12 for 2012: No.7: Johan Wagenaar (1862-1941)

During each of the twelve days of Christmas, the 1709 Blog is bringing readers some information concerning an author, composer, artist or creator who died in 1941 and whose works fall into the public domain in 2012 in countries which operate a "life plus seventy years" term for copyright in authors' works. Today's featured creative personality is not so well-known -- so it will be interesting to see if his reputation rises now that his music has fallen out of copyright.

Dutch composer Johan Wagenaar began his formal musical education at the age of thirteen, at the Utrecht music school. Upon graduation, Wagenaar was immediately offered a job teaching at the same institution, which he juggled alongside composition studies in Berlin. Wagenaar remained a dedicated teacher throughout the rest of his career, progressing to directorship of the music conservatoire in The Hague (1919). Most of Wagenaar’s compositions are choral and orchestral works with lively themes; the majority of these are programmatic and have strong theatrical connotations.

Some of Wagenaar's most famous works include the overture 'Cyrano de Bergerac' (1905), 'De getemde feeks' (‘The Taming of the Shrew’, 1909), and his symphonic poems 'Saul en David' and 'Elverhöi'. Despite the sweeping changes that were revolutionising classical music in the early twentieth century, Wagenaar’s orchestral style was more conservative, reminiscent of nineteenth-century romantic tradition.

This series has been authored by Miriam Levenson, whom the 1709 Blog gives its grateful thanks.

Jingle Bells, Jingle Bells, Jingle All The Way, Oh What Fun We Had, With Safe Habour and the DCMA!

Here’s hoping that my headline doesn’t offend post Meltwater and Infopaq, but this is my (personal) take on copyright and the business of music in 2011, a busy busy year around the globe with a mixed bag of results for the different sectors in the music industry.

A number of threads emerged, most notably the battleground over what (if any) responsibility Internet Service Providers (ISPs) and another web intermediaries should have for the infringing acts of their users – something considered by the US Ninth Circuit Court of Appeals in UMG v Veoh, by the British High Court in Newzbin2, The Australian Full Federal Court in the iiNet case and by the European Court of Justice in Scarlet v SABAM with legislation pending in a number of countries including Spain and the UK. A second thread was the future role of collection societies in monetising music copyrights and the potential for enhanced but streamlined societies – at least on a pan-European basis, And finally, IF music copyrights can be monetised in the digital age with the “can pay won’t pay” generation of users, then battles remain over who gets what share of the pie with artistes beginning to challenge the accounting practices of the recorded music sector in particular.

It is no secret that music is important in almost everyone’s life, but the music industry has thus far been fairly ineffective at designing workable business models fit for the digital age – whilst others such as ISPS and companies such as Amazon, Google, YouTube and Apple have reaped huge benefits from their association with music. It’s been an interesting year!

In January, the first news was bad news for the recorded music sector with new data showing that US recorded music sales fell 2.4% in 2010 to $1.5 billion, as CD sales plummeted nearly 20% while digital track sales were up just 1%. at 1.17 billion. While CD sales fell dramatically last year, digital album sales rose 13% and the report noted that digital music accounted for 46% of all U.S. music purchases in 2010, up from 40% in 2009 and 32% in 2008, and digital track sales broke the 1 billion sales mark for the third straight year. The picture was similar in the UK where sales of digital singles and albums continued to boom in 2010 but overall recorded music sales continued to fall. Digital album sales in 2010 were up 30.6% on 2009, and singles sales - mainly digital - were at an all time high. But overall album sales were down 7%, with CD sales declining 12.4%. Better news came from Google who announced a number of new initiatives to help combat copyright infringement online, including the promise of 24-hour turnaround on takedown requests, and preventing terms associated with piracy from appearing in its "autocomplete" search results. Google also promised to improve its AdSense anti-piracy review, and expel infringing sites making money off infringing content and also said that it will experiment to make authorised preview content more readily accessible in its search results. Also in January, Limewire finally gave up the ghost and the company said that it would close its remaining businesses. Finally the legal battle between EMI and Pink Floyd seemed to have run its course. Earlier the Court Of Appeal had upheld a High Court ruling against EMI which determined the way Pink Floyd's music could be sold online and how the label should account to the band. Pink Floyd had objected to the sale of the band's albums on a track-by-track basis on digital services like iTunes and claimed that their 1967 contract with EMI prohibited the record company from selling their music in this way. But the parties agreed to a new five year deal - and EMI were able to sell individual Pink Floyds tracks as digital downloads after all. EMI’s recorded music division was sold to Universal at the end of 2011.

In February the Spanish Parliament passed reintroduced legislative proposals that will make it easier for content owners to target copyright infringing websites, The so called Sinde Law will offer a fast-track system through which content owners can force commercial websites that exist primarily to assist others in their illegal file-sharing offline. Amid a high profile campaign by some internet service providers, websites and consumer groups, including the accusation that the legislation was ‘US influenced’, the House of Representatives originally voted against the proposals but the legislation was reintroduced with new safeguards which include a judicial stage in the shut down process. The French government also had to add in a judicial stage into their Hadopi three-strike law. A January poll in France indicated that 49% of French Internet users continue to illegally download music and video and it remains to be seen how Spain’s new government will implement the Sinde law. Also in early February, news broke that Andrew Crossley, the lawyer behind controversial law firm ACS:Law, had withdrawn from pursuing 26 alleged illegal filesharers, blaming “criminal attacks” and bomb threats as reasons. And in speech in London, EU Digital Commissioner Neelie Kroes called on content owners to create “a simple, consumer-friendly legal framework” for making digital content available across borders in the EU.

In March, The Australian Federation Against Copyright Theft (AFACT) lost its appeal against Australian ISP iiNet. In the absence of specific legislation in Australia, AFACT, representing the TV and movie industries, had argued that net companies had an obligation under Australian copyright laws to take a proactive role in policing online piracy and that the Australian ISP was responsible for illegal content downloading by its users. Australian courts had previously found that web company Kazaa was liable for ‘authorising’ infringement and clearly content owners were hoping that the courts would extend copyright law to include a duty on ISPs to monitor and filter unlicensed content on their networks, and/or to find that that a failure to do so would make them guilty of authorising. A majority of the three judge appeal panel in the full Federal Court dismissed the appeal holding that even though iiNet was dismissive of copyright infringement complaints, that fact alone did not mean it was liable for authorizing infringement. That said, all 3 justices in the appellate court found that in appropriate circumstances it was appropriate to disconnect customers (one even outlined a potential termination strategy) and in a dissenting judgment, Justice Jagot held iiNet liable for authorising users’ acts of copyright infringement and that the trial Judge had erred in holding that the relevant test was whether iiNet had provided the ‘means’ of infringement. The Australian High Court will now hear the case. In better news for the content industries, credit card companies including MasterCard and Visa are working with the City of London Police and the recorded music sector to extend cooperation in tackling illegal online services selling unlicensed music worldwide.

In April another Australian case hit the headlines when the Federal Appeals court in Australia upheld a Federal Court ruling that said Larrikin Music, publishers of Australian children's classic 'Kookaburra Sits In The Old Gumtree', were due a share of all songwriting royalties on the Men At Work classic 'Down Under', because the short but distinctive flute sequence in the 1981 pop hit was borrowed from the folk tune. The Federal Court ruled that Larrikin should get 5% of all 'Down Under' royalties dated paid back to 2002. EMI must also cover Larrikin's legal costs in relation to the appeal. Also in April, the giant Chinese search engine Baidu said that they had reached an agreement with the Music Copyright Society of China to start paying a publishing royalty on any MP3s downloaded or streamed via the search platform.. Under the new agreement with MCSC, Baidu will pass a share of advertising revenue on for every track accessed via the search platform from a new music service that Baidu plans to launch in May.

In May there were cloudy skies – as Google announced that it would join Amazon in launching a new music-based cloud digital locker service - despite not have any licensing deals in place with the record companies or music publishers. Amazon had previously argued that its digital locker service did not require licences from with record labels or music publishers because all its digital locker does is allow users to upload their own MP3 collections to remote servers and suddenly all eyes turned to the US case of EMI v MP3tunes which would clearly significant in determining the legality of these unlicensed platforms. More on that later! Also in May, Professor Ian Hargreaves, charged by David Cameron with independently reviewing UK intellectual property law and the environment to promote e-businesses in the UK, published his Report Digital Opportunity and his recommendations included: legalising format shifting; looking at copyright exceptions at national level to realise all the opportunities within the EU framework, including exceptions for parody, non-commercial research, and library archiving; proposals for a new system for licensing so called ‘orphan works’; the appointment of a senior figure (now confirmed as Richard Hooper) to oversee the design and implementation of a “cross sectoral Digital Copyright Exchange” and support for EC moves to establish a framework for cross-border licensing within the EU.

In June a report from the United Nations said that provisions of the UK’s Digital Economy Act (which had already been unsuccessfully challenged by ISPS in a judicial review) that could see music and film pirates cut off from the internet were disproportionate. Frank La Rue, the report’s author and UN special rapporteur on freedom of expression, called on the government to “repeal or amend” the legislation. He said he was “alarmed by proposals to disconnect users from Internet access if they violate intellectual property rights”. In The USA the Senate Judiciary Committee approved a bill that would make it a felony to stream copyrighted movies and TV episodes online and in Germany two computer hackers who targeted pop stars and record companies in a bid to secure personal information and distribute pre-release tracks online were handed down prison sentences by a court in Duisberg. And back in the UK Video Performance Limited, the audio-visual arm of collection society PPL (Phonographic Performance Limited) lost a major case in the Court of Appeal against a decision of the Copyright Tribunal that said that that the correct royalty rate payable by TV channel operator CSC should be somewhere in the region of 10% to 15% rather than the higher rate set in an earlier licence between VPL and BSkyB. And Neelie Kroes outlined the Digital Agenda for the EU saying "Too many barriers still block the free flow of online services and entertainment across national borders. The Digital Agenda will update EU Single Market rules for the digital era".

In July Mr Justice Arnold reached his decision in Newzbin 2, where the Motion Picture Association succeeded in an action which it brought against telecoms giant BT to invoke Section 97A of the Copyright, with Arnold J saying “in my judgment it follows that BT has actual knowledge of other persons using its service to infringe copyright: it knows that the users and operators of Newbin2 infringe copyright on a large scale, and in particular infringe the copyrights of the Studios in large numbers of their films and television programmes, it knows that the users of Newzbin2 include BT subscribers, and it knows those users use its service to receive infringing copies of copyright works made available to them by Newzbin2.”. Newzbin blocked!

In August Online music service Grooveshark had to face a new action from music publishers. The online service allows users to post their own tracks to their site while sharing them with the world was sued by a number of songwriters and music publishers. Filed in the U.S. District Court for the Middle District of Tennessee, the plaintiffs claim the music illegally violates many copyright laws, and therefore is liable for contributory infringement, copyright infringement and vicarious infringement saying “Defendant neither sought nor obtained a license, permission, or authorization from plaintiffs”. The company claims to abide by all rules of the Digital Millennium Copyright Act (“DCMA”) and that it is protected from any copyright violations committed by its users. Also in August, YouTube’s takedown procedure came under the spotlight for seemingly being too effective with videos by Justin Bieber, Rhianna, Lady Gaga, Beyonce and Shakira after “iLCreation” managed to get videos by all of these artistes and many more taken down from YouTube. Seemingly rather easily. And finally the much anticipated ruling in EMI v MP3Tunes was announced and in a potentially highly damaging day for the US content industries, the New York district court has ruled that digital music lockers don't need licences from record labels to store recorded music and that the operators of digital locker services are protected by the ‘safe harbor’ provisions of the DCMA.

In September a number of newspapers carried stories about moves by US songwriters and recording artistes to ‘reclaim’ copyrights from music publishers and record labels - including Bruce Springsteen’s “Darkness on the Edge of Town,” Billy Joel’s “52nd Street,” the Doobie Brothers’ “Minute by Minute,” Kenny Rogers’s “Gambler” and Funkadelic’s “One Nation Under a Groove” thanks to a till then little-noted provision in United States copyright law that meant that those artists — and thousands more — now have the right to reclaim ownership of their recordings after 35 years, so long as they apply at least two years in advance. Recordings and songs such as the Village People’s YMCA from 1978 are the first to fall under the law, but in a matter of months, hits from 1979, including “The Long Run” by the Eagles and “Bad Girls” by Donna Summer, will be in the same situation — and then, as the calendar advances, every other master recording once it reaches the 35-year mark. In Europe the European Commission announced the extension of the copyright term for sound recordings from 50 years 70 years which was agreed by the EU on the 12th September, following an earlier meeting of the European Union's Committee of Permanent Representatives. The new Directive included some provisions which might aid artistes (rather than labels) receive a share of new revenues, although many remain unconvinced that the major labels will be able to tear themselves from traditional business models which artistes claim are simply unfair, or a widespread attempt to underpay recording artistes” or even a sometime “criminal” enterprise. Less welcome news for the music industry was a decision by a court in Germany which followed on from the record industry’s fairly unsuccessful attempt to block digital cloud locker service MP3Tunes in the USA. In Germany EMI failed to force a German ISP to block access to file-sharing service eDonkey. The court in Cologne ruled that the net firm HanseNet was not liable for the actions of its customers in accessing Russian illegal file swapping services. In the see-saw world of US copyright damages for illegal downloading and file-sharing, a federal appeals court reinstated the $675,000 judgment against Boston University post graduate student Joel Tenenbaum, who had already admitted to downloading music on Internet file-sharing sites. In an earlier hearing a judge had reduced the previous jury award at the same level by 90%.

In October the U.S. Supreme Court denied an appeal against an appellate court’s ruling that a traditional Internet download of sound recording does not constitute a public performance of the recorded musical work or the composition under federal copyright law. The Supreme Court denied the appeal without comment. Also a number of major artistes faced infringement claims with Bob Dylan accused of replicating several famous photographs in his new art show, The Asia Series, which includes paintings that seem like acrylic reproductions of images by Henri Cartier-Bresson, Dmitri Kessel and Léon Busy and Beyoncé was accused of copying the choreography of Belgian choreographer Anne Teresa De Keersmaeker for the video to her track 'Countdown' . In the UK, Campbell Cowie, Director Of Internet Policy at media regulator OfCom, said that warning letters under the three-strikes style anti-piracy system put in place by the Digital Economy Act were now not likely to go out until 2013. And significantly, the European Court of Justice handed down a preliminary ruling decision in the linked cases of MPS v Murphy and FAPL v QC Leisure holding that national legislation which prohibits the import, sale or use of foreign decoder cards for pan-European satellite channels are contrary to the freedom to provide services and cannot be justified either in light of the objective of protecting intellectual property rights or by the objective of encouraging the public to attend (live football matches) football stadiums. And yes, EU competition law 'trumps' copyright !

In November a class action between a number of recording artistes and Universal Music over how digital royalties are calculated was given the green light by a federal judge in California. The action, headed up by a number of long established artists, led by White Zombie, Chuck D, Whitesnake, and the estate of Rick James will be a major test of how artiste digital royalties are calculated by record labels in the absence of specific contract wording: The label would like to calculate the royalty based on the same accounting process as a normal (physical) sale – whilst artistes want a share of the income which will almost certainly be a substantially greater share of the revenue. There is a precedent here, the so called ‘Eminen’ case that actually involved FBT Productions, the production house involved in some early Eminem recordings, who took Universal to court over digital royalties and succeeded in achieving the higher royalty rate: FBT argued they had a right to a 50/50 split of profits with Universal on sales of digital music and ring tones through online retailers such as iTunes and Sprint as these 'Master Licensing' deals attracting the higher royalty. The contract did not specifically mention income from download stores like iTunes, or what share the artist (and therefore FBT) should get from such sales but Universal have been treating download sales as being equivalent to CD sales paying a lower rate of 12-20%% as if these were physical sales. Whilst a district court refused summary judgment saying the agreement was ambiguous, The U.S. Ninth Circuit Court of Appeals in San Francisco agreed with FBT saying that the higher royalty should apply and the US Supreme Court then declined to hear an appeal by the Universal Music Group. A number of artistes including Cheap Trick and the Allman Brothers have brought a similar case against Sony BMG to gain a greater and they say fairer share of revenues. The European Court of Justice added to the jurisprudence on the role of ISPs in the Scarlet v SABAM case saying “EU law precludes the imposition of an injunction by a national court which requires an internet service provider to install a filtering system with a view to preventing the illegal downloading of files" adding “Such an injunction does not comply with the prohibition on imposing a general monitoring obligation on such a provider, or with the requirement to strike a fair balance between, on the one hand, the right to intellectual property, and, on the other, the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information”

And Finally in December, The Swiss Government decided that downloading music and movies would remain legal. With an estimated one in three of the Swiss population admitting to downloading content without permission, Swiss policy will now be that downloading for personal use WILL be legal since people eventually spend the money saved on entertainment products. And in the USA the Ninth Circuit Court of Appeals handed down its decision in UMG v Veoh, the case addressing copyright liability for ISPs that host infringing works. The court affirmed the lower court’s interpretation of the DCMA and extended ‘safe harbour’ protection to Veoh and meaning that the onus to first identify infringing materials is on rights owners and the Court said that it is copyright holders who know precisely what materials they own, and are thus better able to efficiently identify infringing copies than service providers like Veoh, who cannot readily ascertain what material is protected by copyright and what is not

I am sure next year will be equally fascinating – and can I wish all of our readers a happy, healthy and prosperous 2012.

12 for 2012: No.6: Virginia Woolf (1882-1941)

During each of the twelve days of Christmas, the 1709 Blog is bringing readers some information concerning an author, composer, artist or creator who died in 1941 and whose works fall into the public domain in 2012 in countries which operate a "life plus seventy years" term for copyright in authors' works. Today's feature focuses on the iconic Virginia Woolf.

The life of Adeline Virginia (Stephen) Woolf was not a happy one. Although she was born into a literate, well-connected household and received a high-quality education, Woolf suffered from a string of emotional breakdowns and recurring bouts of depression. The first of these attacks was brought on by the death of her mother when Virginia was just 13; the final breakdown culminated in the writer’s suicide at the age of 59. Despite this instability, Woolf managed to maintain her literary productivity with few breaks in her life.

Together with a circle of fellow intellectual writers and artists, Woolf formed the Bloomsbury Group, which gained a reputation for its liberal and avant-garde tendencies. In 1912 Virginia married the writer Leonard Woolf. Apart from a rather tentative lesbian affair between Virginia and Vita Sackville-West in the 1920s, the Woolfs enjoyed a close and loving relationship until Virginia’s death. Some of Woolf’s most famous works include the novels Mrs Dalloway (1925), To The Lighthouse (1927) and Orlando (1928); the essay A Room of One’s Own (1929), and several autobiographical writings. To this day, Woolf is regarded as an innovator in the English language. Her writing tends to focus on the psychological and emotional motivations of her characters, experimenting with stream-of-consciousness and auditory or visual impressions amidst an often uneventful narrative. Although Woolf’s popularity declined sharply after the Second World War, the writer has since been hailed as one of the twentieth century’s leading modern novelists.

This series has been authored by Miriam Levenson, whom the 1709 Blog gives its grateful thanks.

12 for 2012: No.5: Elizabeth Madox Roberts (1881-1941)

During each of the twelve days of Christmas, the 1709 Blog is bringing readers some information concerning an author, composer, artist or creator who died in 1941 and whose works fall into the public domain in 2012 in countries which operate a "life plus seventy years" term for copyright in authors' works. Today's feature focuses on late-developing novelist and children's poet Elizabeth Madox Roberts.

Elizabeth Madox Roberts was already 40 years old when she fulfilled her life-long dream of graduating from college. While studying literature and philosophy Roberts was greatly inspired by the connections she forged at the college poetry club, and her first collection of poems (Under the Tree) was published the year after she left college. Since its publication in 1922, these children’s poems have never been out of print. Most of Roberts’ remaining years were spent in her hometown of Springfield, Kentucky, where she continued to produce highly-acclaimed poems, seven novels and a number of short stories. Roberts loved Kentucky, which she called her ‘Little Country’, and many of her works are based around the Kentucky mountain people.

Roberts' first novel, The Time of Man (1926), was an international success and inspired her to write several further works, including The Great Meadow (1930), and A Buried Treasure (1936). Her poetry was known for its strong rhythmic qualities, and idiosyncratic language. As public recognition grew, Roberts received a number of major poetry prizes in the later years of her life, and her poetic style had a strong influence on the development of fellow Kentuckian poet and writer Robert Penn Warren.

This series has been authored by Miriam Levenson, whom the 1709 Blog gives its grateful thanks.

My love is your love. So is my copyright?

A shot from the Numéro 93 editorial

Two months after she settled a lawsuit for copyright infringement brought by photographer David LaChapelle for the video of her song S&M and faced another lawsuit from photographer Phillipp Paulus over a scene in the same video, pop idol Rihanna is back on the copyright scene.

As reported by The Huffington Post, her new Melina Matsoukas-directed video You da one (which was released last week) may result in another lawsuit being brought by Norwegian fashion photographer Sølve Sundsbø.

Sundsbø has worked for clients such as Chanel, Cartier, Dolce&Gabbana, Hermès, H&M, Levis, Nike and YSL and has created editorials for leading fashion magazines.

Rihanna as she looks in her new
hit video

Among the other things, the photographer is known for his work with shadows and manipulated light, such as the editorial Points a la Ligne, which he created in 2008 for Numéro 93 magazine. This is a series of shots in which Lithuanian model Edita Vilkeviciute is portrayed with the shadows of various shapes projected on to her body.

 It now seems that the video of You da one is somehow similar to Sundsbø's pictures.

 In the b/w video, the Bajan singer wears a number of outfits and wigs, which are said to be inspired by Kubrick's film A Clockwork Orange.

However, the scenes which show Rihanna in a bowl-cut wig while wearing a flesh coloured bodysuit, as shadows in the shape of stripes or dots create a pattern across her skin, may recall the images by Sundsbø.

We'll see what happens next. Stay tuned.

Private Copying Remuneration Law in France

Just published in the Official Journal of the French Republic of December 21, 2011 is Act #2011-1898 of December 20, 2011 respecting private copying remuneration.

As previously indicated, this bill (now law) amends the French regime applicable to private copying remuneration in three significant ways:

1- in a nod to a 2008 decision by the Conseil d'Etat, it provides that the remuneration is only due in respect of copying done from a "lawful source"; 

2- in a nod to the CJEU's Padawan ruling and a June 2011 decision by the Conseil d'Etat, it provides that such remuneration is not due in respect of media acquired for professional purposes; and 

3- it requires that the amount of the levy applicable to a given medium be brought to the purchaser's attention at the point of sale.

Regarding point 2, publication of the Act was followed two days later (December 23rd) by publication of Ministerial Order (arrêté) of December 20, 2011 with the form to be used to obtain reimbursement.

Of particular note is the fact that the Act (unlike the bill - some might say rather surreptitiously) actually steps beyond the narrow issue of private copying remuneration and re-defines the parameters of private copying itself. It amends Sections L.122-5 (copyright) and L..211-3 (neighbouring rights) of the Intellectual Property Code by expressly requiring that the copying be from a "lawful source" in order to qualify as a private copy (thus bringing the French regime closer to that already in force in Germany).

Italian Courts find 'active hosting liability' for ISPs

Our good Friend from the City University, Dr. Enrico Bonadio, has kindly sent us details of the link to a brief case note which Enrico co-authored with his colleague Mauro Santo, and which has been published in the Journal of Intellectual Property Law & Practice.

As Enrico explains "It is a comment of two decisions of the Court of Milan in case of copyright liability of Internet Service Providers: In June and September 2011 the Court of Milan released two interesting decisions in the field of liability of Internet Service Providers for copyright infringement committed by their users. In particular, the Court found that the Internet Service Providers Italia On Line and Yahoo! Italia were liable for copyright infringement in connection with the uploading of several videos on their platforms and that they could not rely on the hosting provider exemption under the E-Commerce Directive. The two decisions are particularly interesting as the Court of Milan ‘created’ from scratch a new category of internet service provider liability: so-called active hosting liability."

If you want more on this topic, you need to take a look at the ever excellent Journal of Intellectual Law & Practice

This is the SSRN link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1977431

For a Spanish take - and a rather different approach - have a look at http://www.billboard.biz/bbbiz/industry/legal-and-management/is-pablo-soto-spain-s-p2p-robin-hood-or-1005743952.story with the Spanish courts finding no liability for software developer Pablo Soto for the in fringing uses made of his software - as Spain's new Government struggles to implement the so called "Sinde" law it inherited from the previous government in the face of public opposition.

Twice the read

How to Fix Copyright, which will be published next week by Oxford University Press, has already attracted a good deal of attention thanks to this piece on Bloomberg. The author, Bill Patry, is no stranger to copyright or to controversy, so this blogger for one looks forward to reading it.  This blog has already received a reader's comment on Patry's assertion that, "to make money in the world of digital abundance, you just have to sell more copies for lower prices". He observes:

"If all copyright-work makers were to halve the price of their work, they would need to sell more than twice as many copies. However, copyright works take time to consume and consumers have a limited amount of time available. Can they consume more than twice as much content? We are already spending a considerable portion of our time in front of a screen or with headphones on".

Readers' comments are, of course, welcome. One wonders how many categories of copyright-protected work would  not respond to this treatment.

Further details of How to Fix Copyight can be found on the OUP website here.

12 for 2012: No.4: Isaak Babel (1894-1941)

During each of the twelve days of Christmas, the 1709 Blog is bringing readers some information concerning an author, composer, artist or creator who died in 1941 and whose works fall into the public domain in 2012 in countries which operate a "life plus seventy years" term for copyright in authors' works. Today's feature focuses on the precocious story-teller and dissident Isaak Babel:

Born into a relatively well-off Odessa family, the young Isaak Babel was educated at home by private tutors. Babel was fluent in Russian, Yiddish and French, and nurtured a lifelong interest in the works of Maupassant and Flaubert; his earliest stories (no longer extant) were composed in French. After an unsuccessful attempt to get through the Jewish quota of Odessa University, Babel enrolled at the Kiev Institute of Finance and Business, graduating at the age of 19. Following his move to St Petersburg, Babel met and befriended Maxim Gorky, who began to publish Babel’s stories in a literary magazine. Babel’s experiences on the battlefield during the Soviet-Polish war (1920) led him to document the horrors in his collection of stories Red Cavalry.

Babel's honest portrayal of the brutalities of war made him unpopular at first, but with Gorky’s support Babel soon broke onto the Russian literary scene and became an instant favourite at home and abroad. Some of his most famous works include Story of my Dovecote (1925), and Tales from Odessa (1931), now considered masterpieces of Russian literature. After enjoying great success during the 1930s Babel fell from grace with the authorities. Unwilling to conform to Stalin’s demands on writers, Babel withdrew from public life, noting ironically that he was becoming a ‘master’ of the new literary genre of silence. Babel’s play 'Maria', not performed in Russia until the collapse of the Soviet Union, depicts a society rife with political corruption, persecution of the innocent and black-marketeering.

In 1939 Babel’s dangerous affair with the wife of Nikolai Yezhov, NKVD boss, led to his arrest, imprisonment and torture. Babel ‘confessed’ to committing ‘sabotage’ by failing to produce any significant works in recent years. Following his twenty-minute trial, Babel was sentenced and executed. From being a foremost writer of his time, Babel soon became a nobody; his name was removed from literary dictionaries and encyclopaedias, his works taken off school and university syllabuses. Since his public rehabilitation in 1954, Babel’s works have since been widely republished and acclaimed.

This series has been authored by Miriam Levenson, whom the 1709 Blog gives its grateful thanks.

Santa Paws, the magic of Christmas and a posse of elves

Paws portrayed while meditating on the difficult
relationship between copyright and magical icicles

Just in time for Christmas, three writers have brought an action against Disney and Others before the U.S. District Court Eastern District of Missouri Eastern Division, claiming copyright infringement in their 1991 copyright children's story Santa Paws. In particular, they allege that 2009 and 2010 Disney film screenplays and direct to home video motion pictures Santa Buddies: The Legend of Santa Paws and The Search for Santa Paws (the "Santa Paws Films") are unauthorised copies of their script and ask the Court order an accounting of the revenues generated by the Santa Paws Films, as well as compensation for the harms suffered.

The main plot thread of the plaintiffs' script is about a dog which is given as a gift to Santa Claus, who names it "Paws". When the Christmas spirit in little boys and girls begins to dwindle (as evidenced by a magical Christmas tree whose lights begin to dim with the fading Christmas spirit) at the hands of the evil ice witch and her magical icicle, it is up to Paws to embark on an ultimately successful search and rescue mission to save Christmas.

The plaintiffs attempted to shop their script to entertainment industry contacts for the purpose of developing and commercially exploiting it. Among the others, a subsidiary of Disney expressed interest in producing Santa Paws. However, nothing came of it.

In 2009 and 2010 Disney began distributing the Santa Paws Films.

According to the plaintiffs, these are filled with substantial similarities to Santa Paws, including instances of verbatim lines of dialogue and screen activity at comparable key plot points, as well as similar uses of a magical icicle and magical Christmas tree in addition to the overarching similarity of expressing a story about Santa's new dog who saves Christmas in spite of the best efforts of a domineering and holiday-spiritless female antagonist.

As rightly pointed out by The Hollywood Reporter, the most entertaining part of the lawsuit is probably this statement by the plaintiffs' attorney:

"We understand Disney is investigating the matter. My clients feel strongly the investigation into the genesis of Santa Paws is something which should have been investigated by Disney and its posse of film making and distributing elves before they sucked in tens of millions of dollars in revenue. Santa knows who has been naughty and nice. It is my clients' position that Dickens could not have come up with a more Scrooge-like scenario. Why not just kick the crutch out from under Tiny Tim and sell it on eBay? It is my clients' genuine hope the true spirit of Christmas will prevail and the defendants will do the right thing for all who believe in Santa and the magic of Christmas."

12 for 2012: No.3 Mary Rose-Anna Bolduc (1894-1941)

During each of the twelve days of Christmas, the 1709 Blog is bringing readers some information concerning an author, composer, artist or creator who died in 1941 and whose works fall into the public domain in 2012 in countries which operate a "life plus seventy years" term for copyright in authors' works. Today's feature focuses on the Queen of Canadian Folksingers.

‘La Bolduc’ – Mary Rose-Anna Bolduc, née Travers, came from a humble background. Her only music teacher was her father, and in her youth she learned several traditional Quebec folk instruments. The family could not afford a record player or sheet music, and Mary learned everything by ear. Her financial circumstances did not change after her marriage to Edouard Bolduc in 1914. Mary would often entertain family and friends by holding musical soirées; after a while she was spotted by a troupe leader where she earned some money playing the violin. Her voice also caught the attention of a record artist and in 1929 Mary’s second recorded song met with unprecedented popularity: more than twelve thousand copies were sold. Following this astounding breakthrough, ‘La Bolduc’ released a double-sided record of her own songs every month with great success. In the early 1930s Bolduc formed her own touring troupe, La Troupe du bon vieux temps, which met with even greater acclaim. When record sales began to slump, income from her performances remained high.

Quebec’s first singer-songwriter developed her own trade mark style of writing, combining lively, upbeat rhythms with comic lyrics. The folk music of her youth played a strong influence on Bolduc’s songs; she frequently set original lyrics to traditional melodies. Many of these songs were broadside ballads, in which current topical events are set to old folk tunes. Some of Bolduc’s best-known songs today are ‘Qui vous avez une fille qui veut se marier’ (‘If you have a daughter who wants to wed’), and ‘La cuisinière’.

This series has been authored by Miriam Levenson, whom the 1709 Blog gives its grateful thanks.

Wow, it's Lao!

By Berne Notification No. 255 "Accession by the Lao People's Democratic Republic", the World Intellectual Property Organization's press machinery takes the opportunity to cheer us all up with news that the Government of the Lao People's Democratic Republic has deposited its instrument of accession to the Berne Convention for the Protection of Literary and Artistic Works as amended to September 1979. The Berne Convention will enter into force in Lao on 14 March 2012.

12 for 2012: No.2 Andrew Barton ‘Banjo’ Paterson (1864-1941)

During each of the twelve days of Christmas, the 1709 Blog is bringing readers some information concerning an author, composer, artist or creator who died in 1941 and whose works fall into the public domain in 2012 in countries which operate a "life plus seventy years" term for copyright in authors' works. Today's author is little known outside his native country, though his best-known work will be familiar to many readers.

Andrew Barton "Banjo" Paterson’s early years were spent on an isolated station in the Australian outback. As soon as he was old enough to ride a pony, Paterson started school in the tiny village of Binalong, moving on from there to Sydney Grammar School. In addition to demonstrating academic prowess, Paterson was also a successful sportsman with a great love of the outdoors. Although Paterson qualified and worked as a solicitor, he also managed to juggle work as a writer, a jockey, a soldier and a farmer on the side. In 1885 Paterson began having his poems published in a weekly magazine under the pseudonym of ‘Banjo’, the name of a favourite horse. His 1890 poem "The Man from Snowy River" became a national success, and five years later Paterson published a collection of poems with the same name. This anthology remains the most popular collection of Australian Bush poetry to date, and is still being reprinted. During the Second Boer War, Paterson’s work as a journalist and war correspondent spread his name to Britain.

After making a decision to abandon journalism and writing in 1908, Paterson’s remarkable versatility was demonstrated further during the First World War, during which he served as an ambulance driver and honorary vet before rising through the ranks from officer to major. After his return to Australia Paterson went back to his poetry and journalism, which he kept up until the end of his life. One of Paterson’s best-known poems is "Waltzing Matilda" (1895), a traditional bush ballad which has become the unofficial national anthem of Australia. Paterson was known for his ardent nationalism and deep attachment to Australia’s land and folklore, and the majority of his writing reflects these sources of inspiration.

This series has been authored by Miriam Levenson, whom the 1709 Blog gives its grateful thanks.

12 for 2012: No.1 James Joyce (1882-1941)

During each of the twelve days of Christmas, the 1709 Blog is bringing readers some information concerning an author, composer, artist or creator who died in 1941 and whose works fall into the public domain in 2012 in countries which operate a "life plus 70 years" copyright term.  This series starts with the brilliantly gifted Irish author James Joyce.

The oldest of ten surviving children, James Joyce was born into a middle-class Dublin family. Despite his family’s gradual slide into poverty during the 1890s, Joyce completed his education at Jesuit schools Clongowes and Belvedere and continued to excel in his studies at University College, Dublin. Following his graduation in 1903 Joyce struggled to scrape a living. Although he earned some money reviewing books, teaching and singing, Joyce became a heavy drinker and did not manage his finances well. The following year Joyce eloped to the continent with his sweetheart Nora Barnacle, seldom returning to Ireland in subsequent years. However, Joyce’s works were always set in Dublin, and his semi-autobiographical style evoked relatives and acquaintances from his Dublin years.
"

Joyce's early volume of short stories, Dubliners (1914), was suppressed in Ireland due to its candid analysis of the stagnant Dublin society. Joyce spent World War I in Zurich, working on his first novel. A Portrait of the Artist as a Young Man (1916) is heavily autobiographical, portraying the protagonist ‘Stephen’ as he grows through adolescence and realises that he must free himself from the constrictions of Irish society. The publication of Joyce’s next major novel Ulysses (1914-21) was delayed by obscenity charges, appearing in America only in 1933. During this time Joyce wrote his play 'Exiles', and published a number of books of poetry. Joyce’s literary style, which had developed gradually since Dubliners, was pushed to the limit in his next and final novel, Finnegan’s Wake (1939). This novel abandoned all the literary conventions of plot and character-painting, and is replete with Joyce’s characteristic shifts in consciousness, rich language puns and allusion. James Joyce became famous for his avant-garde exploitation of the English language, and is widely regarded as one of the most influential modernist writers of the early twentieth century.

This series has been composed by Miriam Levenson, to whom the 1709 Blog gives its grateful thanks.

Kanye West and Jay-Z no wanna give up the throne

S(a)mple joy?

Chicago soul singer Syl Johnson was not pleased when, back in the summer of this year, he heard a track from his 1967 song Different Strokes sampled in Kanye West and Jay-Z's The Joy from the deluxe version of their joint album Watch The Throne.

Different Strokes has been sampled by several artists, including Michael Jackson, Will Smith, Kid Rock and Tupac Shakur. Representatives for West -- claims Mr Johnson, who is a veteran of copyright battles -- first attempted to obtain permission to use an excerpt of the song for his 2010 album My Beautiful Dark Twisted Fantasy. However, because they were unable to obtain permission in time for the release of the album, no sampling of the song was included there.

In August 2011, West and Jay-Z released new album Watch The Throne, which includes The Joy.

In October, Johnson filed suit against the hip-hop duo plus Rock-A-Fella Records, UMG and Def Jam before the U.S. District Court for the Northern District of Illinois Eastern Division. He claimed that defendant's conduct infringed -- inter alia -- 17 U.S.C. §106 and they were liable under 17 U.S.C. §501. He asked the Court to order a full accounting from defendants arising out of the sales and publishing activities relating to any of his rights, as well as punitive damages for the alleged sample usage.

A few days ago, West and Jay-Z indicated how they intend to fight the lawsuit. In particular, they challenge Johnson's standing in bringing the claim and question whether Johnson's sound recording is protected by federal copyright since it was made before 1972, when the law changed to cover sound recordings. Sound recordings fixed before February 15, 1972, were generally protected by common law or in some cases by statutes enacted in certain states but were not protected by federal copyright law. The defendants also suggest they may have had a licence to use it. According to their Answer:

"Any claim based on the alleged use of Plaintiffs' recording is barred because, inter alia, (a) the allegedly copied portion of the Plaintiff's recording is not part of the musical composition; and, if it is part of the composition, (b) is not protectable and/or (c) any use was de minimis."

Earlier this month, Syl Johnson was nominated for two Grammy Awards for Best Historical Album and Best Liner Notes for Syl Johnson: Complete Mythology. "Should have been three [Kanye West and Jay-Z were nominated for Best Rap Album Watch The Throne]", he told Billboard.

"I don't know why Kanye didn't get with me first," said Johnson, "the man knows me and my daughter ... [Kanye] said he wanted to meet with me and apologize - since I sued him -- but I didn't sue him to be smart, I sued him because that's the right thing to do man, I'm a musician."

Scanned public domain works -- and beyond

Following the 1709 Blog's earlier post on copyright in scanned versions of public domain works, we have received the following observations from barrister and copyright commentator Francis Davey:

"I've given the question raised in your 1709 blog a great deal of thought. In the LLM, which I am very slowly plodding through, I produced a research paper that touches on the subject. I have attached it for reference.

However, a key question is: to what extent has European law harmonised the threshold for authorial contribution? We know from Premier League that, for databases, the harmonisation is exact. Subsistence is the same for English law as it is for European law. That is unsurprising because the database directive, like the software directive, contains the phrase: "“no other criteria shall be applied to determine their eligibility for protection” which would appear to preclude any domestic form of protection that is different.

But the Copyright Directive doesn't contain such a condition. Could there be English and European copyright laws with different thresholds?

It seems that must be the case in the case of photographs because the Term Directive expressly states that “other photographs” may be protected.

As far as I know - and as a practitioner I don't read widely enough I know - this hasn't been thought about enough and I've seen no-one explore the implications properly.

Its worse than it looks. If there are two systems of protection: UK copyright applying to original photographs and European copyright applying to photographs which are their author's "own intellectual creation" then the UK system will not have inherited the changes wrought by European directives. There would be no "making available to the public" right, no term extension and so on.

Some judicial dicta seem to be a bit dismissive of there being a difference, but there clearly is for some works. Databases, for example, were clearly easier to protect pre-database directive. There are many older cases where the originality threshold was passed which would probably not pass muster under the "own intellectual creation" test.

In the case of photographs I argue, contra the views of Robin Jacob and the authors of a number of practitioner texts, that photographic reproductions of paintings are unlikely to attract much, if any, copyright (in the sense of that which is protected against infringement), but there are certainly views the other way which would contradict the "own intellectual creation" threshold.

It seems to me that, after Painer, scans of the kind you are talking about are not European protected, so they would at best be "other photographs" in UK law (there's no sufficient "formative freedom" about them I suspect).

Hut'ko writes about this here and is interested in "European originality" as am I. This is important stuff for some of my projects.

I wonder also about:
- perpetual copyright
- copyright in unpublished works

I've no idea if either can or should apply. But that's another question".

I hope that readers of this weblog will find these thoughts useful.  Something struck a chord with me where Francis writes, regarding software and databases, that  the respective Directive state that "no other criteria shall be applied to determine their eligibility for protection”. He adds that this would appear to preclude any domestic form of protection that is different. "But the Copyright Directive doesn't contain such a condition. Could there be English and European copyright laws with different thresholds?"

My thinking is that this is a perfectly reasonable inference to draw in respect of classical UK statutory interpretation on the basis of inclusio unius, exclusio alterius -- but I'm not convinced that it is a strong enough basis for interpreting EU law in the absence of further supporting evidence of legislative intent, particularly after Zino Davidoff v Gofkid. Also, I think that software and databases were regarded as green-field sites for which it was easier to set a single common standards whereas, regarding other works, there was already a heavy accretion of existing national law which could not so easily be homogenised.

Comments, please!

Of pirates and safe harbours: UMG, Veoh get their ruling

 

Looking for a safe harbour

Yesterday in the United States the Ninth Circuit Court of Appeals handed down its decision in UMG v Veoh (which can be read in full here; briefly referred to in this blog here), a case addressing copyright liability for ISPs that host infringing works.

Veoh operates a publicly accessible website that enables users to share videos with other users. UMG is one of the world's largest recorded music and music publishing companies. In addition to producing and distributing recorded music, UMG produces music videos.

Although Veoh has implemented various procedures to prevent copyright infringement through its system, users of Veoh's service have in the past been able, without UMG's authorisation, to download videos containing songs for which UMG owns the copyright.

UMG responded by filing suit against Veoh for direct and secondary copyright infringement back in 2007. Two years later, the US District Court for the Central District of California granted summary judgment to Veoh after determining that it was protected by the DMCA "safe harbor" limiting service providers' liability for "infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider." 17 U.S.C. §512(c).

UMG appealed the decision and made several arguments before the Ninth Circuit, including that the district court too broadly construed the scope of §512(c).

UMG never disputed that, when Veoh became aware of allegedly infringing material as a result of the RIAA's DMCA notices, it removed the files. It claimed, however, that Veoh had knowledge or awareness of other infringing videos that it did not remove. In particular, argued UMG, the district court erred by improperly construing the knowledge requirement to unduly restrict the circumstances in which a service provider has "actual knowledge" under subsection (1) and setting too stringent a standard for "red flag" awareness based on facts or circumstances from which infringing activity is apparent.

Judge Raymond Fisher, in an unanimous decision, referred to Congress' express intention that the DMCA "facilitate making available quickly and conveniently via the Internet ... movies, music, software and literary works". Being this the service Veoh provides, the Court did not find UMG's narrow interpretation of §512(c) be plausible. In fact, if merely hosting material which falls within a category of content capable of copyright protection, with the general knowledge that one's services could be used to share unauthorised copies of copyright-protected material, was sufficient to impute knowledge to service providers, the §512(c) safe harbor would be rendered a dead letter.

The onus to first identify infringing materials is on rights owners. Indeed, said the Court, copyright holders know precisely what materials they own, and are thus better able to efficiently identify infringing copies than service providers like Veoh, who cannot readily ascertain what material is protected by copyright and what is not. These considerations are reflected in Congress' decision that DMCA notification procedures place the burden of policing copyright infringement on copyright holders, as well as in the "exclusionary rule" which prohibits consideration of substantially deficient §512(c)(3)(A) notices for purposes of "determining whether a service provider has actual knowledge or is aware of facts and circumstances from which infringing activity is apparent."

In the light of these and other considerations, the Court affirmed the district court's determination on summary judgment that Veoh is entitled to §512(c) safe harbor protection.

As our readers will know, many of these issues are at the centre of another case currently pending before the Second Circuit, this being Viacom v YouTube. We'll see what happens there, as well as how the debate around the SOPA develops in parallel with case law.

More on UMG v Veoh on The Hollywood Reporter here.

Scanned public domain works: what's the position in Europe now?

"As an avid reader of the 1709 Blog, I was wondering if perhaps you could spend some time on an analysis of the copyright status of Newton's notebooks", writes  Dutch IT lawyer Arnoud Engelfriet (who incidentally blogs in Dutch at http://blog.iusmentis.com/).  Arnoud continues: "Recently Cambridge released scans of Sir Isaac Newton's notebooks at http://cudl.lib.cam.ac.uk/collections/newton -- but with a notice stating 'Zooming image© Cambridge University Library, All rights reserved' at the bottom of the scan, e.g. at
http://cudl.lib.cam.ac.uk/view/MS-ADD-03996/. Can under English law such a copyright claim be made, where the scan appears to be a purely functional reproduction without intellectual activity by the scanning person? I would be grateful for any insights you could provide".


My immediate thought was that not only Cambridge University Library but numerous other institutions have asserted copyright in similarly-created works. Bridgeman Art Library's assertion of copyright in photographically reproduced images was litigated in the US, where the court, having considered English law on the subject, refused summary dismissal of the plaintiff's action but subsequently rejected Bridgeman's claim (there's a handy note on the background and litigation of Bridgeman's claim here).

I wondered whether, following recent Court of Justice rulings on copyright in Infopaq, Premier League and
Painer, the fact that the accurate scanning of public domain works is not the result of the author's own intellectual creation would lead to the conclusion that, under modern European copyright doctrine, there would be no copyright in the scans. Arnoud seems to be thinking along the same lines, it now appearing that the Court of Justice's approach is dispensing with the old notion of categories of protected works and replacing them with a more general concept: that of the author's own original creation.


Arnoud agrees with me that no harm would be caused by throwing this issue open to readers of this blog, in case we've missed something obvious or they have some valuable insights to add.

Copycat, copy Kate?

High-end US jewellery designer David Yurman was pretty upset when he found out that French competitor FRED's new ad campaign by Sonia Sieff featured supermodel Kate Moss, not for any particular reason except that Ms Moss had been featured in Yurman's campaign by Peter Lindbergh shortly before. Moreoever, the model appears portrayed there in a way which Yurman deems to be "embarrassingly similar" to his own ad campaign.

In particular, Mr Yurman claims that in one b/w ad from his Spring 2011 campaign Kate Moss holds up a watch on her right arm to her parted lips, simultaneously pulling at a few strands of hair near her face. A similar colour image to promote LVMH's FRED shows Moss wearing a set of rings on various fingers with two hands up to her mouth, also pulling at a few tousled strands of hair.

In another b/w photograph by Lindbergh Kate Moss is portrayed naked, lying on her stomach on a furry white rug, wearing Yurman bracelets on her left arm. FRED campaign includes a colour photograph of the model lying topless on her stomach on a black fluffy rug, wearing leather trousers and rings on her right hand, but with a similar expression to that of the Yurman image.

As far as we know, no legal action has been taken against FRED yet. However, readers of this Blog may be interested in discussing this case, as the alleged similarities between the two campaigns are certainly strengthened by the fact that both feature the same subject showing similar facial expressions ...

More on this story on The New York Post here

Private copying levy: societies "did not do enough", rules French court

From 1709 Blog team member Asim Singh (Cabinet Singh, Paris) comes this news:

"In a fascinating decision handed down by the Paris High Court (Tribunal de Grande Instance de Paris) on 2 December the Court found Sorecop and Copie France (since merged), the two entities responsible for collecting the private copy levy, negligent. The court ordered them to pay 1 million euros to Rue de Commerce.

The issue arose with respect to the so-called “grey market” i.e., the market in which French consumers purchase, via foreign EU-based websites (states that do not apply a levy or apply a lower one than that which is applied under French law), media subject to the levy. Unhappy about the uneven playing field this creates, Rue de commerce filed an action in unfair competition against certain such foreign operators. After several years of litigation, the French Supreme Court (Cour de cassation) dismissed the action holding that these foreign vendors were neither manufacturers nor importers of the media (nor consumers) and were therefore not liable for payment of the levy. The Court added that they did however have the duty to inform the French consumer of his obligation to pay the levy.

Following this decision, Rue de commerce decided to sue Copie France and Sorecop. It argued, first, that they were not ensuring payment of the levy from the consumers who were purchasing media on the grey market and, secondly, that they were not doing enough to harmonize the levy rates applied across Europe (given that their representatives formed a majority on the private copying commission). The Paris High Court referred to the recent Opus ruling by the Court of Justice of the European Union (June 16, 2011) where the CJEU held :

“Directive 2001/29 ..., in particular Article 5(2)(b) and (5) thereof, must be interpreted as meaning that the final user who carries out, on a private basis, the reproduction of a protected work must, in principle, be regarded as the person responsible for paying the fair compensation provided for in Article 5(2)(b).
However, it is open to the Member States to establish a private copying levy chargeable to the persons who make reproduction equipment, devices and media available to that final user, since they are able to pass on the amount of that levy in the price paid by the final user for that service. 

Directive 2001/29, in particular Article 5(2)(b) and (5) thereof, must be interpreted as meaning that it is for the Member State which has introduced a system of private copying levies chargeable to the manufacturer or importer of media for reproduction of protected works, and on the territory of which the harm caused to authors by the use for private purposes of their work by purchasers who reside there occurs, to ensure that those authors actually receive the fair compensation intended to compensate them for that harm. In that regard, the mere fact that the commercial seller of reproduction equipment, devices and media is established in a Member State other than that in which the purchasers reside has no bearing on that obligation to achieve a certain result. It is for the national court, where it is impossible to ensure recovery of the fair compensation from the purchasers, to interpret national law in order to allow recovery of that compensation from the person responsible for payment who is acting on a commercial basis.”

The Court held that, as direct collection from consumers was materially and financially unfeasible, the collection bodies ought to have taken action against the foreign sites. The Court pointed out that they should have brought proceedings for failure to inform French consumers
adequately of their liability to pay the levy. The Court states that 

“tasked by the French State to collect this remuneration in favour of authors and bound to fulfil this mission in compliance with Community law, Sorecop and Copie France, once they determined that there was a distortion of competition and loss of remuneration for authors due to the foreign vendors, should have, by taking collection action, if necessary judicial, for the private copying remuneration against these foreign distributors, sought the necessary interpretation of French law on the quality of the person liable for payment of this remuneration”. 

The Court also agreed with Rue de commerce that the two collection bodies could have done more to encourage harmonization of the levy rates across Europe in order to fight the grey market in light of their dominant position within the private copying commission.
The Court concluded that the two collection bodies had been negligent (within the meaning of the general tort in the Civil Code) and that their negligence had caused Rue de Commerce a loss of chance to limit or eliminate the grey market and awarded it 1 million euros by way of damages".

There's a link to the Paris High Court decision here

Mega Row over MegaVideo

This story has been rumbling for a few days now but the ‘Mega Song’ dispute is taking all sorts of twists and turns. Let’s start at the beginning: MegaUpload is a file sharing platform that produced a video for what we will call the ‘Mega Song’ featuring numerous big name artistes such as Will.i.am, Chris Brown and Macy Gray all, well, ‘bigging up’ MegaUpload. This was posted up on YouTube. So far, so good. But it didn’t stay on YouTube for long as Universal Music Group (UMG) took umbrage and had it taken down under YouTube's takedown procedures (or so we thought). MegaUpload founder Kim Dotcom (ermmm, that’s actually not his real name, its Schmitz, but wouldn’t it be great if it was) responded insisting his company had permission from all of the artists involved and owned all copyright in the track. He then said he was launching an action against UMG for improper use of the USA’s Digital Millennium Copyright Act.

Universal firstly (and seemingly) said that their actions were correct as they were acting on behalf of one of their recording artistes featured in the MegaSong who had not given their consent to be featured in the manner in which their contribution was used. Further reports then followed that said other artists who featured in the video had also raised concerns, though only Will.i.am was named and it seemed he had apparently issued his own takedown notice to YouTube in relation to his appearance in the MegaSong video. Kim Dotcom then said he'd personally spoken to Will.i.am who said he had no knowledge of any takedown notice being issued in his name.

But then in a rather alarming twist, UMG apparently said that they actually didn’t use the DCMA to remove the video – but used an agreement UMG have with YouTube which allows the music major to have any video it doesn't like removed. One sort of wonders why anyone or any company would publicly say they had this right which sounds remarkably like censorship - as it is almost certainly going to be incredibly damaging for UMG – and no doubt for Google and YouTube too. But I for one would love to know if such an agreement exists – and exactly what it says – and hopefully UMG can now provide an explanation. If not, This Megaspat could end up being fascinating!

The song (and it really is awful) is back online subject to some sort of YouTube view count' limit. I know no more than that! You can see it here ... if you must

http://www.youtube.com/watch?v=K9caPFPQUNs

Less admin, more cash? Viscopy hands operations to CAL

The 1709 Blog has learned from its Australian friend John Walker that Viscopy (the Australian sister to the UK's Design and Artists Collection Society ) is effectively ceasing to operate as an organisation in its own right: its management functions are to be taken over by Copyright Agency Limited -- a body which was appointed by the Commonwealth Attorney General and the Copyright Tribunal to manage various statutory licences. According to a statement released by Viscopy:

"We are contacting you to let you know that Viscopy and Copyright Agency have entered into a services agreement whereby Copyright Agency will provide all services to Viscopy’s members and licensees. Viscopy will retain its board and its membership.

We anticipate the agreement will result in additional income to artists through reduction of administrative fees and expanded licensing services, and simplify the licensing processes for text and images.

The agreement is anticipated to take effect by mid 2012 subject to regulatory approval, and will be reviewed by both organisations in three years. ...."

Rome Trial Court says Google is like Scarlet

A few days ago the Rome Court of First Instance issued an important decision (which can be read in Italian here) in an application for an interim injunction in the context of proceedings between Reti Televisive Italiane (RTI, a subsidiary of the Mediaset Group owned by Silvio Berlusconi), and Google and Others.

Back in the summer of this year, RTI sued Google for copyright infringement, claiming that a web portal, hosted on Blogger, was streaming football matches broadcast on RTI's TV channels. The Rome Court rejected RTI's application because -- following notification to Google -- the allegedly infringing materials had been removed from Blogger.

Moreover, by referring to the recent ruling of the CJEU in Scarlet (noted in this Blog here), the Rome Court held that web platforms do not have an obligation to monitor communications on their network. In particular - pointed out the Court - an injunction aimed at preventing all future infringements would be tantamount to imposing an obligation of general surveillance of all the communications passing through a provider's network. Such an obligation cannot be imposed upon a service provider, in that this would be contrary to EU law. This would also be in contrast with the freedom of the service provider to conduct its business, since such surveillance would require that the provider install a complicated, costly computer system.

We'll see now how things develop in the course of the proceedings. However, for the sake of pedantry, the ruling in Scarlet was about ISPs. Is this the case of Google? Another pending reference may (or may not) change the panorama, once it is decided. I am referring to Netlog (here and here), another reference from the Rechtbank van eerste aanleg te Brussel (Belgium), posing the same question as in Scarlet, but in relation to hosting service providers ...

Google European Public Policy Blog here