THE COPYKAT

French media organisations have lodged a complaint against Google with the country's competition authority in a move over the US internet giant's refusal to pay for displaying their content. In fact the internet platform has taken the decision not to show their content at all - which in turn has reduced traffic to those sites.  Earlier this year France implemented the recent EU copyright reforms - one aim of which was to ensure publishers are compensated when their work is displayed online.  Google won't pay - but with the law now in place will only display content if they are granted gratis permission. And the APIG press alliance is not happy. Not happy at all - not least because their members have lost visibility and presumably advertising revenue - and the media organisations say the giant is abusing its dominant position in the market. French President Emmanuel Macron has already voiced his support for the press, saying that no company can "break free" of the law in France.''

A Colombian writer is appealing a Miami federal court’s ruling that Netflix's hit show “Narcos” does not infringe copyright in her memoir about her experiences with drug lord Pablo Escobar. The US District Court in Florida said that the common aspects of two scenes from “Narcos” and Virginia Vallejo’s book “Amando a Pablo, Odiando a Escobar” were factual -and not protectable. The case will go to the Eleventh Circuit Court of Appeals. 

A new report from the European Union's Intellectual Property Office that between 2017 and 2018, overall access to pirated content in the EU fell by 15.1% on average, and shows that online piracy among young internet users continues to decline - with a major factor being the development of legal and accessible music, video and gaming platforms. Of course piracy amongst  the 15-24 year generation hasn't gone away from an age group where 97% stream or download music, 94% stream or download movies and TV series, 92% play online video  games,  and 79% who find other TV shows and sporting events: a third of those surveyed still accessed at least some of their online content from unlicensed sources, but this number is in decline particularly with music. The report says that young people will still find illegal sources of material they cannot easily access legally - in particular movies, TV shows and sport. More here.

The High Court in London has found that the patterns on the lid of a make-up powder palette and embossed on the powder itself could constitute protectable copyright works. The  decision in the case,  Islestarr Holdings Ltd v Aldi Stores Ltd  [2019] EWHC 1473 (Ch) dismissed Aldi’s argument that the ephemerality of the powder design meant that it was not sufficiently fixed to be granted copyright protection. Deputy Master Linwood used the  examples of the copyright protection granted to sand sculptures that are washed away by the tide - and a personalised wedding cake that will be eaten can still constitute a copyright work. The Deputy Judge held that Aldi had no real prospect of successfully defending Islestarr's claim for copyright infringement of each design. More from Hugo Cox on this case here.

Fashion firm Marc Jacobs has newly submitted new arguments as to why it has not infringed the intellectual property rights of Nirvana by selling a t-shirt that featured a version of the wobbly face image that was a staple of the band's merchandise. Marc Jacobs has so far failed to have Nirvana LLC's claim dismissed with the judge overseeing the case ruling  "a review of the images confirms that the allegation as to substantial similarity is sufficient". Now Marc Jacobs has now filed some new documents with the courts that include copyright and trademark law technicalities, and a challenge to whether or bot the claimant owns the original wobbly face image. On subsistence, Marc Jacobs cite rules and practices of the US Copyright Office which, they say, confirm that Nirvana's wobbly face image does not meet the requirements to be protected by copyright. They also note that the US Patent And Trademark Office refused to register the logo as recently as last summer, and that Nirvana LLC has failed to demonstrate that Kurt Cobain drew the wobbly face, as has been claimed, nor that rights in the drawing passed to the band's company through either explicit or implicit agreement.

And more from the world of fashion - this case from the USA where a Montana based clothing company called All Season All Terrain (ASAT) Outdoors is suing New York-based fashion company Supreme for copyright infringement after Supreme sold clothing printed with a copyrighted camouflage design. ASAT has told the New York District Court.that it has owned the copyright on a camouflage design since it was created in 1985.

A Japanese government panel has now approved a plan to limit the scope of what is considered illegal downloading of any copyrighted work,  including manga, computer games and literary writings, reversing its initial plan to restrict such online activity more broadly. The Cultural Affairs Agency panel said a future amendment to the copyright law would not apply to partial downloads of copyrighted works, such as a few frames from a comic book or a screenshot of a copyrighted image. In the new proposal, the panel said further discussions were needed to decide whether to narrow the scope of illegal acts to the downloading of complete original works, excluding parodies and derivative works, and downloads from piracy websites.

The World Intellectual Property Organisation (WIPO) has called for public comments as part of its process to develop a policy on Artificial Intelligence and Intellectual Property Rights. The call is available here and is open until February 14th 2020.  “Artificial intelligence is set to radically alter the way in which we work and live, with great potential to help us solve common global challenges, but it is also prompting policy questions and challenges,” said WIPO Director General Francis Gurry adding "Machine learning relies on information in the form of electronic data, which is also at the heart of intellectual property and innovation in a global digital economy. I invite everyone with an interest to assist us in formulating the questions that are confronting policy makers and to share with us their expertise in order to have a focused dialogue.

And finally, US audio streaming service TuneIn is appealing against last month’s High Court judgment which it says is “fundamentally bad for freedom of expression on the Internet and cultural diversity” (in the United Kingdom).Tunein is the internet radio service, available online and via an app, which has both free and premium versions. The Kluwer Copyright Blog has more on the decision by Mr Justice Birss in Warner Music & another v TuneIn Inc [2019] EWHC 2923 (ch). 

THE COPYKAT

In a curious turn of events, police in Thailand have now said that they will seek a warrant to arrest copyright agents who allegedly attempted to extort 50,000 baht from a 15 year old for copyright infringement. About 50 vendors in Korat are also said to be preparing to file criminal complaints against the same copyright agents. They had ordered krathongs decorated with cartoon characters from the teenage girl and had been threatened with 'fines' or they would face criminal charges. Korat provincial police chief Maj. Gen. Sujin Nitpanit said the investigation was almost complete and court warrants would be issued for copyright agents, whose names have been withheld by police: Police said they were in contact with the actual owners of the copyrights in the cartoon characters who were not involved in the attempts to.extort money from the teenage girl. Press reports say that Korat City police chief Col. Kachen Setaputta had been moved from his post after allegations that police officers under his command were colluding with the so called copyright agents. 

Hypebot reports that despite an acknowledgement that the the 1923 song “Yes! We Have No Bananas” by composers Irving Cohn and Frank Silver had slipped into the public domain, Universal Music stepped up to claim ownership. Glenn Fleishman had posted a video of the song to YouTube in celebration of it entering the public domain earlier this year. He even titled it “Yes! We Have No Bananas, now in the public domain.” The video is of him and his friends and family singing it at a New Year’s Eve Party: However, Hypebot says that video has now been “claimed” by Universal Music with a claim to “monetize” the video on YouTube  - despite them "literally having no rights to speak of". Hypebot say "What’s possibly troubling is that YouTube doesn’t even seem to offer up an option for you to point out that the work is in the public domain, and even if these entities might have once had a claim on the song". 

In a related update, reclaimthenet.org says that another YouTuber is struggling with the platform's harmful and often confusing copyright protection system. This time it's the turn of Kerbal Space Program game aficionado Matt Lowne, who has come under fire from copyright holders for using what he was sure was a royalty-free track in his videos. The creator, with a quarter-million subscribers and more than 55 million views, tried to navigate the system by carefully choosing a legal and copyright-unencumbered audio track – only to fail all the same with YouTube  informing him that the music featured in these videos – namely, “Dreams” – “may” be licensed or owned by music industry heavyweights like SonyATV, PeerMusic, Warner Chappell, Audiam and LatinAutor. 

The US The Supreme Court has agreed to hear the appeal by Google in the case where Oracle accused the tech giant of violating copyright laws when developing its Android mobile platform. The court's decision to hear the case comes more than a year and a half after the U.S. Court of Appeals for the Federal Circuit ruled against Google, saying the company's unauthorized use of 11,500 lines of code in Oracle's open-source Java application programming interface was not fair use, and will provide the final say in the 2013 claim accused Google of infringing the copyright on its Java APIs in the development of Google’s Android OS. Google denied any wrongdoing and has argued, in part, that software APIs cannot be protected under U.S. copyright law. 

Nirvana‘s 2018 lawsuit against Marc Jacobs will proceed. According to The Hollywood Reporter, a Californian judge has denied the motion to dismiss the band’s copyright complaint over the designer’s smiley face T-shirt which seems to bear an uncanny resemblance to Nirvana's own artwork.  he copyright infringement concerns Jacobs’ “Redux Grunge” collection, which Nirvana's representatives claim used the band’s smiley face logo created by Kurt Cobain in 1991. The Jacob's T-shirt features a similar coloration and font to Nirvana's original T-shirt, replacing the word Nirvana with “Heaven” and the smiley face’s X eyes with “M” and “J.”  iN MaRCH 2019 Marc Jacobs filed a motion to dismiss the complaint, arguing, among other things, that the band doesn't explain how or when Cobain transferred the rights in his design and that the two designs aren't sufficiently similar. U.S. District Judge John A. Kronstadt has denied the motion, finding the complaint sufficiently alleges Nirvana owns the copyright registration and that the only "discernible difference" in the faces is the use of "M" and "J" as eyes instead of two X's. Kronstadt found that the asymmetrical circle of the face, the relatively wide placement of the eyes, the distinctive squiggle of the mouth and the stuck-out tongue are enough to distinguish the happy face from a generic smiley saying "It is also noteworthy that the Accused Products have combined this protectable artwork with other distinctive elements of the Nirvana T-shirt, including through the use of yellow lines on black background and a similar type and placement for the text above the image on the clothing". The case is Nirvana LLC v Marc Jacobs International LLC et al. LA CV-18-10743 JAK. 

AsianAge reports that Hyderabad-based short-filmmaker Nandi Chinni Kumar has sent legal notices to the makers of forthcoming Hindi film "Jhund" and megastar Amitabh Bachchan, the lead actor of the movie, over alleged copyright infringement. At the heart of this seems to be a dispute over who owns the rights to the story of the life of Akhilesh Paul, a slum soccer player who was the Indian captain at the Homeless World Cup. 

THE COPYKAT

Reuters report that France is pushing for the creation of a European-wide regulator of digital platforms including Google and YouTube, to sanction any possible abuse of power. A spokesperson cited the dispute between Google and European publishers saying “A big American company, Google namely, has announced it would not comply with an EU copyright directive,” the official told reporters. “France and Germany share the view that... we have to put an end to this illegal behavior.”

And more on Google: In a U.S. Supreme Court filing, the Justice Department has urged the court  to deny Google’s petition for review of a pair of rulings that put the company on the line for billions of dollars in damages for infringing Oracle’s copyrights in the Java computer code. Reuters say that Google’s lawyers at Goldstein & Russell have argued that the case presents important questions about the copyrightability of certain kinds of computer code and fair use of that code. The Justice Department, however, said in Friday’s brief that the copyrightability question has already been resolved definitively - and that the Google case isn’t a good vehicle for the Supreme Court’s consideration of fair use.

The Verge reports that alleged copyright troll Christopher Brady will no longer be able to issue DMCA takedowns to YouTubers. According to a lawsuit settlement, an agreement has been reached and  Brady is banned from “submitting any notices of alleged copyright infringement to YouTube that misrepresent that material hosted on the YouTube service is infringing copyrights held or claimed to be held by Brady or anyone Brady claims to represent.” Brady agreed to pay $25,000 in damages as part of the settlement. He is also prohibited from “misrepresenting or masking their identities” when using Google products, including YouTube.

Queen have joined the long list of bands who have taken action against President Trump for using their music without permission. A campaign video featuring 'We Will Rock You' has been removed from his Twitter following a copyright complaint from the band’s publisher. According to Buzzfeed, within hours of the video going live Queen had "already entered into a process to call for non use of Queen song copyrights by the Trump campaign”. After being viewed more than 1.7 million times, the video was disabled by Twitter and the post now reads: "This media has been disabled in response to a report by copyright owner.” They join REM, Prince, Neil Young, Rihanna, Nickleback and Adele (amongst others) who have objected to Trump using their music. More details on Nickleback's recent takedown can be found here. A Twitter spokesperson told CNN that the company responds to copyright complaints sent to them by a copyright owner or their authorised representatives.

Why bring a Trade Mark claim in place of a copyright claim? Well it seems that the super secret street artist Banksy might be doing that to avoid revealing his true identity. Above the Laws's take on this is "Banksy’s Fake Store Is An Attempt To Abuse Trademark Law To Avoid Copyright Law" but it's an interesting story in Banksy's attempt to stop a small greeting from selling “fake Banksy merchandise.” Full Colour Black "run a small business that does photography and sells cards involving public graffiti". Above the Law say this "But… that’s all about copyright. In reading the news coverage of all of this, I was stumped as to why were were discussing trademark at all — until I realized something kind of important. Banksy is using trademark because Banksy can’t use copyright without revealing who Banksy is". And Full Colour Black’s lawyer, Aaron Wood, explained “We are contesting the validity of one of his [Banksy's representing company Pest Control Office Limited] EU trademarks on the basis that he has freely permitted it to be reproduced such that it no longer functions as a trademark (if it ever did), on the basis that he never intended to use it as a trademark and that he is trying to register for collateral purposes (ie, to avoid evidential issues with copyright and to avoid having to file a ‘statement of use’ in the US).”


US comedian Jerry Seinfeld has defeated a lawsuit which alleged he had stolen the idea for a TV series. But the case was decided on basis that the statute of limitations must bar the claim - and not on any infringement or otherwise. Christian Charles, a former colleague claimed he had originally pitched the idea for "Comedians in Cars Getting Coffee" to Seinfeld in 2002 - a decade before it debuted. Manhattan District judge Alison Nathan said Charles had taken too long to sue, The statute of limitations appies after three years and Charles had waited for six years to file his lawsuit after Seinfeld rejected his copyright claim in 2012, the year the first series of the show aired.

Current chair of the House Judiciary Committee, Jerrold Nadler, has aired his thoughts on what might be the next challenges for legislating for music copyright in the USA. He 
joined National Music Publishers' Association president and CEO David Israelite for NYU Steinhardt's inaugural Ralph S. Peer Lecture, named after the music visionary who founded Peermusic in the 1920s. Prioritising the unity that led to the unanimous passage of the Music Modernization Act, Nadler opined "If you want real legislation, the different segments of the industry have to get their act together and speak with one voice," and admitting that most members of Congress aren't well-versed in music industry particulars. "Once they did that, we were able to pass legislation unanimously." Nadler then went to on talk about the fact that in the US there is no performing right for recorded music terrestrial AM/FM radio play - an almost unique position in the World adding "As terrestrial radio becomes relatively less important and streaming becomes more, the question is the extent to which broadcasters will see their interests as less opposed to performance rights. At some point, I do think we will get some [agreement], because the National Association of Broadcasters (NAB) and their people will see that their interests are less adversely affected than previously.

Is Google the ultimate Puppet Master?

There is a fascinating article on the TRICHORDIST website that looks at who has been paying and who has been driving the resistance to amendments and reform of EU Copyright law (in particular Article 13 of the draft Copyright Directive). Vast resources had been pumped into a campaign to 'save the internet' from the greed of the bully boys and girls in charge of film companies, record labels, publishers and other content owners. But what is the truth and who is behind 'OpenMedia' - an organisation that on surface seems to be all about keeping the internet  open? 

Julia Reda, the German Pirate Party MEP may have been the public face of resistance to reform - But who was behind these campaigns? Well have a read and see what you make of this ...... But (SPOILER ALERT) the conclusion reached by author Volker Rieck is this: "Ultimately, US companies from the Internet economy financed significant parts of a campaign in Europe to influence EU legislation. What looked like grassrootes movement from the outside was in fact a classic form of astroturfing – designed to create the appearance of a popular movement....... "

There is more - much more in

Anatomy of a Political Hack

https://thetrichordist.com/2018/08/03/anatomy-of-a-political-hack-guest-post-volker-rieck/

and more in the Times here  https://www.thetimes.co.uk/article/google-funds-activist-site-that-pushes-its-views-rg2g5cr6t

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 CHRISTMAS COPYKAT

In Canada, the House of Commons has triggered a parliamentary review of Canada's Copyright Act, first passed in 1921, which will be conducted by the Standing Committee on Industry, Science and Technology. TorrentFreak comments that the music industry was quick to weigh in, congratulating government ministers and making it known that the so-called 'Value Gap'  - how the tech giants seem to be good at everything except removing infringing material, and why likes of Google don't seem keen to pay for what drives the likes of YouTube - be high on the agenda. The 2012 Act tackled a number of important issues, such as allowing time and format shifting, plus backup copies, fair dealing and caps on statutory damages for non-commercial scale infringement - and a review of copyright law every five years, a period that expired at the end of June 2017.

And talking of the Value Gap, YouTube has now just signed a second global, multi-year agreement with the Universal Music Group, amid mooted plans to expand its subscription businesses. Universal said the deal would provide its artists more flexibility and pay, and strengthen YouTube's commitment to managing music rights. YouTube reached a deal with the second of the three majors. Warner Music Group, in May. Bloomberg reports that the negotiations come in advance of YouTube's launch of a new paid music service that is expected to go live in March 2018. And not to be left behind, Facebook and Universal Music Group have signed an 'unprecedented global, multi-year agreement' under which UMG licenses both its recorded music and publishing catalogs for video and other social experiences across Facebook, Instagram and VR platform Oculus.

In good news for the recorded music sector, the US Copyright Royalty Board has determined that SiriusXM must pay 15.5 percent of it's revenue for the next five years (beginning in 2018 through to 2022, although the full determination has yet to be posted on the CRB's website while the participants scrutinize the document to make sure proprietary data is not publicly revealed. The rate represents a near 41 percent jump from the 11 percent the service is currently paying, although it's short of the 23 percent that SoundExchange was advocating for. But the Hollywood Reporter it's better than the static rate that SiriusXM was hoping for from the Court. However in a less palatable move, the Board has ruled that pre-existing subscription services (Music Choice and Muzak) will enjoy a reduced rate of 7.5 percent of revenue for the next five years. That is down from 8.5 percent of revenue in the current year that the two services are paying to the industry.

But the battle between the tech behemoths, and giants of the content industries, is in full spate.  Now the likes Google and Facebook are facing off against Hollywood studios and record labels over how to update the North American Free Trade Agreement to protect copyright in the digital age. Silicon Valley is pushing for exceptions to copyright rules for online platforms and Internet service providers it says are needed to keep content flowing on the web. Meanwhile, the U.S. government seems to be taking positions more favoured by companies such as Walt Disney Co. and Time Warner Inc., which are lobbying for stronger protections for copyright owners. The new (US led) proposals for NAFTA would limit allowances for online use of copyrighted material, a position seemingly less supportive of online platforms than existing U.S. law, in particular a watering down of fair-use exceptions and a re-evaluation of 'safe harbor'.  More on Bloomberg here

T Bone

Back to music: A group of 41 recording artists is urging the US Congress to sort out the somewhat odd (and now much litigated) position of pre-1972 sound recording copyrights in US federal law with the new "Compensating Legacy Artists for their Songs, Service & Important Contributions to Society Act"  - or (wait for it, and a a drum roll please)  the CLASSICS Act. The CLASSICS Act would rectify the obvious problems with relying on state level copyright law to establish a performing right for sound recordings,  and create the basis for a royalty to be levied from broadcasters to pay labels (and hopefully recording artistes) for pre-1972 works.  The 41 signatories including T Bone Burnett, Rosanne Cash, Kris Kristofferson, Bette Midler, Bonnie Raitt and Henry Rollins said  “Digital radio makes billions of dollars a year from airplay of music made before 1972. Yet, because of an ambiguity in state and federal copyright laws, artists and copyright owners who created that music receive nothing for the use of their work. The ‘CLASSICS Act’ would correct this inequity and finally ensure that musicians and vocalists who made those timeless songs finally get their due. We urge Congress to pass the CLASSICS Act and other pro-artist reforms quickly”.

The major national sports Leagues in Europe, including the English Premier League and Germany’s Bundesliga  have won a reprieve from the EU who have agreed to exclude them from the scope of a copyright reform that would help make content more easily available online. The entertainment and sports industries have been fiercely lobbying against the European Commission’s proposed reform of EU copyright law to make films and TV programmes more available across borders, arguing it would undermine the financing model of the whole sector. The Commission has said it is not seeking to force anyone to make content more available online, but merely to make it easier for broadcasters to obtain the necessary rights. EuroNews reports that EU member states have now to exclude all sports events, TV programmes co-produced by broadcasters and other third parties, as well as content licensed to a broadcaster by a third party.

The Electronic Frontier Foundation (EFF) has asked the Librarian of Congress to limit the legal barriers people face when they want to repair and modify software-enabled products, so that they, and not manufacturers, control the appliances, computers, toys, vehicles, and other products they own. In comments filed in Washington D.C. today, EFF continued its years-long fight to enable owners and creators to repair, modify, and enhance products, or use snippets of films or songs, free of onerous threats that doing so somehow infringes companies' copyrights. Software-enabled devices and Internet-connected products and appliances are ubiquitous in modern life, and people aren't infringing anyone's copyright when, for example, they choose to permanently disable the embedded, on-all-the-time camera or microphone in their kids' toys, or send their car to their favorite mechanic, rather than high-priced dealerships, to be repaired. “It’s absurd that a law intended to protect copyrighted works is misused instead to prevent people from taking apart or modifying the things they own, inhibit scientists and researches from investigating safety features or security enhancements, and block artists and educators from using snippets of film in noncommercial ways," said EFF Legal Director Corynne McSherry. "The exemption process is one highly flawed way of alleviating that burden."

Facebook has announced that it removed nearly 3 million posts, including videos, ads and other forms of content, from its services during the first half of 2017 following complaints of counterfeiting and copyright and trademark infringement. Aggregate data shows Facebook received about 377,400 complaints from January through June, with many referencing multiple posts. About 60 percent of the reports related to suspected copyright violations on Facebook.

The National Copyright Administration of China (NCAC) has announced that during the 2017 Sword Campaign 1,655 infringing websites were shut down, 274,800 infringing links were deleted and 314 enforcement cases were dealt with (of which 37 transferred for criminal investigation). The Sword Campaign is a flagship initiative led by NCAC in partnership with other Chinese government departments and enforcement agencies. Meanwhile, NCAC released a list of the top 16 copyright enforcement cases for 2017. The leading case on the list was enforcement against the piracy service Youyueyingchuang Technology Ltd. by Beijing Municipal Cultural Enforcement Division (CED). The resulting enforcement action removed the service and imposed a fine of RMB400,000 (approx. £45,000). More here and here (in Chinese).

The CopyKat Strikes Back - May the Festivities be With You!

It is that time of year again folks. People are celebrating, children are overcome with excitement and everyone can't stop talking about it. All waiting for that time when we can gather round with our loved ones and watch STAR WARS!

With the launch of the latest film in the franchise, the Disney production engine has been in overdrive. This has led to a number of related interesting stories which we will share with you in this copykat alongside our regular helping of non-Star Wars related copykat content.

Star Wars lawsuits: who has Lucasfilm sued and why?

This first piece is an oldie but a goodie from late 2016. This article highlights the commercial power of Lucasfilm and Star Wars. Also it is important to point out that Star Wars, or more specifically a storm trooper helmet, was the key point of contention in the regularly cited case of Lucasfilm Ltd v Ainsworth (2011). The Supreme Court ruled in 2011 that the helmets were indeed functional props, and not sculptures for the purpose of copyright protection, meaning that that Ainsworth was free to continue manufacturing the replica outfits.

Lego Wins Its First Copyright Court Case in China Against Bela

Lego A/S, Europe’s biggest toymaker, said it won its first copyright court case in China.

The China Shantou Intermediate People’s Court has ruled that products under the name Bela, sold by two Chinese companies, infringed upon Lego’s copyrights, the building block maker said in a statement Thursday. The ruling was made in September, but the appeal window only ended last month, Lego said.

FCC Chairman Ajit Pai Faces Multiple Copyright Infringement Lawsuits — Starting With ‘Harlem Shake’

FCC chairman Ajit Pai shot a cheeky video about net neutrality on Thursday.  He now faces the possibility of multiple copyright infringement lawsuits and millions of dollars in damages. This morning, at least one copyright owner vowed to launch a major lawsuit against Pai, the Federal Communications Commission, or both. 

The video has already amassed millions of views across Facebook, YouTube, and other outlets. The video also uses iconic music from both Game of Thrones and the Star Wars franchises. Both franchises are obviously worth immense amounts of money, with Star Wars holding billions of dollars in copyright IP.

Dr. Seuss and Star Trek Mashup Comic Isn’t Fair Use After All, Judge Says

Okay this one is not strictly Star Wars, though we feel it is close enough to merit inclusion.

A judge has allowed a lawsuit to proceed against the creators of Oh, the Places You’ll Boldly Go!—a nearly page-for-page remix of the Dr. Seuss classic Oh, the Places You’ll Go! and Star Trek. This decision reverses an earlier ruling.

After receiving a new court filing, US District Judge Janis Sammartino found that ComicMix, the company behind the new work, could not so easily have the case dismissed: “Thus, after again weighing the fair use factors, the Court finds Defendants’ fair use defense fails as a matter of law,” Judge Sammartino wrote in a December 7 order.

Steam Purged of Pepe Emoticons After Creator Files Copyright Claim

If, for some godforsaken reason, you’ve been trying to collect every achievement and emoticon featuring Pepe The Awful Meme Frog on Steam, I’ve got some bad news for you: many of them are gone. Pepe images that players could earn by playing games like Fergus The Fly and, tellingly, Make America Great Again: The Trump Presidency have been replaced with a simple message: “Emoticon art currently unavailable due to DMCA takedown notice submitted on behalf of Matt Furie.”

Google, Tech Firms At Odds With Content Creators Over Australian Copyright Safe Harbour Ruling

Google and members of Australia's technology sector have urged the government to reconsider excluding them from changes to safe harbour, while the content sector has applauded the decision to not extend the copyright provisions to digital commercial entities.

The government's reforms, revealed by The Australian Financial Review last Wednesday, seek to extend safe harbour provisions to education institutions and libraries as well as the disability, archive and culture sectors.

Safe harbour provisions give immunity to service providers when users upload copyright-infringing material as long as they are taking reasonable steps to remove infringing content from their platforms.

Houston Jury Awards Energy Publisher $585,000 For Copyright Violations

A federal jury in Houston awarded $585,000 to the publisher of an energy newsletter that accused an investment house of passing around unauthorized copies of its pricey publication.

Energy Intelligence Group, the publisher of 15 newsletters for the oil and gas industry, sued Kayne Anderson Capital Advisors for sharing its five subscriptions of "Oil Daily" with others in the investment firm who did not have their own subscriptions. The jury found that the Los Angeles-based investment firm, which manages $24.5 billion in assets, was liable for copying 39 issues and determined the damages for each instance was $15,000, according to the jury verdict. The trial began Monday, and the jury reached its verdict Thursday.

US Court Dismisses Copyright Infringement Complaint Against GAIN Capital

Online trading services provider GAIN Capital Group LLC has secured a judgement in its favor on Friday, December 15, 2017, as a part of a copyright infringement case launched against it by Tibco Software Inc. Judge Edward J Davila of California Northern District Court has granted GAIN Capital’s Motion to Dismiss the claims for breach of the implied covenant of good faith and fair dealing and copyright infringement.

The Court sided with GAIN Capital, with the Judge noting that the copyright infringement claim does not distinguish between Gain Capital’s alleged use of Tibco’s software while a valid license was in effect and the alleged use of the software after the licenses expired. The copyright infringement claim was accordingly dismissed with leave to amend.

Gain Capital has also moved to dismiss the breach of the implied covenant of good faith and fair dealing claim as superfluous of the breach of contract claim. The Court agreed that the two claims are nearly identical, and the breach of implied covenant claim was accordingly dismissed with leave to amend too.

Tibco is set to file and serve an amended complaint no later than December 29, 2017.

Playerunknown On Copyright Infringement: 'There's No IP Protection In Games'

Our final story for you copyright fans today poses more of a question for discussion rather than a legal update.

Are computer games being let down by current IP legislation?

This topic is of particular importance to this writer as he is regularly finding himself explaining this sorry state of affairs to up and coming game developers. It seems that in every creative industry where money has flowed, IP protection has found a way to adapt in order to provide some security to those revenue streams. However in the case of computer games or even software, we are left in a situation where the concept of a game can be copied in its entirety, albeit with entirely different physical content, and the original creator is left with little recourse. Though the idea/expression dichotomy weighs heavy in this writers mind, there must be a compromise to be found. Without it we are left in the very poor situation described in the article: "Some amazing games pass under the radar. Then someone else takes the idea, has a marketing budget, and suddenly has a popular game because they ripped off someone else's idea. I think it's something the industry needs to look into. You're protecting the work of artists basically. Games are art for a large part, and so I think it's important they're protected."

This CopyKat by Matthew Lingard