Hunt to rethink UK’s new Communications Act, Cable to review Copyright, Magistrates get more powers

Embattled UK Culture Secretary Jeremy Hunt has said that he will scrap a proposed green paper which would have kicked off the drafting of a new Communications Act, which in itself is planned to reform the way the British broadcasting and internet sectors are regulated. Hunt says he will replace the green paper with a series of 'policy seminars' to feed into a white paper early next year, which will ultimately lead to new legislation. Amongst changes mooted is the reform of regulation of the UK’s radio industry which many terrestrial radio station owners believe are too strict, given they are now competing with so many new rivals on digital networks and the internet. The radio industry is also likely to use any review to call for an axing of the public performance royalty requirement on workplaces, offices, shops and bars which play out music radio on their premises. Currently such premises need both PRS and PPL licences for using songs and sound recordings even though the radio stations have already paid royalties on the music they air (a hot topic on this Blog!).


The UK's Secretary of State for Business, Innovation and Skills, Vince Cable, introduced the second reading of the Enterprise and Regulatory Reform Bill in the House of Commons on Monday 11 June. He announced that the Government may seek to amend the Enterprise and Regulatory Reform Bill to include provisions for use of orphan works, extended collective licensing and collecting society codes.


In addition, the Government have made a number of proposals in response to the Hargreaves review of intellectual property and growth and subsequent consultation. They are needed to “ensure that the copyright system is fit for purpose in the digital age. It has been decades since the intellectual property regime was overhauled, during which time the world has changed beyond recognition. It would be negligent to leave unchanged a system suited to the cassette recorder in an era of iPads and cloud-based music services. legislation will be required for three of those reforms: the introduction of a scheme to allow extended collective licensing; one to allow the use of orphan works; and, finally, a back-stop power to allow the Government to require a collecting society to implement a statutory code of conduct, should it fail to introduce or adhere to a suitable voluntary code". 


The Government’s proposals on extended collective licensing and on the use of orphan works are designed to make it simpler for users to use copyright works legitimately, while protecting the interests of rights holders. At the same time, introducing codes of conduct for collecting societies will provide valuable reassurance to the thousands of small businesses and other organisations, including creators, that deal with them. The Government are finalising their response to the consultation on those three proposals, and if we decide to proceed we will want to move swiftly. 


The Bill presents an opportunity to do so, and I shall announce a decision on the matter as soon as possible. The Bill will also extend copyright to 70 years for some currently restricted term works and gives the power to Her Majesty's Government to amend copyright and performance right exceptions by secondary legislation. The same Bill will repeal section 52 of the Copyright, Designs and Patents Act 1988 so as to provide full copyright protection for the period of the author’s life plus 70 years in respect of artistic works which are manufactured commercially. The Bill will additionally create a power to amend exceptions for copyright and rights in performances without affecting the existing criminal penalties regime. 


The IP Kat reported thatRoyal Assent has been given to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which introduces into England and Wales a wide range of reforms to the justice system -- some of which affects that complex web of laws we all know and love as intellectual property. Section 85 of the Act (not in force until a commencement order is made) removes the £5,000 upper limit on fines that can be handed down by the Magistrates' Court, thus giving magistrates more freedom to hand down fines that they consider to be proportionate to an offence. This change affects the penalties on summary conviction for many offences: counterfeiting; piracy; unauthorised receipt of broadcasts and the use of illicit decoders and copyright circumvention devices under the Copyright, Designs and Patents Act 1988. 


 CMU Daily  8^th June 2012 www.thecmuwebsite.com and http://the1709blog.blogspot.co.uk/2012/03/is-workplace-music-licencing-double.html and Hansard here http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm120611/debtext/120611-0002.htm#12061114000001 and the IP Kat here  http://ipkitten.blogspot.co.il/2012/06/monday-miscellany.html 

China's proposed copyright reforms prompt widespread comment

The National Copyright Administration in China has published a preliminary amendment draft to revise China's copyright laws (Copyright Law of the People’s Republic of China (modified draft)) on its official website (on March 31st). The draft has been posted to "collect public opinion and constructive feedback", and there has already been a vocal response as bloggers, songwriters and music producers (amongst others) digest the news - and many have singled out revisions to Articles 46 and 48 for criticism.

The amendment to Article 46 (which governs infringement of copyright) is interesting and says that any record producer who acts pursuant to Article 48 shall have the right to make recordings of musical works owned by another, without needing authorisation from the original owner, provided that the content had been published for three months or longer. The existing law says (and I quote from a press article) "no such work may be used where the copyright owner declares that use is not permitted". You can see the current wording of Article 46 and Article 47 here. Now if I understand that correctly surely that's what would be called 'statutory licensing'? However there is some confusion as a number of the press reports seemed to confuse the copyright in sound recordings with the copyright in the song itself, with one website reporting the proposed amendment as "Any sound recording, after being published for three months, may be used by other recording producers, according to the process provided in Article 48, to produce their own sound recording, without the permission of its copyright owner". That would be seem to constitute (at least) an automatic right to sample, and taken to an (illogical) extreme, the right to copy a recording in return for a statutory payment.

Article 48 stipulates guidelines for individuals or corporations who use this non-original content: It means producers must contact the National Copyright Administration; specify the original author and source of material; and submit a usage fee to the copyright collective administration organisations as stipulated by the National Copyright Administration (under the State Council) within one month of use. The copyright collective administration organisations will then transfer payment to relevant copyright owners.

Well know Chinese songwriters including Li Guangping, Gao Xiaosong and Wang Feng have said that they believe Article 46 will harm the interests of original music producers and songwriters, pointing to the short window before re-use is allowed with Gao Xiaosong saying “it is very difficult to popularise a new song within three months. Getting your song heard and appreciated by others is completely different from a song that has been around for years. This new amendment will encourage internet copyright infringement" but Gao Xiaosong then added in comment on his blog "The only positive by-product of this amendment is that it allows Chinese parties to record and distribute a new Lady Gaga album after it has been on the market for three months". More dramatically, Li Guangping, a renowned songwriter, wrote on his blog "Dear musicians, we are done! Who will protect our rights? The draft is really ridiculous”.

Zhou Yaping, CEO of Beijing based New Run Entertainment Co pointed out that that if the revisions to Article 46 and 48 are passed, record companies would no longer invest in large advertising spends saying that "this will harm original content producers and that there will be a weakened purchasing position for record companies when bidding to assume control of a copyright as the window is so short". Zhou also acknowledged that as Article 48 also forces users to submit a usage fee to the copyright collective administration organisations within one month after using the original content, this will strengthen the power of the Music Copyright Society of China

A new “suggestion mailbox” has been set up on behalf of Fuzhi Chenglin and Jin Zhaojun, the chairman and the standing deputy chairman of the Pop Music Society of Chinese Musicians' Association. The Record Industry Committee of China Audio and Video Association also posted on its blog that it will hold a meeting on April 9th and 10th to discuss the draft and "consolidate it's position to fight the proposed amendment".

Responding to Gao Xiaosong's blog, Ma Kun, a lawyer at Zhejiang Zeda Law Firm, said: "Copyright systems are created to balance the public interest against the private rights of those who control copyrighted materials. Every country has a compulsory licensing system. Our current copyright law includes licensing regulations for phonograms."

It is also proposed that the maximum level of compensation for copyright infringement would be increased from 500,000 yuan (US$ 79,238) to 1 million yuan (US$ 158,474). The draft changes to the legislation also adds administrative powers to pursue cases of copyright infringement.

Meanwhile, China Daily says that the drafters of the proposal have said that they've noticed the comments and will stay open-minded to different opinions: "We are collecting public opinions until April 30 and we will take every suggestion seriously. It is still too early for us to make any comment," said Xu Wei from the law department under the General Administration of Press and Publication, which drafted the proposal.

I am most certainly NOT a Chinese copyright lawyer and any comments, illuminations or detail from our Chinese readers would be most appreciated - and clarification of the scope of the proposed amendment to Article 46 would be most appreciated!

http://english.eastday.com/e/120406/u1a6469438.html

http://www.china.org.cn/arts/2012-04/06/content_25077760.htm


China's Copyright Dilemma here

and more of enforcing copyright law in China here

Japan Moving Towards Fair Use?

According to an article on Japan Today, an advisory panel in the Japanese government has approved “a plan to tolerate the unlicensed use of copyright works.”

Under the panel’s suggestion, copyrighted works caught in the background of a film or picture will not need to be licensed.  Photo credit: Japan Firefox DevCon 2006_4209 CC-BY-NC-ND Gen Kanai available at Flickr.

This tolerating attitude only applies to certain unlicensed uses and appears similar to fair use and fair dealing concepts.  Currently, the allowed uses are much more vague than a specific fair dealing list, and even a bit more obtuse than the US’s four-factor fair use test.  So far, the Japanese allowed uses seem to focus on the nature of the use:

“use of a copyrighted work may be tolerated if the use itself is not the main purpose and the dependence on it is light, if the use is minor and reasonably required in the course of a legal use, or if the use is not aimed at seeing or hearing copyrighted expressions.”

Commenter Mr. Dog - who has invested a lot of energy into explaining the difference between copyright and trademarks, patents and what-you-think-IP-is in the comment section – noted that a fair use type of protection would bring Japan more in line with the rest of the world.

This plan may see draft legislation as early as next month.

Copyright Law, Getting in the Way of Getting Copyrighted Works

“The biggest barriers that consumers face in accessing copyright works
are those created by copyright law.”  And with that profound statement, Consumers International begins its exploration into how copyright and consumers interact, investigating the barriers consumers face when attempting to find information.

The book is Access to Knowledge for Consumers: Reports of Campaigns and Research 2008-2010, and it presents the findings of two years of studies conducted by Consumers International.  These studies included surveys of consumers across a wide variety of countries, in-depth reviews of the effects of enacting new flexibilities in the copyright laws of Australia and Israel, and reports from six country groups involved in advocacy at the national level.

Consumer Survey

The global survey looked at potential barriers to access (to knowledge) in four different categories: Political, Economic, Social and Technological.  The book includes a full copy of the survey questions, highlights of notable qualitative answers and full charts of quantitative breakdowns.  Unfortunately, the charts are a bit hard to read sideways on a computer screen.  A surprising finding of the survey was that African consumers have the highest respect for copyright law.  A not-so-surprising finding was that consumers are confused about FOSS (free and open source software) and open licensing.

However, in combination with the other studies, Consumer International also found:

Part of the solution to the access barriers that consumers face is the wider use of open content, such as Open Educational Resources (OER) and free and open source software (FOSS). Our survey found that most consumers are aware of these alternatives, and ready to give them a try.

Based on this information, Consumers International has identified “the need for education of consumers on the unique features of FOSS and (though not covered in the phase one survey) other forms of free licensing such as Creative Commons.” 

Copyright Law Flexibilities

Australia’s 2006 amendments to its copyright act added flexibilities that made time-shifting and formatting-shifting legal.  Before the enactment of the amendments, arguments arose that the amendments would interfere with the markets for legal downloads and a threat to nearly every type of copyright protected work.  Results of the research conducted revealed that the content industry’s nightmares did not come true. 

[T]here was evidence to suggest that the amendments may have increased compliance with the law – not only by legalising the common and harmless consumer practices in question, but by improving some consumers’ respect for the fairness of copyright law in general.

When looking at Australian’s perspectives on whether and when it is ok to download copyrighted material, the book again presents a mix of quantitative data and qualitative information. Some of the justifications of those who feel it is ok to download to their heart’s content are rather amusing.

“Because when I see what happens, when people like Britney Spears
get paid what they do and act like they do. This means to me the
entertainment industry can kiss my arse!!!!!!!!”

Israel introduced fair use into its British-based copyright act in 2007.  To study the effects of the introduction of this provision, researchers compared case law before and after 2007.  The concept of fair use existed in Israeli copyright before 2007, but it was not codified.  Results of the analysis was slightly disappointing but hopeful.  Finding that fair use claims rarely succeeded and that courts were applying the doctrine in disparate ways, the researchers also expressed belief that this will change with the progression of more cases.

In conclusion, we find the law in Israel, while evolving to meet the
new digital creativity landscape, still lacks the balance which will reflect the social understanding of what should constitute a fair use and how copyright can foster creativity and innovation.

Country Group Reports

The book includes reports on national advocacy from Brazil, Cameroon, India, Nigeria, South Africa and Zambia.  Each of these reports discusses activities done in the country to promote access to knowledge and the strengths and weaknesses of these activities.

 

Access to Knowledge for Consumers: Reports of Campaigns and Research 2008-2010 is a 336 page book, but it will not cause you back strain.  The entire book is available in pdf, released under a Creative Commons BY-SA license.

Possession. Against the (Copyright) Law

The Malaysian Star reports on some public backlash to a proposed amendment to the Malaysian Copyright Act.  The amendment has been in discussion for about a year now but is not yet law.  If the new amendment is enacted, persons found in possession of infringing DVDs will be fined five times the cost of the legitimate version. (see here.)

I have been unable to locate a copy of the proposed amendment.  It appears from looking at the current act that this amendment would change Section 41(d), which currently says that it is an offense if a person “possesses, otherwise than for his private and domestic use, an infringing copy.” (emphasis added) 

The purpose of the amendment is to help limit the amount of trade in infringing DVDs, CDs, and other forms of amusement delivered in disc form, by discouraging people from purchasing them.  The general idea is that reducing the market for infringing goods will help the creative industries in Malaysia grow and contribute to the nation’s economic growth.  (For more background see MIP Handbook.)

Without having a copy of the amendment, it is hard to know what the real consequences of the change could be.  For example, if the punishment is a fine but the person has to be seen with the infringing disc in public, then it might be considered a reasonable step towards lowering infringement. However, if Section 44 of the Copyright Act will apply to the offense of possession as it does to all other offences, there may be a bigger issue.  Section 44 allows a magistrate to grant a warrant that allows the police to enter suspected premises at any time and seize infringing materials. 

Based on the information in the Star article, details like whether Section 44 will apply are still being worked out.  Concern about potential police raids of private homes was not the comment from the Malaysian people.  Some are worried that the government is acting out of desperation, while others claim the producers of infringing goods should be the target rather than the consumers.  (In all fairness, the Copyright Act does already include making and distribution as offenses and reports of successful factory raids have appeared in the papers.)

In addition to knowing whether Section 44 applies, one might also wonder, “Can consumers distinguish an infringing copy from a legitimate one?” and “Do people know where they can purchase legitimate copies?”  In some places, like Nigeria, the answers to these questions are often “no.”  If that’s the case in Malaysia, how will enforcement of this amendment work?

Which is the original? Image credit: CC BY NC SA 2.5 Malaysia by Yihzy available at http://www.yihzy.com/wordpress/?cat=9

If anyone has a copy of the amendment or knows more about the relationship between infringing and legitimate DVDs in Malaysia, The 1709 Blog would love to hear from you.