply did not justify the claim that the harm would be “de minimis”. The organisation that represents all sectors of the UK music industry, UK Music, estimated that the new regulations, without a compensation scheme, would result in loss of revenues for rights owners in the creative sector of £58m a year. 

On Friday, in a further decision, Mr Justice Green said: “It is clear that I should quash the Regulations. I make clear this covers the entirety of the regulations and all the rights and obligations contained therein.” In particular Green J said:

[5]. I have now received detailed and constructive submissions from the parties. The Secretary of State has accepted the position that the Regulations should be quashed. He states as follows:

“4. The Secretary of State welcomes the guidance which the Court has provided as to the correct approach to be adopted as a matter of law when considering the introduction of a private copying exception, and as to the scope and nature of the factual enquiries which are necessary. He will now take the opportunity to reflect further and in due course take a view as to whether, and in what form, any further factual enquiries should be carried out and whether a new private copying exception should be introduced. The Secretary of State has not decided on any specific course at this stage and wishes to take time to reflect before making any further decisions. He would not wish to create any uncertainty in the law by submitting that the Regulations remain in force while further policy decisions are made.

5. Given that the Secretary of State submits that a quashing order is appropriate at this stage, there is no necessity for a reference to the CJEU. As is made clear in the body of the Judgment, the Judge’s conclusion leading to the ruling that the decision was unlawful did not depend on his conclusions on issues of EU law, in particular as to the meaning of “harm” (the issue identified by the Judge is a matter for a potential reference)”

[11]  It is clear that I should quash the Regulations. I make clear that this covers the entirety of the Regulations and all of the rights and obligations contained therein. The Judgment concerned the personal and private use exception in section 28B; but the Regulations for example also introduce analogous exceptions for performing rights in Schedule 2 paragraph 1B CDPA 1988. The Regulations are thus quashed.

And turning to the matter of whether the Regulations should be quashed, ex nunc or ex tunc:

[19]. In the circumstances of this case I will declare that the Regulations are prospectively unlawful. However, I am not prepared to rule upon the position ex tunc. It seems to me that the declaration sought raises potentially complex and far reaching issues which it is appropriate to address in the circumstances of private law litigation between a specific rightholder and an alleged infringer. It will be for a defendant in future proceedings to explore and raise this issue, including whether the effect of the fact that they relied at the time upon Section 28B creates some species of estoppel, legitimate expectation or fair use defence in private law and whether, if such exists, this goes to the cause of action or the remedy or both. 

And explaining why the Court was not referring the matter to the Court of Justice of the European Union:

[30] ... Nothing that I have said in this ruling should be taken as an indication as to the decision that a future Court might make upon an application by the Claimants (or others) for a reference in the future. This is not an encouragement to a further application. It is clear from the Judgment that I considered a reference to be appropriate essentially because of the importance of the issue. I did not, however, consider the issue ultimately to be one of great difficulty. To succeed upon the issue before the Court of Justice the Claimants would have to persuade the Court of Justice that there was no discretion on the part of the Member States as to the choice of test for the computation of harm (as to which in the Judgment I set out fully the relatively extensive case law of the Court indicating that such a discretion did in fact exist), and, that the only lawful test was the licensing test. Alternatively, the Claimants would have to convince the Court that if there was a discretion conferred upon Member States, that it was outwith the appropriate margin of appreciation accorded to Member States for the Defendant to adopt the “lost sales” test. I consider that achieving success on a reference raising these issues would be no mean feat.

The Queen on the application of (1) The British Academy of Songwriters, Composers and Authors (2) Musicians' Union (3) UK Music 2009 Limited v Secretary of State for Business Innovation & Skills (Incorporated Society of Musicians Intervening) [2015] EWHC 2041 (Admin)