THE COPYKAT

1)    YouTube in the NEWS

In the last fortnight, there have been a couple of extremely interesting developments in the copyright regime operated by the online video platform YouTube.

Firstly, YouTube has taken a step to forbid manual claims by copyright holders and specifically record companies, which is done to claim revenue upon videos including extremely short music clips or “unintentional music.” Inculcating the importance of quantitative content in a video, YouTube in a blog post has revealed this change. The reason provided for the same move reads: “These claims can feel particularly unfair, as they transfer all revenue from the creator to the claimant, regardless of the amount of music claimed.” However, although manual claiming of money has been restricted, the ability to block or disable putting ads on videos using the manual claims tool will still exist. YouTube has gone on to acknowledge that in the short run, this might result in a lot more videos being blocked, however it is pragmatically focussing on the long term impacts. Even “Timestamps” to recognise exactly which part of the video is infringing have been brought in place for all manual claims, for invoking copyright claims in a balanced and fair manner. As reported by Variety, if YouTube creators feel that their use of unlicensed content falls within the fair use bracket, they can always dispute the same in the service’s appeals process.

Now, Secondly, YouTube has resorted to the DMCA to take action and file a suit against a major alleged copyright troll whi they have identified as one Chris Brady, and who YoTube says has been making extraneous and illegitimate copyright claims. The basis of the complaint is that Brady has taken aim at the Minecraft gaming community, alleging several infringing claims against two users - not only to extort money - but to allegedly slander as well as part of the 'trolling'. It has apparently been also reported that these copyright takedown notices were allegedly abusive and involved an element of blackmail wherein the message read that the YouTuber ought to pay Brady 150 $ via PayPal, or another copyright strike would take place. This information was conveyed to YouTube after multiple efforts, finally through another video, upon which YouTube has restored the videos and filed a suit against Bardy. A false accusation suit has been filed. Upon being enquired, as reported by The Verge, YouTube has released a statement that: “We regularly terminate accounts of those that misuse our copyright system. In this case of particularly egregious abuse, where the copyright removal process was used for extortion, we felt compelled to pursue further legal action and make it clear that we do not tolerate abuse of our platform or its users.” An issue highlighted in this system of YouTube is the focus of scrutiny on the accused rather than the accuser. The assumption is an extremely good faith oriented one that focusses on every takedown request being legitimate. It is imperatively needed that a balanced approach is followed for proper implementation of the Copyright system on such vulnerable intermediary platforms.

2)    Meanwhile, Spotify catches the attention of the Copyright world, yet again

There have been two recent occasions when Spotify has hit the (legal) news - and the music streaming platform been on both sides of a lawsuit concerning copyright.

Firstly, on the plaintiff side Spotify filed their appeal, joining Amazon, Google and Pandora, on the Copyright Board’s decision regarding the rates to be paid to sing writers and music publishers under the mechanical rights regime, by digital platforms. The challenge is at its core upon the decision which increases the per song royalty rate from 10.5% to 15.1%. This increase has been brought in the first place to harmonize, to some extent, the American policy, to the prevailing international normative practice followed by various copyright societies. This move has been subject to fair amount of criticism due to the songwriters claiming inadequate payments for exploitation of their creative endeavor. In an attempt to negate the criticism, Spotify and other digital streaming companies have resorted to being okay with the rate change, however, have claimed procedural misconduct on the part of CRB. The core of the claim is on the ground of lack of stakeholder consultation and cross-evidence provision, and not the rate in principle. Further, the publishers have argued that merely offering family plan discounts or student ones do not support the proposition of low willingness to pay for streaming music. It will be interesting to see how the appeal court approaches this. Read more here.

Now, Secondly, and on the receiving end of a law suit, Spotify, as reported by Variety, has been sued by Eight Mile Style, the publishing company that hollds the rights to Eminem’s earlier works, for copyright infringement. The major claim revolves around the unlicensed exploitation and streaming of 250 of Eminem’s songs. It has alleged Spotify to have paid a mere fraction of the payments properly  due and have remitted such without any license in place. Further Spotify has also been alleged to have mischievously concealed the accreditation of certain well-known songs like “Lose Yourself” claiming inability to trace Copyright holder. Further, an obligation to live up to the responsibilities provided under the Music Modernization Act was emphasized upon, which was not fulfilled by Spotify in the present case. To claim a liability limitation under the Music Modernization act, it is imperative for Spotify to have not known the copyright owner of the composition or the work was unmatched with previous sound recordings, after proper due diligence. This also has been alleged to not have been complied with, in the suit.

3)    US Dept. of Justice release Amicus Brief in favor of Led Zeppelin in infamous Copyright Suit

Analyzing the 'thin' copyright provision in the US, the US Deptartment of Justice, giving reasons akin to that of the trial judge, sided with Led Zeppelin in the Stairway to Heaven case. previously covered here and here against Randy California, the now deceased songwriter with the band Spirit. Under old US law (the 1909 Copyright Act), sound recordings weren't conferred protection. Songs were, and pre-1978 unpublished works would be as represented by sheet music.  The song at the centre of the copy claim, Taurus, was written by California in 1968. And so surely all that could be used at the trial to determine infringement (or not) was the sheet music? The trial judge concurred.  On appeal, the 9th Circuit then decided that the sound recording should have been played plus held that the jury was improperly advised about unprotectable music elements and standards of originality. But the new opinion relies on the fact that prior to 1972, it was only sheet music that was covered under copyright and audio recording need not be heard by the jury to find out whether there was an infringement or not. The “thin” copyright protection has been emphasized upon. The DoJ's  amicus brief goes on to claim that the Ninth Circuit was wrong to overturn the finding of the lower court which stated the compared compositions to not be sufficiently similar for copyright infringement. The U.S. government explains that "even if deposit copies do not capture all details of a composition, they generally include the elements of a song, such as the melody and lyrics, that are of most importance to the copyright owner. Failure to incorporate elements such as these in the deposit copy would reflect a failing on the part of the copyright owner or its agent, not an insurmountable obstacle imposed by the statutory scheme." The Amicus Brief argues that the only similarity between the allegedly infringing work and the original is the selection and arrangement of two basic musical elements: an A minor chord and a descending chromatic scale. These have argued to not substantially be the base of the challenge as a small standard selection and arrangement gets a fairly thin copyright protection due to the “creative” standard of Originality being prevalent in the United States. Virtual Identicality needs to be proved, which has not been done in the present case according to the brief. This interpretation as a friend of the court has consciously been taken up the DoJ in order to foster intentional and sound interpretation of copyright laws. It will be interesting to see the force of this brief when ultimately deciding the case, for the second time. The amicus brief can be found here.

4)    Victory for Universal Studios in “Nightcrawler” Copyright Case

As reported by the Hollywood Reporter, a Utah Federal judge delivered a summary opinion in the 4 yearlong copyright case  dealing with the film Nightcrawler, wherein the accused Oscar winning writer director Dan Gilroy, was alleged to have plagiarised a work by Richard Dutcher called Falling. The judge devised an important precedent recognising certain scenes a faire elements in films and eradicating the same from the scope of the analysis of any copyright infringement. In the opinion, the District Judge held that to establish a copyright claim there are two separate enquiries to be undergoneL The first is whether the defendant factually copied portions of plaintiff’s work, and second being those expressions that have been copied are protectable expressions and important to the copied work, citing Gates Rubber Co. v. Bando Chem. Indus Ltd. It is imperative for protected elements to be copied. The abstraction test requires separation of non-protectable ideas and then warrants a mere comparison of the protectable elements.  Here the court looked at what elements were “standard, stock, or common” to the stringer (newsman) profession and material that necessarily followed from that theme and setting (citing Autoskill 994 F.2d 1494). The court held that Falling is not the first film to portray stringers in action and on a review of previous stringer films, it was found that there were no independent claims in Falling that did not exist state of the art. The court held the similarities between Falling and Nightcrawler were (primarily) due to both focussing on the role of the Stringer. Apart from these generic similarities, the court held the plots to be quite different. The court also held the cliché journalistic phrases found in Falling as non-protectable and were scenes a faire expressions. After deducing these elements, the court used the ordinary observer test to eradicate infringement claims, holding the aesthetic appeal to be different.

This CopyKat from Akshat Agrawal

THE COPYKAT

The United States Copyright Office has chosen the Mechanical Licensing Collective (MLC) as the new entity tasked with licensing and administering rights under the Music Modernization Act. The MLC is seen as the 'establishment choice' in the music rights industry and  is backed by the National Music Publishers’ Association (NMPA), the Nashville Songwriters Association International (NSAI), and the Songwriters of North America (SONA). Music Business Worldwide reports that One of the group’s first tasks will be the negotiation of a budget with streaming services who, by law, must fund the collective. It will also include setting up administration and matching services and development of a user portal through which publishers and songwriters will be able to manage rights and royalties. If a funding agreement cannot be voluntarily determined, the MLC and the digital services will go before the Copyright Royalty Board which will set the MLC’s budget through an assessment proceeding.

GMA reports that Japan's Bureau of Immigration (BI) has arrested a fugitive who is said to be one on Japan's "most wanted" list - for copyright infringement. the BI press release says that Romi Hoshino alias Zakay Romi, a Japanese-German-Israeli fugitive, was arrested at the Ninoy Aquino International Airport Terminal 3. The BI said Hoshino, 28, manages "Manga-Mura," allegedly an illegal viewing website of Japanese comics or graphic novels, popularly known as manga, that operated from January 2016 to April 2018. n what is said to be the worst violation of Japan's copyright law, Manga-Mura's operation allegedly cost 320 billion yen or US$2.9 billion in damages, the Bureau reported, citing Japanese authorities.

BoingBoing reports that attorney John Steele, one of the Prenda law copyright 'trolls', has been  sentenced to 5 years in prison. Last month, Paul Hansmeier was sentenced to 14 years in prison and ordered to pay $1.5m in restitution for his role in the firm that BoingBong says "used a mix of entrapment, blackmail, identity theft, intimidation and fraud to extort millions from its victims by threatening to drag them into court for alleged infringement of copyright in eye-watering pornography". Steele cooperated with authorities, while Hansmeier fought the system for longer before entering a plea. Like Hansmeier, Steele has to pay $1.5m in restitution. Both men have also been disbarred. Hansmeier is appealing both the conviction and the sentence. In August 2015 a third Prenda law attorney, Paul Duffy, died. Along with Steele and  Hansmeier, Judicial sanctions had been upheld against him by the US Court of Appeals for the Seventh Circuit for engaging in “abusive litigation” and failing to pay attorney's fees in a porn-downloading lawsuit. In June that year US District Judge David Herndon ruled that Steele and Duffy had "engaged in unreasonable, willful obstruction of discovery in bad faith" in its case. 

And whilst on the fruity topic of trolls, The Electonic Frontiers Foundation has warned that the new Copyright Alternative in Small-Claims Enforcement (CASE) Act would "supercharge" a “copyright troll” industry. IPPro reports that  The CASE Act aims to make it easier for independent creators to better defend their IP from theft, and was proposed in May by Democrat congressman Hakeem Jeffries and Republican Doug Collins - and it has had wide support from the creative industries, in particular photographers and songwriters, musicians and artists. But the EFF argues that the bill would increase the number of trolls filing “many ‘small claims’ on as many internet users as possible in order to make money through the bill’s statutory damages provisions”. Under the bill, the US Copyright Office would gain a Copyright Claims Board, which would reduce costs and easing the burden for creators defending their intellectual property. The legislation would allow the Copyright Office to create a determination process for claims seeking up to $5,000 in damages which the EFF suggest is a "most trivial nod towards due process”. There again, many in the creative sector argue that the CASE Act "addresses a decades-old inequity in America's copyright system: a copyright system that all too often denies individual creators and small businesses a viable means of protecting their creative efforts. When it passes, the bill will give smaller individual creators the same kind of protections that larger scale creators have enjoyed for years."

YouTube has been updating its ways of handling copyright claims with changes that give the owners of the copyrighted content more control over their content - much to the horror of some YouTube users and creators who use other people's content in their work. - but to the delight of others. Digital Information World says "With the new policies, owners of any copyrighted content will now exactly mention the part in the video where the copyrighted material appears. With this feature, they can easily verify whether the claim is legitimate or not and to edit out the content if they don’t want any issues like losing revenue or having the video taken down. With this new update, the whole system will be more clear and very smooth to operate. Video creators will be able to see the part that’s been claimed, and YouTube will allow them to mute the audio during that portion or to easily replace the audio with any free-to-use song from YouTube’s library. If they chose any of these options, the copyright claim will automatically be removed." In February The Verge reported that an anonymous blackmailer has caught at least two YouTube creators in a scheme involving cash ransoms and "esoteric copyright laws". Both creators shared stories of how their channels were being threatened with a third copyright strike — and the possible termination of their channels — from an anonymous extortionist. The scammer offered to reverse the strikes in return for payment to a bitcoin wallet or to an adjoining Paypal account. YouTube now requires copyright owners to provide timestamps for all new manual Content ID claims.  and YouTube said in a blog post that it’s going to be vigilant about policing false claims: “We’ll be evaluating the accuracy of these timestamps. Copyright owners who repeatedly fail to provide accurate data will have their access to manual claiming revoked.”

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?

What's all the fuss about? It's those EU copyright reforms

Following on from previous CopyKats, the noise around the proposed changes to EU copyright law has reached a crescendo - and it's not just the tech giants and content behemoths who are lobbying at all levels, the former against changes, the latter very much in favour of the main changes in the Directive for Copyright in the Digital Single Market (known as Copyright Directive) which was approved by the European Parliament's Committee on Legal Affairs on the 20th June 2018.

The most controversial provisions are in the current draft of Article 13, which requires internet platforms to perform automatic filtering of the content that their users have uploaded. As the CopyKat reported, a group of over 70 internet leaders including Vint Cerf and British physicist and computer scientist Tim Berners-Lee.addressed Members of the European Parliament (MEPs) by sharing their concerns regarding the proposed text of the Directive. In their June 12th letter they said “Article 13 takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users” making the argument that this requirement goes against the previously established balance in the E-Commerce Directive and the ‘Safe Harbour’ provision in Article 15 of the InfoSoc Directive, where users uploading content are solely responsible for its legality, whereas platforms may be required to take down illegal content once it is brought to its attention. 

Julia Reda, Member of the European Parliament, (for the Pirate Party) agreed with the internet gurus, criticising the high error rate expected from the algorithms and the resulting blocking of content. Reda describes on her website a phenomenon called "Startup killer". And Reda suggests that the filters will be so complex that they can only be developed by the big US tech giants. Small companies and start-ups will not be able to afford the programming and so every small platform that offers user-generated content will have to acquire their filter system from the big players. Reda then suggests that this creates a monopoly for the likes of Google. 

Article 11 is the other main focus of attention. This would require of a new level of engagement between platforms and news creators and providers. Reda writes, "The automatic link previews social networks generate when users share links (showing the article headline, a thumbnail picture and a short excerpt) would require a license, as well as anyone analysing news content on the web like news aggregators, media monitoring services and fact checking services." This is the so called 'Link Tax'. Reda also claims that that Article 11 could limit freedom of expression and access to information, boost fake news, discourage startups and small publishers saying "Making it legally risky or expensive to link (with snippets) to news risks disincentivising the sharing of reputable news content. Since “fake news” and propaganda outlets are unlikely to charge for snippets, their content could as a result become more visible on social networks."

But Google, one of the leading lights in the battle against the proposed changes, has faced criticism. The Financial Times reports that Google has been accused of encouraging news publishers participating in its Digital News Initiative to lobby against proposed changes to EU copyright law at a time when the beleaguered sector is increasingly turning to the search giant for help. Google itself opposes the copyright directive, which it says would impede the free flow of information, and in a recent email to publishers suggested they contact members of the European Parliament to express their views. The search engine has developed close ties with publishers via its DNI programme, which provides support for digital journalism as well as innovation grants from a €150m fund. Angela Mills Wade, executive director of the European Publishers’ Council, said Google was trying to preserve the status quo. “It seems to be arguing for the news eco-system of today to continue,” she told the FT. “We feel that Google has largely created a news eco-system where it is apparently perfectly acceptable for companies to go around helping themselves to news media content for their own purposes.”

EU-based media organisations have hailed the Copyright Directive in a joint statement calling it “a crucial stand for the future of a free, independent press.” “The internet is only as useful as the content that populates it.” The statement also applauded Article 11, known as the “neighbouring right,” for “encouraging further investment in professional, diverse, fact-checked content for the enrichment and enjoyment of everyone, everywhere.”

So - who else is having a say? Well first off, a group of open science advocates have made the point that the new proposals will conflict with Europe’s principles of open science and freedom of expression. Vanessa Proudman, European Director of the Scholarly Publishing and Academic Resources Coalition (SPARC), a science-advocacy group in Apeldoorn, the Netherlands said “Copyright law must not hamper open science. The EU has made significant headway towards open access of research funded by European citizens. The proposed new rules would clearly impede further progress, threatening the visibility of Europe’s research".  Maria Rehbinder from the Association of European Research Libraries said “We really don’t want further paywalls on top of any research materials libraries have paid for already”. 

Prince

One of the high profile stories circulating the internet is that Article 13 would impact the creation and sharing of memes - not least as memes often use copyrighted images from popular films and TV shows. Global News reports "Pepe the Frog, the “Distracted Boyfriend” meme and Arthur’s balled-up fist are all under threat. So are reactions GIFs such as the one of a confused Zach Galifianakis, or the clip of Steve Carrell shouting ‘No!’ in The Office. EU lawmakers may inadvertently destroy the internet’s robust meme culture with a proposed law designed to fight online piracy. One article in the legislation would force online platforms such as Google, Facebook, YouTube and Twitter to automatically censor copyrighted content uploaded by anyone who isn’t licensed to share it." So called mash-ups and re-mixes have been given the same attention with their presumed demise highlighted. Matt made the point in the last CopyKat that a filtering and blocking system could lead to some major mistakes. Whilst the Dancing Baby vs Prince case is now settled, at the heart of that was ine question of whether the mother in question, Stephanie Lenz, could use fair dealing as a defence - or at least whether the rights owners (Universal Music took a lead) issuing the take down should have considered the doctrine before removing the video of the toddler dancing to Prince's music. As Matt argued "many mistakes will occur ....  a lot of content may be removed or blocked because of the system being unable to recognise what falls under exception or limitation, such as parody or quotation, and how they differ across the various Member States. Additionally, the proposed text by Commission and compromise texts of the Parliament and the Council does not contain any provision which will bring either clarity or consistency in defining “which Internet platforms would be required to comply with the provision, and which may be exempt”. 

AbovetheLaw give the example of  a simple mistakes - In 2013, Fox sent a take down notice against a book by Cory Doctorow because the book and one of Fox’s hit television shows shared the same name: Homeland. They add:  "Remember the Super Bowl ad Chrysler released this year, using the words of Martin Luther King, Jr. to sell a Dodge Ram truck? One viewer cleverly replaced the original audio of the ad, which highlighted the importance of service, with audio from another portion of the same MLK speech that instead criticized consumer culture, including a line calling out Chrysler by name. This version of the ad was flagged by YouTube’s content ID and taken down, but was later restored because it is obviously a fair use. The very fact that it was removed at all, though, demonstrates the inability of automated systems to determine whether a use is criticism, parody or some other non-infringing use."

Professorf Lessig

Back in August 2013 Lawrence Lessig filed a federal complaint after YouTube forced the Harvard University law professor and Creative Commons co-founder to take down a video of a lecture that featured people dancing to a copyrighted sound recording. Supported by the Electronic Frontier Foundation (EFF), Lessig said: “The rise of extremist enforcement tactics makes it increasingly difficult for creators to use the freedoms copyright law gives them. I have the opportunity, with the help of EFF, to challenge this particular attack. I am hopeful the precedent this case will set will help others avoid such a need to fight. The company who issued the take down issued an apology. 

“It’s a blunt instrument and it’s going to lead to lots of over-censorship,” Jim Killock, head of the U.K.-based Open Rights Group, told Global News. And he is not alone - numerous civil rights groups have pointed out that the proposed changes could be used to restrict freedom on the internet and could be used to censor content and sharing.   Communia, which advocates policies that expand the public domain and increase access to and reuse of culture and knowledge, and seeks to limit the scope of "exclusive copyright to sensible proportions that do not place unnecessary restrictions on access and use", issued a key recommendation to delete Article 13 from the proposal "as it addresses a problem that lacks empirical evidence confirming its existence. Article 13, as drafted by the Commission, would limit the freedom of expression of online users and create legal uncertainty that has the potential to undermine the entire EU online economy. As such it is unworthy of being included in a Directive proposal that is intended to modernize the ageing EU copyright framework".

InfoJustice was scathing on the automatic filtering proposals saying: "The upload filtering proposal stems from a misunderstanding about the purpose of copyright. Copyright isn’t designed to compensate creators for each and every use of their works. It is meant to incentivize creators as part of an effort to promote the public interest in innovation and expression. But that public interest isn’t served unless there are limitations on copyright that allow new generations to build and comment on the previous contributions. Those limitations are both legal, like fair dealing, and practical, like the zone of tolerance for harmless uses. Automated upload filtering will undermine both. What began as a bad idea offered up to copyright lobbyists as a solution to an imaginary “value gap” has now become an outright crisis for future of the Internet as we know it. Indeed, if those who created and sustain the operation of the Internet recognise the scale of this threat, we should all be sitting up and taking notice." 

Of course neither side wants to give ground: The recorded music sector's main lobby group, the IFPI, said Article 13 restores fairness to the digital market. It’s about looking out for workers in the creative industries, helping to secure them a future that is financially viable where we continue to benefit from their services" and a cross section of rights owners from the music, film, sports and television sectors (amongst others in the cultural and creative industries) have now sent a letter to MEPs pointing to "a cynical campaign from tech companies flooding the inboxes of MEPs with scaremongering that the copyright directive would be the end of the internet"  adding  "Please note that this is the 20th anniversary of their first claim that copyright provisions would break the internet. And it has never happened."

And the actual creators of music from across Europe are calling on MEPs to protect Europe’s status as a global hub for culture saying that the tech giants must pay fairly for content hosted on their platforms. Robert Ashcroft, Chief Executive of PRS for Music, said: “After three years of debate, one of the most controversial pieces of legislation ever to come before the European Parliament is about to go to the vote. This is about copyright and specifically about the rights of creators versus those of the Internet giants; it is about the way the Internet functions as a fair and efficient marketplace. It is a debate we must win if we want to secure our creative community into the next decade.” Jimbo Barry, producer and songwriter, known for co-writing hits for The Script, said: “I do worry about the sustainability of the professional music industry, as a songwriter. If copyright becomes free for the music that I write, and I don’t get paid in any sense for the music being used either on the radio or the platforms online, then logically, I won’t be able to sustain myself as professional. I hope that the fight for copyright for songwriters improves and that songwriters are just able to sustain the work that they love.

It will be left to MEPs to address the balance that is surely needed: “Creators and news publishers must adapt to the world of the internet as it works today” rapporteur Axel Vossn MEP said in a European Parliament Committee on Legal Affairs news release. “The Committee position aims to ensure that widely recognised and observed copyright principles apply to the online world, too.”

The legislation will now be debated in ‘trilogue negotiations’ where EU legislators and member states debate proposed legislation. The next plenary vote on the copyright review is due to take place on July 5th, and the final vote of the full plenary of the European Parliament is expected to take place in December. However, the decision of the JURI Committee which approved the proposed text, certainly increases the likelihood of Articles 11 and 13 becoming law - but it's going to be a battle!

https://www.techdirt.com/articles/20180613/00492240024/european-citizens-you-stopped-acta-new-copyright-directive-is-much-much-worse-speak-up.shtml

https://abovethelaw.com/2018/06/will-the-eu-adopt-new-copyright-rules-that-threaten-memes-remixes-and-mashups/?rf=1

https://www.theinquirer.net/inquirer/news/3034079/70-internet-leaders-write-open-letter-denouncing-eus-copyright-filter-plan

http://infojustice.org/archives/40070

http://knowyourmeme.com/memes/events/eus-copyright-reform-proposal-article-13

https://www.nature.com/articles/d41586-018-03837-7

https://www.ft.com/content/a8031d7a-78a0-11e8-bc55-50daf11b720d 
https://www.communia-association.org/2017/09/14/updated-position-paper-article-13-remains-terrible-idea-needs-deleted/

http://the1709blog.blogspot.com/2014/03/lessig-triumphs-in-fair-use-battle.html

https://www.dw.com/en/new-eu-copyright-law-will-upload-filters-destroy-the-internet-as-we-know-it/a-44354310

http://the1709blog.blogspot.com/2015/09/prince-and-universal-wrong-to-take-down.html

Disclosure: The author represents a number of rights owners. Any opinions expressed by the author in this article are personal.

The COPYKAT: from Fallout Shelters to your local library

These days, a cursory search for “copyright” online will likely result in one thing more than any other: headlines about the [insert scary adjective here] draft for the Directive on Copyright in the Digital Single Market. It’s certainly something to keep an eye on, and the CopyKat has covered the DSM Directive here and here. But in other copyright news…

Is Warner Bro's Westworld game a blatant rip-off?

Bethesda Softworks is suing Warner Bros. and Fallout Shelter co-developer Behaviour Interactive over the recently released Westworld. Bethesda Softworks alleges that not only is the mobile game based on HBO’s TV series a “blatant rip-off” of Fallout Shelter, but that it also uses the same code as Fallout Shelter. The lawsuit, filed on 21 June in Maryland District Court, is a civil action for breach of contract, copyright infringement, unfair competition, and misappropriation of trade secrets.

a scene from HBO's hit show, Westworld

The original Fallout Shelter was released in 2015 for mobile devices, and is now available for play on Nintendo Switch, Windows PCs, PlayStation 4, and Xbox One. Fallout Shelter is a free-to-play simulation game, which has in-app purchases, where players build and manage a post-apocalyptic bunker full of workers (Variety). The Westworld game, which is currently available only on Android and iOS mobile phones, allows players to manage a virtual replica of the  theme park from HBO's hit Westworld TV show. The mobile game also features an “underground facility” that is similar to the vault in Fallout Shelter.

Bethesda accuses Warner Bros. of copying “the subtle sway, bounces, and minute movements in idle characters that give them and the scene a constant sense of motion and a distinctive feel as a result of unlawfully copying Bethesda’s code.” With these common elements discussed above in mind, Bathesda asserts that “there is more than a substantial similarity between Fallout Shelter and the Westworld mobile game.” 

Of course, questions of inspiration can be argued either way. Importantly for Bethesda’s case, both Fallout Shelter and the Westworld game share the same developer: Behaviour Interactive. The company, which is Canada's largest independent video game development studio, is also a named defendant in the claim, which states: 

“Warner Bros., sharing a similar consumer demographic, and recognizing Bethesda’s significant success in bringing its Fallout Shelter game to a broad audience on mobile devices, engaged and collaborated with Behaviour to develop a mobile app for its own science-fiction property, Westworld. To bring the Westworld mobile game to market, Behaviour and Warner Bros. utilized Bethesda’s intellectual property without authorization to develop a mobile game with the same or substantially similar gameplay experience as that provided by the copyrighted Fallout Shelter mobile game.”

The evidence continues to stack in Bethesda’s favour, with the publisher pointing out that the Westworld game even included the very same bugs or defects that were present in the early development stages of Fallout Shelter. Bethesda, which also publishes the popular Fallout, The Elder Scrolls, and DOOM games, is seeking an unspecified amount in damages from Warner Bros., and to have the Westworld game removed from app stores.

Social network, media company, host provider, neutral intermediary... what's in a name for YouTube?

Austrian commercial TV broadcaster ProSiebenSat1Puls4 has achieved a key victory in its four-year legal battle with YouTube. According to the Handelsgericht Wien (the Vienna Commercial Court) in its judgement of 6 June 2018, YouTube is not a neutral intermediary, but is rather jointly responsible for copyright breaches that take place on its video platform.

Puls4, a private broadcaster affiliated with the major broadcasting group ProSiebenSat.1, accused YouTube of complicity in copyright infringement. In 2014, Puls4 sued YouTube, arguing that the media giant had allowed Puls4’s stolen content to appear on the YouTube platform. YouTube responded by asserting the Host Provider Privilege set out in Article 14 of the E-CommerceDirective, which in certain situations exempts host providers like YouTube from liability for infringing activities by their users.

Austria's former Chancellor Christian Kern appears on Puls4 TV.

It is important to remember that the Host Provider Privilege only applies if the entity in question indeed qualifies as a “host provider” within the meaning of the E-Commerce Directive. This means that YouTube would have to prove it (a) does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or (b) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

Speaking to German newspaper Der Standard, Puls4’s CEO Markus Breitenecker explained that if YouTube “leaves its neutral intermediary position and assumes an active role, which could provide it with a knowledge of or control over certain data, it cannot rely on the liability privilege in this respect. And that is exactly what has happened in this case.”

Although (as of 25 June) the official judgement has not been published, the court cited the YouTube’s “links, mechanisms for sorting and filtering, in particular the generation of lists of particular categories, its analysis of users’ browsing habits and its tailor-made suggestions of content.” This led the court to determine that YouTube was prohibited from “playing the role of a neutral intermediary.”

In a statement to The Local Austria, YouTube said it was studying the ruling and “holding all our options open, including appealing” the decision. Both sides have four weeks to petition the court before it issues its binding ruling. In the meanwhile however, YouTube noted that it takes protecting copyrighted work very seriously.

If the preliminary decision is upheld, YouTube must perform a content check upon upload, instead of simply removing copyright infringing content upon notification. In respect of this, the Viennese court stated that “YouTube must in future — through advance controls — ensure that no content that infringes copyright is uploaded.” YouTube began beta testing a feature called Copyright Match last month, which shows rights holders who have had their work stolen and lets them ask YouTube to delete the guilty party’s video.

Although Austrian case law is not binding for other EU member states, the Commercial Court’s judgment sets a precedent for denying Host Provider Privilege to YouTube under EU law. This may encourage similar decisions in the future which are based on the same line of argument.

As Breitenecker put it, “the media companies who call themselves social networks will have to recognize that they, too, have to take on responsibility for the content with which they earn their millions.” 

For creatives in California, a recent employment law case may raise concerns over copyright

A California court ruling from April has raised concerns regarding its potential impact on copyright ownership. In Dynamex Operations West, Inc. v. Superior Court of Los Angeles, the matter before the court was a wage dispute, which required the court to consider the standard to apply in determining whether workers should be classified as employees, or as independent contractors. 

Nowhere in the 85-page judgement is “copyright” or even “intellectual property” mentioned. 

However, in a state with so many media and software companies, the new ruling could affect whether a creator or a company gets to claim ownership as the original author of a work. In deciding if a worker is eligible for statutory employment protections, Dynamex replaced a complex multi-factor consideration with a simple three-part “ABC” test. Now, Californian companies are burdened with the requirement to prove that all three parts weigh against an employment relationship. 

What does this mean for copyright law? The rise of the gig economy, which is characterised by short-term contracts and freelance work, poses new questions for intellectual property ownership. To determine if someone is an employee for purposes of copyright authorship, American Federal courts currently use a test in the US Treasury Department’s Internal Revenue Service code. 

If, however, the courts start looking to the Dynamex case for guidance, people’s expectations might change. Speaking to Bloomberg Law, music industry lawyer Michael S. Poster explained: “If, under California law, a lot more people are going to be treated as employees rather than as independent contractors, chances are that a lot of their work product that they would have retained a copyright interest in might belong to their employer.” 

Although the Copyright Act of 1976 provides authors with initial copyright interests, under the work-made-for-hire doctrine, it is the employer that is considered to be the author. (Section 201(b)). On the other hand, if the author is an independent contractor or freelancer – rather than an employee – ownership is retained by the individual creator, unless there is a contractual agreement to the contrary. 

For participants in the gig economy, the Dynamex ruling could simply prompt media and software companies to hire fewer independent contractors, and instead only hire people as employees. Although the copyright implications of Dynamex are unknown, the decision underscores the need for employers and workers alike to ensure that any contract for services includes a carefully drafted intellectual property rights clause – especially for those in creative industries.

And finally, for those of us still using our local library…

The Digital Economy Act 2017 (Commencement No 6) Regulations 2018 (SI 2018/690) have passed and will come into force this week in England, Wales and Scotland. The regulations give effect to section 31 (lending of e-books by public libraries) of the Digital Economy Act 2017. This impacts the Public Lending Right scheme, which in the United Kingdom is a programme administered by the British Library intended to compensate authors for the potential loss of sales from their works being available in public libraries.

The new section amends the definition of "lent out" in the Public Lending Right Act 1979 (PLRA 1979) thereby extending it to “communication by means of electronic transmission to a place other than library premises.” Being “lent out” now captures the remote lending of e-books and audio-books, resulting in the extension of the public lending right under the PLRA 1979 to remote lending. The provision also amends the Copyright, Designs and Patents Act 1988. 

Copyright in an e-book or e-audio-book within the public lending right scheme is not infringed when borrowed through a public library, provided that the e-book or e-audio-book in question has been lawfully acquired by the public library. Additionally, the lending must comply with any purchase or licensing terms to which the book may be subject.