1709 Blog: for all the copyright community

Sunday, 26 April 2015

World Intellectual Property Day - Get Up, Stand Up. For Music.

Never has music been more accessible. The days of queuing up in a record shop to obtain that pre-ordered prized vinyl copy of your favourite band’s new album would seem alien to today’s digital generation (not least as many record shops have disappeared). Digital Natives have YouTube, they have Spotify, they have the BBC iPlayer, they have iPods, they have Amazon – and they have The Pirate Bay and many many other tools on the internet to find both legal and illegal content. Even Digital Immigrants are migrating to digital music and there are few left who are not touched by the digital age in some way.  But how have the music industry, musicians, songwriters, technology companies, legislators and consumers adapted to change? And what's around the corner? Tomorrow and to celebrate World Intellectual Porperty Day,  the CHARTERED INSTITUTE OF LIBRARY AND INFORMATION PROFESSIONALS will publish a new article by 1709 Blogger Ben Challis titled "Music and copyright – that elusive search for perfect harmony"

and you will be able to find that article here http://www.cilip.org.uk/cilip/blogs

Friday, 24 April 2015

World IP Day: "Don't Stop the Music"

This blogger's friends at HGF, an ambitious law firm full of intellectual property specialists, have come up with an attractive marketing ploy that can expect a wider circulation than the usual client seminars and cocktail invitations. In their own words:
With World Intellectual Property Day only a few days away on 26 April, HGF have created an interactive guide to the IP issues surrounding the publication and distribution of music through online platforms, with the aim of both educating artists and raising awareness of the potential IP issues that can arise within the industry. You can find the page here: http://www.hgf.com/worldipday
The link takes you through to "Don't Stop the Music", described as "A guide to intellectual property for musicians, bands & record labels in a connected world".  The guide, which is also a handy checklist of things that can wrong and which enthusiastic musicians and composers can easily overlook, is visually riveting, though it may not appeal greatly to people who are easily distracted from the written word by visual effects jumping around the page.

HGF say that they will also be promoting the event and interactive guide on social media, using the hashtag; #WorldIPDay, so you have been warned!

Thursday, 23 April 2015

Students' Rights - of the Intellectual Kind

To mark World IP day on Sunday, the Intellectual Property Awareness Network (IPAN) is holding its 5th Parliamentary event entitled "IP : a 2020 Vision" today (23rd April) in the Conference Room of the BPI at County Hall, across the Thames from Portcullis House. Given the forthcoming election, quite how well attended the event will be by parliamentarians, remains to be seen. But the need for events like this to raise the awareness of the importance of IP are amply demonstrated by a recent article in the Times Higher Education (THE). THE surveyed just under 70 universities in the UK and found that a significant number of them (just under 20%) required their students to sign over all intellectual property rights in their work to the university as a condition of enrolment, while  handful of others asked for the rights to be transferred or to be licensed to the university.
Clearly the IP covered by such policies will range from copyright in a student's course work, through design right, to in some cases to patents arising from academic research. It remains unclear how much students understood about these rights when they were asked to sign them away. These policies are understandable from the point of view of the universities which are increasingly keen to exploit academic research and innovation as an important revenue stream, but is it really fair that some students are being denied the right to exploit the fruits of their own creativity, especially when they are paying for their tuition?

This comes after the recent launch of the IPO's IPTutor  online tutorial and the BBC's Copyright Aware project (about which see John Ensor's post here) which aim to address a lack of IP awareness amongst young people in general. Students in higher education were identified by a 2012 study (pdf) jointly sponsored by IPAN, the IPO and the National Union of Students, as being eager to receive more teaching on the subject of IP. That study found that 84% of students they contacted thought that having a broad knowledge of IP was important to them in their studies and for their future careers, although only 40% of students considered their current awareness of IP to be enough to support them in their future career. The study also concluded that more should be done to introduce students to IP while they were in secondary education. Teaching on IP in schools was very patchy, and in large part just consisted of making pupils aware of avoiding plagiarism, rather than acting as a foundation for IP in general.

The THE article quoted Charles Oppenheim, a visiting professor at the University of Nottingham, as saying these IP-grabbing policies in universities are a result of "ignorance rather than anything else", and he pointed to the JISC Legal report from 2007 which had warned that such contracts could well be found to be unfair if they were ever challenged in court. Mandy Haberman, a director of the IP Awareness Network, felt there was a huge amount of confusion about IP within the higher education community.

Some of the reasons quoted by the universities do tend to support this suggestion that ignorance and confusion lie behind these policies. The Royal College of Art claimed that it held the IP rights until graduation in order to protect students' work from infringement. On the other hand, the London Metropolitan University wanted to have the rights so that it would not be liable for infringing the students' work if copies had to be made available to second markers.

If students are led to believe that this sort of rights grabbing is the norm, many of them who go on to be entrepreneurs or creators could well be  at a disadvantage when it comes to understanding the value of their IP rights, and it is claimed, this will damage Britain's entrepreneurship. 

Thanks to Chris Torrero for making us aware of the THE article.

Welcoming Andy Johnstone as a Member of our Blogging Team!

Today, we are very happy to welcome a new member to our blogging team, Andy Johnstone.

Your New Team Member, Andy Johnstone
Andy’s interest in copyright is rooted in his experience as a photographer. Indeed, after having spent twenty-five years in the military, Andy switched career paths in 1998 and became a professional photographer, working in London.

He soon found that copyright is an essential aspect of the photography trade, and endeavored to learn as much as he could on this subject, so he could use it to best advantage. This came easily, as Andy always had an interest in the law. He soon found out that his intellectual property knowledge reached well beyond the immediate needs of a photographer, and started sharing this knowledge with others, whether to fellow photographers or other interested members of the public. Andy wrote: “Today I think of myself as, first, an unpaid copyright consultant, and then as a photographer.”

As Andy is now, in his own words, semi-retired, he has more time to pass on some of his knowledge acquired over the years. He has been a regular contributor to the CopyrightAid website for the last five years, and will now also share his expertise with the readers of this blog. 

We are all very happy at The 1709 Blog that Andy has accepted to join the team! 

California Bill Would Require Libraries to Post IP Infringement Notice on 3D Printers

A California bill, AB-37, introduced in December 2014 by Assemblywoman Nora Campos (D-San Jose) would require libraries providing public access to a 3D printer to post a notice alerting users of their potential intellectual property infringement liability for misuse of the 3D printer. The 14-point type notice would have to:  

“(A) Provide citations to the applicable state and federal laws that may impose civil liability or criminal penalties for misuse of a 3D printer, including laws regarding copyright infringement and trademark and patent protection.
(B) Describe the potential damages for liability and criminal penalties that may apply for a violation of these laws.
(C) Alert users of the 3D printer that it is the responsibility of the user to be aware of and abide by the laws that may apply to the use of a 3D printer.”
The California Department of Justice would have to review and revise the notice annually “to reflect updates to the applicable laws.”

What is 3D Printing?

The bill defines a 3D printer as “a machine or other device that manufactures or produces solid objects by depositing layers of material, including, but not limited to, plastic, pursuant to instructions that are stored and displayed in an electronic format as a digital model.” Indeed, most 3D printers use ABS (acrylonitrile butadiene styrene) or PLA (polylactic acid) plastic as printing material. However, a company is already using 3D printers and bioprinting technology to  print 3D liver tissue from human cells, and it is also possible to use other materials, such as steel or resin.

3D Printing Soon in Every Library?

While the high cost of 3D printers still prevents them to be household staples, some public libraries are already giving their patrons the right to use their 3D printer. The number of U.S. libraries with 3D printers should grow in the near future, as the MakerLab Club, a U.S. community of libraries and museums, has for a goal to “advance 3D digital literacy by bringing 3D printers, 3D printing programs, workshops and access to students, adults, educators, schools and non-profits.” It donates 3D printers to libraries and assists libraries in setting up 3D workshops so that their patrons may learn how to use these new printers.

3D Printing and Intellectual Property

While 3D printers may be beneficial to humanity, by allowing the relatively cheap and easy production of body parts, tools, shoes, or even houses, they may also be used to print infringing goods.

Designers can draw their original 3D printing ideas using a design program such as CAD. The digital object design file may then be used to print the object. Users without design skills may easily find these files on specialized platforms on the web, for instance, the thingiverse site which allows its users to browse the 3D printing files uploaded there by others, and download them for free.

The California bill has been derided by some online, but it seems that requiring such a warning is quite innocuous, and libraries themselves have published models of such warnings to be posted on their 3-D printers. However, I am more concerned that the doctrine of fair use would fail to protect 3D users from cease-and-desist letters demanding they stop their use of a work to create a derivative version of it, by modifying an original digital object design file, or generating such a file by scanning a work protected by copyright. 3D printing indeed could bring a new dimension to fan-art. Toy company Hasbro recently authorized third parties to create their own 3D print version of its famous My Little Pony Toy, as part of a promotion for the famous plastic equine. This is an interesting initiative, but a company which had not  authorized such derivative work could threaten to file an infringement suit. The work may or may not be protected by fair use, but the fan may not have the financial resources to seek legal advice.

Thingiverse asks its users to only upload their own creations, or those created by others, and published under a CC license, but nevertheless received its first DMCA takedown notice in 2011, over the upload on its site of a Penrose Triangle. This example is particularly interesting as it can be argued that, as the Penrose Triangle is in the public domain, its 3D representation is also in the public domain.

But not everybody would agree with this statement. Last year, a 3D printing enthusiast from South Dakota, received a cease-and-desist letter from the Augustana College in South Dakota which had taken umbrage from his uploading to the web 3D scans of two statues owned by the college and displayed in public, which are bronze casts of the David and Moses masterpieces by Michelangelo, both of which are, needless to say, in the public domain. Well, so are their reproductions, including those made using 3D printers. Let’s note that in Europe, owners of the moral rights of a work in the public domain could invoke these rights to prevent, say, the 3D printing of the work in a garish and cheap material, or an obscene or disparaging modification.

Other Legal Issues

As this is a copyright blog, I will not write about other legal issues which could be raised by 3D printing, but consumer law and tort law may also be interested in 3D printing. The American Library Association recently published “An Introduction to 3D Printing and Public Policy” where it noted that 3D printers may produce faulty products which could injure consumers, and wonders who would be held liable for injuries sustained by these defective products. Would it be the inventor who printed and sold the item? Or maybe the manufacturer of the 3D printer? The programmer who wrote the code for the product’s design? Or even the libraries? I wonder if a bill will soon be presented, either in California or in another state, proposing to warn 3D printer users of the potential liabilities they face if printing a defective object which would cause harm…

Image is courtesy of Flickr user Keith Kissel, under a CC BY 2.0 license

The CopyKat - oh the excitement, just four days to World Intellectual Property Day !

New Zealand internet service providers who allow users to bypass geoblocks to access overseas digital content have been threatened with legal action by four of the country’s major media broadcasters. State broadcaster Television New Zealand (TVNZ) and pay-television operators Sky, Lightbox and MediaWorks, have confirmed they are preparing legal action against Call Plus and Bypass Network Services on the basis of breach of copyright. Both ISPs offer a “global mode” to their users which gives them access to content that is unavailable in their country, such as subscriptions to a US account of streaming service Netflix.

Now a bit of self publicity. Readers may know that the CopyKat (in his real life identity) edits Music Law Updates.  Now, whilst MLU will continue as a monthly 'journal' style online publication (as it has for the last decade and more), we now have a blog for those of you eager to get your paws on the latest legal news from the music industry. And where will you find that blog I hear you ask - well its all here! http://www.musiclawupdates.blogspot.co.uk/. For those interested, Music Law Updates covers interesting copyright updates in music and sound recordings, but also extends into the heady heights of Trade Marks, Contracts, Negligence and Personal Injury, Health & Safety, Licensing, Criminal Law and even Competition Law and Taxation on the odd occasion! But all in the context of the music industry.

Aereo - the TV streaming service which the US Supreme Court effectively closed down when it ruled the 'mini antennae' system it used infringed the copyright of broadcasters, will pay around $950,000 to settle copyright allegations made by CBS, FOX, and ABC - who had originally been looking for nearly $100 million.  Now in bankrupcy, Aereo still faces $7.5 million in claims from creditors, but only has $811,000 left to pay those bills. More here and  re Aereo Inc., 14-bk-13200, U.S. Bankruptcy Court, Southern District of New York (Manhattan).

Tucked away inside the 500-page Canadian budget unveiled in Ottawa was a single sentence that, whilst expected at some point as Canada comes t terms with the Trans Pacific Partnership agreement, has already promoted widespread comment. In a section about “celebrating our heritage,” the budget vows to update the Copyright Act “to protect sound recordings and performances for an additional 20 years,” raising the copyright term for musical works from 50 to 70 years "and potentially signalling further restrictions on works of art yet to be unveiled" according to critics who say that the extension is unwarranted and unjustified. Tamir Israel, staff lawyer at the Canadian Internet Policy & Public Interest Clinic at the University of Ottawa said “There is no proof at all the extended copyright term in any way increases incentives to create. On the other hand, Canadians are robbed of open access to works that should be entering the public domain.”

With its copyright soon expiring, the future of Adolf Hitler's Mein Kampf has been repeatedly in the news. Now Peter Longerich, professor of modern German history at Royal Holloway, University of London, who has published a new biography of Goebbels, is facing a claim from Goebbels' heirs because his book quotes from Goebbels' diaries. Cordula Schacht – a lawyer whose own father, Hjalmar Schacht, was Hitler’s minister of economics – is suing Random House Germany and its imprint Siedler, over Longerich's book Goebbels. With Germany's term of copyright for literary works being life of author plus 70 years, Hitler's minister of propaganda's work will also enter the public domain on the 1st January 2016. If this gets to court it may be an interesting case - not least looking at who actually owns any copyright in Goebbel's writings, but also at how far Professor Longerich is protected by exceptions to copyright in Germany, in the UK and possibly in the USA. Rainer Dresen, general counsel of Random House Germany, told the Guardian that an important principle was at stake. “We are convinced that no money should go to a war criminal,” he said.More on TechDirt here.

The Bookseller tells us that a global piracy ring has been found guilty in a US federal court of intentionally infringing copyright, sharing copies of books from up to 16,000 international publishers. The maximum damages allowed under US law - $37.5m – were awarded. The case of Elsevier Inc v Victor Kozlov and Pavel Kazutsin, which was brought to court as a joint action by the global publishing industry, concerned the defendants' websites Avaxhome and Avaxsearch, which illegally provided access to digital copies of millions of books, as well films, music, games and other copyrighted content.

And finally, Swedish prosecutors are preparing to argue their case in court as to why The Pirate Bay's flagship .se domains should be deactivated or put under government control, as copyright enforcers continue to try and make it harder for piracy platforms to operate.

World Intellectual Property Day. 26th April 2015. 

Friday, 17 April 2015

The CopyKat - Is Disney skating on thin Ice?

Back in  August last year the CopyKat noted that Disney could be heading to trial over copyright infringement claims involving it's blockbuster animated hit and $1.22 billion grossing "Frozen".  Now that seems to have come about. Back in August, Kelly Wilson, who created a short 2D computer-animated film called "The Snowman", survived the first round in a copyright lawsuit against the company, after a judge noted some key differences between the two films - such as "Frozen" being lighthearted and The "Snowman" not, but also found some similarities. Now Judge Vincent Chhabria has stated that he has a “fairly strong inclination” that a jury should decide whether the Disney official with creative responsibility for the trailer also had access to Wilson’s computer-animated film. Chhabria stated that he will issue an opinion on the two party’s summary judgment motions, but indicated the matter was headed for a jury trial.  Wilson claims that the marketing trailer for “Frozen” directly infringed on her copyrighted film. Wilson’s complaint states that she created "The Snowman" between 2008 and 2010 and that the short was screened at eight film festivals. One of those screenings was at the San Francisco International Film Festival in 2011, where she shared the stage with an employee of Disney’s Pixar Animation Studios, which was also screening a film in the same session. Wilson’s "Snowman" is the story of a snowman who has to race to save his carrot nose from a group of ravenously hungry rabbits after it falls off and slides to the middle of a frozen pond. Wilson claims the 2013 "Frozen" trailer featuring Olaf dashing to save his carrot nose in a race to the middle of a frozen pond with a reindeer is substantially similar to her film. “The storyboards tell an interesting story,” Judge Chhabria said: “I think it’s a story to be told to the jury.”  More here.

The U.S. Court of Appeals for the Ninth Circuit has revisited the issue of a copyright co-owner’s right to grant an exclusive right to a third party, clarified its prior ruling in Sybersound v. UAV, and explained that a copyright co-owner may unilaterally transfer any exclusive copyright interest he or she possesses.  The decision in in the 'Jersey Boys' case which has been covered by this blog here and here: Corbello v. DeVito, Case No. 12-16733 (9th Cir., Feb. 10, 2015) (O’Scannlain, J.) (Sack, J., sitting by designation, concurring in part). The interesing resource for U.S. clopyright decisions, JDSupra,  has the full picture.

UK copyright laws do not provide online content providers with freedom to retransmit TV programmes shown by UK public service broadcasters (PSBs) to fixed-line internet users who could otherwise watch the programmes on TV, the UK government has said. The Department for Culture, Media and Sport (DCMS) said that it is its view that rules contained under s73 of the Copyright, Designs and Patents Act 1988 (CDPA) do not "apply to content transmitted over the internet". The provisions were drawn up to "support the development of analogue cable infrastructure in the 1980s and 1990s" and are now "out-dated", it said. DCMS said that it intends to repeal s73 "at the earliest opportunity" but has opened a consultation on what the "potential implications" of that move would be as part of wider plans to remove existing regulations relating to public service broadcasting. From the ever excellent Out-law.com. The Court of Appeal has of course referred further questions to the Court of Justice of the European Union (“CJEU”) in ITV Broadcasting v TVCatchup (C-607/11) - the second time that the case has been before the CJEU. The Court of Appeal has sought clarification on whether s73 CDPA (the defence for regionalised retransmission of broadcasts by cable) is compatible with Article 9 of the InfoSoc Directive (2001/29/EC) and that it covers streaming of public service broadcasts via the Internet. If you can stomach any thing more on the CJEU on communicating with the 'new public', there's more from Professor Jan Rosen over on the IPKat http://ipkitten.blogspot.co.uk/2015/04/the-cjeu-new-public-criterion-national.html

The latest efforts by the American record industry to force terrestrial radio stations to pay royalties to labels have moved forwards with new proposed legislation in the Congress:  The Fair Play, Fair Pay Act  is backed by four members of the House Of Representatives: Democrats Jerrold Nadler, John Conyers Jr and Ted Deutch and Republican Marsha Blackburn. While AM/FM radio stations do not pay royalties to labels, online and satellite radio stations do, because the Digital Millennium Copyright Act applied a 'digital performing right' to the sound recording copyright. The New Act would  provide for a general public performance right for all sound recordings that are still within copyright in the USA, including per-1972 recordings which a number of digital operators (including SiriusXM) have argued are outside of federal law. More here.

And following on from that, the U.S. Second Cuircuit Court of Appeals will consider whether the owners of pre-1972 sound recordings have performance rights to their songs in an appeal brought by SiriusXM is seeking to appeal the ruling of New York federal judge Colleen McMahon's that denied its summary judgment motion in a lawsuit brought by Flo & Eddie of The Turtles. In her opinion, the judge addressed whether New York law protected public performance and wrote that "acquiescence by participants in the recording industry in a status quo where recording artists and producers were not paid royalties while songwriters were does not show that they lacked an enforceable right under the common law — only that they failed to act on it."  SiriusXM is presenting two questions to the 2nd Circuit. First, “Under New York law, do the holders of common law copyrights in pre-1972 sound recordings have, as part of the bundle of rights attendant to their copyright, the right to exclusive public performance?” And Second, “Does the Dormant Commerce Clause prohibit the State of New York from enforcing a property right that it recognizes at common law?” More on the Turtle's actions here.

HBO has blamed Periscope for facilitating mass copyright infringement after four episodes of the new series of Game of Thrones were leaked and widely shared using the service. According to The Hollywood Reporter, HBO has sent takedown notices to Periscope and it's also taken a dig at Periscope for what it implies is a hands-off attitude toward piracy. "In general, we feel developers should have tools which proactively prevent mass copyright infringement from occurring on their apps and not be solely reliant upon notifications". Periscope is owned by Twitter and the app  lets users broadcast whatever's around them. Game of Thrones was the most-pirated TV show globally during the last three years.

As the Australian courts ordered Australian internet service providers to reveal the identities of 4,726 internet users who had illegally downloaded ‘Dallas Buyers Club’, there was a massive rise in Google searches for ‘VPN’ : By using VPN services or BitTorrent proxies, user's sharing activities can no longer be linked to their ISP account.

The Fincial Post tells us that the Ontario Court of Appeal has certified a class action allowing the province’s 350 land surveyors to sue the managing corporation of Ontario’s electronic land registry system for copyright infringement. At the heart of the case is the surveyors’ claims that they retain copyright in the surveys they prepare and register. Teranet, who has managed the electronic land registry for the provincial government for 25 years, scans the surveys into digital format and adds the electronic information to its database. Teranet also provides electronic copies of the surveys to system users for a regulated fee but pays nothing to the surveyors. The surveyors claim this infringes their copyright.

And finally from the China IP Newsletter from the IPO, UKTI and British Embassy in Beijing, news that the Chinese State Administration of Press & Publications, Radio, Film & Television (SAPPRFT) has announced new regulatory measures - effective from April 1 - limiting foreign TV shows to a maximum of 30% of content on major streaming platforms. The content of foreign shows will also be subject to stricter supervision and must be pre-approved by SAPPRFT. Pre-launch censorship checks cause distribution in China to lag behind international release dates and have been blamed for increases in online piracy in the country. More here in Chinese.

CONGRATULATIONS to Keswick Football Club for their victory in the Westmorland Senior Cup on the 18th April 2015. Well done !!!!

Thursday, 16 April 2015

CISAC sends open letter to MEP Reda

Creators from all creative sectors and geographic regions have addressed the shortcomings in Pirate Party MEP Julia Reda's draft report on the adaptation of the Copyright Directive. The Report that was published in January 2015, tackled a number of sensitive issues in copyright reform, several of which directly impact creators.

CISAC creators outlined their views on the Report in a letter addressed to Reda and copied to all Members of the European Parliament, on the eve of its discussion by the Parliament. The letter was signed by CISAC’s President Jean Michel Jarre and Vice Presidents Angélique Kidjo, Javed Akhtar, Marcelo Piñeyro and Ousmane Sow on behalf of the nearly four million creators that the Confederation represents. The letter highlights the CISAC's position that Report fails to address market realities for creators and underlines the need for a more balanced system that would take into account the rights of creators and provide fair remuneration for the use of their works.

"We agree that there needs to be a balance achieved between rights holders and the public. But this balance should not be struck at the expense of the increasingly fragile community of creators," wrote the signatories.

The letter questions some of the key proposals, in particular the approach to copyright exceptions and limitations solely from the perspective of user benefits, without considering the impact of so-called "free access" on the economic and moral interests of creators. On the issue of the copyright term, CISAC rejects  Reda’s call for “a duration that does not exceed the current international standards,” effectively meaning a downward harmonisation to a term shorter than what is already available across Europe.

"We would be very interested in seeing the evidence upon which this policy recommendation is based," says the letter.

"Now that digital technologies can help facilitate access to, and preserve our works, forever, an extension seems more justified than ever."

In their conclusion, creators urged Ms. Reda "to do what’s right" by ensuring the future of creators in Europe and supporting "a fairer digital market for creators."     

The letter was sent to MEP Julia Reda and copied to all MEPs who participate in the JURI committee.

That committee is due to commence its discussions on the Report today.