Wednesday, 14 February 2018

THE COPYKAT

This CopyKat from Mateusz Rachubka


The US Copyright Royalty Board decided to increase the amount of royalty payments that companies such as Apple, Spotify, Amazon, Google and Pandora would have to make to songwriters and music publishers over the next five years. The streaming companies would now be required to pay 15.1 percent of their revenue, comparing to the previous rate of 10.1 percent. As described by NMPA President & CEO David Israelite, in practical terms “the CRB raised rates for songwriters by 43.8%” and this decision also allows the songwriters to benefit from any agreements concluded by record labels in the free market. As a result the ratio between what “labels are paid by the services versus what publishers are paid” will now significantly improve. Additionally, the CRB has introduced a late fee, up to 18 percent annually, in case any royalty revenue is not paid on time by the streaming company. Although music creators did not manage to get ‘per-stream rate’, the songwriters consider increase in overall rates as a success in the market which is currently dominated by the streaming companies. 



Senators, both from Republican and Democratic parties, have introduced the CLASSICS Act (Compensating Legacy Artists for their Songs, Service, & Important Contributions to Society), which would impose an obligation on digital services to pay both rightholders and artists for the use of recordings that were created pre-1972. Under the current legal framework, the way in which digital music services pay to use recordings made after 1972 is covered by federal copyright law, whereas the use of works created before 1972 is regulated by state law. This situation has led to many questions and complicated litigation in several states. With the versions of CLASSICS Act introduced in the Senate, now the rates for the use of both pre and after 1972 recordings for digital services will be the same and paid in an identical way. Introduction of the bill will also enable digital platforms to settle any outstanding claims with rightholders, in California. This will allow services to avoid state infringement lawsuits. Nevertheless, in order to do so digital music services would have to pay three years’ worth royalties at the current statutory rate for all the music they have used across the whole country.


Recently we have reported that the debate over introduction of ‘Safe Harbour’ provisions to NAFTA agreement is heating up. Now Public Knowledge has explored the proposals that were suggested by the lobbyists for the big entertainment companies. One of the ‘wildest ideas’ was a recommendation not to include ‘Safe Harbour’ provisions into NAFTA. In the view of the lobbyists, they “facilitate child pornography and human trafficking” by allowing internet intermediaries to avoid responsibility for any content that is published on their services. This argument according to Gus Rossi is highly misleading. He argues that without a legal framework exempting online platforms from responsibility for context posted by their users, the intermediaries “would be obligated to censor and control everything their users do on their platforms”.


Another argument proposed by the entertainment industries is that exceptions and limitations are unnecessary in trade agreement, claiming that they are “a barrier to the protection of American artists”. Rossi, again, considers this proposal as widely inaccurate. In fact, in the digital age the US copyright system would not be able to work without fair use provisions. Therefore, the author suggests that with the importance of current negotiations of NAFTA, which may be used in the future as a standard of ‘American-sponsored free trade agreements’, it is important to fight any misconceptions and protect a balanced approach to copyright.


With the ongoing debate on potential reform of copyright law in Australia and adoption of fair use approach, recently two reports were issued, which show that the current framework allowing for narrow ‘fair dealing’ exceptions is considered as a barrier to innovation. Deloitte in its ‘Copyright in the Digital Age’ paper argues that digital technologies could contribute over $139 billion by 2020 to Australian economy if the legal framework will support innovation and allow to maximise opportunities. The study of Australian Digital Alliance revealed that the creators struggle to understand copyright law. For many of them the exceptions are often confusing and seeking permission to reuse copyrighted content often results in expensive fees and time delays. Therefore, suggestions have been made that Australia should reform its framework and follow such countries like the US, South Korea or Sri Lanka, which have broader exceptions to the use of copyrighted content. Fair use provides that each use is assessed on its own merits and does not need to fall within a specific predetermined category. The authors of the report claim that transition to fair use would enable innovation, facilitate new uses of copyright materials, particularly in such areas as data mining and cloud computing, and ultimately lead to “a more competitive and creative (…) society”.


A coalition of rightholder organisations has addressed the new Presidency of the Council of the European Union, currently held by Bulgaria, to find a solution to the issue of ‘Value Gap’ (the Transfer of Value). The Value Gap arises in the situation where there is a “mismatch between the value that online User Uploaded Content (‘UUC’) website services extract from creative content and the revenues returned to the creative community”. With vast amount of content being uploaded by users, the UUC sites generate revenue from the infringing content. At the same time the UUC websites refuse to negotiate “fair or any copyright licences” with rightholders. Therefore, the creators believe that the proposal for Copyright Directive, which is currently being negotiated by the European Parliament and EU member states, should clarify two elements. First of all, that the “UUC services communicate to the public under the EU copyright framework and therefore are obliged to obtain licences for copyright protected works, unless eligible for e-Commerce Directive ‘safe harbours’”. Secondly, those UUC services that play an ‘active role’ in promotion of the content, should not be able to benefit from ‘safe harbour’ provisions.

The issue of Value Gap was also addressed by the President and Vice-President of CISAC. In their open letter to MEPs, Jean-Michel Jarre and Angelique Kidjo noted that the copyright reform offers “a historic opportunity to bring fairer remuneration for creators and drive economic growth and jobs in the creative industries”. Therefore, in their view the EU law should not shield UUC platforms, which “make vast revenues from creative works while not fairly rewarding the creators”. Thousands of artists and authors supporting the European Commission’s proposal believe that with a reform of safe harbour the new copyright Directive  will offer an opportunity to “shape fairer digital market for creators in the 21stcentury”.  

For further debate on remedying the Value Gap under the proposal for Directive on copyright in the Digital Single Market go here, and here.

If you would like to support European screenwriters and directors in their call for a modernised EU Copyright framework, please click here.


That was the question in the dispute between ISE Entertainment, and Civillico and Longarzo. ISE claimed that it owns rights to ‘The Weekend in Vegas’ ABC show, which until recently the viewers could also download on Amazon.com. The show was however removed following an infringement notice submitted by Civillico and Longarzo. According to Civillico he owned the rights in the show and ISE by being in breach of a deal had no authority to use his work. ISE sued both parties for allegedly violating DMCA section 512(f) by submitting a fraudulent takedown notice. The defendants argued that ISE had never registered the show for copyright, nor applied for a registration and therefore had no standing to make a claim under section 512(f).

This argument was rejected by the US District Court Judge Fitzgerald. DMCA section 512(f) provides that an ‘alleged infringer’ may recover damages from when harmed by misrepresentation that material or activity is infringing (here fraudulent takedown notice). In the view of the Court “neither copyright ownership nor registration are prerequisites to bring” action under section 512(f). Therefore, the Court concluded that ISE as an ‘alleged infringer’ had standing to sue and that ISE has stated a viable 512(f) claim.


Google has reached agreement with Getty Images over a ‘multi-year’ licence, which will end the European Commission complaint, where Getty “had accused Google of effectively being a one-stop piracy shop”. Getty claimed that the users of Google could simply view and download “high-resolution, copyrighted content”, which accordingly enabled copyright infringement and piracy. As revealed by the parties, Google has agreed to reform its approach to copyright in its image search function. The search will now include more prominent copyright disclaimers and will remove view image links to the image URL. In return Google will be able to use Getty Images’ content in its products and services.

CREATes need you!

The  School of Law and CREATe Centre at the University of Glasgow have Two CREATe-related roles now available at the University of Glasgow. There is an opportunity to join the School of Law and CREATe at an exciting point in our development, as part of the University of Glasgow’s ongoing investment in the creative economy. Two positions are now available, as Lecturer in Intellectual Property Law and Graduate Teaching Assistant, at the School of Law-hosted Centre for Copyright & New Business Models in the Creative Economy (CREATe), an international copyright research hub established in 2012 with research funding from the AHRC, EPSRC and ESRC. Please click here to read more about the roles  http://www.create.ac.uk/blog/2018/01/29/two-create-related-roles-now-available-at-the-university-of-glasgow/ 

Informal enquiries about both the above positions may be directed to Professor Martin Kretschmer (Professor of Intellectual Property Law and Director of the CREATe Centre).  Email: martin.kretschmer@glasgow.ac.uk and Tel: +44 141 330 3886

French Minister Clarifies Statutory Provision on Copyright Contracts



One of the striking features of French copyright law is the protection it affords to authors in their contractual dealings with would-be licensees and assignees.

One of the key statutory provisions that contributes to this high level of protection is Section L.131-2 of the Intellectual Property Code (IPC), which until recently provided as follows:

"Contracts for public performance, publishing contracts, and audio-visual production contracts defined in this Section shall be in writing, as shall be free authorizations to publicly perform.  
In all other cases, the provisions of Sections 1341 to 1348 of the Civil Code shall apply."

This provision sets out a rule whereby certain named contracts (viz., public performance, publishing and audio-visual production contracts) must be in writing.  (To this list must also be added, pursuant to a different section of the Code, contracts for the acquisition of audio-visual adaptation rights of a literary work).

Courts have long recognized that the requirement for a written instrument under Section L.131-2 IPC is merely for evidentiary purposes (ad probationem ) and not for the contract's validity (ad validitatem).

In all other cases, the ordinary rules of evidence under the Civil Code apply.  However, it should be noted that even in such cases, a written instrument is highly recommended in light of other formal requirements (set out particularly in Section L.131-3 IPC).

The Act of 7 July 2016 added a new paragraph so that Section L.131-2 IPC now reads as follows:

"Contracts for public performance, publishing contracts, and audio-visual production contracts defined in this Section shall be in writing as shall be free authorization to publicly perform. 
Contracts under which copyright is transferred shall be in writing.  
In all other cases, the provisions of Sections 1341 to 1348 of the Civil Code shall apply."

The introduction of the new second paragraph left many wondering what the scope of the final paragraph would now be. 
A written question on this issue was thus put to the Minister of Culture who replied on January 11th last.
In essence, she confirms that the rule embodied in Section L.131-2 IPC is an evidentiary one (and not for validity).  She goes on to say that the second paragraph was enacted to protect authors of graphic, artistic and visual works. 
As for the question of what then is left for the final paragraph, the Minister suggests that it applies only to works of industrial applied art, i.e. works intended to be used as utilitarian products that could also, in theory, be protected by a design and model right.
Only time will tell whether the French courts agree with the Minister's interpretation. 

Thursday, 8 February 2018

French Constitutional Court Rejects Challenge to Image Right in National Monuments




                                               
                                                                            How much do I owe?


France's Constitutional Court has just ruled that a provision in the Code du patrimoine (Heritage Code) involving the use of images of buildings protected as national domains passes constitutional muster.

The provision at issue was Section L.621-42 of the Code, which, as amended by the Act of 7 July 2016, provides as follows:

"The use, for commercial purposes, of the image of buildings constituting national domains, on any media, is subject to the prior authorization of the custodian [French term is "gestionnaire"] of the relevant portion of the national domain.  Such authorization may take the form of a unilateral deed or a contract, whether or not in conjunction with financial terms.

The fee shall take into acocunt the advantages of any kind obtained by the holder of the authorization.

The authorization contemplated by the first paragraph is not required where the image is used in the context of the exercise of a public service mission or for ends that are cultural, artistic, pedagogical, for teaching, research, informational and by way of illustration of current events."

The constitutionality of the provision was challenged by Wikimedia France  and La Quadrature du Net (by way of a so-called priority question of constitutionality) which argued, inter alia, that the provision violated the principle whereby patrimonial rights subsisting in an intellectual work must be time-limited (i.e., cannot be perpetual), the freedom to carry on business (of those whose business is based on marketing such images) as well as the right of property (of the owners of such photographs as tangible property as well as copyright holders therein) and the principle of equality before the law (inasmuch as the statutory provision allows a degree of latitude to the custodian in granting - or not - the authorization - for free or for a fee).

Theses grounds are brushed aside by the Court, which holds that the provision is constitutional.  In an interesting paragraph, it clarifies that it follows from a combined reading of the first and third paragraphs that the custodian's authorization is not required where the image is used for commercial purposes and also in furtherance of an end that is cultural, artistic, pedagogical, for teaching, research, informational, by way of illustration of current events or related to a public service mission.

Link to decision here



Sunday, 4 February 2018

THE COPYKAT

Our first CopyKat from our new intern, Kelsey Farish


Anthem of the Civil Rights Movement “We Shall Overcome” is freed into public domain

On the third Monday of January each year, Americans observe the birthday of civil rights leader Rev. Martin Luther King, Jr. This year, two weeks following the national holiday, the civil rights anthem “We Shall Overcome” entered the public domain.
The song was an unofficial theme of the 1960’s Civil Rights Movement in the American south. It was made famous during the Montgomery bus boycotts led by Martin Luther King Jr., when, in front of television cameras, a group of protestors sang it into a hostile mob. The Library of Congress, which is the oldest federal cultural institution in the United States, describes the song as America’s “most powerful song.”

The lawsuit was filed by the We Shall Overcome Foundation, an organisation that wanted to make a documentary about the song, and the producers of the 2013 film "The Butler." The registered copyright owner, Ludlow Music, initially refused both requests before demanding “as much as $100,000” to use the song.
Several months ago a federal judge in New York ruled that the key verse in the song was not protected under copyright for lack of originality. With an additional trial date set for February 5 to contest the other aspects of the song, Ludlow Music instead opted to enter into a settlement, whereby it released its copyright in both the melody and lyrics. More here.
Randall Newman, an attorney at Wolf Haldenstein (the same law firm that freed "Happy Birthday to You" from copyright protection), stated: “We are pleased that this settlement resolves the litigation and puts the melody and all verses of the iconic song 'We Shall Overcome' into the public domain where it belongs.” (You can read the press release here). However, with the release of the song into the public domain, the song may be used in future for commercial purposes or in other contexts which could threaten or diminish its powerful history and message. More here.

Documentary filmmakers to receive free legal advice from California law students on intellectual property and other matters

The Ziffren Center for Media, Entertainment, Technology and Sports Law at the University of California Los Angeles has launched a new pro-bono Documentary Film Legal Clinic.

Without the support of a large film studio’s in-house lawyers, independent documentary filmmakers may not be aware of the legal issues that may arise their work, including copyright problems.

Bolstered by the University’s proximity to the Hollywood film industry, law students will be helping independent documentary filmmakers with legal issues they face. Such issues will often include making public records requests for newsgathering and seeking location approvals, as well as intellectual property matters. In particular, law students will provide copyright counsel and training, advice regarding fair use, clearance of music, visuals and archival materials, and rights of publicity.

Dale Cohen, the clinic’s founder and director, is special counsel to the PBS channel’s documentary series “Frontline” and co-author of “Media and the Law.” He noted that the clinic will provide filmmakers with “top-notch legal guidance, and students will work side-by-side with these journalists and artists, learning about the filmmaking process and helping to tell stories that are increasingly important to our democracy.”



Facebook’s inks new global, multi-year agreements with Universal and Sony Music

Facebook first inked a deal with Universal Music in late December 2017. The deal with Sony,  the largest music publisher in the world, was announced on 9 January. These deals allow Facebook and Instagram users to upload homemade video clips containing songs owned by Universal or Sony, without generating a takedown notice.

As more and more Facebook users share music or videos in their posts, some of the content may include copyright-protected material: for example, songs by a famous pop singer playing in the background of a makeup tutorial video.

Facebook offers monitoring tools that alert copyright owners about suspected copies of their videos and songs on Facebook, or other unauthorised uses of their brand. Rightsholders can send takedown requests to a team of Facebook content analysts. In the first six months of 2017, nearly 3 million posts - including videos, ads and other forms of content - were removed from Facebook platform following complaints of intellectual property rights infringement.

Accordingly, Facebook has been attempting to enter agreements with major record labels and music publishers to allow its users to include songs in the videos they upload. Universal Music Group and Sony Music are now the first two major music companies to license their recorded music and video catalogues for use across Facebook and Instagram.

If Facebook or Instagram users upload a homemade video clip that has a part of a song owned by Universal or Sony playing in the background, the clip will now stay up without generating a takedown notice. That has obvious benefits for Facebook, as the social media giant encourages people to make and share content on its services.

For the record labels, the deals will provide significant new revenue source. While no comments have been made on the financial arrangements of the deal, Facebook likely wrote the music labels a large cheque upfront, with more money to follow over the coming years. Perhaps most importantly for Universal and Sony is that these labels now have increased bargaining power in respect of negotiating with Google’s YouTube, which remains the most popular online destination for listening to music.

European Commission to produce a Counterfeit and Piracy “Naughty” List

While Brexit negotiations rumble on, the European Union is charging ahead with plans for a modernised intellectual property enforcement system. Reports from the European Union Intellectual Property Office (EUIPO) and the OECD estimate that the annual trade in counterfeit and pirated products is worth 338 billion Euros (£298B). Within the European Union, an estimated 5% of all goods imported into the EU (worth €85 billion) are counterfeited or pirated.

In its attempts to tackle the counterfeiting problem, the EU will adopt a “follow the money” approach which focuses on commercial-scale IP infringers, rather than individuals. One of the Commission’s key goals is to reduce the volume of counterfeited products reaching the EU market by engaging in cooperation programmes with third countries, and in particular China, South-East Asia, and Latin America. As part of this initiative, he EU aims to create a regularly updated watch-list of markets that are reported to engage in, or facilitate, substantial IPR infringement.

The proposed watch-list will identify both online and physical marketplaces where counterfeiting, piracy and other forms of intellectual property abuse are common. This list is likely inspired by the US Trade Representative (USTR) annual Special 301 Out-of-Cycle Review of Notorious Markets report, which provides an overview of copyright holder complaints, which may be used to encourage site operators and foreign governments to take action.

Interestingly, the American list only includes foreign counterfeiting and piracy markets, and thereby excludes any American infringers. This has been a contentious point with other governments and companies, including China’s Alibaba, who criticise the USTR’s failure to obtain data from US entities. It is therefore worth noting that the European watch list will reveal some new information in respect of America’s own “notorious markets.”

The public is welcome to submit comments before 31 March 2018 as part of the consultation process. The final list is expected to be released later in the year.

High Court grants football match blocking injunction to UEFA under copyright rules


Union Des Associations Européennes De Football (UEFA), the football organisation which consists of 55 national football associations, has obtained an injunction against the six main retail internet service providers in the UK.

In its application before the High Court, UEFA established ownership of the copyright in television broadcasts of all UEFA matches. This extends to all films (particularly replays), artistic works and musical works incorporated within those broadcasts.

As a substitute for paid subscriptions to sport packages through Sky, BT and others, some football fans are instead using devices such as "kodi boxes" to connect directly to streaming servers via their IP addresses. Infringement in this way is on the rise, especially as an increasing proportion of UK consumers mistakenly believe using devices to access unauthorised streams is lawful,

Get in!  Image by Ben Challis
UEFA therefore sought an injunction against BT, EE, Plusnet, Sky, TalkTalk and Virgin Media on the grounds of section 97A of the Copyright, Designs and Patents Act 1988, which implements Article 8(3) of the Information Society Directive (2001/29/EC). The Act requires ISPs to take measures to block, or at least impede, viewers from accessing pirated live streams of UEFA matches in the UK.

UEFA’s application was supported by the Football Association's Premier League, which won an identical court order against BT and other ISPs in March 2017 (see Football Association Premier League Ltd v British Telecommunications plc [2017] EWHC 1877 (Ch)). Although ISPs often receive requests from rights holders to restrict illegal download sites, the arrangement with the Premier League is unique in that it requires illegal streams to be blocked as matches are played, in real-time.

UEFA’s application to the High Court for a similar injunction was therefore simply a formality, not least because the application itself was supported by each of the Defendant ISPs except for TalkTalk (which neither supported nor opposed the application). The injunction will cover the entirety of the Europe-wide UEFA Champions League tournament, from 13 February through 26 May.

As an aside, it is unsurprising that some aspects of the application and court order have been kept confidential, as the particular technology used to find such live streams is considered “commercially sensitive.”

The case is Union Des Associations Européennes De Football v British Telecommunications Plc [2017] EWHC 3414 (Ch) (21 December 2017), available to read here.

Friday, 2 February 2018

US appeals court tells ISP that safe harbor comes at a cost

A US appellate court has reversed a $25 million verdict against the US Internet Service Provider Cox Communications in what might be seen as a defeat for record label BMG, which had sought to hold Cox liable for copyright infringement for its subscribers who were sharing pirated files online. But looking at the judgment, and despite what looks like a set back for BMG Rights Management, it can be argued that its actually a win in the battle against piracy

The decision, by a three-judge panel of the 4th Circuit Court of Appeals, returns the case to the District Court for a new trial, based on a decision that there was an error in jury instructions. Irrelevant of arguments about safe harbor protection at the heart of the case, Cox might not been responsible for users' infringement as companies are only liable for contributing to infringement if the companies either know about acts of infringement, or are wilfully blind to them, and the appellate court ruled that the trial judge, District Judge Liam O'Grady, incorrectly told the jurors that they could find Cox liable if it knew or should have known about infringement by users. "The formulation 'should have known' reflects negligence and is therefore too low a standard," the appellate judges wrote. "Because there is a reasonable probability that this erroneous instruction affected the jury’s verdict, we remand for a new trial."

But, and its a big but, the 4th Circuit took a long hard look at how and why Cox would be protected by US  "safe harbor" provisions that protect service providers from liability when users infringe copyright. - and here the Court ruled against Cox on a key point. The DMCA provides a degree of protection to ISPS and other platforms that respond expeditiously to takedown requests. But one of the requirements is that the ISP and other intermediaries to have "adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of subscribers … who are repeat infringers." The appeals judges said that as it stands, Cox wasn't entitled to rely on safe harbor because it does very little if anything even when told about repeat offenders, re-affirming the jury decision that sided with BMG and awarded $25 million against Cox when they found the broadband carrier liable for piracy by its subscribers. 

The entertainment industry will be delighted with the ruling by the appeals court in as much as it has upheld the federal judge's conclusion that the safe harbor provision of the Digital Millennium Copyright Act require a meaningful implementation of a policy that terminates the service of repeat copyright infringers.  The appellate judges agreed with BMG that Cox wasn't entitled to rely on the safe harbor protections, writing that the broadband provider's policy was lacking. Cox had in place a "13-strike" repeat-offender policy, meaning that the company would consider terminating subscribers after they received 13 notices of copyright infringement. In practice, it has been alleged the company went to great lengths to avoid disconnecting people with the court acknowledging  "Cox formally adopted a repeat infringer 'policy,' but ... made every effort to avoid reasonably implementing that policy ...... Indeed, in carrying out its thirteen-strike process, Cox very clearly determined not to terminate subscribers who in fact repeatedly violated the policy." It was alleged that Cox really maintained an "under the table policy purporting to terminate repeat infringers while actually retaining them as high-speed internet customers." 

The decision noted that in the two years before BMG sued, Cox only terminated a total of 21 people, and in 17 cases, the subscribers had failed to pay their bills on time or exceeded their bandwidth caps. During that time, Cox issued more than 500,000 email warnings and temporary suspensions, according to the decision.

"Cox failed to qualify for the ... safe harbor because it failed to implement its policy in any consistent or meaningful way -- leaving it essentially with no policy," the appellate court decided.

Giving the appellate courts decision and dismissing a number of Cox's arguments, Judge Diana Motz was clearly unimpressed with Cox's efforts to stem piracy by its customers saying  "Indeed, the risk of losing one's Internet access would hardly constitute a 'realistic threat' capable of deterring infringement if that punishment applied only to those already subject to civil penalties and legal fees as adjudicated infringers" and saying a "ISP has not 'reasonably implemented' a repeat infringer policy if the ISP fails to enforce the terms of its policy in any meaningful fashion. Here, Cox formally adopted a repeat infringer 'policy,' but ..... made every effort to avoid reasonably implementing that policy. Indeed, in carrying out its thirteen-strike process, Cox very clearly determined not to terminate subscribers who in fact repeatedly violated the policy." Motz added that failure to implement a consistent and meaningful repeat infringer policy essentially means it has no policy and can't be entitled to a safe harbor defence.

https://www.documentcloud.org/documents/4364615-Bmgcox.html

https://www.mediapost.com/publications/article/313895/court-reverse-25-million-copyright-verdict-agains.html

https://www.hollywoodreporter.com/thr-esq/appeals-court-rules-isps-copyright-trouble-not-enforcing-meaningful-repeat-infringer-policy-1080852