1709 Blog: for all the copyright community

Wednesday, 1 October 2014

In our last CopyKat we noted that NewsCorp's CEO Robert Thomson had written to the European Union Competition Commissioner Joaquín Almunia criticising Google, accusing it of anti-competitive practices, and of failing to play its part in combating online piracy. Well - Google have now responded via a blog posting  from Rachel Whetstone, SVP Global Communications that notes that "Google has done more than almost any other company to help tackle online piracy" and details the web firm's adherence to copyright takedown notices and that the system the web giant  uses has to deal with a vast number of takedowns - and that Google is proud that "the average take-down time is now just six hours", provides the ContentID software on YouTube and "we downgrade websites that regularly violate copyright in our search rankings.". Google also points out that it has helped NewsCorp monetise its content, and take umbrage about the accusation that it has become "a vast, powerful, often unaccountable bureaucracy" and that "The shining vision of Google's founders has been replaced by a cynical management" saying founders "Larry Page and Sergey Brin are still very much at the helm of Google" and continue to innovate. Finally turning to web dominance and competition issues (perhaps the most dangerous of Newscorp's claims given the recipient's job and complaints made by other European media owners such as Axel Springer, Germany's largest newspaper publisher) the blog says "As The Economist reported last week 'mobile devices have changed the way people travel the internet. Users now prefer apps to websites' home pages'. In this world Google Search is an app alongside many others. The same article adds 'the rise of social networks such as Facebook, Twitter and Pinterest ... have become an important navigation system for people looking for content across the web'. It's why many newspapers get an increasing number of referrals from Facebook and Twitter".

Tuesday, 30 September 2014

DIY Grooveshark cannot claim DMCA 'safe habor'

A federal judge in New York has ruled that Grooveshark, the controversial online music service, has infringed on thousands of their copyrights. Grooveshark came under fierce attack from the recording industry for hosting music files without permission. Grooveshark (Escape Media Group) streams music uploaded by its users and Grooveshark’s defence has long been that it is legal under the Digital Millennium Copyright Act, the federal law that protects websites that host third-party material if they comply with takedown notices from copyright holders. The company relies on advertising for its revenues. Granting summary judgment in a case filed in 2011 by the three major record companies, Judge Thomas P. Griesa of United States District Court in Manhattan ruled that Grooveshark was liable for copyright infringement because its own employees and officers — including Samuel Tarantino, the chief executive, and Joshua Greenberg, the chief technology officer — uploaded a total of 5,977 of the labels’ songs without permission. Those uploads are not subject to the “safe harbor” provisions of the Digital Millennium Copyright Act with the judge saying “Each time Escape streamed one of plaintiffs’ songs recordings, it directly infringed upon plaintiffs’ exclusive performance rights”.  According to Reuters, evidence against the executives included a 2007 memo in which they asked staff to upload as much music as they could, while outside the office, to help the service grow in its early days. “By overtly instructing its employees to upload as many files as possible to Grooveshark as a condition of their employment, Escape engaged in purposeful conduct with a manifest intent to foster copyright infringement via the Grooveshark service,” the judge said. The judge also found that the company destroyed important evidence in the case, including lists of files that Mr. Greenberg and others uploaded to the service. The New York Times reports that the next step of the case will be to set damages although Grooveshark said it is currently assessing its next steps, including the possibility of an appeal.” Grooveshark is also still facing two other copyright suits filed by the music industry, one in New York federal court and one in state court, also in New York.

We previously reported that our former and one then employee of Grooveshark had previously signed consent orders with the plaintiffs agreeing i that they would never again infringe the labels' copyrights, or work for a company that "systematically infringes" copyrights.  Those individuals who had been targeted for infringement were then removed from the the ongoing lawsuit. 

Reminder: personal copies, quotation and parody exceptions

A little reminder of the three copyright exceptions due to be implemented on 1 October:
  • Personal Copies for Private Use
  • Quotation
  • Parody
Personal Copies for Private Use

This exception, which does not apply to computer programs will permit the making of a personal copy of an individual’s own copy of a work, for that individual’s private use for non-commercial purposes.

The “individual’s own copy” means a copy that he or she has lawfully purchased (e.g. a CD, or a lawfully obtained download) on a permanent basis (i.e. does not cover “a copy which has been... streamed” though query what that even means – presumably streamed content is covered by the temporary copies exception in any event).

“Private use” includes making back up copies, format-shifting (i.e. copying CDs to digital), storage (i.e. cloud storage of lawfully purchased downloads, to the extent that these are stored in an area only accessible by the individual).

Copyright is infringed if the individual transfers their personal copy to another person, e.g. sharing of digital content is not caught by the exception.

Note that it is not possible to contract out of this exception.

So, clearly the personal copies exception is intended to legalise what everyone already does: convert analogue content to digital and to back up digital content. In that sense this exception is not controversial, however it will be interesting to see what creative applications for the exception are argued by content users. For instance if I lawfully acquire a physical copyright protected work, am I now permitted to reproduce that work using a scanner and 3D printer for my personal use at home? An example is mobile phone covers, which are likely to be protected by design rights rather than copyright, however I wonder whether this line of argument could be exploited, and whether it was considered by the legislators at the time of drafting?

Quotation

This exception permits the use of a quotation from the work (whether for criticism or review or otherwise) provided that the work has been made available to the public, the use of the quotation is fair dealing with the work, the extent of the quotation is no more than is required by the specific purpose for which it is used, and the quotation is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).
This means that short extracts of works which are already online (or indeed have been published offline) may be used without infringing copyright. There is no limit on how long the quotation may be, except that it must be “no more than is required”. There is no limit on the purpose of the use, except that it must be fair. This leaves the exception flexible yet arguably also restrictive.

The requirement that sufficient acknowledgement is limited to where it is not impossible “for reasons of practicality or otherwise” hints that in the online world it can be difficult to acknowledge authors who do not tag themselves as the author using conventional code which automated spiders can pick up on.

Again, it is not possible to contract out of this exception.

Parody

Finally the parody exception permits fair dealing with a work for the purposes of caricature, parody or pastiche.

There is no guidance as to the meaning of “caricature, parody or pastische”: will it be relevant whether a work is funny? If so who will judge whether a work is funny or not? Will moral or socially acceptable standards be relevant, and again if so who is to judge these? The case law may make for a fun read!

Again, it is not possible to contract out of this exception.

For more on the parody exception see Ben's recent blog post: Could ladybird bring the first copyright challenge?

Draft statutory instruments and supporting explanatory memorandum are available here:


International copyright framework: a chapter and a chance to comment

This blogger has just received news from his old friend and deeply respected colleague Paul Geller, who writes:
"Reaching the age of 75 earlier this year, I retired as General Editor of International Copyright Law and Practice but remain the author of the lead framework chapter of this treatise. At http://www.internationalcopyrightguide.com/, I've posted this entire chapter and my article on "How to ..." handle cross-border copyright cases. 
This pair of guides, the long and the short of the field, might be of interest to your readers".
Paul invites comments and criticisms which he will take into account when revising the chapter from year to year. So, if you would like to take him up on this invitation, he will be pleased to hear from you.

Good luck, Paul, on your retirement. We hope that our readers will keep you busily and fruitfully occupied for many a long year to come!

Cuba renews Berne relaxation options

By Berne Notification No. 270: Berne Convention for the Protection of Literary and Artistic Works, the Republic of Cuba becomes the latest country to renew its advantageous position regarding relaxations of copyright under Articles II and III of the Berne Convention [on which see earlier 1709 Blog posts here, here and here].  In short:
"The Director General of the World Intellectual Property Organization (WIPO) .. has the honor to notify the deposit, on September 3, 2014, by the Government of the Republic of Cuba of a declaration according to which ... the Republic of Cuba will continue to avail itself of the facilities provided for in Articles II and III of the said Appendix. The said declaration shall enter into force, with respect to the territory of the Republic of Cuba, on December 3, 2014".

Monday, 29 September 2014

Trawl for Tidy Transcript

Does any reader of this weblog have a copy of the full transcript of the judgment of Mr Justice Rattee in Tidy v Trustees of the Natural History Museum [1996] 39 IPR 501, a decision in which master cartoonist Bill Tidy failed to persuade the court that he was entitled to summary judgment in a claim that the reproduction of his cartoon sketches of dinosaurs in reduced size in a book constituted a distortion or was otherwise prejudicial to his honour or reputation?

If so, can he or she please get in touch with the 1709 Blog, or at least with blog team member Mira T. Sundara Rajan, who would like it for the LLM course she is preparing in International & Comparative Moral Rights.

Saturday, 27 September 2014

Bugged out - one snappers battle against online piracy

A pollen covered bee by Alex Wild
There is a fascinating and well written blog on Ars Technica from a wildlife photographer called Alex Wild who photographs insects - successfully - and tries to make a living out of this. It shows the 'other side' of copyright infringement: not the mass piracy of music and films and the relative might the content industries wield both legally and politically in fighting back against this - but a talented guy who understands the internet, but wants fair recompense when others use his work commercially. With 300 comments - it seems to have touched a nerve. Bugging out: How rampant online piracy squashed one insect photographer is a good read, and a licensed gallery of Alex Wild's marvellous insect images can be found here.

Friday, 26 September 2014

Are blocking injunctions unconstitutional?

Upon claim brought by some consumer associations, an Italian Administrative Court ('TAR') has referred the system upon which the Italian Communication Authority's ('AGCOM') Regulation on Online Copyright [on which see here] is based to the Constitutional Court, seeking clarification as to whether administrative blocking injunctions of websites are in line with some constitutional principles like freedom of expression, economic freedom and proportionality. Entered into force on 1 April 2014, the AGCOM Regulation allows AGCOM itself, without intervention of a judicial authority, to order the Italian mere conduits to block a website that is hosting infringing content after a very short administrative procedure. 

From the short extract of the decision that this blogger had the chance to read, however, it would appear that the TAR questioned the constitutionality of 14(3), 15(2) and 16(3) of the Legislative Decree No 70/2003. The latter transposed into the Italian system Articles 12(3), 13(2) and 14(3) of the E-Commerce Directive, which in turn allow "a court or administrative authority" to require mere conduits/caching/hosting providers to "terminate or prevent" infringements. As those provisions have been transposed in the Italian system almost litterally, what the Italian Constitutional Court could be called to consider, then, is whether and to which limits the whole E-Commerce Directive's system of notice and take down is in line with those three constitutional principles (freedom of speech, economic freedom and proportionality).

In Italy, 'TAR' stands for
"Tribunale Amministrativo Regionale"
This blogger bets that, when it comes to issue its decision, the Constitutional Court will suggest to strike a balance [perhaps one of the most abused expressions in the history of copyright law] between the fundamental rights that a disproportioned application of blocking injunctions could hamper and copyright protection, stressing that the latter, being a property right, also benefits of constitutional coverage -- like Article 17(2) of the Charter of Fundamental Rights of the EU says, etc.. 

But thinking out of mind the box: what if it will not be so? What if, eg, the Constitutional Court would say that the notice and take down system designed by the E-Commerce Directive is somehow in breach of constitutional rights that the Italian system protects as fundamental? How would the constitutionally-protected duty to comply with EU Directives match with the constitutionally-protected duty to guarantee the respect of fundamental rights such as freedom of speech and economic freedom? 

In a couple of decades [in line with Italian judiciary system's glorious timing tradition], the Constitutional Court will solve all these doubts -- and the 1709 Blog will be there to report.