1709 Blog: for all the copyright community

Monday, 1 September 2014

Bravo for the Bailiwick: Guernsey gets a Berne makeover

These are heady intellectual property days indeed for the Channel Islands -- or for at least one of them. The Bailiwick of Guernsey, replete with its own statutory image right, has now received something of a copyright makeover too. According to Berne Notification No. 267: Berne Convention for the Protection of Literary and Artistic Works:
Declaration by the United Kingdom of Great Britain and Northern Ireland

The Director General of the World Intellectual Property Organization (WIPO) presents his compliments to the Minister for Foreign Affairs and has the honor to refer to the deposit by the Government of the United Kingdom of Great Britain and Northern Ireland, on September 29, 1989, of its instrument of ratification of the Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886, as revised at Paris on July 24, 1971, and amended on September 28, 1979 (see Berne Notification No. 125).

In this respect, the Director General has the honor to notify the deposit, on August 21, 2014, by the Government of the United Kingdom of Great Britain and Northern Ireland of the following declaration:
- "in accordance with Article 31 of the Convention as revised and amended, the Government of the United Kingdom of Great Britain and Northern Ireland wishes the United Kingdom’s ratification of the Convention be extended to the territory of the Bailiwick of Guernsey for whose international relations the United Kingdom is responsible."
The said declaration shall enter into force, with respect to the territory of the Bailiwick of Guernsey, on November 21, 2014.

Want to discuss how fabulous EU copyright is? Here's an event for you

Just back from summer holidays? 
With summer almost behind us (at least if you are based in the northern hemisphere), you certainly need something to cheer yourself up. 

Why not going for an afternoon of EU copyright discussion then?

On Wednesday, 24 September 2014 from 2 to 5 pm I am organising a new event entitled The fabulous world of EU copyright: what's (just) happened and what will be next

The focus of this seminar, which will be held somewhere in Central London, will be on recent judicial, policy and legislative activity in our beloved copyright world.

The past year alone has been in fact one of intense activity for EU copyright: the Court of Justice of the European Union (CJEU) has issued several copyright decisions and touched upon a number of topical issues, spanning from jurisdiction in online infringement cases to hyperlinking, from blocking injunctions to the notion of parody; the Commission has been busy consulting with interested stakeholders about possible reform interventions, while two draft key documents (the Impact Assessment and White Paper) have been leaked; the EU legislative has adopted a new directive on collective rights management.

This seminar will provide an opportunity to both discuss the above in detail, including the practical impact of EU developments on UK copyright, and highlight what issues might be addressed in the near future at the judicial, policy and legislative levels.  

Topics will include:
Not to worry:
it is still time to party
with EU copyright!
  • CJEU case law from the past year, including Case C-170/12 Pinckney, Case C-355/12 Nintendo, Case C-466/12 Svensson, Case C-351/12 OSA, Case C-314/12 TelekabelCase C-435/12 ACI Adam, Case C-360/13 MeltwaterCase C-201/13 Deckmyn [to be decided the day after tomorrow!]
  • Impact of CJEU case law on UK copyright, eg with regard to the new parody exception.
  • Policy activity of the EU Commission, including the Public Consultation and the relevant Responses, and the leaked draft Impact Assessment and White Paper [with regard to the latter: who knows, perhaps by 24 September there will be also an actual White Paper].
  • Directive 2014/26/EU and the future of collective rights management.
  • What to expect next, especially at the CJEU and Commission levels. 

Places are limited (with some tickets available for full time students) so to provide everybody with the opportunity to discuss fully the present and future of EU copyright law and policy. 

For further details and registration, just click here!

UPDATE: following some requests, it will be possible to follow the event in live streaming, too! Details still here.

Saturday, 30 August 2014

Free the phantom images - 12 million historic images to be released

An American academic has uploaded 2.6 million of public domain images onto a site on photo sharing service  Flickr to allow users to take a "digital trip through time". Kalev Leetaru has uploaded an astonishing 2.6 million fully-tagged images and drawings from books as part of the Internet Archive Organisation's scanning process. 

Leetaru aims to finally upload 12 million images and is urging others to join in the process, and include text, telling the BBC  “Any library could repeat this process. It's actually my hope, that libraries around the world run this same process of their digitised books to constantly expand this universe of images.” The Internet Archive had used an optical character recognition (OCR) program to analyse each of its 600 million scanned pages in order to convert the image of each word into searchable text. As part of the process, the software recognised which parts of a page were pictures in order to discard them. Mr Leetaru reversed the process and wrote a code that used this information to go back to the original scans, extract the regions the OCR program had ignored, and then save each one as a separate file in the Jpeg picture format. 

The images are all tagged meaning they can be easily searched. The software also copied the caption for each image and the text from the paragraphs immediately preceding and following it in the book and Mr Leetaru said
""Type in the telephone, for example, and you can see that all the initial pictures are of businesspeople, and mostly men.  Then you see it morph into more of a tool to connect families" adding  "You see another progression with the railroad where in the first images it was all about innovation and progress that was going to change the world, then you see its evolution as it becomes part of everyday life."

https://www.flickr.com/photos/internetarchivebookimages/  and more on the BBC here 

Friday, 29 August 2014

The CopyKat: mirror mirror on the wall - who has the biggest banana of them all?

A federal judge has dismissed lawsuit filed by Arrow Productions, the owner of the copyright in the 1972 iconic porn movie “Deep Throat”. The case was brought against The Weinstein Co, the company that produced the biographical 2013 movie “Lovelace” which looked  look at the life of Linda Lovelace, star of “Deep Throat”. According to Arrow the 2013 film recreated three scenes “word for word, positioned the actors identically or nearly identically, recreated camera angles and lighting and reproduced costumes and settings” from the original film.  U.S. District Judge Thomas Griesa said that the movie was “entitled to a presumption of fair use,” concluding that its use of the three scenes from “Deep Throat” added a “new, critical perspective on the life of Linda Lovelace and the production of ‘Deep Throat.". The judge also dismissed trade mark claims.

TiVo has announced that it is releasing a new product - the “Roamio Over-the-Air [OTA] DVR”) that will allow customers who don’t have cable/satellite service to record, store, and playback over-the-air television programming (provided they have an HD digital antenna pulling in the signals). Now what does that remind the CopyKat of - ohhhhhh yes - the Aereo service that the Supreme Court declared to be infringing  in June. However the key difference is that this is a customer's box - allowing customers to record programmes where they already had free access, and to play those recordings back to themselves - rather like a video recorder - and that of course reminds us of of that classic 1984 (split 5-4) Supreme Court decision in Sony v. Universal which found that  manufacturers of home video player/recorder devices such as Betamax or other VCRs could not  be liable for infringement - overturning the The United States Court of Appeals for the Ninth Circuit which had found the manufacturers of betamax manchines liable for contributory infringement. But will the content and broadcast sectors see it that way?

The head of the Serbian actors’ association, Nikola Djuricko, has said that actors will demand amendments to the copyright law that would extend legal protection on artists whose performance is visual and not just an audio recording (Article 117 of the Serbian Law on Copyright and Related Rights states that performers are entitled to remuneration for the performances published “on a sound carrier”). 

Maslen & Mehra's work
Australian artists Tim Maslen and Jennifer Mehra have issued a legal challenge to the BBC. alleging that a BBC TV promotion for a World War One program infringes their copyright in their 'mirror soldier' artwork. Mehra and Maslen cut silhouette figures from mirrors and then place these mirror people in a landscape and film them with a moving camera. The result is "a interplay between the background and the landscape which is reflected in the mirrors. As the camera shifts, the mirror figures seem to blend with, and then emerge from, the background". ABC explains that the BBC promotion uses the same device but the BBC write to the artists saying ‘the team who worked on this project were not previously aware of your work. With regards to the image itself, the idea was conceived by the creative team at Karmarama, an advertising agency, and brought to life through a commissioned artist and a bespoke shoot. Everything has been created from scratch for this campaign.’  If this gets to court it will be interesting to see what might transpire ......... and it's worth noting that Judge (now Mr Justice) Birss did find infringement in the so-called Red Bus Case (Temple Island Collections Ltd v New English Teas Ltd & another [2012] EWPCC 1) where a picture of a red bus travelling over a monochrome Westminster Bridge and Houses of Parliement against a white sky had been 're-created' (but not copied) by New English Teas for packaging. Image from MyModernMet.

The International Business Times tells us about Getty Images, whose 'settlement demand letters' - sent to those who the image licensing copany have discovered have used their 80 million images without permission - are often accused of being close to mimicking the behaviour of copyright trolls. Well, Getty has had a nasty shock. Getty's Picscout software picked up an unlicensed image it thought was on the website of of  the Schneider Rothman IP Law Group, a Florida law firm (who specialise in copyright litigation). Getty wanted a $380 licensing fee for a photo of a woman texting and driving, which Getty claimed, was being used on the firm’s website without permission. The law firm pointed out that it never displayed the Getty-owned image on its website. Rather, the image was syndicated through a plugin operated by Zemanta Inc., a software company that provides third-party content.  Getty have now admitted its error and that it had closed its claim against the law firm - but not before the law firm issued its own legal proceedings alleging  “unfair and deceptive business practices.” The law firm is seeking a court declaration that no infringement was committed and an injunction against Getty to stop it from demanding payment where no infringement exists.  

The Hollywood Reporter tells us that Sirius XM could be on the verge of fending off the first major challenge in an ongoing lawsuit brought by major record labels over its royalty-free broadcasting of pre-1972 music (which of course includes a wide repertoire including classic rock n roll and tracks from the likes to Bob Dylan, The Beatles and the Rolling Stones). Los Angeles Superior Court Judge Mary Strobel has indicated that she was leaning towards rejecting a motion by Warner, Universal, Sony, Capitol and ABKCO Records to accept the labels' interpretation of the law in jury instructions. The plaintiffs believe that state laws protect the misappropriation of older sound recordings that were authored before falling under federal copyright protection. But the judge isn't ready to go so far and has indicated that she feels the label's may be relying on inappropriate case law. This lawsuit is just one of a number of actions against the broadcaster - which include the class action led by Flo & Eddie of the Turtles in which the band behind "Happy Together" contends that state law protects pre-'72 music and the broadcaster can't rely on statutory royalty rates for the recordings - and the claim from collection society SoundExchange claiming Sirius XM underpaid federal royalties for pre-'72 tunes. And Sirius have had a second dose of good news on that front: U.S. District Judge Richard J. Leon in the District of Columbia has approved the Sirius' motion to stay the lawsuit from SoundExchange to await the decision of a hearing with the federal Copyright Royalty Board - the body that sets the statutory rates that Sirius XM must pay - and if these can include revenues purportedly attributable to performances of pre-1972 sound recordings."

Banana Lady
We had previously reported how Cindy Lee Garcia had persuaded a split panel of the U.S. 9th Circuit Court of Appeals that she had rights to her performance in the 13-minute trailer for "Innocence of Muslims".  Chief Judge Alex Kozinski held that Garcia held a copyright in her performance despite appearing in only five seconds of the trailer, writing none of her own lines and even having part of her dialogue overdubbed by someone else. The dissenting judge in the case, N. Randy Smith, accused the panel's majority of writing new law saying "We have never held that an actress' performance could be copyrightable" but the majority held that "An actor's performance, when fixed, is copyrightable if it evinces some minimal degree of creativity ... no matter how crude, humble or obvious it might be".  The Garcia case is clearly unusual, as Judge Kozinski acknowledged. Actors don’t own copyrights in their performances in Hollywood films — not least as film contracts clearly specify each person’s rights. In Garcia’s case, there was no contract, and thus the unusual (“rarely litigated”) issue arose of whether she had a copyright in her performance. Having over turned the trial judge and with a dissenting justice in the appellate court, the Garcia decision is currently awaiting possible rehearing by the Ninth Circuit en banc, and is somewhat controversial. But now we have a second and seemingly conflicting decision in the Banana Lady suit - an action brought by Catherine Conrad, a/k/a the “Banana Lady,” who puts on private performances while wearing a costume in the shape of a giant banana. The case of Conrad v. AM Community Credit Union reached the U.S. Court of Appeals for the Seventh Circuit after photos and videos of her performance were posted to the Internet after a performance at a credit union trade association event - despite her desire to forbid this.  The appeals court unanimously rejected her claim (one of many she has brought, some seemingly frivolous) and in a decision written by Judge Richard Posner the court held that Conrad’s performance “was not copyrighted or even copyrightable,” since it wasn’t fixed in a tangible medium. And because the videos taken by members of the audience merely portrayed non-copyrightable material, they didn’t infringe her rights. Conrad also alleged that the event organiser was contractually obligated to prohibit posting of videos of her performance — but the organiser showed that they did make an announcement announcement and so had not induced any copyright violations. The decision affirmed the federal court in Winconsin:  "if you dance around in a giant banana costume at a public event, you cannot restrict people from posting pictures of you doing so under the auspices of copyright infringement." 

Wednesday, 27 August 2014

Comic Art, Creativity And The Law: a book notice

Apologies to readers of Art & Artifice for the cross-post (a somewhat longer version of this notice was posted there earlier today), but here's a book that is of interest to copyright lawyers and owners, as well as to those whose focus is primarily on art. The book in question is Comic Art, Creativity And The Law, by Marc H. Greenberg (Professor of Law, Golden Gate University School of Law, US).  This work has been recently published by Anglo-American publishing house Edward Elgar as part of its ever-increasing IP list, as part of its Law and Entrepreneurship series.

According to the publisher of this essentially United States-focused work:
The characters and stories found in comic art play a dominant role in contemporary popular culture throughout the world. In this first-of-its-kind work, Comic Art, Creativity and the Law examines how law and legal doctrine shapes the creative process as applied to comic art.

The book examines the impact of contract law, copyright law (including termination rights, parody and ownership of characters), tax law and obscenity law has on the creative process. It considers how these laws enhance and constrain the process of creating comic art by examining the effect their often inconsistent and incoherent application has had on the lives of creators, retailers and readers of comic art. It uniquely explains the disparate results in two key comic book parody cases, the Winter Brothers case and the Air Pirates case, offering an explanation for the seemingly inconsistent results in those cases. Finally, it offers a detailed discussion and analysis of the history and operation of the ‘work for hire’ doctrine in copyright law and its effect on comic art creators.

Designed for academics, practitioners, students and fans of comic art, the book offers proposals for changes in those laws that constrain the creative process, as well as a glimpse into the future of comic art and the law.
This is an enjoyable and thoughtful book, part legal analysis, part history, part speculation and part personal reflection. The impact of the law on the fruits of creation is easier to assess than its impact on those aspects of creativity which it may deter or stifle, and the use of comic art as a powerful form of parody, satire or social comment keeps returning it to the point at which freedom of expression meets countervailing rights and interests -- but this book is neither repetitive nor preachy, even though Marc Greenberg never leaves it to his readers to guess his thoughts and feelings.

Bibliographic data: hardback ISBN 978 1 78195 492 8; ebook ISBN 978 1 78195 493 5. Hardback price£70 (online from the publisher, £63). Web page here.

Tuesday, 26 August 2014

Portugal approves proposal to expand scope of private copying levy

Our friend Tito Rendas has emailed us with the following news from Portugal:
"The Portuguese Council of Ministers has recently approved a proposal to amend Portugal's Private Copying Law. The proposal updates the list of reproduction equipment, devices and media on which the levy is charged. The fee has been charged on CDs, DVDs and cassettes since 1998. If the Parliament passes the proposed amendment, MP3 players, external hard drives, memory cards and the like will be subject to the fee as well.

As you would expect, the proposal has been generating a great deal of controversy: on one side, the electronics sector threatens to pass the cost of the levy on to consumers; on the other side, the collecting societies claim that the proposed levy amounts are negligible.

Along with this amendment, the Portuguese Government approved a Strategic Plan to Fight the Infringement of Copyright and Related Rights. What is known so far is that the Government plans to launch awareness (brainwashing?) campaigns in schools and to create a special police unit for online copyright infringement. No plans to introduce a graduated response system have been announced, though".
Thanks so much Tito -- and thanks for sending us a link to the Portuguese government's official announcement of this proposal.

Monday, 25 August 2014

Copyright, technology and a contest!

[If you are also an IPKat reader, I apologise for the cross-posting ]

Copyright and Technology ...
On 1 October 2014 the beautiful London offices of Reed Smith LLP will host the 1-day Copyright and Technology conference, which promises to be very engaging. Incidentally, also I will be there as a moderator in the panel asking whether internet service providers should be copyright cops (this will also feature fellow blogger Asim, while John will be in the session on private copying). 

1709 Blog friend and organiser Bill Rosenblatt wishes to let our readers know that there is a special discount available for them. Those who wish to register have simply to select the relevant option in the registration form.

This is not the only good news, as I have a complimentary ticket (worth £239) to award to the winner of a new contest reserved to full time students/trainees/apprentices. The background idea is that these deserving copyright enthusiasts might often struggle to find a sponsor to attend these sorts of professional events.

... or
Copyright and Technology?
The competition requires aspiring entrants to create an artistic workeg a photograph or (if you find it easier) a work of architecture, that illustrates in the best/most humourous/saddest/etc (it all depends on your perspective!) the relationship between copyright and technology.

Once you are happy with your "own intellectual creation", email it to katcontest1@gmail.com, but do so by Monday 8 September 11 pm GMT.

The IPKat will publish the best entries, so do please also provide an irrevocable gratuitous and non-exclusive licence when submitting your work.

Good luck! 

Copyright law reform: China asks for public comments

[I didn't spot that Ben had posted on this item over the weekend. However, since its subject matter is quite important, I decided to leave this post up in the hope that more people will spot it and make their comments known ...] A note by US-based law firm Greenberg Traurig LLP in the National Law Review, descriptively titled "China Solicits Public Comments on Copyright Law (Draft Revision for Review)", explains that on 6 June the Legislative Affairs Office of China's State Council circulated a draft revision of the Copyright Law of the People’s Republic of China for public comments. The main changes are said to be the following:
"Private Agreement on Copyright Ownership. The modifications in the Draft Revision reflect that in certain cases, parties involved may privately agree on the copyright ownership of the work created. For example, copyright ownership in the work created by an employee in the course of his/her employment may be decided by the employer and employee.

Collective Administration of Copyright. The current Copyright Law only contains one general article (i.e., Article 8) which provides that (i) copyright owners and owners of related rights may authorize a copyright collective administration organization (the Administration Organization) to exercise their copyright or related rights; and (ii) the Administration Organization may, upon authorization, claim the rights for the copyright owner or owners of related rights in its own name, and act as a party in litigations or arbitrations involving the copyright or related rights. The Draft Revision includes a separate chapter to set forth in detail (among other things) the nature, rights and duties of the Administration Organization, as well as the competent authority regulating the activities of the Administration Organization.

Calculation of Damages Resulting from Infringement. The current Copyright Law provides that the infringer of a copyright should pay damages based on the actual loss of the right holder. The Draft Revision proposes to introduce the flexibility for the copyright owner to claim damages based on different measures at his/her option. Possible measures include actual losses, the illegal income gained by the infringer, or a specific amount below RMB 1 million".
If any reader has further information about this draft law and how to comment on it, can he or she please post it as a comment below?

Ben posted on prospective reforms in China back in April 2012, here while Iona wrote about the introduction of registration in China in August of the same year.

Thank you, Chris Torrero, for this link.