Saturday, 30 October 2010
Judge Kimba M Wood in the Federal District Court in Manhattan has issued a permanent injunction that will essentially shut down LimeWire, the music file-sharing service that has been embroiled in a four-year legal struggle with the music industry. The case has already resulted in the company and its founder being found liable for potentially hundreds of millions of dollars in damages (see More Freshly Squeezed Lime, 18th June 2010 and Squeezing the Lime Dry , 12th June 2010 on this Blog) The company says that it will continue negotiations with the major music companies in an effort to offer music legally for sale with a subscription service but in her ruling, the Judge ordered the company to disable “searching, downloading, uploading, file trading and/or file distribution functionality” of the company’s file-sharing software.
Visitors to LimeWire’s Web site were greeted with a legal notice and the text: “downloading or sharing copyrighted content without authorization is illegal.” In a statement the Recording Industry Association of America, the music industry’s trade group that had led the legal action, said: “For the better part of the last decade, LimeWire and [founder Mark] Gorton have violated the law. The court has now signed an injunction that will start to unwind the massive piracy machine that LimeWire and Gorton used to enrich themselves immensely.” In May, Judge Wood ruled that the company had violated copyright law and was liable for damages. The court is scheduled to decide early next year the amount the company and Mr. Gorton will be forced to pay. “In January, the court will conduct a trial to determine the appropriate level of damages necessary to compensate the record companies for the billions and billions of illegal downloads that occurred through the LimeWire system,” the RIAA said in its statement. Music publishers have brought a separate action led by EMI Music.
Thursday, 28 October 2010
The Cardozo Art Law Society blog wonders how else performance art should be documented. With permission, perhaps?
Wednesday, 27 October 2010
According to WIPO's press announcement:
"The meeting will gather governments, national and international public institutions, academics and an array of stakeholders involved in different copyright licensing practices. The goal of the meeting is to raise the awareness of Member States on the complexities underlining a vast variety of licensing practices in different sectors, including the online market for music, the software industry and open access publishing. The target topics will be analyzed and discussed from an intellectual property and a competition law perspective."
WIPO Director General Francis Gurry (pictured, left) will address attendees at the Opening Ceremony and Harvard Law School professor Lawrence Lessig will present the Keynote Address. The featured panels will be presented by many highly respected members of the global IP Community.
Registration is possible through this link. This blogger will be stateside at the time of the event; if you attend, please feel free to share your thoughts about the program in the comments section or via email.
|Which one is the seed ...?|
The database in which infringement was alleged was "Binley's Database of GP Practices", which began in 1994. This consists essentially of the names and addresses of individuals (such as nurses and doctors) associated with general medical practices. The edition allegedly infringed apparently names 159,576 individuals, located at 11,480 general practices within the UK. In pre-database right days this would have been a traditional copyright infringement claim. Anyway, as the judge, explained:
"4 In August 2007 the claimant found clear evidence that the first defendant was using information from the claimant's database. This was because the claimant puts a few seeds in its database. The seeds are dummy entries which do not correspond to real people. They are fictitious entries with addresses corresponding to the claimant's staff. Thus the claimant will find out if someone is using data from its database because a letter will be sent to one of the seed addresses. That is what happened in this case and this action ensued.But what evidential value can be placed upon the fact that one or more seeds received a mailing from the defendant? Does this raise an inference of substantiality of the degree of copying? How many seeds were there in relation to the database a a whole? And suppose the defendant mailed only to seeds and not to genuine entries. Anyway, the judge addressed the seed issue thus:
5 The underlying facts are not in dispute. The mailing to the seed entry took place in about August 2007. The letter was sent by the first defendant. The first defendant obtained the data it used from the second defendant and the second defendant in turn obtained the data in March 2006 from an organisation called Bespoke Database Organisation Ltd ("BDOL"). The data from BDOL included the seed entry. There is no doubt that the BDOL data includes at least one entry from the claimant's database, that is the seed. There is also no doubt that BDOL used the claimant's database as one of the sources for the BDOL data. There is however an issue as to the extent of that use ... If ... the claimant has a good claim to ownership and subsistence of database right and if ... the BDOL mailing list includes or consists of a substantial part of the claimant's database then it is not in dispute that the defendants infringed the claimant's database rights".
"75 I am ... struck by the claimant's statement that there are "a few" seeds in the database. The claimant has not stated how many "a few" means and has so far refused to tell the defendants how many there are. No doubt that is for the claimant's own good commercial reasons. However it seems to me that one way of gauging the number of entries derived from the claimant's database might be to ask what proportion of the seed entries ended up with the defendants. Such an exercise would no doubt have to be treated with caution but it at least might shed some light on the matter. For example just because only one seed came to light does not mean others were not present. However if only one seed from hundred was present that might suggest a lesser fraction derive from the claimant whereas if "a few" means only 3 or 4 seed entries then that might suggest a rather higher fraction. Although substantiality is not necessarily a purely quantitative matter, some idea of numbers would be a start".The case will now continue. The 1709 Blog expects events to accelerate since Judge Birss has said plainly that he expects the case to be dealt with very quickly and economically.
Monday, 25 October 2010
"An unprecedented initiative to facilitate access to published works by the visually impaired and the print disabled was ... in New Delhi, India at the 5th meeting of WIPO’s Stakeholders’ Platform, which was set up in January 2009 to explore the specific needs, and concerns, of both copyright owners and reading impaired persons and brings together representatives of the visually impaired persons (VIPs) community as well as publishers. The Platform approved the launch on November 1, 2010 of TIGAR - the trusted intermediary global accessible resources project – which will enable publishers to make their titles easily available to trusted intermediaries. These intermediaries will create accessible formats and share them amongst each other and with specialized libraries.TIGAR doesn't seem to have its own website yet (presumably we have to wait till next week's launch), but WIPO's Vision IP portal, which invites the taking of initiatives by the copyright community, is here.
It is estimated that only 5% of the world’s one million print titles that are published every year are accessible to the some 340 million around the world who are blind, visually impaired or who live with other print disabilities. Specialized organizations globally, such as libraries for the blind, have taken on the task of adapting these books into Daisy, Braille audio or special digital formats at great expense. The TIGAR project is the result of close collaboration between WIPO and organizations representing authors, publishers and blind and low vision persons, including the World Blind Union (WBU) and the International Publishers Association (IPA), and promises to provide access to a wider range of accessible books. WIPO will provide the technical support for this project".
Sunday, 24 October 2010
"Lawyers, media and technology professionals, and students of the law, alike, will benefit from the clear layout and style of this book – making it a ‘must have’ for your bookshelf. This book should be your first point of reference when advising your clients or colleagues, or for enabling you to excel in your particular field of media or technology.
With case and legislation citations included throughout, this is a user-friendly starting-point for researching primary sources".This book's strength does not lie in its extent of coverage of the law, which in around 550 pages including lists and the index was always going to be selective. It lies in the book's sheer accessibility and confident guidance to the reader. If you've got a library shelf full of authoritative texts spanning the entirety of IP and media law, this is not the book that will provide that penetrating insight on which you base your arguments to the Supreme Court. It is however a very handy device for any lawyer who is working under the time pressure imposed on him by any commercial client who lives with deadlines and who, when he asks his lawyer a question, expects the answer by return (and at not much less speed than Roger Federer might be expected to return a serve). With excellent diagrams and lists, more arrows than Agincourt and more bullets than the British Army will be able to muster after the spending cuts, this book rushes along at a breathless pace which suggests that it might be a good idea to get into training before reading it.
The best bits of this book are the chapters at the end, which are problem-based or industry-specific. Content clearance, marketing, the music industry, TV and film --these give the authors a chance to demonstrate not only what the law is (and frankly there's not a lot of law on things like clearance of rights) but on what the problems are and how to tackle them head-on. These are the zones in which Experience is King and the Law is a mere handmaiden. This reviewer bets that the bits at the back are the bits that get the heaviest usage too.
Bibliographical data: publisher, Bloomsbury Professional. ISBN 978 1 84766 042 8. Paperback, xxxvi + 521 pages. £35. Book's web page here.
Now comes news that the family of late country singer Keith Whitley is doing the same. The suit filed by Whitley's widow and children against Sony Music Entertainment alleges that SME failed to pay certain bonus royalties when Whitley's album reached various sales thresholds. The suit also claims that SME failed to pay the increased royalty rate for downloads that allegedly should have been considered licensed transactions.
The Eminem suit was heard within the jurisdiction of the U.S. Ninth Circuit Court of Appeals, which held that downloads were indeed licensed transactions subject to the higher royalty under Eminem's recording contract. The Whitley family's suit, on the other hand, was filed in New York State Supreme Court. If the case is transferred from state to federal court, it would fall under the jurisdiction of the U.S. District Court for the Southern District of New York and the Second Circuit Court of Appeals, where the Eminem case would be persuasive but not precedential (meaning that the court may choose to consider the Ninth Circuit holding, but is not required to do so).
If the Whitleys succeed in their claims for back-royalties from SME, two jurisdictions will have weighed in on the side of the artists. It is likely that other similar suits will not be far behind.
Thursday, 21 October 2010
|It all adds up ...|
Arstechnica's "Europe smacks "indiscriminate" copyright levies on blank CDs, DVDs" (by Nate Anderson) explains the problem as follows:
"Spain allows its citizens to make private copies of copyrighted works—but it compensates creators for the economic harm of this practice by laying down a levy on digital media and devices. If you purchase blank CDs or DVDs, or if you buy DVD burners or possibly even an MP3 player, you have to pay up. But what if "you" aren't a person at all? Imagine a nonprofit that needs to back up its donor records, or a business that wants to burn its own promotional CDs, or a government agency that buys some computers with DVD burners built in. They won't be churning out Bob Dylan CD mixes, so how can it be fair to make them pay the levy?"The author adds:
"This raises an obvious question: how do you know if blank media or burners will be used for private copying or not? The court laid down a distinction. When sold to "natural persons for private purposes," the country can assume that private copying will take place and impose the levy. But when sold to businesses or other non-natural persons, they can't; no levy is allowed.English-language Basque website EITB's feature, "Europe rules Spanish digital copyright tax 'illegal'", carries only a short summary but reminds readers it's still for the Provincial Court of Barcelona to determine whether the Spanish levy (or 'canon') is "imposed indiscriminately".
The decision would appear to have little impact on consumers, though it does mean that business who sell such digital media and devices won't have to pay levies on every item they sell. The distinction the court makes here seems a sane one, though true fairness would obviously mean that the levy is only paid on each piece of media or device actually used for private copying".
From Hollywood Reporter comes "Spain's Tax for Purchasing Equipment to Record Digital Content Ruled Illegal" by Pamela Rolfe. This piece goes into detail as to the actual sums levied and lists the recording devices which the levy covered: these include mobile phones as well as more conventional hardware. Rolfe observes that last year the levy pulled in a handsome 100 millions euros for collecting societies, of which SGAE received 26%,
Several months ago, The 1709 Blog reported on the 10th Circuit decision of Golan v. Holder, also known as Golan IV. Yesterday, the Stanford Center for Internet and Society announced that is has filed a petition for writ of certiorari with the United States Supreme Court on behalf of the Golan side.
The entire petition is available from CIS here (pdf). For those that have been following the Golan saga, the petition contains little surprises. As in the case’s previous incarnations, Golan’s group (the Petitioners) is arguing that the US Copyright Act provision reinstating copyright for foreign works that had fallen out of copyright due to non-compliance with previously required formalities violates the US Constitution. The Constitution sections at issue are the First Amendment – guaranteeing freedom of speech and expression, and the Progress Clause – introducing intellectual property rights with a ‘limited time’ time-limit.
When Golan III was argued, the US government claimed that the provision of the Copyright Act at issue was necessary in order for the US to comply with its duties under the Berne Convention. The 10th Circuit decided Berne was not an issue because it found there to be this other interest the government had to protect, the interest of US authors abroad. The petition argues that the Golan III 10th Circuit panel decision side-stepped the real issues (as mentioned above) and rested its decision on this made-up theory of protecting US author’s rights abroad. It states that in this way and others the Golan III decision goes against prior Supreme Court decisions. Interestingly, in one of the places where this argument is made, most of the cases cited are actually patent cases and not copyright cases. That difference may be something the US government side can latch onto when trying to distinguish the cases and show that the rules do not apply to here.
For those who are not familiar with US procedures. This filing does not mean that the Supreme Court will hear the case. It only means that the Golan group thinks the Supreme Court should hear the case. The Court will decide on its own whether there will be a Golan V.
Wednesday, 20 October 2010
Normally, I like to sit and read a book cover to cover before reviewing it, but the Second Edition of Paul Goldstein and Bernt Hugenholtz’s International Copyright is not a sit-down-and-read type of book. It is a reference book, the kind you want to have near your desk at all times.
The book covers the usual suspects, Berne, TRIPs, the UCC, etc. Sounds not so exciting, but wait. The neat part comes in how these are approached and what else is included. The book is arranged in sections of what I can best describe as biggest-issue topics: Norms,
Territoriality, Term of Protection, Economic Rights, Moral Rights, you get the picture. Each relevant treaty and agreement is addressed under each topic, showing you the interplay between them. The effects of smaller agreements, such as regional agreements and directives, are also included in these sections.
In addition to the scholar-favorite topics of norms and traditions, the book includes information about the reality of enforcing contracts (Section 4.4.3 specifically address what happens when the law of the protecting country and the law of the contract conflict), and there is an entire chapter devoted to enforcement.
Most of the examples given in the book appear to be from North America or Europe. While this is a little disappointing, it is also understandable – the main agreements, the underlying principle's of today’s copyright, and the authors are Western in origin. To the author’s credit, the index indicates that the book does include some information from every region of the world.
The Appendix is a nice addition. Although all the information in it – copies of the main treaties and lists of their signatories – can be found on wipo.int or Wikipedia, it’s nice to have the information just a thumb flip away.
From the publishers:
“Written by two of the most experienced practitioners in the United States and abroad, International Copyright: Principles, Law and Practice (Oxford, October 2010) proves to be a great analysis of the principal legal doctrines affecting copyright practice.”
Title: International Copyright: Principles, Law and Practice
Authors: Paul Goldstein (Stanford University) and Bernt Hugenholtz (University of Amsterdam)
Publisher: Oxford University Press
Pages: 407 (book-book), 565 (with appendix and index), 592 (with preface and everything)
Color: very pretty medium green
Sturdy, heavy-weight paper-back cover
List Price: $95.00
Tuesday, 19 October 2010
I remember the early days of the brave new world - when record labels, TV producers, games companies, book publishers and film companies (to name but a few of the myriad of content owners who voiced an opinion) all agreed that in the digital age, CONTENT WOULD BE KING. Now, and with the benefit of hindsight, I noticed two interesting stories in the Sunday papers. The first was an analysis of Apple's business model (the computer company, not The Beatle's vehicle). In 1997 Apple was valued at just $2 billion. But by 2007 it was valued at $72 billion, and Apple's domination of the MP3 market with iTunes and the iPod gave it a near monopoly in some markets over the software of music distribution and the hardware for playing music. Having now launched the iPhone and iPad the company is currently valued at $274 billion. But it was the iPod that launched the revival, technology that uses recorded music at its core.
The second story was a preview of the now commenced litigation between Terra Firma, owners of EMI, and Citigroup, who advised on and financed Terra Firma's acquisition of the recording and music publishing group, one of the four 'major' record labels. Back in 2007 Terra Firma paid £4.2 billion (approximately $6.5 billion) for the music group. But the company is saddled with £3 billion of debt and at every turn analysts lower their valuation of the group. Billboard reported in February this year that EMI had an accounting loss of about 1.56 billion pounds in its fiscal year ended March 2009. The huge loss included a one-time charge of £1.04 billion to reflect a lower value of EMI and a restructuring charge of £412 million and although Billboard opined that the company's trading divisions were doing reasonably well, said the accounts admitted that "EMI is not worth what it thought it was worth". In a letter to a Citigroup executive in March 2010 Terra Firma boss Guy Hands valued the firm at £2.32 billion. Hence the multi-billion claim against Citigroup.
This is a copyright blog and whilst the record labels have in the past undoubtedly made some fairly horrendous mistakes when it came to realising the new opportunities the internet offered and in failing to engage with new business models, the fact remains that a number of other industries have benefitted hugely from the digital explosion – search engines, internet service providers, technology providers and mobile phones operators have all expanded and grown rapidly – and that explosion has been driven by content – often swapped, downloaded and distributed illegally and on a massive and global scale.
Google was valued at $33 Billion in 2004, it had a £33 billion brand value alone in 2007 and by November 2009 had almost the same market capitalisation as Apple ($169.72 billion) with its brand worth $114 billion alone. Google paid $1.65 billion for YouTube in 2006. Guy Hands thinks that EMI is worth (at the most) £2.32 billion. Content is King? Methinks not. And surely as someone in the business of copyright that should be a worry.
Monday, 18 October 2010
The judge was unable at this stage to be 100% sure that Rowling hadn’t read Jacobs’s Willy the Wizard before she wrote Harry Potter and the Goblet of Fire. Nor was he sure that the Goblet of Fire hadn’t copied a substantial part of Willy.
The claimant says the Goblet of Fire takes five main plot elements from Willy:
1. a wizard contest
2. the wizards have to work out what their task is
3. they work it out in a bathroom
4. they complete the task using information from helpers
5. the task involves rescuing hostages held by half-human, half-animal creatures
Do these elements add up to a substantial part of Jacobs’s work?
Kitchin J, following the Da Vinci Code decision, said that ‘copyright does protect the content of a literary work, including the selection, arrangement and development of ideas…’ However he was strongly inclined to the view that the similarities were ‘at such a high level of generality that they fall on the ideas rather than the expression side of the line’.
Where is this line? Any copying of a work that isn’t slavish or verbatim copying is copying an idea, not its expression. Should ideas be less worthy of protection because they are more abstract? Do the grand schemes that caused Adrian Jacobs to jump out of the bath shouting ‘Eureka!’ deserve less protection than small incidents that came to him as he brushed his teeth?
Lord Hoffmann in the House of Lords judgment Designers Guild determined that saying copyright doesn’t protect ideas actually means copyright doesn’t protect those ideas that have no connection with the literary, dramatic, musical or artistic nature of the work, or unoriginal ideas. ‘Generally speaking,’ he said, ‘in cases of artistic copyright, the more abstract and simple the copied idea, the less likely it is to constitute a substantial part.’ Generally speaking and less likely being the operative words. Surely the question must be not ‘Are these ideas too abstract?’ but ‘Are these ideas unconnected with the literary nature of the work or are they unoriginal?’
Clearly Jacobs’s five wizard themes are connected with the literary nature of his work – but are they original?
Friday, 15 October 2010
The Malaysian Star reports on some public backlash to a proposed amendment to the Malaysian Copyright Act. The amendment has been in discussion for about a year now but is not yet law. If the new amendment is enacted, persons found in possession of infringing DVDs will be fined five times the cost of the legitimate version. (see here.)
I have been unable to locate a copy of the proposed amendment. It appears from looking at the current act that this amendment would change Section 41(d), which currently says that it is an offense if a person “possesses, otherwise than for his private and domestic use, an infringing copy.” (emphasis added)
The purpose of the amendment is to help limit the amount of trade in infringing DVDs, CDs, and other forms of amusement delivered in disc form, by discouraging people from purchasing them. The general idea is that reducing the market for infringing goods will help the creative industries in Malaysia grow and contribute to the nation’s economic growth. (For more background see MIP Handbook.)
Without having a copy of the amendment, it is hard to know what the real consequences of the change could be. For example, if the punishment is a fine but the person has to be seen with the infringing disc in public, then it might be considered a reasonable step towards lowering infringement. However, if Section 44 of the Copyright Act will apply to the offense of possession as it does to all other offences, there may be a bigger issue. Section 44 allows a magistrate to grant a warrant that allows the police to enter suspected premises at any time and seize infringing materials.
Based on the information in the Star article, details like whether Section 44 will apply are still being worked out. Concern about potential police raids of private homes was not the comment from the Malaysian people. Some are worried that the government is acting out of desperation, while others claim the producers of infringing goods should be the target rather than the consumers. (In all fairness, the Copyright Act does already include making and distribution as offenses and reports of successful factory raids have appeared in the papers.)
In addition to knowing whether Section 44 applies, one might also wonder, “Can consumers distinguish an infringing copy from a legitimate one?” and “Do people know where they can purchase legitimate copies?” In some places, like Nigeria, the answers to these questions are often “no.” If that’s the case in Malaysia, how will enforcement of this amendment work?
Which is the original? Image credit: CC BY NC SA 2.5 Malaysia by Yihzy available at http://www.yihzy.com/wordpress/?cat=9
If anyone has a copy of the amendment or knows more about the relationship between infringing and legitimate DVDs in Malaysia, The 1709 Blog would love to hear from you.
Thursday, 14 October 2010
www.m6replay.fr and www.w9replay.fr. M6 instituted proceedings for author's rights infringement and unfair competition against SDBS Active, which had made available to the public on its www.totalvod.com and www.tv-replay.fr websites, through deep hyperlinks, a number of programmes that it had placed on its own replay websites M6 considered that the commercial use of the services of its two sites by SDBS Active infringed its exclusive performance right since SDBS Active was making M6's programmes available to the public without its authorisation.
Further, even by providing such links SBDS Active still did not breach M6's rights as a database producer. The content of the two websites constituted a collection of audiovisual independent works. M6 might have spent money on the development of such collection, but that company furnished no evidence of making substantial investment in order to establish, verify and present the databases at issue.
In a curious twist, the court ordered M6 to pay €30,000 in damages for disparagement since, in the course of the proceedings, M6 sent a letter to media agencies stating that "TVReplay is a website which redirects the websites of catch-up TV by using, often without the agreement of the TV channels, information about the programmes".
Source: "Online TV replay and author rights", article by Marie-Aimée de Dampierre and Camille Pecnard (Hogan Lovells) for International Law Office, 11 October 2010
JK Rowling and Bloomsbury (her UK publisher) both deny all of the claims and argued that, since they were groundless, they should be dismissed summarily. However, after an interim hearing in July which lasted three days, Kitchin J has now concluded that the claim may succeed and would not therefore be dismissed at this early stage. Acting for Allen, Nick Kounoupias (DMH Stallard LLP) said
"This is precisely the result we expected. We were surprised that any attempt was made to dispose of the claim at this stage and before all the relevant documents had been made available. ... If the claim does proceed then JK Rowling and Bloomsbury will be required to explain how the similarities between the two works came about, when to date there has been a refusal to disclose key manuscripts and notebooks despite our request that they do so.”This blog will be watching developments with interest.
See also the IPKat post here; Sydney Morning Herald here; Matin (Quebec) here; RP-online here.
"As part of its wider commitment to increasing the accountability of public bodies, reducing theirnumber and cost, and handing power and ownership back to local communities, the Government is keen to amalgamate as many Tribunals as possible within the Tribunals Service, which was created to provide a unified administration for the tribunals system.
A timetable for the move has not been set".
GUIs: an expression, but of what?
""Should Article 1(2) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs be interpreted as meaning that, for the purposes of the copyright protection of a computer program as a work under that directive, the phrase 'the expression in any form of a computer program' also includes the graphic user interface of the computer program or part thereof?The Advocate General's Opinion has been published today, but not in English (though Latvians and Romanians will have no problem reading it in their native tongue). According to Advocate General Yves Bot, the questions should be answered as follows:
If the answer to the first question is in the affirmative, does television broadcasting, whereby the public is enabled to have sensory perception of the graphic user interface of a computer program or part thereof, albeit without the possibility of actively exercising control over that program, constitute making a work or part thereof available to the public within the meaning of Article 3(1) of European Parliament and Council Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society?"".
«1) L’interface utilisateur graphique n’est pas une forme d’expression d’un programme d’ordinateur au sens de l’article 1er, paragraphe 2, de la directive 91/250/CEE du Conseil, du 14 mai 1991, concernant la protection juridique des programmes d’ordinateur, et, dès lors, elle ne peut pas bénéficier de la protection conférée par cette directive.If any kind soul with a good command of one of the luckily-selected official EU languages plus English can translate it, and even offer a comment or two, the 1709 Blog would be most grateful.
2) Lorsqu’elle constitue une création intellectuelle propre à son auteur, une interface utilisateur graphique bénéficie de la protection par le droit d’auteur en tant qu’œuvre au sens de l’article 2, sous a), de la directive 2001/29/CE du Parlement européen et du Conseil, du 22 mai 2001, sur l’harmonisation de certains aspects du droit d’auteur et des droits voisins dans la société de l’information.
3) La diffusion télévisuelle de l’interface utilisateur graphique, parce qu’elle fait perdre à cette dernière sa qualité d’œuvre au sens de l’article 2, sous a), de la directive 2001/29, ne constitue pas une communication de l’œuvre au public au sens de l’article 3, paragraphe 1, de cette directive.»
Wednesday, 13 October 2010
As a purveyor of fine intellectual property texts, publisher Edward Elgar is having none of this pessimism (though it would be difficult to find any publisher advertising its wares on the basis that, if you don't buy them now, you'll be too late because their subject matter will have become a quaint historical footnote, like frankalmoigne). So how does it describe this work?
This innovative book celebrates the tri-centenary of modern copyright, which began with the enactment of the Statute of Anne by the British Parliament in 1709, and was soon followed by other copyright legislation abroad. The Statute of Anne is traditionally claimed to be the world’s first copyright statute, and is thus viewed as the origin of a system of national laws that today exists in virtually all countries of the world. However, this book illustrates that while there is some truth in this claim, it is also important to treat it with caution.
Written by leading experts from across the globe, this comprehensive (historical) analysis breaks new ground on modern copyright issues such as digital libraries, illegal downloading and distribution, international exhaustion and ‘new formalities’. The expert contributors consider what lessons can be learnt from the achievements made during the last 300 years, and whether they can be used to overcome the new challenges facing copyright.
This in-depth scientific analysis of the legacy of the Statute of Anne 300 years on from its origins will provide copyright practitioners, academics, policy makers and postgraduate students with a unique and fascinating read.
In other words, the experience of the past can help understand the present, but don't too excited about its value for the future, which is conditional on too many technological uncertainties.
There's a wonderful cast of contributors, though some of the lesser lights twinkle just as brightly in this firmament as do their better-known colleagues. It would be invidious to pick out names, so for once I won't.
Bibliographic details. Published 2010. xiii + 522 pages. Hardback. ISBN 978 1 84844 766 0. Price£125 (the publisher's online discount brings this down to £112.50). This book is also available as an ebook 978 1 84980 642 8. Web page here.
Tuesday, 12 October 2010
|Peter Charleton J|
Of particular interest to readers are what the judge says at paras 135 to 137 of his decision:
135. There were two prior judgments of the Court in relation to issues related to this case. In EMI Records (Ireland) Limited v. Eircom Limited  IEHC 108, (Unreported [but noted here], High Court, Charleton J., 16th April, 2010), as has been previously stated, a similar action had been brought against Eircom, as the largest internet service provider in the State. This was settled on the basis of a three strike policy that is fully set out in that judgment. The Court was asked to determine the capability of aspects of that settlement with the Data Protection Acts 1988-2003, three issues having been raised in correspondence by the Data Protection Commissioner. In the light of the evidence in this case, and the conclusions that the Court has reached, the Court would wish to make it clear that this judgment is unaffected. I have reconsidered it in the light of the evidence and submissions in this case and I am of the view that the judgment is correct.
136.A different conclusion arises in relation to the judgment of the Court in EMI (Ireland) Limited v. Eircom Plc  IEHC 411 (Unreported [but mentioned in passing on this blog here], High Court, Charleton J., 24th July, 2009). That judgment was, as the first 80 paragraphs of it indicates, delivered extempore, having heard, as I said, only one side of the case. In settling the litigation, EMI and Eircom agreed that an application would be brought to block access to ‘The Pirate Bay’ website on the facilities of Eircom, as an internet service provider. The conclusion I reached in that judgment, that I was entitled as a matter of law, to block access to that site, was arrived at in the absence of argument to the contrary by Eircom. While Eircom did not consent to the judgment, at the same time, they appeared in court and offered no argument against the analysis in favour of the grant of an injunction: this position of not arguing against the injunction, I understand, was part of the terms of the settlement between those parties. Counsel for Eircom was thus constrained into offering no opposition to the argument.
137. Having fully considered the issue of blocking a site as variant as The Pirate Bay, I regret that my previous judgment in the matter was wrong. The legislative basis enabling me to act in that way does not exist in Irish law as it exists in other European jurisdictions. The parties to that case may wish to reapply, or they may be content that The Pirate Bay should be blocked through the channels of Eircom.No order as to costs was made in that case, as the application was uncontested and costs were not sought as a matter of consent".
|"If you're goin' to San Francisco,|
Be sure to wear a flower in your hair ..."
Monday, 11 October 2010
Conflicts between copyright owners and politicians for unauthorized use of works in political campaigns is not unusual. Often it’s a musician or record label that has not agreed to a theme song’s use, occasionally, it’s a news station that does not want to help a candidate it doesn’t support, but for Senator Russ Feingold, it’s the NFL, the National Football League, big granddaddy of American football (just called “football” for the rest of this post).
Senator Feingold’s ad uses a number of football clips, one of which is from an NFL game. The NFL, having not authorized the use of the clip, contacted the campaign and the campaign agreed to edit the ad to remove the clip. Ceased and desisted. Settled without a law suit sounds pretty good. But is it really the best outcome?
Senator Feingold is running for re-election in Wisconsin. For Wisconsinites, football is not just a sport, it’s part of our identity; it’s the Green Bay Packers. The Packers team is almost 100 years old and is the only non-profit, community owned major sports team in the United States. The team may be based in Green Bay, but it belongs to the entire state. This post, despite the spelling and grammar errors, explains the relationship between the team and its fans well.
The NFL clip at issue in Senator Feingold’s commercial shows a player dancing in the end zone and pretending to moon the crowd. Not just any player. Randy Moss, formerly (and just recently, again) of the Minnesota Vikings, an arch enemy team. (We’re talking Germany-Holland fussball here. When the Packer star quarterback decided to go play for the Vikings, he became forever linked to the top traitors in history.) The clip is from 2004, but that particular victory ‘dance’ was so offensive, it is still talked about.
Now that you have a bit of background, here’s why the ceasing and desisting may not have been the best outcome. The Feingold ad [video] uses various football clips, the others not owned by the NFL. All the clips show players celebrating. The NFL clip is the only one that shows a recognizable incident; the only one that is highly emotionally charged. It’s the clip that really makes the Senator’s point – that the pre-mature celebrating of his opponents is disgusting and something to be abhorred. Removing the clip changes the tone of the ad. This is one instance where a licensing deal would have produced a better result, keeping the tone of the ad intact. Of course, the big question is: What would it cost?
Wednesday, 6 October 2010
|It's not the technology that causes |
the problems, but what you do with it ...
The Atlanta District Court judge has so far ruled that GSU cannot be sued for direct infringement of copyright since it's the students who are doing the copying. Indirect infringement is however a possibility. It's now up to the plaintiffs to establish an "ongoing and continuous misuse" of the fair use defence following the introduction of the new GSU policy. If they can do this, the burden of proof then falls on GSU to justify each otherwise-infringing copy.
The court's ruling in Cambridge University Press and others v Becker and others on the direct infringement issue can be read on Justia here. The 1709 Blog awaits the next developments with excitement.
Georgia on my mind here
Sweet Georgia Brown here
Unfair dealing with Georgia here
Tuesday, 5 October 2010
|A stud muffin (see report on |
James McConnachie, below)
After a half hour tea break Session Two was introduced by BBC broadcaster Peter Day. The panel two consisted of Benjamin Mitra-Kahn from the UK IPO, Louise Starr from CBI, Dr M F Makeen from the School of Oriental and African Studies (SOAS), author James McConnachie and Stevie Spring (CEO, Future Publishing).
Benjamin Mitra-Kahn, Economic Advisor of the UK IPO, began with some slides and statistics, noting that the world is already changing and that in the past 10 years China and India have grown faster than many have wanted them to. Ben says that since the '90s, UK firms have invested much more in IP (ideas), not machines (bricks and mortar). After the meeting, he was kind enough to provide me with his powerpoint presentation, which is attached.
Louise Starr, an Advisor for the CBI, spoke next. She said that IP is the lifeblood of the creative industries and it is important that businesses were in the right business conditions and environment in order to produce. Creative industries cannot compete on cost and are dependent on IP laws. They need copyright framework facilities for the online environment and these need to cover creation, exploitation and protection - not just one or two of these. Issues include educating consumers and recognising the great role that creative industries have.
Dr. Makeen F Makeen, a Senior Lecturer at SOAS, said he planned to show a comparison between the UK, Europe and the US of revenues brought in by creative industries. Dr Makeen noted that, to present a comparison, one needs accurate data -- which he didn't currently have. He was in possession of eight or nine different reports, two of which were from the UK IPO, one from the Chamber of Commerce and one from the DCMS. Trying to find a common theme, he found that the UK ranked second in the world for the culture industry (though "culture" has different meanings in the US & Germany). The US was responsible for $890 billion "core" products (??), 6.4% GDP amd 5.6% of the employed workforce. For the UK the total value of "core" culture is EUR €113 billion with 1.6 million people employed, representing 5.4% of the workforce. Germany and France were third and fourth. There was debate as to which countries was which, but Germany's "core" culture was worth €105 billion.
Dr. Makeen said there are a number of threats to the creative industries:
1. The English language. Why: because the UK always competes with the US - although over the last 30-35 years, Britain has started penetrating the US market.
2. Lack of international boundaries.
3. Users have developed the belief they have the right to have free access to copyright works. There is a need to start educating that this belief is a threat - not only in the UK but all over the world.
4. Newcomers coming to the creative industry - not only China, Brazil, India but Dubai. The next 15-20 years will be the centre of the creative industry
5. Us. We have really been too slow to react to new technology. Reference was made to the Napster being closed down, but then iTunes was allowed to take off.
Despite these threats, there are opportunities, said Dr. Makeen. For example there are at least five or six countries whose economy is doing well, and which have strong historical links with the UK and which the UK is not taking advantage of (e.g. the UAE). There is a market ready and waiting for UK industries. The only problem was how the licences would work.
Next to speak was James McConnachie who, amongst other things, is the author & co-author of several Rough Guides (including the Rough Guide to Sex, which led to the Guardian calling James a "stud muffin" - poor James was very embarrassed when Peter Day announced this). James said that he feels like he is a very small part of the GDP referred to earlier by Ben. In order to share his personal perspective and, being a writer, James told us three stories:
1. Google Books and the possibility of authors works being available for free on the internet. Hearing about this, James searched Google and, lo and behold, found his books. He found it astonishing that he had to tell Google that he didn't want this to happen.
2. Book Reviews. He used to write reviews, for example, in the Sunday Times. He would receive feedback texts from friends, for example "I hated that". Then one day, James realised that he was not receiving texts. His reviews began to be available online for free - which James does not get paid for.
3. Travel Guidebooks - a story of change. James has been approached by people who no longer purchase guidebooks. Instead they rely on the information found on the internet. James has a very strong opinion that most of the information found on the internet is "crap", being either dated, wrong or highly personal (e.g. Trip Advisor). Yet James is able to be paid by Rough Guides to do things like visit 20 bedrooms in Paris to compare them, check if the English credit card works in various places and various other things. James feels that the quality he gives is because he can be paid for his work. James says that payment for authorship is not only a right, but a guarantee of quality to the reader (does that sound familiar, trade mark people?).
After James' three interesting (and moving, to this author at least) stories was Stevie Spring from Future Publishing. Readers might recall Stevie's comments from the report on Session 1
. Stevie said that they are facing massive challenges, not in respect of copyright protection per say, but in respect of the cost to enforce protection for small IP piracy. Future Publishing produces 150 products every month and creates and commissions from hundreds of contributors annually. Future is unable to enforce copyright protection, because it is not affordable. Take for example, Future's T3 magazine (website here) their largest circulated magazine with 23 international licences (70,000 copies sold in the UK). Stevie's recent quick look showed that the magazine is all over file sharing sites, with complete copies (downloadable and readable) being available. There were 51 file sharing sites Stevie found - and just one of those was responsible for an astonishing 9,000 downloads!
Stevie mentioned that Future once used an "army of lawyers" to shut down "Mygazines" (on which free downloads were available - Future's website is http://www.myfavouritemagazines.co.uk/) and the total cost of doing so was US$2 million. This is not small change for a company like Future. If Future is going to protect its revenue streams so it can pay its authors, the enforcement of the laws need to be affordable. Otherwise, Stevie says, the publishing industry will go the same way as the music industry.
Stevie mentioned a truism, and a basic law of marketing - "if I can get an alternative for a lower price (viz. free) then I'm going to do it". Stevie says that Dr. Makeen said that "free" to Joe Public doesn't mean not paid for - "Joe Public" believe they have paid for the material via the broadband connection. Pipeowners and Gatekeepers (e.g. Google, which obtains revenue from Adwords) need to share responsibility. Otherwise we will lose professional production. Profit-based businesses just can't compete with business such as Skype, YouTube and Facebook - which all run on a "Pre-Revenue" model.
James seemed to agree with all this and noted that the music business appears to be giving up on Digital Rights Management. Louise said she was on a similar wavelength in terms of online protection and agreed that it is not sustainable to compete with Pre-Revenue models. Dr. Makeen said he believes the next step might be for authors and copyright owners to agree to a social contract, in which exclusive rights are given up in return for guaranteed remuneration. He also wondered whether a global licensing scheme should be considered, as well as whether the notion of exclusive rights is a myth (because public performance rights cannot be exercised individually and is collected collectively).
Peter Day put a question to the panel as to whether there are protectable rights any more. If so, are they enforceable insofar as they are affordable? Peter noted Stevie's point that enforcement is a lot trickier now. Stevie responded to say that she believes there needs to be a balance between opportunities and threats, and that Future doesn't operate in the "general use" category, but more in the "extreme hobby-ists" category.
Following a comment that rights clearance should be simplified, Louse said care would need to be taken to ensure the process of simplification does not in fact complicate things. Following a further question as to whether 70 year copyright protection is too long, and whether the duration of protection for copyright and patents should be rethought, Louise said that if the market is looking at that, then it would be something CBI would look at.
Around this stage, Peter Day noted that the meeting had run over time and there was no more time for questions. Which meant, whilst furiously scribbling down notes of the meeting (some of which I still can't read!) I had also lost track of time. This meant that I suddenly realised that the question emailed (prior to the meeting) on behalf of the 1709 Copyright Blog, was not answered. The question was:
"On the issue of ‘IP will save the British Economy’, the big question is how. If the rights are well-protected but are in the hands of non-UK owners who choose not to manufacture in the UK but merely license the sale or use of their rights, won’t we see a huge net outflow of funds from the UK through royalties repatriated to other economies and/or tax havens?".
Perhaps some of the participants at the meeting will offer some comments to the question instead.
Monday, 4 October 2010
After a warm welcome by Kevin Fitzgerald, the Chief Executive of the CLA, who wrote an article on the new website "Copyright in the Digital Age" the agenda was split into two sessions. The first session discussed "How International Content Creates Value", the second session being "Intellectual Property Will Save the British Economy".
The first session kicked off with CLA's International Manager Madeleine Pow, who explained that CLA has reciprocal agreements with overseas Reproduction Rights Organisations (RROs), and showed us a neat flowchart showing how the CLA distributes money taken on behalf of rights holders through their RROs. Through these agreements, Madeleine said, overseas repertoire included in CLA licences generates value. Further information, including the types of agreements can be found on this page of the CLA website.
Emma House, the International Director for The Publishers Association, the next speaker, said that these agreements benefit UK publishers. Emma mentioned that international repetoire included in licences in the book publishing industry as a whole brought £22 million to the British economy and that in 2009 Britain was the largest exporter in the industry with £1.2 billion worth of books exported from the UK. Therefore much-needed protection is being provided such as through anti-piracy campaigns. Emma says that the CLA licensing system, if controlled and policed properly, provides income for activity that is already happening illegally. Also, an added benefit of the RROs collecting money is that an RRO can collect money coming through in very small amounts whereas a publisher can't collect such small amounts (or may be unwilling to do so).
Emma continued to praise the CLA agreements because they bring cultural benefits to the UK, i.e. providing access to UK content will contribute to the education and development of a society, contribute to a good cultural exchange cross borders and provide good lobbying messages.
Comments were then invited from the panel of CLA licensees, to describe how their licences are used in practice. On the panel was Philip Ditchfield of Glaxo Smith Kline PLC (GSK); Vanessa Marsland of Clifford Chance LLP (CC); Dr Jane Secker of The London School of Economics (LSE); Emma House of The Publishers Association (TPA) and Georgina Bentliff of the CLA.
Philip Ditchfield explained that GSK's business is built on IP. GSK subscribes to 1000s of journals via direct licences with publishers, and buys articles from a number of sources such as the British Library. GSK relies on blanket licences in the subscriptions. Philip mentioned that although GSK is a global company, they see themselves as one entity, with lots of people working together across the globe. So it's important that GSK has the same rights for all colleagues for example, a colleague in one country can copy something that a colleague in another country cannot and this is ridiculous. Philip wants a multinational licence that is easy to understand, user-friendly, up-to-date, comprehensive and includes all publishers (big and small) and all countries. What a fantastic wish list!
Vanessa Marsland said CC have a similar setup to GSK and that they are also a global organisation with direct publisher licences. Vanessa agreed that licensing needs need to be adminstered on a multinational basis, because sometimes information may be needed that wouldn't be covered within the mainstream direct licences. CC has some experience of country differences and says that this is an issue "when all we have to sell is our time" (!)
Dr. Secker was next to speak, and said that the LSE is an international university, with 50% of students coming from another country. The services are provided on campus, so the LSE is not looking to deliver content to students overseas. What she found very helpful to students (who need to read a lot during times of the year) was multiple copies of books and electronic journal subscriptions. Dr. Secker mentioned that a "paper coursepack service", provided under a CLA blanket licence was also very useful, as is the electronic coursepack service (which used to be provided on a transactional basis for key courses making the costs associated with that service huge). Dr Secker is thus very pleased to have a blanket licence now to cover the LSE's e-learning system.
Kevin Fitzgerald, moderating the panelist discussion, asked the audience about whether they have any questions as to the current licences operate. Kevin noted Philip Ditchfield's comment that they need to be easy to understand and wondered if the audience felt the same way. An audience member from the University of Buckingham said that in addition to wanting the licences to be easy to understand, they wanted them to be easy to administer. At present, there is so much administration involved, for example, in providing the number of pages to be digitised, the number of students on the course and a whole host of other administration. The comment was answered by Georgina Bentliff who said that they do need to know what is copied and the other information; however, if there are ways to simplify and improve the technology in the future in order to make the administrative side of things easier, then the CLA will do so.
Philip Ditchfield then commented that the CLA licence is difficult to understand. Although there is an explanatory document that goes with the licence and there is now a third licence, ultimately a document is needed that is able to be explained across the whole of the business, so as to ensure all at GSK understand it.
Kevin then asked about future licence developments. Emma House said that in an increasingly digital world, publishers are adapting to different business models. The landscape is changing and more going global. She has found that publishers are willing to work with the CLA to satisfy the needs of rights holders and licensees. Georgina Bentliff commented that she can report that rightsholders have approved multinational licences. From a digital point of view, the licence is an opt-in licence and covers copying and scanning. The Publishers Association has started getting Opt-In licences drafted, and the plan is for them to be available in January.
Kevin then asked the audience whether there were any comments on multinational licences. A comment from University College London was that there are areas where the CLA can't offer coverage, as there was a lack of RRO's available in countries of interest. UCL wants to start a dialogue in those countries so that the licence is truly global. Plus UCL would like to see the licence being available in countries other than English. This is a huge issue for UCL.
Georgina Bentliff responded to say that the CLA can only deal with countries in which there exists an organisation that can represent its rights holders. RRO countries signed up are those with such representation, and the CLA does what it can to support the development of new RROs. including acting as mentor and providing advice.
After a comment by Emma House about countries in the Middle East, Kevin noted that he is aware of a number of difficulties for Central and Eastern European countries but that there were discussions with the International Federation of Reproduction Rights Organisations (IFRRO) regarding this. Since the meeting, I found a page entitled "IFRRO Development Committee for Africa and the Middle East" on the IFRRO website which has details about the Mandate for that Committee.
Kevin's next panel question was what use the CLA licence is put to in the licencees' organisation, and whether there were any difficulties with what the organisation should be doing with it or in getting colleagues to do the right thing with it? Finally, whether the licencee's want the CLA to do anything about these issues.
Dr. Secker said the LSE had no problem with knowing what to do and that generally, the guidance she gives is that website content should be linked to and not copied. Vanessa mentioned there were some odd questions that would sometimes crop up, such as whether information can be included in a prospectus, but that while there was massive use of websites, website content is mainly used to read and keep a copy for the file. Philip mentioned GSK generally needs to sign three requests for information. If authorisation is not given by the third request GSK doesn't bother. This is a shame and GSK hopes the process of authorisation will be simplified in the future.
A audience comment from a representative of Loghborough university then came in to say that the CLA is "barking up the wrong tree" and that there are only very minor problems in accessing material through websites and that generally material is available. If there is a barrier, then material could be found somewhere else, or the search for it be abandoned. According to the audience member, the CLA shouldn't be wasting its efforts on RRO's. Georgina's response was, as you might expect, that the CLA did a lot of surveys in sectors and the impression they got was that people would like to have these licences and that liking to have was different to there being a problem.
The next question Kevin put was how to define the amount of a website which could be "copy-able". First to comment was Chief Executive of Future Publishing Stevie Spring. Stevie said that so far, the only person making any sense was the person fron Loughborough university, and that she thinks the licences are a waste of time and will complicate things. Stevie noted that CLA licences are not primary licences but merely licences for secondary use and for a limited amount.
The discussion swivelled around to Georgina talking about the CLA's Schools licence, which launched on Friday 1 October, which would allow for the photocopy, scan and re-use of material. Such use could be made of one article or chapter or up to 5% of material - I think the actual amount is still to be determined. There is little additional information about these licences available on the CLA website; however, the appropriate link is here.
The first session ended with Kevin asking the panel to list "Fantasy website" links which he would like to see incorporated into the licence. Dr. Secker would like to see Disney while Philip wants Wikipedia, The Daily Telegraph and other newspapers and CC and Emma House preferred not to comment.
You can contact Nandita by email here.
|EXGAE: serious lobbying |
or smear campaign?
|SGAE: a target for criticism and |
vilification from several sources
By now, according to the 1709 Blog's calculations, something further must have happened. Can anyone advise?