THE COPYKAT

1.     “PEPE THE FROG” TO GO TO TRIAL

A Californian federal judge has, on a complaint filed by Matt Furie, proceeded to direct the case of Copyright infringement of “Pepe the Frog”, allegedly against Alex Jones, owner of InfoWars, to go for trial. The complete order can be found here. The core issue involved was regarding the poster released by InfoWars wherein Pepe the Frog has been depicted with President Trump, Milo Yiannopoulos and Alex Jones himself, showing a certain element of a political right- based comment. There were various issues which were dealt by the judge, while giving the summary judgment.

Firstly, the question of access was ruled upon wherein the judge denied the defendant’s claim that the plaintiff had access to a previous work called El Sapo Pepe, which basically was a similar expression as that of Pepe the Frog, hence raising a claim against originality as per the Feist threshold. The court looked into the jurisprudence surrounding access and relying on the case of N.Coast Indus v. Jason Maxwell, went on to decipher that “the defendant must show that the plaintiff had access to the prior work and that the work is substantially similar to that of the prior work.” A mere inference cannot be drawn upon concluding a finding of access from the statement that the plaintiff was interested in “Cartoon Characters” and hence must have come across El Sapo Pepe which is an Argentine cartoon character. Further, citing Nimmer on Copyright, the court went on to clarify that mere presence on the internet is not conclusive to prove access. Hence defendant’s claim of lack of originality based on access was denied in the summary judgment.

Secondly, a claim of invalid registration made by the defendants was categorically denied by the judge, stating that the burden to eliminate the presumption of validity of copyright was not adequately discharged. No adequate evidence was produced showing that the plaintiff intentionally provided wrong information to the Copyright office, or if certain information was provided to the Copyright office, such registration would have been denied.

Thirdly, the question of abandonment and relinquishment of copyright due to certain public statements made by the Plaintiff was under contention. Here, the judge, without resolving the issue, concluded that contrary statements were made by each parties and it should be upon the jury at trial to determine questions of fact like whether an average audience would perceive a statement like “Pepe the frog is let free by me” to be sarcastic or not. Hence this issue remains unresolved for the Jury. Further only one instance, wherein categorically a statement of relinquishment of Copyright was made in clear speech, was acknowledged by the court wherein abandonment was ruled upon in summary judgment, however the court refused to travel that path here.

Fourthly, on the question of an implied license to use the work, the court resumed excavating the jurisprudence surrounding implied licenses and went on to conclude that for an implied license to be present, the elements of contract law an offer and acceptance need to be fulfilled. Here public statements as those made by the plaintiff was ruled not to imply an offer up for grabs and hence this claim was dismissed.

Fifth, on the question of “De-Minimis” use, the court left open the question of whether the average audience would recognize appropriation, to be determined by the jury at trial as contrary evidence and claims were presented by the parties.

Similarly, as a sixth issue, the question of fair use was brought in which again was directed by the judge to be decided by the jury as the evidence produced could not yield any direct conclusive answer on this claim due to the question of credibility.

One important issue which arises herein is the protection of political speech as a first amendment right over Copyright rights, and under the fair use doctrine. As reported by The Hollywood Reporter, the court touched upon this and said:

“Stepping back from the factors, the argument at the hearing by counsel for Defendants was, essentially, that controversial defendants should not have their defence of fair use decided by the jury; i.e., there must be some sort of First Amendment overlay on copyright law to protect political speech. By analogy, counsel was arguing for the creation for copyright law of something like New York Times Co. v. Sullivan for the law of defamation. That simply is not the law as this Court understands it.”

Herein, it seems important to discuss the case of Keep Thomson v. Citizen for Gallen Com., wherein the Federal District court of New Hampshire, clearly went on to rule that the exclusive right of the copyright holder must be weighed in sufficiently against the public interest of dissemination of information affecting universal concern. Here, a 15 second sample of song used in a political advertisement campaign by the plaintiff was used again for the purpose of a political message to be conveyed by the defendant wherein the plaintiff candidate was criticized. This was held to come under the ambit of transformative use due to free speech implications of restraining the dissemination of such essential political comments. Hence, the court went on to find a clear case of fair use.  

In line with this rationale, it would be interesting to see how the jury proceeds on the question of Fair Use when brought at trial.

2.     POLAND COMPLAINS AGAINST ADOPTION OF EU COPYRIGHT DIRECTIVE AMENDMENTS ON THE GROUND OF “PREVENTIVE CENSORSHIP”

As has been reported by multiple media houses like Reuters, Silicon UK and The Verge, Poland has brought in an action in the CJEU, against the implementation of the Copyright Reforms in the EU specifically with relation to Article 13 and 17 of the Directive on the ground of it being a “disproportionate measure that fuels censorship and threatens Freedom of Expression”, quoting Prime Minister Matesz Morawiecki. The deputy Foreign Minister Konrad Szymanski has also reportedly stated that such a system may result in adopting regulations analogous to “preventive censorship” which is forbidden in the Polish Constitution and other EU based treaty, hence raising the question of harmony of legislation.

In earlier posts, we have discussed the wide-ranging implications of these provisions, and this take of censorship is another interesting wat to look at the debate. The major features of the amendments which are debated and controversial are its implications on tech companies like Google who will have to pay news publishers a certain amount of fee to link their content on its platform. Also, social media platforms like YouTube and Facebook will have to bring in filters to avoid circulation of Copyright infringing materials of any sort, without any capability of determination of fair use by themselves. The directive has officially been approved by the EU Council and is due to go into force by 7th June 2019, wherein member states have been given a mandate of 2 years to harmonize the provisions with domestic laws. The question of content scanning is still being debated as to how the technology is efficiently going to avoid censorship and content which comes under the ambit of fair use- and hence is non-infringing.

On the other hand:

3.     CANADA COMES UP WITH A NEW DIGITAL COPYRIGHT REGIME

Post the Copyright Modernization Act 2012, certain digital accommodations were included in the Canadian Copyright regime wherein a review every 5 years was proposed. After a long and thorough process of evidence gathering and review, a report which makes 22 artist friendly recommendations has been submitted by the House Heritage Committee, as reported by the Financial Post. In an upheaval for performers rights, section 2 of the Copyright Statute providing for the definition of sound recordings, has been proposed to be amended to uphold public performance rights in these and the remunerations thereof for use in televisions and films. Further, very importantly as a part of an education- based reform and to evolve the availability of Canadian resources and perspectives elsewhere and attract publishers, the report has recommended keeping fair dealing out as an exception when a work is used commercially in an educational institution. Further a pro-active governmental role in spreading copyright and remuneration awareness along with a specific focus on curbing piracy, has been advocated for by the report, making it significant. These recommendations have been well received by the Canadian record industry and have also focused on reducing the ambit of fair dealing without obtaining a license, hence strengthening the Copyright regime in Canada. Further, a review of the safe harbor provisions, in accordance with EU updates and also a recommendation to implement the extension of Copyright term from 50 years to 70 years found its relevant place in the report. Even though this seems to be more of a result of lobbying on part of the creators and artists in the business, this is a highly imperative measure which has timely been undertaken to ensure that artists receive a fair remuneration for their works and a sustainable living, incentivizing more creative content.

4.     PIRATES OF THE CARRIBEAN AND THE TEST OF SUBSTANTIAL SIMILARITY

The United States District Court for the Central District of California went on to rule that Walt Disney’s “Pirates of the Caribbean” had not lifted copyrighted elements from the screenplay of the same name. The court held that expression-based elements of the screenplay were not copied but rather the central theme to the concept of “Cursed Pirates” was the only purported similarity, which has been ruled to be an idea and a basic plot premise deeming it a non-copyrightable idea. Further, a dark mood involving pirate battles and sea monsters is central to any pirate drama and copyrighting the same would be granting excessive monopoly on generic plot-based elements. The Idea-Expression dichotomy was reinstated by the court. Applying the extrinsic test of similarity to adjudicate whether there was a case of infringement, the court took into account the jurisprudential principle that the extrinsic test compares “articulable similarities between the plot, themes, dialogue, mood, setting, sequence of characters etc. and does not compare the basic plot ideas but the actual concrete elements making the narrative flow and relationships between major characters,” citing the case of Funky Films. The court also noted that Familiar stick scenes and themes that are staples of literature are not original enough to be protected and scenes-a-faire elements that flow necessarily or naturally from a basic plot premise cannot sustain the test of originality for being protectable and to bring in an action of infringement.

Firstly, a contention to apply the inverse ratio rule, wherein a lower degree of substantial similarity is required to be proven if higher access is proved, was rejected by the court as non-applicable to cases involving unlawful appropriation and applicable only where copying has been alleged.

Secondly, the court rejected similarity on grounds of insufficient articulable similarities between protectable elements. It firstly ruled that the facts that inclusion of pirates who are skull faced or skeletal is not a copyrightable element. Thereon, use of treasure maps, ghost pirates, undead, dark fog, ghosts and sea monsters, were ruled as unprotectable elements due to them being familiar stock elements. Further, the court went into a closer inspection of the storylines i.e. the sequence of events and narrative flows to come to a conclusion that these movies and the screenplay portrayed very different stories. Even upon analyzing characters, the court held that features like cockiness, bravery and drunkenness along with facial hair are generic and not protectable characteristic elements. Along these, a claim of substantial similarity of characters was rejected under the extrinsic test. Similarly, the Theme, Dialogue, Mood and Setting was also held to be unprotectable and hence not fulfilling the extrinsic test of substantial similarity.

Accordingly, a claim of infringement was rejected. The entire ruling can be found here.

As reported by Bloomberg, the court proceeded with the ruling appreciating the fact that the plaintiffs had at most demonstrated random similarities which scattered throughout the plaintiff’s works and were not substantial enough for a claim of infringement to subsist.

5.     COPYRIGHT INFRINGEMENT SUIT AGAINST JAY-Z OVER A SAMPLE USED 20 YEARS AGO

A multi-million dollar law suit has been brought against JAY- Z and Timbaland by soul musician Ernie Hines. The songs in contention are the 1998 song by Jay Z called- “Paper Chase” and the 1970 song of Hines called “Help Me”. Hines who is an 81-year-old, has defended the delay in filing the suit on realistic grounds of him being old and hence having a lack of interest in rap music reducing the chances of him having been aware of the existence of such a song. No clearance for the sample taken was sought by either the artists or the record labels. Further it is alleged that the infringement was “willful” as the credits for “Paper Chase” clearly mention the sample from “Help me” Hence, a claim of at least $2 Million has been brought in before the US District Court in New York. This has been reported by Billboard. It is imperative here to discuss the Grand Upright Music v. Warner Bros. case, wherein the court categorically stated that there is no concept of implied license involved in sampling music and quoted the Seventh Commandment from the Old Testament stating “Thou shalt not steal”. To the court, sampling a copyrighted work without permission simply equated theft, and because the Defendant, as in the case here, had admitted to using the sample, he had committed an infringing act. Further, due to the concept of digital sampling coming in, a finding of Fragmented Literal similarity will be contended upon before the court against the De-Minimis test, wherein even a small degree of copying which may be insubstantial quantitatively but qualitatively important has been on occasions held to be substantial.

6.     JUSTIN BIEBER’S INSTAGRAM PHOTO BEING LITIGATED IN AN INFRINGEMENT CLAIM

As reported by Fashion Law, CBS is at the receiving end of another law suit wherein; a photographer Robert Barbara has reportedly alleged that the media giant infringed his copyright in Justin Bieber’s picture by displaying it in its list of Most Liked Instagram pictures without obtaining a license to do the same and for such dissemination. Allegedly consent is imperative and has not been obtained in the instant case. An interesting aspect involved in this case however is that a screenshot of the Instagram Post was not taken rather, the link was embedded in the article. This till date, has not been held to be infringement. However, in the recent case of Goldman v Breitbart News Network, it was held by US District Judge for the Southern District of New York, that:

“When the defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right; the fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result.”

This decision can go on to have a strong chilling effect on the use of the internet, and is the only precedent which gives such a ruling which goes against the established landmark precedent on Intermediary Liability given in the case of Perfect 10 v. Amazon wherein it was held that provision of the image constitutes dissemination and not mere embedding as the image is not stored or made a copy of. It is a transient period which comes under the defense of Fair Use. 

Just for the sake of thought, can a corollary be drawn between the Goldman judgment and the EU Copyright Directive amendments under debate?

7.     NASA MEDIA LIBRARY FREE!!!

In a huge development, NASA has made their entire collection of Images, Sounds and Video Games, publicly available on the internet-based platform. A collection of 140,000 photos and other resources like sound samples and videos has been made available for online viewing as well as download here. A huge step by the Space technology giant towards promoting the Open Access movement.

8.     MORAL RIGHTS IN A WORK OF ARCHITECTURE- NEW TAKE BY THE DELHI HIGH COURT

The major question in this suit was whether an architect, as a legal author of a building have a right to object to the modification or destruction of the work by the owner of the building.  This claim to moral rights was categorically rejected by the Delhi High Court ignoring the ruling in the landmark Amarnath Sehgal Case as irrelevant. It is a significant ruling with respect to the scope of Moral Rights in India and gives in a problematic overarching conclusion with respect to destruction of work, not being a considerable element for upholding moral rights. The case involved the Hall of Nations Building, which was widely hailed as the icon of modern Indian Architecture. This was demolished by the Indian Trade Promotion Organization to build another Convention cum Exhibition center.

The court categorically rejected the plaintiff’s claim that his rights under Section 57 of the Indian Copyright Act were abrogated. The major and convincing ground for this ruling was the argument that land rights are human right equivalents and as a constitutional right, always triumph over statutory rights like Moral rights under Section 57. The right of the defendant to freely deal with his own property cannot b curbed. As far as the conclusion is concerned, it is completely sound, however the problematic part can be found under Para. 24 and 25 of the judgment. The court herein has significantly narrowed down the scope of Moral Rights and gone on to contrast with the rationale given in the Amarnath Sehgal case. By restricting the meaning of distortion and mutilation to making the work look, appear distorted which harms the reputation of the author, the court has completely ignored the realist implications of complete destruction and removal of artistic work as well. The court states:

“…failure to display a work is not infringement of rights conferred by Section 57, in recognition/acceptance of, that what cannot be viewed, seen, heard or felt, cannot be imperfect and cannot affect the honour or reputation of the author. There is a difference between work itself and one of the embodiments of the work. While distorting or mutilation or modification of one of the embodiments of the work renders the work imperfect, prejudicing the honour or reputation of the author, destruction of the work in its entirety i.e. making it disappear, cannot be, prejudicial to the honour or reputation of the author. No imperfections can be found in what cannot be seen, heard or felt. In the case of a performance, there can be derogatory treatment thereof only if it is played in public or communicated to the public. However, if there is no performance at all, there can be no derogation thereof.”

The issue with such an overarching ruling is the narrowing down of the concept of moral rights. It has been ignored by the court that destruction and complete removal is the extreme form of mutilation and it definitely prejudices his honor and reputation by reducing his “Corpus of Work” i.e. work profile by and for which he is known, as the work does not exist anymore. The physical destruction or loss of intellectual property has a far-reaching social consequence as the knowledge associated with it has also been lost. Hence reduction of corpus definitely reduces the integrity and is prejudicial to the interest and honor and reputation of the author.  Restricting the concept of honor and reputation merely to libel by statements like “I like or dislike only a structure which I see. What I don’t see I don’t judge.”, ignores the fact that the creation of the architecture or work of art at a particular point of time is a fact in history and is known to people. Further, if it is removed, it will definitely be a forefront of discussion as to why it was removed leading to presumptions which are definitely prejudicial to such honor and reputation of the artist. Hence, the best way of reading this judgment will be to restrict its applicability to works of architecture fixed on a land owned by someone else and the vacation done specifically by such landowner, in application of his land rights. This ruling cannot be applied universally for all works of art, as good law.

This CopyKat by Akshat Agrawal

THE COPYKAT - the music industry celebrates copyright reforms

Will President Trump be taking the credit for 'saving the US music industry' or even 'saving the global music industry'? Well going on recent US press on the progress of the Music Modernization Act, he might well be! The Act has had rapid progress through both houses in the USA, with bi-partisan support, and apart from a couple instances of inter-industry wrangling, the Act has garnered widespread support for almost all of it's proposals. The Act comes hot on the heels of the European Parliament's approval of some major reforms to copyright law (see earlier posts on the new Copyright Directive) and means that on both sides of the Atlantic there are going to be some major changes to copyright law - most of which seem to favour the content industries rather than the tech giants, despite the later's strenuous efforts to lobby, influence, scare and befuddle legislators. Well some would say that!

As Artstechnica opined, "for the last decade, the Congressional debate over copyright law has been in a stalemate. Content companies have pushed for stronger protections, but their efforts have been stopped by a coalition of technology companies and digital rights groups" adding "the Senate unanimously passed the Music Modernization Act, a bill that creates a streamlined process for online services to license music and federalizes America's bizarre patchwork of state laws governing music recorded before 1972". 

The Act aims to establish a modern system for licensing mechanical rights and by reforming Section 115 of the US Copyright Act (hopefully) it will establish a new national database that will aim to cover all copyrighted music in the United States, and  this can offer streaming services and other users a "one stop shopping" - and a clear system for remitting royalties back to content owners. It also repeals Section 114(i) of the Act, and will change the way judges are assigned to decide ASCAP and BMI rate-setting cases.The Act will also give pre-1972 sound recording copyrights federal protection (the so called CLASSICS Act - Compensating Legacy Artists for their Songs, Service, & Important Contributions to Society Act), and finally The AMP Act (Allocation for Music Producers Act) adds producers and engineers of sound recordings, to U.S. copyright law, codifying into law the producer’s right to collect digital royalties and provides a consistent, permanent process for studio professionals to receive royalties for their contributions to the creation of music.

So it's on President Trump's desk now, with Mitch Glazier, President of the RIAA, saying: “With this final House vote, another chapter in the journey of this critical legislation comes to a close. As the Music Modernization Act goes to the President’s desk for signature, we have many Members to thank for their work to make this final House vote possible to improve the lives of countless artists, songwriters and producers.

The RIAA was less impressed with the current text of the revised North America Free Trade Agreement (now the  United-States-Mexico-Canada Agreement) with Glazier saying  "We understand the US Trade Representative and his team must navigate a complex trade landscape" and "And we appreciate the diligent work of Ambassador [Robert] Lighthizer and his staff over the past several months. Unfortunately, the agreement's proposed text does not advance adequate modern copyright protections for American creators. Instead, the proposal enshrines regulatory 20 year old 'safe harbour' provisions that do not comport with today's digital reality".  songwroters and music publishers might be a bit happier - Canada will bring its copyright term for songs in line with the US (and Europe) by extending it from the current 'life of the creator plus 50 years' to 'life of the creators plus 70 years'.

And in Canada - another call for reform - and this from a rock star turned photographer who wants to change just ONE word! Rocker Bryan Adams is lobbying to change the Canadian Copyright Act so authors can reclaim their copyrights after 25 years - even when they have been assigned away to third parties, with Adams arguing that many artists sign away their copyright generally as young entrants to an industry which can and will exploit them, and they are not in a position to push back against the record companies and music publishers who provide them with their first contracts, often allowing the rights owners to continue exploiting works long after they have recouped their initial cost of publishing the novel or giving a new singer an advance. Perhaps a new approach emulating the US copyright system of "reversion" which this allows creators apply to take back their copyrights after 35 years, even if they have entered into a "perpetual assignment of copyright" with a publisher, studio, label or other party (although that doesn't seem the easiest system to use!). The change in Canada?  A new right of reversion 25 years after assignment - rather than 25 years after the death of the author!

Damian Collins MP

M Magazine (UK collection society PRS for Music's own magazine, issue 69) has an interesting interview with Damian Collins MP, chair of  the Culture, Media and Sport Select Committee has been commenting on fake news and the spread of misinformation on the web, but made some telling comments on how the tech giants respond when their disruptor business models are threatened, partially in the context of copyright, saying that when it comes to the tech companies, "we've learned that, unless you establish real legal liability,or there is a real threat of legislation, they won't act. They have to be compelled to do so". Telling.

U.S. District Judge Stephen V. Wilson in the Central District of California recently issued an order granting-in-part and denying-in-part a motion for summary judgment made by Detroit based automaker General Motors in a copyright case brought by a Swedish artist  Adrian Falkner who painted a street mural on a building that GM then used in its marketing materials for the 2016 campaign 'The Art of the Drive'. Although Judge Wilson granted summary judgment in favour of GM on the plaintiff’s Digital Millennium Copyright Act (DMCA) and punitive damages claims, the artist’s claim for copyright infringement have been allowed to proceed to trial. GM had argued that Falkner’s copyright claim failed as a matter of law because the artist’s mural was incorporated into a building; citing to the Ninth Circuit’s 2000 decision in Leicester v. Warner Bros., GM argued that reproducing photographs of a building including any artistic works that are part of the building is not copyright infringement pursuant to 17 U.S.C. § 120(a) - Judge Wilson distinguished Leicester and the case goes on.

And finally in this CopyKat, and with a slightly off the wall reference, but an interesting one - it's a report on the speech Europeana Executive Director Harry Verwayen gave at the EBU event "Cultural heritage for the future: the role of media innovation" - asking "Could AI and data mining technologies overcome issues in cultural heritage?" with his opinion that "Here is the issue: we have currently digitised around 10% of all our heritage. Of that 10% (which represents around 300 million objects), only about one third is available online, and of that, only 7% is available for reuse. At Europeana, we work very hard to improve this equation and as you can see almost 20% in Europeana can be shared, adapted (all within full respect of copyright of course) while the other 80% can at least be viewed online". It's worth a read.

Image: Neurones connecting, artwork, Stephen Magrath, Wellcome Collection, Public Domain

The CopyKat - Part Deux

It's not often we report on the Pagan community, but the Wild Hunt tells us of concerns about Pagans violating copyright protections of Pagan books which have "resurfaced in a big way, with thousands of volumes being uploaded by the owner of one popular Facebook group". Authors and publisher’s agents who knew that no such permission had been granted have tried to get the files removed, and after several days those attempts appear to have been successful, to the disappointment of some group members. More here.

Rogers Communications wants the Supreme Court of Canada to reconsider a copyright ruling on pirated content that internet policy experts say could raise prices for law-abiding consumer. The Financial Post reports that the Toronto-based communications giant has filed for leave to appeal a Federal Court decision that stipulated internet service providers must turn over subscribers’ identities for free if copyright holders suspect them of copyright infringement. the Federal Court ruled internet providers could not recoup their costs because the fee could potentially make it too expensive for copyright holders to go after illegal downloaders. Instead, it suggested internet providers pass the costs along to all consumers – even those that do not infringe.

The Premier League in the United Kingdom is very very big business, with a large of the revenues provided by the commercial deal for match TV rights struck with Sky TV and BT.  and the FAPL will go to great lengths to protect those rights. With the start of the new Premier League season, the fight against illegal IPTV streams has stepped up, with ISPs being told to block streams of copyright content in real time - and this seems to have worked, with substantial disruption for viewers hoping to catch matches using these Kodi or web-based streams over the first weekend of the new season. TorrentFreak reports that several streams went dark within minutes of matches starting, leaving providers of the illegal streams to scramble to find new domains to host their content. With the recent closures of piracy-facilitating Kodi add-ons, it's looking like the days of being able to easily stream 'free' premium sports content might be coming to a close, although there are always people willing to use VPNs to evade the blocking abilities of the UK's ISPs. UPDATE - the Mirror says that 3 million watched the much hyped Mayweather / McGregor fight on at least 239 illegal streams. 
 
US President Donald Trump has instructed his trade envoy to examine China’s policies and practices concerning US intellectual property, a promise he made during the 2016 election campaign. The presidential memorandum signed tat the White House directs US Trade Representative Robert Lighthizer to “examine China’s policies, practices and actions” when it comes to transfer of US technology and “theft of American intellectual property” and use “all options” to protect US interests with Trump saying “We’re taking firm steps to make sure we protect the intellectual property of American companies and very importantly, of American workers” and “The theft of intellectual property by foreign countries costs our nation millions of jobs and billions and billions of dollars each and every year.”

The dispute between the major record companies and mixtape sharing app Spinrilla continues, with the former’s request for access to the latter’s source code high on the defendant’s current list of specific gripes. Interesting - the defs say this "The source code is the crown jewel of any software-based business, including Spinrilla. Even worse, plaintiffs want an ‘executable’ version of Spinrilla’s source code, which would literally enable them to replicate Spinrilla’s entire website. Any plaintiff could, in hours, delete all references to ‘Spinrilla’, add its own brand and launch Spinrilla’s exact website”.  More on CMU here. 

Songwriter groups in the USA and elsewhere have hit out at the Recording Industry Association Of America (RIAA) over its submission to an official review of the moral rights of creators in the US. The songwriter organisations, including BASCA in the UK, say that the major record companies in the US are pursuing an anti-songwriter agenda on this point, while concurrently relying on vocal support from the songwriting community when it comes to lobbying for safe harbour reform. Both the Motion Pictures Association of America (MPAA) and the RIAA are against the introduction of statutory moral rights for artists. They believe that the current system works well and they fear that it’s impractical and expensive to credit all creators for their contributions. Stark hypocrisy from the record labels in the US? Or too big a task to manage? BASCA say "even though the US signed up to the Berne Convention in 1989 it chooses NOT to recognise moral rights, saying they are confusing.  There really isn’t anything confusing about crediting the original creator of a song folks!!  So understandably the writer organisations in the US get very excised, rightly so, about this ongoing scenario.  The US Copyright Office this year conducted another study into the issue with some very strong statements from creators and submissions by writer organisations in support of the US finally recognising moral rights.  However the RIAA in its wisdom decided to continue to reject this position .... Thus writers from across the US, Canada, the UK and Europe – organisations representing many tens of thousands of songwriters and composers of all genres – have come together in an unprecedented alliance to explain to the RIAA why this is wrong and damaging to the very people whose works the music industry is built on."

THE COPYKAT

Two influential committees in the European Parliament have now voted on their respective responses to the draft European Copyright Directive, and in particular the position the EU will take on 'safe harbour' in the future, and the music industry has generally welcomed those responses. The Consumer Rights Committee had already responded, and now both the Culture (Committee on Culture and Education - CULT) and Industry (Industry, Research and Energy - ITRE) Committees have now had their say, and with regard to safe harbour, both committees resisted calls to abandon or weaken article thirteen, instead seeking to reinforce and further clarify the draft article and the new obligations of safe harbour dwelling services of the YouTube variety. They also responded to a proposal, put forward by the Consumer Rights Committee, which would provide an exception for user-generated content - and which many in the music industry have now said could have a profound impact on the creative community with rights holders having to initiate expensive legal proceedings to establish the actual boundaries of such an exception". In relation to that proposal, yesterday's committees voted (a) against the idea entirely, or (b) to leave such matters to national law within the EU, rejecting the idea that European law-makers should make such an exception compulsory for member states. Helen Smith from the independent label's IMPALA organisation said: "It makes complete sense to narrow the value gap and the parliament has sent a strong message this morning. That's very good news - recalibrating the digital market in this way is necessary to stop creators, start-ups and citizens being dominated by abusive practices of big platforms who don't pay fair or play fair". The important Legal Committee will lead the final round of responding after the summer break. The EFF have a very different take on this. 

Freelance photographer David Slater, who facilitated the now famous 'monkey selfie' taken by black macaque Naruto is now in a dire financial situation as the appellate proceedings regarding the now famous “monkey selfie” photos continue in the United States courts. Slater had to settle for watching a live stream of the proceedings from his United Kingdom home because he can’t afford the flight to the USA, and is also not able to pay for the lawyer representing him, according to The Guardian. In a slightly more surreal intervention, the Chepstow based photographer now says that PETA (People for the Ethical Treatment of Animals - the animal rights organisation) is representing the wrong monkey in court with Slater saying “They definitely have the wrong monkey, and I can guarantee that. My lawyers can confirm it too" adding “The American court system doesn’t seem to care about that, which is baffling.”

A new study carried out by PRS for Music and the Intellectual Property Office (IPO), has found that stream-ripping is now the most prevalent and fastest growing form of music piracy in the UK, with nearly 70% of music-specific infringement dominated by the illegal online activity. Research revealed that the use of stream-ripping websites, which allow users to illegally create permanent offline copies of audio or video streams from sites such as YouTube, increased by 141.3% between 2014 and 2016, overwhelmingly overshadowing all other illegal music services.

There has been a big 'fair use' ('fair dealing)' case in Canada which pitted content owners against Canadian Universities, with the latter's copying Guidelines under the microscope. And in Access Copyright v. York University, the Honourable Michael L. Phelan of the Federal Court of Canada came down on the side of Access Copyright, which exists to collect royalties on behalf of creators and publishers. Access had suffered a catastrophic decline in revenues after the Guidelines were adopted by York and other educational institutions, and sued York. York’s copying was for a permitted purpose, namely education, but Justice Phelan found that York’s dealing was unfair, or grossly unfair, on several of the six factors used to assess fair dealing (purpose of the dealing; the character of the dealing; the amount of the dealing (amount of copying); the available alternatives to the dealing; the nature of the work; and the effect of the dealing on the work. The court also found York’s guidelines to be unfair, poorly conceived and arbitrary, and that York made no effort to see that they were followed. There is more on the Financial Post here.

AND FINALLY, BUT IMPORTANTLY!

The MPA (Motion Picture Association) EMEA policy team is offering a full-time internship at its offices in Brussels for 6 months. The intern will receive financial compensation. The selected candidate will work closely with the MPA EMEA Policy Department and will primarily focus on supporting the team in implementing the EMEA Policy Strategy. More here. 

The CopyKat

There is yet another copyright lawsuit against the appropriation artist Richard Prince, after Dennis Morris LLC, the London-based photographer’s corporation, filed a complaint on the 3rd June in a Californian federal court seeking unspecified damages and any profits the artist and his dealer Gagosian Gallery made from Prince’s alleged use of three photographs of the 1970s punk rock band the Sex Pistols. According to the complaint, Prince used the images in work included in the 2011 exhibition Untitled (Covering Pollock) at Guild Hall in East Hampton. The claim says that Prince made "derivative works” and accuses the defendants of “producing and distributing large scale reproductions incorporating those derivative works” based on Morris’s photos of Sex Pistols bass player Sid Vicious. Morris is seeking a jury trial and demanding, among other damages, all of Prince and Gagosian’s profits from sales of the disputed works. The complaint also alleges that Prince used Instagram to promote the work for sale and includes a screenshot of a post (since deleted but pictured, left) on Prince’s Instagram account, featuring one of Morris’s best known photos of Vicious who died in 1979 from a drugs overdose.

Arts Technica reports that the lawyers behind the Prenda Law "copyright trolling" enterprise have lost their key appeal and will have to pay more than $230,000 in sanctions. The US Court of Appeals for the 9th Circuit issued a 12-page ruling upholding the sanction order that began Prenda's downfall, issued by US District Judge Otis Wright in 2013. The ruling wholly supports Wright's sanction and dismisses John Steele and Paul Hansmeier claims that due process rights were violated: "These consolidated cases began as minor copyright infringement suits, until courts nationwide started catching on to the plaintiffs' real business of copyright trolling," the ruling states. "Prenda Principals were found contradicting themselves, evading questioning, and possibly committing identity theft and fraud on the courts" and "The Prenda Principals have engaged in abusive litigation, fraud on courts across the country, and willful violation of court orders," the opinion states. "They have lied to other courts about their ability to pay sanctions. They also failed to pay their own attorney’s fees in this case." The third appellant, Paul Duffy, died last year.

All three major record labels, along with 50 other rights owners and platforms, including Spotify, Pandora, SACEM and YouTube, have committed to creating a new system to “dramatically simplify the way that music creators and rights owners are identified and compensated”. The new initiative will hopefully replace and surpass the stalled Global Repertoire Database - and provide a 'one stop' centre for users who want to use songs and sound recordings. The Open Music Initiative (OMI) has been founded by Berklee College of Music’s Institute for Creative Entrepreneurship (BerkleeICE), and has been publicly backed by Universal, Sony, Warner and many more – although as MBW points out - despite Google's YouTube being on board, Apple’s name is conspicuous by its absence.

The European Commission's public consultation on "neighbouring rights" for publishers  - otherwise known as the 'Google tax on snippets' CLOSES TODAY.  The right could potentially allow publishers to demand payment from search engines and content aggregators where they include short snippets that link to the original text. You must use the questionnaire on the EU website to respond. 

And the latest battle in what the difference is between 'inspiration' and what is 'appropriation' has kicked off in Los Angeles, where Led Zeppelin stand accused of copying of a song called “Taurus,” written by Randy Wolfe and performed with his band Spirit, into their epic "Stairway to Heaven". Those who have listened to recordings of each of the songs might think there is a strong similarity, but the legal team attorney for Zeppelin’s front man, Robert Plant, and lead guitarist, Jimmy Page, said any similarities were because the two songs both relied on “basic musical devices that are completely commonplace” and found in songs dating back centuries.  "Taurus" was released three years before “Stairway to Heaven” surfaced on Zeppelin’s untitled fourth album, commonly referred to as “Led Zeppelin IV.” In the wake of the jury decision in the "Blurred Lines" case, its unsurprising Plant and Page cancelled sows to attend the trial.   

And finally and this time from Canada, a federal court has ruled that that a number of companies must temporarily stop selling TV boxes that allow consumers to access content via streaming sites as they face a court battle over alleged copyright infringement. The plaintiffs, who include Bell and Groupe TVA, allege the TV boxes come with pre-loaded software that allows consumers to view copyrighted programming from illegal streaming sites . MTLFreeTV, one of the defendants, argued the boxes are similar to a tablet or computer, and the company does not develop, produce, service or maintain the software that comes with the boxes. Justice Danièle Tremblay-Lamer ruled that the companies must stop selling pre-loaded products until a the result of a trail in the matter.

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.