THE COPYKAT

China Press Publication Radio Film and Television Journal has reported that China generated more than 2.35 million new registrations for copyright works in 2018, up 17.48 percent than the previous year. . Among the registrations, artworks accounted for 42.2 percent of the total copyright work registrations, followed by photography and written works, based on data released by the National Copyright Administration. The number of copyright work registrations in Beijing topped the country in 2018, with 919,543 registrations, or 39.1 percent of the total number, followed by Jiangsu and Shanghai, with 302,175 and 261,642 copyright work registrations, respectively. Statistics showed that China received nearly 3.46 million new copyright registrations including works and software in 2018, an increase of 25.8 percent year on year. 

ReDigi has confirmed that it plans to take its long running copyright infringement case to the US Supreme Court, but it has asked for a little more time to prepare its formal submission to American’s most senior judges. The ReDigi company operated a marketplace where people could sell their "second-hand" MP3s. No one is the slightest bit interested in reselling MP3s online any more, of course, but they were in 2012 when EMI first sued the company. At the heart of this case is the question of whether or not the so called ‘first sale doctrine’ – the principle under US copyright law that says you can resell a CD without the copyright owner’s permission – should also apply to digital content. The courts sided with the record industry in 2013 and then again on appeal last year  with the Second Circuit Court of Appeals holding that the unapproved resale of MP3s online constituted copyright infringement. Meanwhile ReDigi suspended its operations and sought chapter eleven bankruptcy protection.  

A children’s book called “Oh, the Places You’ll Boldly Go!” based on the famous Dr. Seuss story “Oh, the Places You’ll Go” isn’t infringing on the famous tale’s copyright, or the rights in Star Trek, a federal court has ruled. Judge Sammartino in California said in a summary judgment that  "although Defendants certainly borrowed from Go!, at times liberally, the elements borrowed were always adapted or transformed. The Court therefore concludes, as it did previously that Defendants’ work, while commercial, is highly transformative,” 

MEPs have been urged to adopt the EU’s somewhat controversial Copyright Directive when it comes up for final its vote in plenary at the end of this month. The plea comes in a letter from 227 organisations representing authors, composers, writers, journalists, performers and others working in all artistic fields, news agencies, book, press and music publishers, audiovisual and independent music producers. A spokesman for the informal alliance, #Yes2copyright, said, “This is a historical opportunity. We need an internet that is fair and sustainable for all. This is why we urge EU policymakers to adopt the directive quickly, as agreed in trilogue negotiations.” The Directive has already been agreed by all three EU political institutions, but must pass a final vote by a full meeting of the European Parliament at the end of this month before member states will have two years to create national legislation to match.

Following on from our last CopyKat, Take-Two Interactive has reached a settlement with a Grand Theft Auto V cheat developer who it sued for copyright infringement last summer. TorrentFreak reports that defendant Erik Cameron has admitted to copyright infringement, breach of the game's End User License Agreement, and profiting off his violations of the law, and will pay Take-Two an undisclosed sum. Cameron will also be permanently prohibited from developing, promoting, or using any software program that alters Take-Two's owned software in any way, creating derivative works, or otherwise encouraging others to follow in his footsteps.  

Japan has shelved a bill with stricter copyright controls and increased penalties for infringement, after academics, manga artists and fans all aired concerned over the proposals.  With piracy on the increase, the Japanese government had sought to broaden the criminalization of downloads of copyrighted materials from videos and music to cover all types of content. But academics, manga artist groups and others have said the envisioned expansion to also cover materials including manga, computer games and literary pieces could affect freedom of expression by fans and hinder legitimate activities, such as research. “We have yet to eliminate the worries of both copyright holders and (internet) users,” said House of Councilors member Masaaki Akaike, who heads the ruling Liberal Democratic Party  culture panel,  adding  “We should work on it anew.”  

THE COPYKAT is back

January 1st 2019 saw a real “public domain day” in the United States as a large number of films, books, songs, and artistic works once protected by US copyright, and all from the year 1923, fell into the public domain, including Marcel Duchamp’s original “The Bride Stripped Bare By Her Bachelors, Even (The Large Glass)”. Other works included Kahil Gibran’s "The Prophet", Virginia Woolf’s "Jacob’s Room", Agatha Christie’s "The Murder on the Links", Marcel Proust’s "The Prisoner" (La Prisonnière, vol. 5 of In Search of Lost Time), William Carlos Williams’s "The Great American Novel", H. G. Wells’s "Men Like Gods", AND any poem from Robert Frost’s Pulitzer Prize-winning compendium New Hampshire. Cinemas  can now screen Cecil B. DeMille’s The Ten Commandments, Charlie Chaplin’s The Pilgrim, Buster Keaton’s Our Hospitality, or Rin Tin Tin’s Where the North Begins. And theatres can have performances of songs from Noël Coward’s London Calling! or George Gershwin’s Stop Flirting without having to pay a royalty The Chip Woman’s Fortune, the first drama by an African-American author produced on Broadway also enters the public domain today. Neil Wilkof has more on the IPKat here.

A court in southern China has upheld the country's largest fine of 260 million yuan (37 million U.S. dollars) for copyright infringement on media player software company Qvod. The official website of the Guangdong Court said on Saturday that the Supreme People's Court of Guangdong Province had rejected an appeal against the fine. It ruled that the penalty was justified and the Shenzhen marketing supervisor, the local regulator, had the right to impose it on the Shenzhen-based company. More on CGTN here. 

Nirvana are suing designer Marc Jacobs for copyright infringement. The brand’s recent Redux Grunge collection features several items that resemble the Seattle grunge band’s black-and-yellow iconography.

And MBW reports that US District Judge Louis Stanton has ruled that a jury will decide if Ed Sheeran's 2014 hit single Thinking Out Loud infringed the copyright of Marvin Gaye's 1973 classic Let's Get It On. The action has been brought by estate of the late Ed Townsend, the producer who co-wrote Let’s Get It On with Marvin Gaye. Sheeran has denied the alleged copyright infringement. A second song infringement claim is also destined for a jury trial: LMFAO are facing a legal action over their 2010 hit 'Party Rock Anthem' and its line "everyday I'm shuffling", which it is claimed plagiarises the lyric "everyday I'm hustlin" from the 2006 Rick Ross track 'Hustlin'. Just two words in that one!

The Federal Government shut down in the USA brought on by the Trump wall debacle has closed the Federal Communications Commission (FCC) but the "Office of the Inspector General will continue operations until further notice." The US Copyright Office was still open for normal business, at the time of writing saying ."We are not affected by the partial government shutdown ...... Online registration is available every day."

Do you know what a Klini is? Neither did the copyKat. Apparently it's a crocheted bikini, launched on the US market by Ipek Irgit:  made in China for $29 and retailed for $285. It had sales of $9 million in 2015 and was all the rage - and Irgit took legal action against a number of retailers for producing copies of her klinis. She filed her first lawsuit in October 2015 against Victoria’s Secret, accusing the company of copyright infringement for its similar bikini. The suit settled. But the move backfired when Irgit launched a new suit and one of the defendants, PilyQ, got a lawyer and did some digging and promptly discovered a street artist in Brazil called Maria Solange Ferrarini, who is known in her Brazilian beach town as the bikini lady - and whose work seems to be the source of the Klini. And then PilyQ did a deal with Ferrarini and the legal battle flipped on its head. More here on the ABA Journal including the update that Ferrarini isn't going to be getting rich anytime soon - her non-exclusive licensing deal will generate just $7,700 in royalties in 2019.  

THE COPYKAT is dancing and singing at the copyright hop

The Board of CISAC (the International Confederation of Societies of Authors and Composers) has decided to implement its sanctions process against SGAE, which could result in the Spanish collection society’s expulsion. SGAE (Sociedad General de Autores y Editores) has been repeatedly in the news since June 2017, when police raided its offices in search of documentation relating to an alleged scam dubbed ‘the Wheel’ (‘la Rueda’), in which a small number of SGAE members and TV execs allegedly conspired to create “low-quality music” – often reworked versions of songs in the public domain – then broadcast on late-night TV, generating performance royalties collected by SGAE. In a 65-page report published in May, CISAC found “serious concerns” relating to “distorted and inequitable distribution of royalties” at SGAE, and ordered the society to overhaul the way it does business. In July, four major music publishers - Warner/Chappell, Sony/ATV, Universal Music Publishing and BMG along with Peermusic, wrote to the society requesting to pull their international catalogues.

Rapper 2 Milly has filed a US copyright infringement and right of publicity lawsuit against the makers of the Fortnite video game claiming that they are violating his rights to a dance move that he created in the very popular video game. The Brooklyn-based rapper, whose real name is Terrence Ferguson, alleges that Fortnite-maker Epic Games is misappropriating his dance moves without permission, compensation, or credit. The dance move at the centre of the controversy was featured in 2 Milly’s 2014 music video for 'Milly Rock' and is "a simple, two-step dance in which the arms circle while the hips swing from side to side".The video for the song had widespread attention, and many other celebrities including Rihanna, Chris Brown, and Wiz Khalifa posted videos on social media of themselves performing the dance. “I don’t feel it’s appropriate that my art (dance), which is a big part of culture, is basically stolen," 2 Milly told the video game news site Kotaku. "The appropriate thing to do is compensate me with a fair amount for my addition to the game.” More on Lexology here and Wired here. The dance is here. 

According to China.org.cn, Blockchain technology will be integral to protecting works circulating online - and evidence based on blockchain will be able to be used as evidence in courts in China if necessary. Previously, writers had to rely on screenshots and downloaded content as evidence. Wang Jiangqiao, a judge at the Hangzhou Internet Court said  that the court “behave[s] as an ‘incubator’ for Internet space governance, a ‘test field’ for Internet judicial rules, a ‘leader’ for diversified Internet disputes, and a ‘first mover’ for the transformation of Internet trials” with China having “set up three Internet courts in Hangzhou, Beijing and Guangzhou.” The Internet Courts are considered a normal court with the only difference being that it only handles cases relating to the internet. Additionally, it allows cases to be filed through the internet.

Too busy licking his paws after a delicious lunch, the CopyKat almost missed this (well spotted CMU Daily) The European Commission has published its first Counterfeit And Piracy Watch List, which aims to highlight all those naughty boys and girls out there in the  ether who have their wicked cyberlockers, stream-ripping sites, P2P services, unlicensed download stores and illegal streaming sites - and which looks suspiciously like the the existing US Notorious Markets list, which is published annually. Its not a copy as its got a different name so that's OK then. 

The 'Blurred Lines' saga has drawn to a close after the deadline passed for Pharrell Williams and Robin Thicke to take the case to US Supreme Court. With the 9th Court of Appeal having declined to re-hear the case 'en-banc' that seems to be it to the case that saw a victory for the Marvin Gaye Estate who will now be paid some $5 million in damages for the somewhat jury decision that found the infringement of Gaye's 'Got to Give It Up'  and the Estate will also receive 50% of any future royalties generated by the song.

Advocate General Maciej Szpunar has issued an opinion for the European Union's Court Of Justice in long running legal battle between Kraftwerk and rapper Moses Pelham that concludes that using a two second sample of a sound recording without permission does indeed constitute copyright infringement. Kraftwerk's Ralf Hutter sued Pelham in the early 2000s over a 1990s track that the latter had made with the rapper Sabrina Setlur called 'Nur Mir' which used a short sample from Kraftwerk's track 'Metal On Metal' on a loop. Germany's Federal Court found for Kraftwerk, in part on the basis that Pelham could have easily recreated the sound he sampled but  four years later the German Constitutional Court overturned that judgement, finding that Pelham's "artistic freedom". outweighed Kraftwerk's copyright claim. As each sound recording is fixed in a particular form - there seems to be no room for manoeuvre for samplers - although of course they can always make their own sound recording. In the UDS the rule seemed clear for a while - if you want to sample a sound recording - how ever briefly - get a licence. This has been watered down of late but Szpunar has taken a hardline approach more consistent with the US 2004 case of  Westbound Records and Bridgeport Music v No Limit Films and Szpunar writes: "Artists must be particularly aware of the limits and restrictions that life imposes on creative freedom where they concern the rights and fundamental freedoms of others, in particular their right to property, including intellectual property. In such cases, the balancing of different rights and interests is a particularly complex exercise and there is rarely a 'one size fits all' solution". He adds "That balancing exercise must, in a democratic society, be undertaken first of all by the legislature, which embodies the general interest". The nub of it this:  "taking an extract of a phonogram for the purpose of using it in another phonogram (sampling) infringes the exclusive right of the producer of the first phonogram", and that "the exclusive right of phonogram producers ... to authorise or prohibit reproduction, in part, of their phonogram in the event of its use for sampling purposes is not contrary to the freedom of the arts as enshrined in article thirteen of the Charter Of Fundamental Rights Of The European Union".

And finally - it's back to the planned reforms to EU Copyright law and in particular that pesky Article 13 which if implemented as it stands would mean user upload platforms might be liable for infringements by their users in a change to safe harbour provisions. Notably YouTube and Google are up in arms about this. Now in the trilogue phase between the  EU Council, European Parliament and the European Commission, it seems the tech sectors constant lobbying might have paid off not least as the proposed final draft of the new European Copyright Directive has failed to find agreement, with each of the three constituents having it's own version - with the European Parliament's closest to what Google wants  and the Commission offering a compromise - and so this will now be pushed back into January 2019. A consortium of companies and trade groups speaking for the copyright industries has now published an open letter expressing concerns about any Article 13 compromise saying "As we reach the very final stages of this process, and negotiators seek to finalise a compromise text, we urge you to remember that the overall aim of the original European Commission proposal was to correct the distortion of the digital market place caused by user-upload content services, which enable users to upload content onto their sites and then profit from the availability of creative content without returning fair revenues to rightsholders, who create and invest in such content" and that only the safe harbour restrictions outlined in existing drafts of the directive will "meaningfully address" this issue. In the US, America's Computer & Communications Industry Association has taken u the tech sectors baton when responding to a call for submissions by the US Trade Representative on the latest round of talks about a possible trade agreement between the US and the EU,  again criticising Article 13 saying "The proposed copyright directive disrupts settled law protecting [internet] intermediaries by weakening established protections ... and by imposing an unworkable filtering mandate on hosting providers that would require automated 'notice-and-stay-down' for a wide variety of copyrighted works. If adopted, the directive would dramatically weaken these long-standing liability protections which suggests that most modern service providers may be ineligible for its protections".

The COPYKAT: "Faceswap" for the Statue of Liberty, trade wars, and embezzlement

It's been an exciting few weeks for copyright around the world. This CopyKat takes a look at three "David vs Goliath" disputes, in which parties (respectively) include the US Government, Fifa and an 8 year-old boy, and one of Africa's largest telecoms companies. Also in the news: YouTube rolls out its anticipated Copyright Match tool, copyright collecting societies in Kenya continue to struggle with accountability, and China launches an IPR awareness campaign.


Lady Liberty "faceswap" will cost the United States Postal Service $3.5M

Between 2011 and 2014, the United States Postal Service (USPS) used an image of the Statue of Liberty for its Forever Stamp series (a type of First Class postage stamp). Unfortunately for the USPS, the image they chose was not actually of the famous statue that towers over New York Harbor designed by French sculptor Frédéric Auguste Bartholdi in 1886. Instead, the image they chose was actually Robert S. Davidson's replica Statue of Liberty which looks over the New York-New York Hotel & Casino in Las Vegas. Davidson sued for – and won – nearly $3.5 (£2.6) million in royalties, plus interest.

As reported by Artsy, an eagle eyed stamp collector identified the mix-up in 2011. The USPS was made aware of the goof in 2013, but went on to print another 1.13 billion stamps with the replica’s image. For context, the judgement cited that the USPS made some $70 million in revenue resulting from sales of this Lady Liberty stamp alone.

The statues in NYC (left) and Las Vegas (right).

The Post Office purchased the photo used on the stamp from the image service Getty for $1,500 (£1,140). However, the license only covered the rights to Getty's photograph of the statue — and not the statue itself. The USPS neglected to seek permission from Davidson, likely because they simply assumed what it was using was in the public domain.

In its defense, the USPS asserted that the statue is a replica and accordingly, contains no truly original work. If true, this would render Davidson’s copyright claim invalid, and the government would owe nothing for its use of the replica statue’s image.

Davidson was therefore tasked with proving that his copyright in the statue was valid, which under US law requires only a showing of “some minimal degree of creativity” and that it was his own “independent creation” of those original elements.

By way of reminder, the focus is on the expression of an original idea and not the idea itself (Oracle Am., Inc. v. Google Inc., 2014). As such, Davidson’s statue did not need to be wholly original, but rather a “new and original expression” of some previous work or idea – namely, the famous Bartholdi statue.

Davidson argued in his lawsuit that he wasn't trying to create a replica of the original, but rather to craft a fresher, more feminine version. As was later quoted in the ruling, he “envisioned his mother-in-law as inspiration ... and viewed her picture every night during the construction of the face of the statue."

The Court examined photographs and was satisfied that Davidson “succeeded in making the statue his own creation, particularly the face.  A comparison of the two faces unmistakably shows that they are different.” Ultimately, the Court agreed that Davidson’s statue “evokes a softer and more feminine appeal.  The eyes are different, the jaw line is less massive and the whole face is more rounded. “

The USPS’s defense that the stamp fell under the fair use exemption was rejected by the Court. As the USPS printed “billions of copies and selling them to the public as part of a business enterprise … so overwhelmingly favors a finding of infringement that no fair use can be found.”


In case you’re wondering how the USPS – which is a US government agency – can be successfully sued for copyright infringement, 28 U.S.C. § 1498(b) waives sovereign immunity for claims of copyright infringement against the federal government “for the recovery of his reasonable and entire compensation as damages for such infringement.”


YouTube's "Copyright Match" offers enhanced screening technology (for a selected few)

As the CopyKat mentioned last month, YouTube has been beta testing a feature called Copyright Match, designed to find re-uploads of content on other channels. The tool will point content uploaders (creators) to instances where their work has been stolen, and allow them to request that YouTube delete the guilty party’s video on the grounds of copyright infringement. Last week, YouTube channels with more than 100,000 subscribers received access to the new tool.

When a creator uploads a video to the Copyright Match tool for review, other video uploads on different channels will then be scanned to detect similar content has been uploaded. Fabio Magagna, the product manager for the Copyright Match Tool, explained on the YouTube Creators blog that “when there is a match, it will appear in the ‘matches’ tab in the tool and you can decide what to do next”.

Although YouTube already offers an automated copyright-flagging system called Content ID, Copyright Match is different because it’s designed especially for YouTube creators who have problems with unauthorized re-uploads.

By YouTube’s own admission, the Copyright Match is “a powerful feature,” which will be monitored closely in its early stages. Magagna noted that the software will continue to expand over the coming months, “with the long-term goal of making it available to every creator in the YouTube Partner program.” The company insists that takedown requests will be reviewed to make sure they comply with YouTube’s copyright policies.

The introduction of Copyright Match comes at a time of intense debate surrounding user-uploaded content on social media platforms such as YouTube. In particular, The European Parliament recently voted to reject a new copyright directive.  At the heart of controversy for many was Article 13, a section of the proposed directive that focuses on the use of copyrighted material uploaded by users.

And yes, in case you’re wondering: new YouTube video reviews of Copyright Match are already available to watch.


Fifa takes down celebratory World Cup dance video: is this a step too far?

The World Cup is the largest single sporting event on Earth, with nearly half the world’s population tuning in. With England’s (somewhat surprisingly!) good run up to the Semi-Finals, fans of the Three Lions were especially eager to show their support.

When England’s captain Harry Kane scored a goal against Tunisia, a mother filmed her 7-year old boy celebrating the moment. She subsequently posted the short 5-second clip of him dancing in the living room on Twitter. However, FIFA - Football's ruling body - ordered the clip removed from Twitter. FIFA claimed the clip infringed their copyright, as viewers could see blurred football action from the family's TV in the background.

Speaking to the Mirror, Kathryn Conn explained that her son “is a massive Spurs fan and he absolutely worships Harry Kane so he started dancing around in the living room. All you can see on the TV in the background is a really blurry replay of the goal. It's hardly visible."

England captain Harry Kane won the Golden Boot for most goals scored in the tournament.

According to Conn’s tweet on the subject, the copyright notice from Twitter was brought under the US Digital Millennium Copyright Act. Several sources including iNews report that Fifa issued a letter stating: “On behalf of Fifa, we hereby assert that your making available and/or promoting of the protected content on your platform is not authorised by Fifa, its agent nor the law and that your activities in this regard serve as a serious infringement of Fifa’s exclusive rights.”

By way of background, Fifa reports on its finances page that around 95% of its revenues come from the sale of television broadcasting, marketing, and licensing rights related to the FIFA World Cup.
From the 2014 World Cup in Brazil, Fifa hauled in $4.8 billion in revenue, which turned a $2.6 billion profit for the association (which is then re-invested into development projects). Compared to ticket sales earned $527 million, Fifa’s broadcast revenue topped $2.43 billion, while sponsorship fees brought in $1.6 billion.

To date, Fifa’s intellectual property portfolio contains 14,000 trade mark registrations, about 300 registered designs, and 150 copyright registrations covering 157 jurisdictions overall. As is made clear in its 30-plus pages of official guidance on brand protection, Fifa has millions of reasons to be protective of its intellectual property.

Fifa engages in active surveillance and brand protection, which includes court proceedings to halt an infringing situation and seek financial compensation for any damages suffered. However, sharing official content belonging to FIFA by fans without any commercial benefit is expressly permitted, as per the branding guidance. Curious by nature, this CopyKat’s therefore wonders why an account with barely 200 followers was singled out in this instance.

Did Safaricom steal Songa app from former employee?

Web developer Evans Gikunda has sued Radio Africa and Safaricom, accusing them of infringing his copyright when they launched a mobile app, Songa by Safaricom several weeks ago. Safaricom is a leading mobile network operator in Kenya, and its Songa music app enables subscribers “to get their local and international songs in one place and keep them consistently entertained and updated.”

Gikunda claims that he created the music app between 2012 and 2016. In 2013, while working as a developer at Radio Africa, the Chief Executive at Radio Africa Patrick Quarcoo “persuaded Gikunda to partner with him to ensure that the product gets to market” (IPKenya). According to Gikunda, Quarcoo proposed that that once Radio Africa’s Board of Directors sanctioned its participation in his app, they would share out the ownership of the app. The ownership was proposed at Radio Africa – 40%; Gikunda- 30%; Quarcoo- 20%; and the remaining 10% to a strategic partner.

In 2016 Gikunda left Radio Africa (under less than favourable circumstances) and says that after his resignation, Quarcoo sold the app to Safaricom without consulting him. Gikunda had not been “involved in the process at any stage, and neither has he benefited from it; despite the claims he created the platform” (innova8tiv). As with most intellectual property disputes arising between (former) employees and their bosses, establishing the ownership of the copyright subsisting in the Songa app lies at the heart of this matter. Gikunda is asking the High Court to compel Safaricom and Radio Africa to reveal how much money they have made from ‘Songa by Safaricom’ and is seeking damages.

To be successful in his claim, Gikunda will need to establish that he created his app outside the scope of his employment with Radio Africa, and that the app currently used by Safaricom is a reproduction or adaptation of his original app. To complicate matters, Gikunda’s app has been known under a variety of other names, including ‘NakedGroove’, ‘The Platform’, ‘The Music Platform’ and ‘RAMP’ – the latter being an abbreviation of either ‘Radio Africa Music Player’. Additionally, neither Gikunda nor Radio Africa obtained copyright registration, which further confuses the evidence.

This calls into question whether or not Gikunda made the program as part of his employment with Radio Africa (see also the work-for-hire doctrine), as well as the enforceability of moral rights for digital works. To achieve an injunction against the companies, which Gikunda is also seeking, he will need to prove that damages alone are an insufficient remedy.

Copyright woes continue for Kenyan collecting societies

Kenya's High Court

Elsewhere in Kenya, the complicated saga of the copyright collecting societies continues. Most recently, the High Court (pictured) ordered the Music Copyright Society of Kenya (MCSK) to account for the money it has collected as royalties and licence fees since January 1st 2017. Justices RN Sitati, DS Majanja and TW Cherere have given the MSCK thirty days to comply with the order (The Star).

In 2015, it was noted that MCSK's disbursement of royalties to artists has been decreasing for several years. The Kenya Copyright Board (KECOBO), the government organisation tasked with enforcing copyright in Kenya, established a minimum standard of 70% of revenue to be given back to artists. However, MCSK’s disbursement rates to musicians has fallen to 58.9% of collected revenue. Although MCSK was once Kenya’s largest royalty-collecting body, KECOBO revoked its licence in February of 2017 when MCSK failed to provide audited financial statements. The move came amidst allegations from local artistes over embezzlement of their royalties by MSCK.

As the CopyKat discovered back in May, Kenya is not the only African country to be experiencing problems with copyright collecting societies: power struggles with the Copyright Society of Nigeria (COSON) and the Nigerian Copyright Commission continue. 

Copyright awareness comes to China 

China has launched a four-month campaign to protect the intellectual property rights: you can visit the campaign website here. First announced in September, the campaign is seen by many as an attempt to alleviate major concerns among foreign investors, including those in the United States. 

China’s lack of strong intellectual property rights protection measures “frequently draw complaints from foreign investors and have been a long-standing focus of attention at annual talks with the US and Europe” (South China Morning Post). The Trump administration has officially launched a probe into alleged Chinese intellectual property theft which, amongst other things, led the United States to impose punitive tariffs on Chinese products. 

The campaign, which will last for at least four months, has been jointly launched by the National Copyright Administration of China (NCAC), the Cyberspace Administration, the Ministry of Industry and Information Technology and the Ministry of Public Security.

It will target key areas including unauthorized republication of news and plagiarism on social media, unauthorized broadcasting of copyrighted content on short video sharing apps, and copyright violations by setting up overseas servers. The campaign will also push service providers to enhance their internal supervision systems (China Daily).

Chairman Mao Memorial Hall in Beijing

In 2012, an article on Forbes argued that “IP protection will always be an uphill struggle in China and for companies doing business there,” as individual rights – including intellectual property rights – may be in some instances at odds with traditional Chinese society. 

A more recent Reuters article from April of this year explained that while Chinese IP protection laws are comparable to U.S. and European legal standards, the weakness lies in implementation, with high levels of bureaucracy. In particular, “court decisions applying on a provincial level rather than nationally, and judges often having different interpretations of the laws.”

In China, many consider that “even the education system works against an embrace of IP protection,” and until IP infringement is seen as an immediate threat to economic success, “few will really care.” Will a potential trade war be the impetus China needs to close the gap?

The COPYKAT celebrates World IP Day

Following the celebrations of World Book and Copyright Day and World IP Day we are bringing you the latest news from the copyright world.

Monkeys Lack Standing to Sue for Copyright Infringement – 9^th Circuit Rules on ‘Monkey Selfie’ Case

On April 23rd the long dispute over the infamous ‘monkey selfie’ (covered here, here and here), which was taken by a Macaque monkey, named Naruto, has finally been decided. Following PETA’s complaint in 2015 where the organisation had requested to have any profits that will be gained from the photo taken by Naruto should go to the monkey and preserve its habitat, last year in July the Ninth Court has heard the parties’ arguments. Subsequently, two months later the parties have reached the settlement and filed a motion to dismiss the case but the motion was denied by the court.

The Ninth Circuit Court of Appeals held that the monkey, which was named as the plaintiff, lacked statutory standing to bring an action for copyright action under the Copyright Act. Neither it was possible for PETA to validly assert ‘next friend’ status that would allow it to represent the monkey “both (1) because PETA has failed to allege any facts to establish the required significant relationship between a next friend and a real party in interest and (2) because an animal cannot be represented, under our laws, by a ‘next friend’”.

Bulgaria brings amendments to its Copyrights and Neighbouring Rights Act

Bulgaria was one of the four countries which have failed to pass the laws that will fully implement EU Collective Rights Management Directive (Directive 2014/26/EC). On 7^th December 2017 the European Commission said it will refer Bulgaria to the Court of Justice of the EU and request a fine of €19,121.60 per day for failure to transpose the Directive which the country was supposed to enact by April 2016. The main aim of the Directive is to improve the operation of collective management organisations and set common standards for the multi-territorial licensing of rights for musical works that are distributed online.

In light of the Directive, Bulgaria has recently passed several amendments to is Copyrights and Neighbouring Rights Act. The new provisions will now allow non-profit organisations and other commercial legal entities (independent companies) to conduct the collective management of copyrights. In order to do so, independent companies will have to enter into a separate agreement for copyright management with the rightholders and register in the Rights Management Organisations Register at the Ministry of Culture. Furthermore, amendments introduced to the Copyrights Act regulate the responsibilities of the parties in the event of live performances, shift the control of copyright compliance to municipalities and provide the Minister of Culture with a power to oversee the collective management of rights.

SET TV Service Provider sued by Amazon, Netflix and Several Major Hollywood Studios

Several major Hollywood studios, including Disney, Paramount Pictures and Warner Bros, together with Netflix and Amazon, have formed a new (another?!) anti-piracy partnership, Alliance for Creativity and Entertainment (ACE), and have brought an action against Set Broadcast LLC, seller of the popular IPTV service SET TV. Following their actions against Tickbox and Dragonbox devices, members of ACE have filed a complaint against Set Broadcast accusing it of facilitating mass copyright infringement. In the view of the Plaintiffs, the software offered by Set Broadcast allows its buyers to stream copyright infringing content. As stated in the complaint, “Defendants market and sell subscriptions to “Setvnow,” a software application that Defendants urge their customers to use as a tool for the mass infringement of Plaintiffs’” copyrighted works. Additionally, Defendant invites its customers to download and install the software on their portable devices and computers. Apart from the software the company also offers preloaded boxes which enable their users to watch ‘on demand’ content and live streams of TV Channels. Plaintiffs claim that “[f[or its on-demand options, Setvnow relies on third-party sources that illicitly reproduce copyrighted works and then provide streams of popular content”. Therefore, ACE members are claiming in their action statutory damages and seeking an injunction to close the service and seize all the devices that are in Defendant’s possession. ACE spokesperson said that piracy software such as ‘Setvnow’ impair films and TV shows market, and cause harm “to a vibrant creative economy that supports millions of workers around the world”. Therefore, ACE is committed to “protecting creators and reducing online piracy through dedicated actions against illegal enterprises”.

Seinfeld Takes Action to Dismiss Copyright Complaint Over “Comedians in Cars Getting Coffee” Series

Earlier this year in February, director Christian Charles has filed a complaint in the Southern District of New York alleging comedian Jerry Seinfeld, together with companies involved in the production of the Comedians in Cars Getting Coffee web series. Charles claims that he has come up with the concept of the series and although he created the pilot episode, he is now out of the production, and royalties, as well as profits in violation of his copyright. In response to the lawsuit, (as reported by IPWatchdog), on April 4^th Seinfeld filed a memorandum to support the motion to dismiss the case. He asserts that the copyright claim should be dismissed for being time-barred given the claims were filed after the expiration of the statute of limitations. In the situation, where the Court finds the claims cannot be dismissed on the time limit basis, Plaintiff’s claims should be dismissed on the basis that they fail to provide a protectable copyright interest. In the view of Seinfeld and others, the concept of comedians in cars that has been followed by similar concepts such as Carpool Karaoke and Cougars in Cars Getting Cosmos, which “consists of nothing but ‘common stock ideas’ and unoriginal scènes à faire that do not rise to the level of original protectable expression”. Additionally, the Defendants claim that Charles has fraudulently obtained his copyright by registering similar title “designed to mislead the Copyright Office into accepting a copyright application that directly conflicted with the one filed by Mr. Seinfeld.”

Can A Tattoo be Protected by Copyright? – Continued

In the previous CopyKat [look here] we have looked at the dispute between Solid Oak Sketches and Take-Two over copyright infringement of tattoo designs. During the last week, a new lawsuit has been filed which addresses the issue of tattoo’s copyright protection. In her action against WWE and 2K Gamers, tattooist, Catherine Alexander who inked WWE wrestler Randy Orton argues that her designs were used in a commercial manner without her consent. Similarly to the NBA2K game, here video games from WWK2K series prominently feature Orton’s multiple tattoos in digital designs. According to Alexander, the games display Orton’s tattoos in a manner that is same or substantially similar to her copyrighted works. The question that the Court will have to answer, as indicated by Forbes, will be whether WWE and 2K Games have actually copied the work and whether there is a similarity between Alexander’s protectable designs and works in the video games. In the view of Alexander, “there is no doubt that her designs have been ripped off and reproduced in an effort to make them seem as close to real-life as possible”. 


In 2017 China’s Internet Copyright Industry Grew by Over 27%

In a recently released report, The National Copyright Administration of China reveals that its internet copyright industry grew by over 27% last year and has reached over  636 billion yuan, (US$100 billion). The biggest contributors are online news portals and online games which account for 73% of the total market value. In 2017 online news and information market grew by 40%, whereas online gaming increased by 32% and reached 235.5 billion yuan. Live streaming and short videos over the past two years have seen the most rapid growth, achieving a number of 422 million live streaming users. Mr Zhang Qinkun, Secretary-General of the Internet Copyright Industry Research Center, in observing prospects in the industry for the coming years said that businesses should concentrate on improving the quality of their content in order to attract users.

At the same time, the National Office for the Fight Against Pornography and Illegal Publications revealed in its report that China has dealt with over 460 cases in the first three months of the year that involved copyright infringement. According to the National Office, in connection with the cases more than 1.5 million illegal publications, such as e-books, videos and games were confiscated.

Swedish Patent and Registration Office (PRV) Wants to Promote Legal Streaming

The Swedish Patent and Registration Office (PRV) has created national aggregator called Streamalagligt.se (‘stream legally’), which aims to promote legal streaming among Swedish citizens. The platforms allow for searching of copyrighted works, such as films, TV shows, music, and sports events providing a single access point to find legal digital content. Streamalagligt.se is part of agorateka, portal of the European Intellectual Property Office (EUIPO) that intends to raise awareness and allow the search for legal content through national-level portals. Through the creation of its portal, Sweden joins 14 other EU countries that already have aggregator websites as part of agorateka programme.

For more information click here and here, and watch the video here.

This update by Mateusz Rachubka