DIY Grooveshark cannot claim DMCA 'safe habor'

A federal judge in New York has ruled that Grooveshark, the controversial online music service, has infringed on thousands of their copyrights. Grooveshark came under fierce attack from the recording industry for hosting music files without permission. Grooveshark (Escape Media Group) streams music uploaded by its users and Grooveshark’s defence has long been that it is legal under the Digital Millennium Copyright Act, the federal law that protects websites that host third-party material if they comply with takedown notices from copyright holders. The company relies on advertising for its revenues. Granting summary judgment in a case filed in 2011 by the three major record companies, Judge Thomas P. Griesa of United States District Court in Manhattan ruled that Grooveshark was liable for copyright infringement because its own employees and officers — including Samuel Tarantino, the chief executive, and Joshua Greenberg, the chief technology officer — uploaded a total of 5,977 of the labels’ songs without permission. Those uploads are not subject to the “safe harbor” provisions of the Digital Millennium Copyright Act with the judge saying “Each time Escape streamed one of plaintiffs’ songs recordings, it directly infringed upon plaintiffs’ exclusive performance rights”.  According to Reuters, evidence against the executives included a 2007 memo in which they asked staff to upload as much music as they could, while outside the office, to help the service grow in its early days. “By overtly instructing its employees to upload as many files as possible to Grooveshark as a condition of their employment, Escape engaged in purposeful conduct with a manifest intent to foster copyright infringement via the Grooveshark service,” the judge said. The judge also found that the company destroyed important evidence in the case, including lists of files that Mr. Greenberg and others uploaded to the service. The New York Times reports that the next step of the case will be to set damages although Grooveshark said it is currently assessing its next steps, including the possibility of an appeal.” Grooveshark is also still facing two other copyright suits filed by the music industry, one in New York federal court and one in state court, also in New York.

We previously reported that four former and one then employee of Grooveshark had previously signed consent orders with the plaintiffs agreeing i that they would never again infringe the labels' copyrights, or work for a company that "systematically infringes" copyrights.  Those individuals who had been targeted for infringement were then removed from the the ongoing lawsuit. 

Reminder: personal copies, quotation and parody exceptions

A little reminder of the three copyright exceptions due to be implemented on 1 October:

• Personal Copies for Private Use
• Quotation
• Parody

Personal Copies for Private Use

This exception, which does not apply to computer programs will permit the making of a personal copy of an individual’s own copy of a work, for that individual’s private use for non-commercial purposes.

The “individual’s own copy” means a copy that he or she has lawfully purchased (e.g. a CD, or a lawfully obtained download) on a permanent basis (i.e. does not cover “a copy which has been... streamed” though query what that even means – presumably streamed content is covered by the temporary copies exception in any event).

“Private use” includes making back up copies, format-shifting (i.e. copying CDs to digital), storage (i.e. cloud storage of lawfully purchased downloads, to the extent that these are stored in an area only accessible by the individual).

Copyright is infringed if the individual transfers their personal copy to another person, e.g. sharing of digital content is not caught by the exception.

Note that it is not possible to contract out of this exception.

So, clearly the personal copies exception is intended to legalise what everyone already does: convert analogue content to digital and to back up digital content. In that sense this exception is not controversial, however it will be interesting to see what creative applications for the exception are argued by content users. For instance if I lawfully acquire a physical copyright protected work, am I now permitted to reproduce that work using a scanner and 3D printer for my personal use at home? An example is mobile phone covers, which are likely to be protected by design rights rather than copyright, however I wonder whether this line of argument could be exploited, and whether it was considered by the legislators at the time of drafting?

Quotation

This exception permits the use of a quotation from the work (whether for criticism or review or otherwise) provided that the work has been made available to the public, the use of the quotation is fair dealing with the work, the extent of the quotation is no more than is required by the specific purpose for which it is used, and the quotation is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).

This means that short extracts of works which are already online (or indeed have been published offline) may be used without infringing copyright. There is no limit on how long the quotation may be, except that it must be “no more than is required”. There is no limit on the purpose of the use, except that it must be fair. This leaves the exception flexible yet arguably also restrictive.

The requirement that sufficient acknowledgement is limited to where it is not impossible “for reasons of practicality or otherwise” hints that in the online world it can be difficult to acknowledge authors who do not tag themselves as the author using conventional code which automated spiders can pick up on.

Again, it is not possible to contract out of this exception.

Parody

Finally the parody exception permits fair dealing with a work for the purposes of caricature, parody or pastiche.

There is no guidance as to the meaning of “caricature, parody or pastische”: will it be relevant whether a work is funny? If so who will judge whether a work is funny or not? Will moral or socially acceptable standards be relevant, and again if so who is to judge these? The case law may make for a fun read!

Again, it is not possible to contract out of this exception.

For more on the parody exception see Ben's recent blog post: Could ladybird bring the first copyright challenge?

Draft statutory instruments and supporting explanatory memorandum are available here:

The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014

The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014

International copyright framework: a chapter and a chance to comment

This blogger has just received news from his old friend and deeply respected colleague Paul Geller, who writes:

"Reaching the age of 75 earlier this year, I retired as General Editor of International Copyright Law and Practice but remain the author of the lead framework chapter of this treatise. At http://www.internationalcopyrightguide.com/, I've posted this entire chapter and my article on "How to ..." handle cross-border copyright cases. 

This pair of guides, the long and the short of the field, might be of interest to your readers".

Paul invites comments and criticisms which he will take into account when revising the chapter from year to year. So, if you would like to take him up on this invitation, he will be pleased to hear from you.

Good luck, Paul, on your retirement. We hope that our readers will keep you busily and fruitfully occupied for many a long year to come!

Cuba renews Berne relaxation options

By Berne Notification No. 270: Berne Convention for the Protection of Literary and Artistic Works, the Republic of Cuba becomes the latest country to renew its advantageous position regarding relaxations of copyright under Articles II and III of the Berne Convention [on which see earlier 1709 Blog posts here, here and here].  In short:

"The Director General of the World Intellectual Property Organization (WIPO) .. has the honor to notify the deposit, on September 3, 2014, by the Government of the Republic of Cuba of a declaration according to which ... the Republic of Cuba will continue to avail itself of the facilities provided for in Articles II and III of the said Appendix. The said declaration shall enter into force, with respect to the territory of the Republic of Cuba, on December 3, 2014".

Trawl for Tidy Transcript

Does any reader of this weblog have a copy of the full transcript of the judgment of Mr Justice Rattee in Tidy v Trustees of the Natural History Museum [1996] 39 IPR 501, a decision in which master cartoonist Bill Tidy failed to persuade the court that he was entitled to summary judgment in a claim that the reproduction of his cartoon sketches of dinosaurs in reduced size in a book constituted a distortion or was otherwise prejudicial to his honour or reputation?

If so, can he or she please get in touch with the 1709 Blog, or at least with blog team member Mira T. Sundara Rajan, who would like it for the LLM course she is preparing in International & Comparative Moral Rights.

Bugged out - one snappers battle against online piracy

A pollen covered bee by Alex Wild

There is a fascinating and well written blog on Ars Technica from a wildlife photographer called Alex Wild who photographs insects - successfully - and tries to make a living out of this. It shows the 'other side' of copyright infringement: not the mass piracy of music and films and the relative might the content industries wield both legally and politically in fighting back against this - but a talented guy who understands the internet, but wants fair recompense when others use his work commercially. With 300 comments - it seems to have touched a nerve. Bugging out: How rampant online piracy squashed one insect photographer is a good read, and a licensed gallery of Alex Wild's marvellous insect images can be found here.

Are blocking injunctions unconstitutional?

Upon claim brought by some consumer associations, an Italian Administrative Court ('TAR') has referred the system upon which the Italian Communication Authority's ('AGCOM') Regulation on Online Copyright [on which see here] is based to the Constitutional Court, seeking clarification as to whether administrative blocking injunctions of websites are in line with some constitutional principles like freedom of expression, economic freedom and proportionality. Entered into force on 1 April 2014, the AGCOM Regulation allows AGCOM itself, without intervention of a judicial authority, to order the Italian mere conduits to block a website that is hosting infringing content after a very short administrative procedure. 

From the short extract of the decision that this blogger had the chance to read, however, it would appear that the TAR questioned the constitutionality of 14(3), 15(2) and 16(3) of the Legislative Decree No 70/2003. The latter transposed into the Italian system Articles 12(3), 13(2) and 14(3) of the E-Commerce Directive, which in turn allow "a court or administrative authority" to require mere conduits/caching/hosting providers to "terminate or prevent" infringements. As those provisions have been transposed in the Italian system almost litterally, what the Italian Constitutional Court could be called to consider, then, is whether and to which limits the whole E-Commerce Directive's system of notice and take down is in line with those three constitutional principles (freedom of speech, economic freedom and proportionality).

In Italy, 'TAR' stands for
"Tribunale Amministrativo Regionale"

This blogger bets that, when it comes to issue its decision, the Constitutional Court will suggest to strike a balance [perhaps one of the most abused expressions in the history of copyright law] between the fundamental rights that a disproportioned application of blocking injunctions could hamper and copyright protection, stressing that the latter, being a property right, also benefits of constitutional coverage -- like Article 17(2) of the Charter of Fundamental Rights of the EU says, etc.. 

But thinking out of mind the box: what if it will not be so? What if, eg, the Constitutional Court would say that the notice and take down system designed by the E-Commerce Directive is somehow in breach of constitutional rights that the Italian system protects as fundamental? How would the constitutionally-protected duty to comply with EU Directives match with the constitutionally-protected duty to guarantee the respect of fundamental rights such as freedom of speech and economic freedom? 

In a couple of decades [in line with Italian judiciary system's glorious timing tradition], the Constitutional Court will solve all these doubts -- and the 1709 Blog will be there to report. 

1972 and all that - but does the Turtles win against SiriusXM actually settle anything?

A California federal judge has delivered a "legal earthquake" by declaring Flo & Eddie of The Turtles "the victors in a lawsuit against SiriusXM over the public performance of pre-1972 sound recordings" by finding that SiriusXM had violated the Turtles' pre-1972 master copyrights by playing their music without licensing it or paying performance royalties. Flo & Eddie was created in 1971 and is owned and controlled by Howard Kaylan and Mark Volman, two of the founding members of the Turtles, who were most popular for their 1967 hit single "Happy Together." The lawsuit was filed in August last year, seeking royalties from the satellite broadcaster. Billboard reports that the plaintiffs are seeking $100 million in damages, but says "the money is hardly the only consequence of a ruling on Monday that could eventually disrupt the operations of the satellite radio giant as well as other services like Pandora." The band members launched the case in August 2013. 

But its not been plain sailing for pre-1972 copyright owners - nor is the whole issue exactly clear. In August this year, U.S. Federal Court Judge Mary Strobel indicated that she was leaning towards rejecting a motion by Warner, Universal, Sony, Capitol and ABKCO Records to accept the labels' interpretation of the law in jury instructions in a similar matter. The plaintiffs again are arguing that state laws protect the misappropriation of older pre-1972 sound recordings that were authored before federal copyright protection applied. But in that case the judge wasn't ready to go that far and indicated that she felt the label's might be relying on inappropriate case law. 

Those Turtles

Billboard reports in the new California decision, U.S. District Judge Phillip Gutierrez ruled against SiriusXM holding that California state law, as it is written, gives the master recording owner exclusive performance rights. Consequently, the judge further ruled in Flo & Eddie's favour on all causes of action as it applied to public performance, but not to alleged reproduction copyright violations. The judge ruled that if Flo & Eddie want to pursue their allegations of copyright, that SiriusXM was making and storing temporary copies of their music for broadcast purposes, it would have to be decided in a separate trial.

With Judge Strobel's approach, as well as pending cases on the same issue in Florida and New York - almost all commentators expect SiriusXM to appeal against Judge Gutierrez's ruling although conversely it remains to be seen whether Judge Strobel now feels obliged to follow this week's ruling as a precedent. In Octoberc 2013 Sirius said "As will be shown at a later stage of these proceedings, there is no state law that requires SiriusXM (or any of the hundreds of thousands of other U.S. businesses that publicly perform music) to pay license fees for Pre-1972 Recordings," adding that "Plaintiff’s multiple court filings constitute a form of lawsuit lottery in search of an elusive new state-law right that would radically overturn decades of settled practice."

The case is 13-cv-05693, Flo & Eddie Inc. v. Sirius XM Radio Inc., et al in the United States District Court, Central District of California

The CopyKat - updates on Sherlock Holmes and Avatar, amongst other topical tails

NewsCorp CEO Robert Thomson has written to the European Union's Competition Commissioner Joaquín Almunia focusing on the ongoing allegation that Google continues to act in an anti-competitive way, exploiting its near 90% share of the web search market in Europe. Almunia has reopened the European Commission's long-running investigation into Google's search and advertising business, after efforts to reach an agreement with the web firm on how it might overcome competition law concerns faltered. Thomson writes: "The company has evolved from a wonderfully feisty, creative Silicon Valley startup to a vast, powerful, often unaccountable bureaucracy, which is sometimes contemptuous of intellectual property and routinely configures its search results in a manner that is far from objective". He goes on: "The shining vision of Google's founders has been replaced by a cynical management, which offers advertisers impressively precise data about users and content usage, but has been a platform for piracy and the spread of malicious networks, all while driving more traffic and online advertising dollars to Google. [It] has been remarkably successful in its ability to monetise users, but has not shown the willingness, even though it clearly has the ability, to respect fundamental property rights" and "The internet should be a canvas for freedom of expression and for high-quality content of enduring value. Undermining the basic business model of professional content creators will lead to a less informed, more vexatious level of dialogue in our society. Your decision to reconsider Google's settlement offer comes at a crucial moment in the history of the free flow of information and of a healthy media in Europe and beyond".

80 law experts from China's legal system, universities and research centres gathered in Beijing to discuss potential changes to the Internet Copyright Law. At a conference jointly held by Zhuoya Research Center, Tsinghua University and China Intellectual Property Society, experts agreed that China's Internet Copyright Law is in urgent need of revision to deal with increasing infringements and keep up with fast-changing technology. More here.

Talks of a new EU 'ACTA' have resurfaced after the Presidency of the EU Council (currently held by Italy) presented a "paper aimed at structuring the exchange of views on IPR enforcement". The paper notes that the European Commission carried out a consultation on copyright recently, and comments that "the current legislative framework is not necessarily fit for purpose in the digital environment." You can see the Presidency Paper Enforcement of intellectual property rights here.

A US judge has ruled in favour of director James Cameron, Twentieth Century Fox and Lightstorm Entertainment, finding that it could not be proven that they used copyrighted work for the 2009 blockbuster “Avatar” copied from the artist Roger Dean, a respected artist and designer who designed the iconic artwork for many Yes, Budgie, Uriah Heep and Asia albums, as well as albums for the London Symphony Orchestra and the London Philharmonic . We covered this story back in July 2013 in our blog Tales From Topical Oceans  


Dean had argued that  "the overall look and feel of [the Avatar world] Pandora substantially resembles a Roger Dean world in that Pandora's most striking and memorable features are those created by the Plaintiff"  Now United States District Judge Jesse M. Furman, in the Southern District of New York, has dismissed the suit by Dean saying "The works are indisputably similar insofar as they present the natural world in a fantastical way by depicting airborne land masses. But Plaintiff does not have a monopoly on the idea of floating or airborne land, an idea that has been around since at least 1726, when Jonathan Swift published his classic Gulliver's Travels" and the judge also poitnted to Led Zepplin's album Led Zepplin IV and the track Stairway to Heaven, adding "Suspending a landmass is a predictable — if not common — way to make a vista more sweeping, breathtaking, and fantastical, and is plainly subject to both the principle that ideas are not protected and the doctrine of scènes à faire. Put simply, Plaintiff cannot copyright the idea of levitation, a trope often used to suggest a magical or fantastic realm, cf. Williams, 84 F.3d at 589 (“[P]lacing dinosaurs on a prehistoric island far from the mainland amounts to no more than a scene a faire in a dinosaur adventure story.”), and a common feature of films utilizing three-dimensional technology, such as Avatar. Led Zepplin's Stairway to Heaven is subject to a quite separate copyright claim brought by the estate of Randy California, formerly of the rock band Spirit and who wrote the track 'Taurus' which it is alleged forms the basis of the later Stairway to Heaven. Led Zepplin have moved to have the suit dismissed

Bono (c) 2011 Glastonbury Festivals Ltd (Denis O'Regan)

It seems that Apple's relationship with U2 goes much beyond the much criticised automatic donation of the whole new U2 album Songs of Innocence to Apple iTunes users - whether they wanted it o not: It seems Bono and the band have also developed a piracy resistant music platform with Time magazine writing: "[Bono] hopes that a new digital music format in the works will prove so irresistibly exciting to music fans that it will tempt them again into buying music - whole albums as well as individual tracks. Apparently "It might just save the music industry". Hooray to that. Apple already has a Pandora-style service operating in the US called iTunes Radio and more recently invested $3 billion in Beats Music which included a fledgling streaming service.

Iggy Pop (c) 2007 Glastonbury Festivals Ltd

Another star, Iggy Pop, is taking a different tack. He will present the 4th annual John Peel lecture and Mr Pop's topic is "Free Music in a Capitalist tSociety" which takes place in Salford between 13-15 Oct and which sounds like fun  The talk will air live on BBC 6 Music and  will be on BBC4 on Sunday the 19th October. 

the WhoSampled app is now available for Android-powered phones from the Google Play store, enabling Android phone users to track what music has influenced and informed current tracks. The app, already available for iPhones,  "provides detailed information on songs, including what other songs have sampled them, what artists have covered music from other artists, and what remixes were then made for a track - WhoSampled allows users to explore the musical connections in their own music collection".

The U.S. Copyright Office is understaffed and could face additional strains in the future, according testimony by the head of the Office. Maria A. Pallante has brought up the staffing concerns to Congress before, and in prepared testimony for a House Judiciary subcommittee hearing she said that the office’s staff is “smaller than it should be to carry out the volume and complexity of work prescribed by Title 17.” The office has 360 full-time employees, she writes in her testimony. The most pressing concern, according to Pallante’s testimony, is the number of registration staff -  she has forty-eight vacancies out of a staff of 180 experts - and about 25% of the registration specialists remaining are approaching 
retirement.

Grand Rapids lawyer John J. Bursch, who represents the estate of Sir Arthur Conan Doyle, is hoping he can convince the U.S. Supreme Court to protect the copyright surrounding the author’s most famous character - Sherlock Holmes. Bursch, a partner with the Grand Rapids law firm of Warner Norcross & Judd, is leading a team of attorneys that hopes the Supreme Court will grant a hearing in the copyright dispute between the Doyle estate and Leslie Klinger, the author and lawyer, who wants to use the Sherlock Holmes character in a book he has written. Bursch opines “The estate of Sir Arthur Conan Doyle absolutely has the right to protect the copyrights of the Sherlock Holmes character,”  arguing that Doyle’s stories are still protected under the 1919 copyright law that preserves an author’s copyright for 95 years. Doyle published his last of the 'in copyright' ten Sherlock Holmes  (with Dr Watson) stories in 1927 so the Estate argues that the character of Sherlock Holmes and all related copyright elements remain protected until 2023, drawn from the date upon which the final story published by Sir Conan Doyle enters the public domain (The Case-Book of Sherlock Holmes 1921-1927). Bursch said that conflicting rulings by several federal appeals courts made the case ripe for the Supreme Court’s consideration. The Doyle Estate is understandably keen to maintain it's licensing income from the characters and all of the famous detective in books still in copyright and any use in movies and television shows: on the other had Klinger has successfully argued he does not need to seek their permission prior to publication (unless he was actually using detail from the final ten books still in copyright). Bursch adds “This lawsuit affects so much more than 10 Sherlock Holmes stories,” Bursch told Michigan Live “Other affected characters include such treasures as A.A. Milne’s Winnie the Pooh, Dr. Seuss’ Cat in the Hat, Ian Fleming’s James Bond, DC Comics’ Superman and many others.” In June this year the US Court of Appeals for the 7th Circuit issued its decision in Leslie Klinger v Conan Doyle Estate, in which upheld the decision of the US District Court for the Northern District of Illinois - Eastern Division that Mr Klinger was free to use material in the 50 Sherlock Holmes stories and novels that are no longer protected by copyright. In that decision Judge Richard Posner recalled the decision in Silverman v CBS, in which the 2nd Circuit held that when a story falls into the public domain also its story elements - including its characters - do. Also in June, Supreme Court Justice Elena Kegan refused to issue a stay to prevent the Holmes stories from officially entering the public domain.

And finally, over on the IPKat Jeremy has a an update on Yoda - no, not the diminutive jedi knight from Star Wars but the newly proposed You Own Devices Act. Towards an Electronic Devices Flea Market in the Cloud? YODA says…YES! tells us that U.S. Representative Blake Farenthold (R-TX) announced last week that he has introduced a bill in Congress, the You Own Devices Act (YODA), which would amend Section 109 of the Copyright Act by providing that the first sale doctrine applies to any computer program enabling a machine or another product to operate. If YODA is enacted, owners of electronic devices would no longer be barred from selling them by the companies which manufactured the devices, as they claim that the software needed to operate the device was not sold, but licensed to the first buyer. Companies are doing so as they claim copyright ownership in the software. And more on Yoda (yes the software one) here.

Roger Dean v James Cameron: You decide!

and then we have that Led Zepplin cover, Angel Island from Sonic the Hedgehog and Gulliver's Laputa ........

And whose flying Lizards anyway?

More Roger Dean album covers here. Dean sought to introduce anonymous Internet commentary to support his claim for infringement and the similarities between a plaintiff's artwork and the colourful flora and fauna featured on Pandora in the hit movie Avatar but the judge held this to be “irrelevant" saying that a substantial similarity inquiry focuses on the works themselves and not on public discussion of those works and that the only relevant inquiry was whether, as a whole, there was a substantial similarity between Avatar and the protectable elements of Dean's paintings. From a straw poll of comments on the Yesfans website and a number of gamers websites  - most seem to think Avatar IS, on balance,  at least influenced by Dean and many think it is a 'rip off' - but the gamers are more open and don't think Dean has a monopoly on floating islands, stone arches and flying lizards. More on the decision here .

Copyright Wars on a bigger battlefield

In June 2012 this blog reviewed Hollywood's Copyright Wars: from Edison to the Internet, by Peter Decherney.  A new set of copyright war stories has now been published, The Copyright Wars: Three Centuries of Trans-Atlantic Battle. Its author is Peter Baldwin (Professor of history at the University of California, Los Angeles, Global Distinguished Professor at New York University and author of the captivatingly titled The Narcissism of Minor Differences: How America and Europe Are Alike).  The two tomes should be expected to have some common ground, since both deal with Hollywood, but the battlefield in this volume, as its title suggests, is considerably wider.

This blogger has not yet seen a review copy, so he quotes from the publishers' website:

Today’s copyright wars can seem unprecedented. Sparked by the digital revolution that has made copyright—and its violation—a part of everyday life, fights over intellectual property have pitted creators, Hollywood, and governments against consumers, pirates, Silicon Valley, and open-access advocates. But while the digital generation can be forgiven for thinking the dispute between, for example, the publishing industry and Google is completely new, the copyright wars in fact stretch back three centuries—and their history is essential to understanding today’s battles. The Copyright Wars—the first major trans-Atlantic history of copyright from its origins to today—tells this important story.

Charles Dickens

Peter Baldwin explains why the copyright wars have always been driven by a fundamental tension. Should copyright assure authors and rights holders lasting claims, much like conventional property rights, as in Continental Europe? Or should copyright be primarily concerned with giving consumers cheap and easy access to a shared culture, as in Britain and America? The Copyright Wars describes how the Continental approach triumphed, dramatically increasing the claims of rights holders. The book also tells the widely forgotten [by some, perhaps, but not by anyone who has taken an interest in Charles Dickens] story of how America went from being a leading copyright opponent and pirate in the eighteenth and nineteenth centuries to become the world’s intellectual property policeman in the late twentieth. As it became a net cultural exporter and its content industries saw their advantage in the Continental ideology of strong authors’ rights, the United States reversed position on copyright, weakening its commitment to the ideal of universal enlightenment—a history that reveals that today’s open-access advocates are heirs of a venerable American tradition.

Published by Princeton University Press, the book's web page is here.

Extended copyright licensing: the MOCA survey

Coffee and Copyright: both
start with "C" and both can
be pretty good stimulants ...

The MOCA, which is a short-hand way of saying "The Ministry of Copyright, Cultural, Creators' Assets", is not actually a government department -- though this blogger would be happy to know that an official agency of that name existed if it could be guaranteed to look after the interests of creators.  Nor is it a mis-spelled Arabian coffee bean or the homophone of a popular chocolate-flavoured coffee drink.  Rather, it is a highly specialised consultancy agency that offers over quarter of a century's expertise and media industry advice on copyright policy and legislation, rights management and business development.  Be that as it may, MOCA has taken to heart the need to enlighten the creative community as to the consequences of some significant legislative changes in the United Kingdom.  As the organisation explains:

"By October this year copyright legislation [in the United Kingdom] will change so that authorised legal entities will be able to reuse and collect payments for re-use of creators' works even if they are not members of a collecting society. This change in legislation (ECL [= Extended Copyright Licensing, explained by the UK government here]) will affect all creators in the UK whether they have published their works or made these available via social media sites. Creators who are not happy with this arrangement will have the opportunity to opt out (a) all schemes prior to an ECL commencement or (b) specific licences which may or may not contain your work within 21 days from the published notice".

With this in view, MOCA is running a voluntary independent survey to give everyone an opportunity to have their say about ECL, what they would expect of an Opt-Out procedure and how they think it may affect their business. All information gathered from this survey will be reported back to relevant parties such as rights holders, collecting societies and to the UK Intellectual Property Office. This questionnaire should take less than five minutes to complete.

The closing date for submitting surveys is 25 October 2014. If you are affected by ECL, if you think that you might be, or if you have any friends, family, acquaintances or household pets who might be, do please let them know about it.

Berne leniencies: now it's Bangladesh's turn to opt for them

The trend towards making use of the relaxations of copyright, provided by the Berne Convention's 1971 Appendix, continues. By Berne Notification No. 269: Berne Convention for the Protection of Literary and Artistic Works we learn that Bangladesh is following in the recent footsteps of Thailand, Vietnam and the UAE (Yemen having also renewed this facility). For those who enjoy the pomp and circumstance of formal diplomatic circumlocution, the notification reads like this:

Declaration by the People's Republic of Bangladesh

The Director General of the World Intellectual Property Organization (WIPO) presents his compliments to the Minister for Foreign Affairs and has the honor to refer to the deposit by the Government of the People's Republic of Bangladesh, on February 4, 1999, of its instrument of accession to the Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886, as revised at Paris on July 24, 1971 (see Berne Notification No. 200).

In this respect, the Director General has the honor to notify the deposit, on September 5, 2014, by the Government of the People's Republic of Bangladesh of the following declaration:

- "Pursuant to Article I of the Appendix of the Paris Act of the Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886, as revised at Paris on July 24, 1971, this state will avail itself of the facilities provided for in Articles II and III of the said Appendix during the 10-year period that will expire on October 2024."

The said declaration shall enter into force, with respect to the territory of the People's Republic of Bangladesh, on December 5, 2014.

To remind readers, Article II of the Appendix deals with leniences in relation to the translations of certain works, while Article III deals with leniencies in regard to reproductions.

In Brussels and interested in EU copyright law and policy? Here's an event for you

Aww ... is there anything more wonderful 
than discussing EU copyright in Brussels?

Can you think of anything more exciting than EU copyright law and policy? It's hard indeed, but the task becomes clearly impossible when it comes to discussing it where everything happens (at least policy-wise), ie Brussels.

This is why on Tuesday 28 October I am organising a new event entitled The wonderful life of EU copyright law and policy, hosted in the Brussels offices of superstar law firm Allen & Overy.

The focus of this seminar  will be on recent judicial, policy and legislative activity in our beloved EU copyright world.

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

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

Topics will include:

• CJEU case law from the past year, including Case C-170/12 Pinckney, Case C-355/12 Nintendo, Case C-466/12 Svensson, Case C-351/12 OSA, Case C-314/12 Telekabel, Case C-435/12 ACI Adam, Case C-360/13 PRCA, Case C-201/13 Deckmyn [the latter will be discussed in great detail by Allen & Overy's chairman of the Global IP Group, Geert Glas], Case C-117/13 Ulmer.
• Impact of CJEU case law on national copyright laws, with a special focus on exceptions and limitations.
• Policy activity of the EU Commission, including the Public Consultation and the relevant Responses, and the leaked draft Impact Assessment and White Paper.
• Directive 2014/26/EU and the future of collective rights management.
• What to expect next, especially at the CJEU and Commission levels. 

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

For further information and registration, click here.

Could Ladybird bring the first parody challenge?

Conceptual art ?

Back in March we reported that artist, comedian and writer Miriam Elia was facing the potential of a copyright action from the book publisher Penguin after she self published here own spoof version of a 'Ladybird' Book -  which she titled 'We Go To The Gallery' - exploring modern art where the traditional characters of Mummy, Peter and Jane grappled with Tracey Emin-style conceptual art. One page, 'God Is Dead', depicts an empty room, in which Mummy introduces the children to a severe form of Nietzschean nihilism, whilst another page pokes fun at the giant inflatable animals that the artist and former Wall Street commodities broker Jeff Koons is famous for.  In the 1960s and 1970s Ladybird's Key Words Reading Scheme (launched in 1964) was heavily used by British primary schools, using a reduced vocabulary to help children learn to read. This series of 36 small-format hardback books presented stereotyped models of British family life – the innocence of Peter and Jane at play, Mum the housewife, and Dad the breadwinner. Many of the illustrations in this series were by Harry Wingfield and Martin Aitchison. The image and text above is from Elia's spoof. 

Whilst we suggested in March that Penguin hadn't been too heavy handed - a reported 15 page legal letter and several thousand pounds in legal costs for Elia perhaps suggest otherwise: And the Times (15.09.14) updates us on the spat. It details that Elia self published 1,000 copies of We Go to the Gallery selling at £20 each. The book contained collages made from scenes cut from old Ladybird books, and also contains the artist's own work. In March it seemed Penguin had allowed Elia to sell at least some texts - it seemingly said that it would allow her one month to sell enough books to cover her costs, but any more of the self published book have to be destroyed. Elia has now said she found the legal threats 'terrifying". It seems she spent three and a half months in correspondence and hired a lawyer - but realised that less was more - the the best (and cheaper) way forward was to 'stop responding' to lawyers letters . On their part, Penguin said "we take our copyrights and trade mark rights very seriously - not least around our Ladybird brand, which has been developed over many years to help very young children read".

This might help your child read English

Back in March we said that it was "interesting to consider what difference will the new UK planned exception for parody and pastiche will add to this scenario - from this blogger's perspective certainly an arguable defence". Well, it seems Elia has now made some changes to the book to take advantage of that very defence for parody which comes into play on the 1st October in the UK. The children are now called John and Susan, and the LadyBird logo has been replaced with a dung beetle. However, the question remains, will that be enough for Penguin? Of course parody has much been on the mind of the 1709ers: Case C-201/13 Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen and Others was a keenly-awaited decision which went some way to explaining how the InfoSoc Directive exception for the purpose of caricature, parody or pastiche should be applied in Europe:  The Court of Justice for the European Union noted that ‘parody’ must be defined in accordance with its usual meaning in everyday language and also found that a parody need not display an original character of its own, other than that of displaying noticeable differences with respect to the original work parodied saying "the only, and essential, characteristics of parody are, on the one hand, to evoke an existing work while being noticeably different from it and, on the other, to constitute an expression of humour or mockery 

In addition The CJEU also held that that the application of the exception for parody must strike a fair balance between, on the one hand, the interests and rights of authors and other rights holders and, on the other, the freedom of expression of the person who wishes to rely on that exception: the media release at the time explained "If a parody conveys a discriminatory message, a person holding rights in the parodied work may demand that that work should not be associated with that message". It is for national courts to balance interests.

This is NOT about rioting

The United Kingdom's Intellectual Property Office's March 2014 guidance on the new exceptions explains that fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work, and has this to say:

The words “caricature, parody or pastiche” have their ordinary dictionary  meanings. In broad terms, parody imitates a work for humorous or  satirical effect, commenting on the original work, its subject, author, style, or some other target. Pastiche is a musical or other composition made up of selections from various sources or one that imitates the style of another artist or period. A caricature portrays its subject in a simplified or exaggerated way, which may be insulting or complimentary and may serve a political purpose or be solely for entertainment.

and

It is important to understand, however, that this change in the law only permits use for the purposes of caricature, parody, or pastiche to the extent that it is “fair dealing.” Fair dealing allows you only to make use of a limited, moderate amount of someone else’s work

Not usually Ladybird topics .......

So will Elia be able to successfully avail herself of the defence? The CopyKat suspects she will, but to an extent it's virgin territory in the United Kingdom. And it may not be the only test - it remains to be seen how far authors and publishers will allow themselves to be be pushed before they push back. The CopyKat has recently fallen for the charms of that FaceyBookie platform, and it was here he also spotted a link to a rather witty June 2014 posting on a blog called BAG OF DELIGHTS which is also a series of LadyBird spoofs ....... including book 'titles' such as 'Hot Dads', 'The Futility of Existence' and 'Blackmail'. Is this another spat waiting to happen or will Penguin allow this one to pass? That the titles 'Timmy's First Riots' or 'Bombs Made Easy' could ever be in any way be confused with 'Helping at Home' and 'Things We Like' and  'Kings and Queens' seems the most unlikely scenario imaginable. The images are another matter.

In Deckmyn, AG Cruz Villalon referred to "burlesque intention" as a requirement of parody. 
However, when considering the effect of a parody, he held that it is a common understanding that a parody must have a somehow humorous effect, and that it is left to (seemingly the courts) Member States to define what is humorous, also depending on different national sensitivities.  With a near blank slate, the English courts will need to look carefully at the parodied work and the rights of those whose work is parodies: what's funny, or what's not funny, might be a harder nut to crack. And will be interesting to see how moral rights  - the Section 80 CDPA author's right not to have his or her work subjected to derogatory treatment - might dovetail into any deliberations. Eleonora recently blogged about this over on the IPKat under the self explanatory header "Has the CJEU in Deckmyn de facto harmonised moral rights?". Of interest perhaps to Ladybird (or Ladybird authors) is the position in other EU states: In France the author has the perpetual right “au respect de son nom, de sa qualité et de son oeuvre” although other droit d’auteur countries (eg Italy) qualify the right of integrity by limiting it to distortions, mutilations or any other alterations prejudicial to the author’s honour or reputation. German law provides that alterations to a work that the author cannot reasonably refuse shall be permissible. Of particular interest might be the observation that in France parodies [subject to a specific exception under Article L-122-5 No 4 of the Code de la propriété intellectuelle] must be transformative and not harm the legitimate author, whether economically or morally. The article is well worth a visit as courts in the UK begin to come to terms with the reality of this new exception.

Will Ladybird be first to test this? Elia's work made me chuckle and the Bag of Delights titles are, to me, very amusing indeed. It may be that Ladybird chose a trade mark action before copyright in light of the new exception - even with a dung beetle now replacing the Ladbird logo - at least in Elia's tome. Time will tell.

For those interested in parody and all things locked in the 1970s can I recommend writer and designer Richard Littler's Scarfolk Council's facebook pages - the collection of erotic, submissive Christian/religious albums is an eye opener.