The CopyKat - The Pirate Bay on new Swedish advertising blacklist

The Pirate Bay and several other locally significant 'pirate' sites have been placed on an advertising blacklist. The initiative is the result if a collaboration between anti-piracy group Rights Alliance and the national association of Swedish advertisers which has  more than 600 member companies. As Torrent Freak says, this “follow the money” approach is gaining momentum worldwide and is largely centered on the companies financing pirate sites with their advertising spend.

Acording to daya presented by the Motion Picture Association at a conference focused on online law enforcement in Southampton last week, 504 web blocking injunctions have been issued in Europe: Italy tops the list of orders against  internet service providers requiring them to block consumers access to copyright infringing websites, with 238 injunctions now issued. The UK comes second with 135 web-blocks now in place. More here.

Aurous, which MBW likened to the new Grooveshark last week and which was also called the 'Popcorn Time for music', and which we highlighted in the last CopyKat, has pulled its attempted crowdfunding on IndieGogo citing "unwanted attention"

Raanan Katz , the real estate mogul and owner of the Miami Heat basketball team, has learned about copyright law the hard (and expensive) way. Irina Chevaldina,an unhappy former tenant of Katz’s company, copied a rather unflattering photograph of Katz taken by photographer Seffi Magriso onto her blog which was highly critical of Katz. Unhappy about this, Katz acquired the photo’s copyright, and then claimed Chevaldina had infringed his newly acquired copyright. The District Court gave the claim short shrift - and applying the standard tests they found fair use, and in particular found: The nature of the use was non-commercial - Chevaldina used the photo to criticise, ridiule and satirize Katz; and because Katz acquired the photo to block any publication, Chevaldina's use could not have any effect on the marketplace:  "Due to Katz’s attempt to utilize copyright as an instrument of censorship against unwanted criticism, there is no potential market for his work", concluding "“every reasonable factfinder would conclude the inclusion of the Photo in her blog posts constituted fair use.” Chevaldina was awarded her attorney's fees. 

Shares of in Pandora Media, the Internet radio company have jumped by 5.3% after the firm received good news in an ongoing fight over royalties. The company said it "was pleased that the U.S. Registrar of Copyrights agreed that the company's pact with Merlin Network, a global rights agency for independent musicians, was admissible as a benchmark in royalty proceedings before the Copyright Royalty Board  according to a Reuters report. In May The Federal Communications Commission gave Pandora Media permission to buy a small radio station in South Dakota in a move to obtain lower royalty rates. ASCAP's objection to the acquisition of the terrestrial radio station was finally put to rest by the FCC last week .The agency rejected the performance rights organization's request for reconsideration of its original ruling.

The cabinet reshuffle in Canberra has seen the Australian Attorney-General George Brandis not only lose his position as the Minister of Arts, but his responsibilities for copyright and content classification - which have been moved from his office to that of newly appointed Communication Minister Mitch Fifield.

And finally, the he much delayed extradition hearing of the former management team of MegaUpload has begin in New Zealand, despite lawyers for MegaUpload founder Kim Dotcom and his former colleagues again trying to get their clients' extradition case pushed back, not least as court imposed restrictions on funds mean Dotcom and his colleagues cannot hire U.S based experts in U.S. copyright and criminal law. 

The CopyKat - taking stock of a 'brief week'

A Sky News live feed of the debate between the US Republican presidential candidates, including Donald Trump, Jeb Bush, and Rand Paul on its YouTube channel focussed on the U.K. was shut down part way through, possibly after the intervention of U.S. sister channel Fox Networks. Both broadcasters are owned by News Corp. The YouTube feed was replaced by an error message: "This video is no longer available due to a copyright claim by Fox News Networks, LLC." although some commentators point to the fact that YouTube's own automatic copyright infringement identifying software might have instigated the take down. Sky's old YouTube channel remains blocked - Sky News has since switched over to a new YouTube URL. In the U.S.,  the Republican debate, which was hosted by Fox News in partnership with Facebook, was meant to only be available to those with a cable TV subscription.

Google, Facebook, Twitter, Tumblr and Yahoo! are amongst the signatories to a new amicus brief submitted to the New York court that is considering legal action filed by the Motion Picture Association Of America seeking an injunction forcing third parties to block, remove links and stop providing any services to the copyright infringing MovieTube website(s).  They say that the injunction the MPAA requests is too wide-ranging, hinders the sometimes controversial safe harbours provided to tech companies in the Digital Millennium Copyright Act, and is basically "SOPA by the back door" (SOPa was the much maligned Stop Online Piracy Act, ultimately put on the back burner by the legislature. The brief says: "Plaintiffs now appear to be repackaging the excesses of SOPA into the All Writs Act. Indeed, the injunction proposed here would require the same online intermediaries targeted by SOPA to engage in the same kind of content and domain blocking that would have been required under SOPA had it been enacted".

Police in the UK have hailed an operation to halt advertising on piracy sites as a “major success”. The Police Intellectual Property Crime Unit (PIPCU) claims that since it launched Operation Creative and the Infringing Website List (IWL) in summer 2013, there has been a 73% decrease in advertising from the UK’s ‘top ad spending companies’ on copyright infringing websites, with PIPCU heralding the success of its 'follow the money' approach. More on MBW here.

Back to SiriusXM and those pre-1972 sound recordings in the USA: As readers may remember, Sirius appealed both the decisions it has so far lost (New York and California) which held that state law DID protect pre-1972 sound recordings and Sirius couldn't therefor use them royalty free , and a similar case against Pandora is also on appeal in California. Last week, EFF, who argue that this effectively creating new public performance rights that might apply to all pre-1972 recordings and all types of broadcasters, filed a brief with the Second Circuit  Court of Appeals in New York, urging that court to reverse the decision. The National Association of Broadcasters, the New York Broadcasters Association, Public Knowledge, Pandora, and a group of law professors also filed briefs (it seems to be 'brief week') opposing the new right, with the EFF explaining to the court some of the many problems this ruling could cause if it’s not reversed. EFF argued that the courts should leave decisions about expanding copyright law to Congress and also saying that whilst public performance rights in sound recordings are common outside the US, and they exist for digital radio services in the U.S. - they come with important safeguards: explicit limitations like fair use, and statutory licenses that avoid the massive transaction costs that would come with having to negotiate with each rights holder individually. 

A report crunching more than six years of copyright lawsuits filed in the U.S. has revealed that Malibu Media is the country's most litigious plaintiff. The company, which TorrentFreak says demands thousands of dollars from individual file-sharers, has filed 4,332 lawsuits since January 2009, fifteen times more than its nearest rival. Overall, it's estimated that 90% of file-sharing cases are settled out of court. However 66 cases reached court with total resulting damages estimated at $3.05 million. The company set up to pursue illegal downloaders of the movie Dallas Buyers Club sits in second place, with a relatively measly 274 cases, fifteen times fewer in volume than Malibu.

ZDNet reports that the Australian Attorney-General has commissioned a cost-benefit analysis of proposed digital copyright reform, which will encompass an economic analysis into the Australian Law Reform Commissions's (ALRC) recommendation to adopt a flexible fair use provision in regards to digital copyright in Australian law, seemingly as the the AG is concerned about the costs to both rights holders and rights users. A new Australian fair use provision would mean the fair use of a copyright material would not constitute infringement, based on a series of as yet incomplete fairness factors -- including the purpose of the use, nature of the material, amount of the material used, and the use's effect on the material's value: in addition research for the purposes of study and education as well as news reporting, review, criticism, satire, parody, quotation, non-commercial private use, professional advice, incidental or technical use, library or archive, and access for people with a disability would be exempted from copyright infringement provisions. The ALRC have said that the reforms are needed to promote the digital economy in Australia, although AG Brandis is seen as a friend to the content industries and unconvinced that despite changing technology, major law reforms are necessary, saying in late 2013 "I want to reaffirm the government's commitment to the content industries. It is the government's strong view that the fundamental principles of intellectual property law, which protect the rights of content creators, have not changed merely because of the emergence of new media and new platforms."

The CopyKat

Azerbaijan’s Copyright Agency has issued a statement saying Armenians have been stealing the Azerbaijani peoples’ musical compositions, folklore samples and other intangible values for years. The statement came after the Armenian Culture Ministry apparently tried to submit the Azerbaijani folk dance "Kocheri" to UNESCO as part of the Armenian 'intangible cultural heritage' and the statement goes on to say 'Armenians are trying to present Azerbaijan’s “Sari gelin”, “Susen Sunbul” and dozens of other folk songs, “Yalli, “Kocheri”, “Uzundere”, “Mirzeyi” dances, ancient musical instruments (tar, balaban, zurna), even works of famous Azerbaijani composers Uzeyir Hajibeyli, Gara Garayev, Fikret Amirov and modern composers like Armenian examples'. More here.

Steve Albini, the renowned musician, record engineer, producer and songwriter has voiced a number of controversial but interesting opinion at the Primavera Pro conference and festival in Barcelona. You can read all about it here but gems included his view that the music industry “makes me angry that it exists as a parasite on the music scene, which is the fans, bands, shows, and the people who help them" and “The idea that you have to have contracts to do [business] agreements, that you have to have formal understanding between people in order to have a long relationship, is a complete fallacy" and “If you enjoy working with someone and both feel the relationship is working out, you naturally carry on indefinitely" and on copyright "“The old copyright model – the person who creates something owns it and anyone else that wants to use it or see it has to pay them – has expired in the same way that around the world you’re seeing structures and social norms [lapse] that were standard for many years.

In the UK, "recent controversy over the Green party's copyright policy illuminates not only the workings of the literary world but the essence of the Party’s shortcomings", argues Hana Gudelis in a well written piece in Varsity. Its well worth a read with Gudelis saying "Not only have the Green party failed to fully consider the negative consequences of their policy on one of the most vulnerable professions in society, but the members of the party have not even reached a clear understanding amongst themselves about the details of the copyright policy. "

Also in the UK, the High Court in London has granted The Publishers Association a blocking order under s97A of the CDPA, meaning the UK's leading ISPs will be required (within 10 working days) to block customer access to seven sites containing infringing content. The Publishers Association has issued almost one million take down requests to the sites. Chief Executive of Publisher's Association, Richard Mollet, said: “A third of publisher revenues now come from digital sales but unfortunately this rise in the digital market has brought with it a growth in on-line infringement. Our members need to be able to protect their authors’ works from such illegal activity; writers need to be paid and publishers need to be able to continue to innovate and invest in new talent and material." And Mr Justice Birss in the High Court has ordered a group of ISPs to block access to the “Popcorn Time” application for copyright film and TV content: Twentieth Century Fox Film Corporation and others v Sky UK Ltd and others.  More here.and more here.

Universal has submitted papers to the US Courts arguing that despite Pharrell Williams and Robin Thicke being found liable by a jury for plagiarising Marvin Gaye's "Got to Give It Up" - rapper TI (real name Clifford Harris) and their Interscope label cannot be held liable in the "Blurred Lines" litigation - because the said jury didn't find against them: "The court may not enter an order declaring that Clifford Harris Jr and the Interscope parties 'are directly liable to the Gaye family for copyright infringement' because the jury found, as to this very issue, that Harris and the Interscope parties are not liable to the Gaye parties for copyright infringement. Once a jury has decided an issue, a court may not 'declare' the opposite on that same issue without violating the prevailing parties' Seventh Amendment right to a jury trial".

Justice Robert A. Blair has been appointed  chair of the Copyright Board of Canada for a five-year term, effective immediately. Blair was appointed to the Court of Appeal for Ontario in November 2003, after serving for 12 years as a trial judge on the Superior Court.

And finally, the fall out from the shuttering of the original Grooveshark continues: U.S. District Judge Alison Nathan (sitting in Manhattan) has widened a preliminary injunction against the operators of the cloned Grooveshark service - and the injunction now include California based CloudFlare, Inc,.which optimizes the speed of websites and allows Internet users to connect to them without having to type in the numerical Internet address. But this "makes CloudFlare and other Internet Service Providers the copyright and trademark police for other rights holders" according to the company's general counsel, Kenneth Carter and CloudFlare, which does not host websites or register domain names, had said in court papers filed on May 28th that its services were passive and automatic, and that even without CloudFlare, the new Grooveshark would be able to continue (Arista Records LLC et al v. Vita Tkach et al, in the U.S. District Court for the Southern District of New York, No. 15-cv-3701).

Fordham Report 2014: Enforcement

The average Fordham copyright enthusiast
getting in the mood
for the enforcement session

The second copyright session of this afternoon at the 22nd Fordham IP Conference [again: do not forget that 6th May is the day of my Post-Fordham Copyright Catch-Up event] was moderated by David Carson (IFPI) and dealt with enforcement issues.

The first speaker was Jane C Ginsburg (Columbia Law School, New York), who examined ISP liability and website-blocking in the EU, following the recent decision of the Court of Justice of the European Union (CJEU) in Telekabel [here], as well as earlier rulings in Scarlet [here] and Netlog [here]. She recalled that Article 8(3) of the InfoSoc Directive must be balanced against Article 3 of the Enforcement Directive and Article 15 of the E-Commerce Directive, and also highlighted the relevance of Charter fundamental rights [see paras 45-47 of the Telekabel decision for some CJEU discussion on this very point] to enforcement discourse. Despite the ambiguities of the Telekabel decision, she concluded that filtering measures would not be compatible with EU law.

Then, Karen R Thorland (MPAA) discussed how different copyright regimes have designed and implemented notice and takedown systems, which she considered as just one means to help reduce infringement. There are statutory regimes, regimes set through case law, and others that are the result of voluntary agreements. Going into details, Thorland reviewed the information that notices must include; obligations of intermediaries upon receipt of notices; the consequences of sending improper notices; and effectiveness of the various systems in actually removing infringing material from the internet. She also mentioned the case of Italy as the first country in Europe to provide for an administrative website blocking procedure [earlier this week, AGCOM issued its first blocking order: see here]. 

#Quentincometoeurope as an enforcement
(or lack thereof) case study?

After that, it was the turn of Alexander Tsoutsanis (Institute for Information Law (IViR), University of Amsterdam, and DLA Piper) to discuss the recent Svensson decision (and prior to this, the opinions of the European Copyright Society and ALAI), and his paper Why copyright and linking can tango.

The presentations were followed by discussion with the audience and panelists Kristina Janušauskaitė (IFPI), Jan Bernd Nordemann (Boehmert & Boehmert, Berlin) and Silke von Lewinski (Max Planck Institute for Intellectual Property and Competition Law, Munich). 

Unexpectedly and without much explanation, at a certain point the IPKat #Quentincometoeurope campaign was displayed on the screen: #Fordhamgetspolitical? 

Website blocking in copyright injunctions: a further perspective

Readers may remember Pekka Savola (@PekkaSavola, Legal Counsel at CSC-Scientific Computing Ltd and a researcher at University of Helsinki, Finland), for it was Pekka who authored a guest post on this weblog last month, "Hyperlinks, making available and the 'new public' -- or just a dead end?" (here).  Well, we're pleased to offer our readers another guest post by Pekka, this time on yesterday's ruling in Case C-314/12 UPC Telekabel Wien (noted briefly here on the 1709 Blog, and discussed in greater depth on the IPKat by Eleonora, here). This is what Pekka has to say:

Website blocking in copyright injunctions: a further perspective

Copyright and related right-holders have sought court orders to block access to websites facilitating copyright infringement. The targets of these orders have typically been major internet connectivity providers (ISPs) at the user end. The most prominent example has been The Pirate Bay, which has been blocked in six EU/EEA states (Italy, Denmark, UK, Finland, Ireland, and Belgium); in some others blocking requests have been rejected or are being prepared.

In its 27 March 2014 judgment in UPC Telekabel Wien (C-314/12) the CJEU held, in essence, that blocking by the user end ISP is possible (ie. a contractual relationship to the infringing website is not needed) and that the court does not need to specify the exact technical means the ISP must use to implement blocking. The former was expected, whereas the latter was in some ways somewhat surprising.

Unconditional right to request blocking by any intermediary?

No contractual relationship to the website or evidence of an ISP's customers actually using the infringing website was deemed necessary. The latter implies the unnecessary nature of some countries' (e.g. UK) national provisions on proving infringement and notifying the ISP.

The former was expected. However, it is unfortunate that the CJEU did not address the point raised by the Advocate General that “subsidiarity” might have implications on proportionality of orders. The AG had suggested that the right-holder should primarily target the website or the website's ISP. This issue has also come up in various national proceedings.

Recital 59 of Directive 2001/29 states that in many cases the intermediary is best placed to stop or prevent infringement. This implies that it is not always best placed, and some degree of subsidiarity may be called for. Some national courts have however noted that this is not required by Article 8(3). Clarification on this would also have been beneficial.

Complications of generic blocking orders

The Advocate General had suggested that a blocking order which does not specify the means is not acceptable. It would undermine legal certainty for the ISP and it would be impossible to evaluate the proportionality of such order, given that the properties of different techniques vary significantly. He had however accepted that a specific blocking order may be proportionate. This was reasonable.

The CJEU held that a generic blocking order was compatible with EU law. It did not specifically rule out specific blocking orders if national courts wanted to issue such, though it did point out that the ISP should be able to choose the means. The court seemed to partially miss the point that ISP's typically want specific conditions to be stated. This ruling will likely increase the tendency of the courts to issue orders similar to what was previously done in the UK. There the ISP was given discretion how to implement the order, but for the benefit of doubt, the court explicitly stated an implementation that at least would fulfill the obligation.

The CJEU needed to soften its position with several constraints. Two of them are both important and somewhat surprising.

1.      Legal certainty requires that the ISP must be able to get a court decision on whether the measures are sufficient once the implementation measures are known and before penalties are decided. The implication is that the ISP can change the measures if the court were to find them wanting. Effectively this seems to undermine the purpose of generic order and transform it to a court-sanctioned specific order. This also has an interesting temporal and res judicata implication. If an approved measure turns out to be ineffective, the ISP would not need to change it except through a new court order. Courts may thus be wary of the terms of acceptance.

2.      Because a generic order could violate the fundamental rights of the ISP's users, national procedural rules must provide a possibility for internet users to assert their rights before the court once the implementing measures are known. This seems to provide locus standi for users, which is unheard of in many jurisdictions. Any affected user could therefore address the court with a complaint that the specific blocking method chosen affects his/her fundamental rights.

On the other hand, it was not quite clear how effective means the ISP would be obliged to use. The CJEU required “sufficiently effective” and “preventing access.. or making it sufficiently difficult to achieve and of seriously discouraging internet users who are using the [blocked] services”. The court also pointed earlier to “measures which may represent significant cost for [ISP]”. These might imply that the ISP might need to do a great deal. This would likely be disproportionate. Further, the prohibition of generic monitoring of Article 15(1) of the E-Commerce Directive (2000/31) implies that the ISP should not be placed in a duty to monitor and block sites on its own (e.g. so-called torrent proxies or alternative domain names). No guidance was provided to assess proportionality, however.

So where does this leave us?

The CJEU did not address the Advocate General's point on whether the proportionality of blocking would be affected by whether the right-holder had first attempted to target the infringing website or website's connectivity provider. That is, is there an unconditional right to sue any connectivity provider at all, or should there be some evidence that the ISP is indeed “best placed” to stop or prevent this specific infringement? 

The CJEU accepted a general blocking order that leaves the technical measures to be determined by the ISP. However, with the constraint imposed by legal certainty this essentially becomes a court-sanctioned specific order. An ISP could first do a minimal implementation and if its effectiveness is contested, augment it as required by the court and in consequence obtain court approval on compliance. It also seems that this court-approved measure cannot be forcibly changed later on without a new court order. One way to read this is that generic orders are possible only if rather heavy requirements are fulfilled by the national execution phase; few countries do.

Another interesting feature relates to requirement to ensure that users' rights are respected. Apparently users of the affected ISP gain locus standi before the court to argue that the blocking order interferes with their fundamental right to lawfully access information. This is unheard of in many jurisdictions.  In many jurisdictions, e.g. the UK, the court has entrusted itself to verifying that the terms of blocking agreed between right holders and ISPs are proportionate also from the users' perspective. In some cases this has been more of a lip service than rigorous testing. It is interesting to see how this will develop. The fear of legal expenses might in some jurisdictions inhibit complaints.

Finally, the degree how far the ISPs are obliged to go in implementing a blocking injunction was left open. This might be a challenge given that many measures are perforce somewhat ineffective and the most extensive ones too expensive or intrusive such as with Scarlet Extended (C-70/10). It is unfortunate how this was left unspecified. This is also likely to produce CJEU referrals in the future.

All in all it would seem that it would have been more straightforward to adopt the Advocate General's suggestion that generic orders are not acceptable, and that proportionality of specific orders needs to be evaluated in a case-by-case basis. With the introduced constraints and extension in the direction of putative effectiveness the result seems to increase uncertainty. The courts could possibly avoid these new constraints just by issuing specific orders. The reaction remains to be seen.

Blocking orders: fine so long as they're reasonable says CJEU

The Court of Justice of the European Union gave judgment this morning in Case C-314/12 UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft mbH, a reference for a preliminary ruling from the Oberster Gerichtshof (the Austrian Supreme Court).  Fellow blogger Eleonora has already written an in-depth breaking news item on this ruling for the IPKat, here; for readers who just want an outline, here's the Curia's own media release:

An internet service provider may be ordered to block its customers’ access to a copyright-infringing website

Such an injunction and its enforcement must, however, ensure a fair balance between the fundamental rights concerned

Constantin Film Verleih, a German company which holds, inter alia, the rights to the films ‘Vicky the Viking’ [originally ‘Wickie und die starken Männer’ ...] and ‘Pandorum’, and Wega Filmproduktionsgesellschaft, an Austrian company which holds the rights to the film ‘The White Ribbon’ [... and ‘Das weiße Band’], became aware that their films could be viewed or even downloaded from the website ‘kino.to’ without their consent. At the request of those two companies, the Austrian courts prohibited UPC Telekabel Wien, an internet service provider (‘ISP’) established in Austria, from providing its customers with access to that site. UPC Telekabel considers that such an injunction cannot be addressed to it, because, at the material time, it did not have any business relationship with the operators of kino.to and it was never established that its own customers acted unlawfully. UPC Telekabel also claims that the various blocking measures which may be introduced could, in any event, be technically circumvented. Finally, some of those measures are excessively costly.

... [T]he Oberster Gerichtshof ... asked the Court of Justice to interpret the EU Copyright Directive [Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society -- the InfoSoc Directive] and the fundamental rights recognised by EU law. The directive provides for the possibility for rightholders to apply for an injunction against intermediaries whose services are used by a third party to infringe their rights [a footnote to the media release records that, as regards that possibility, the Court has already held that (i) 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 which applies indiscriminately to all its customers, as a preventive measure, exclusively at its expense, and for an unlimited period, citing Case C-70/10 Scarlett Extended and that (ii) that the owner of an online social network cannot be obliged to install a general filtering system, covering all its users, in order to prevent the unlawful use of musical and audio-visual work, citing Case C-360/10 SABAM). UPC Telekabel submits that it cannot be considered to be an intermediary in that sense.

In today’s judgment, the Court replies ... that a person who makes protected subject-matter available to the public on a website without the agreement of the rightholder is using the services of the business which provides internet access to persons accessing that subject-matter. Thus, an ISP, such as ... which allows its customers to access protected subject-matter made available to the public on the internet by a third party is an intermediary whose services are used to infringe a copyright.

The Court notes ... that the directive, which seeks to guarantee a high level of protection of rightholders, does not require a specific relationship between the person infringing copyright and the intermediary against whom an injunction may be issued. Nor is it necessary to prove that the customers of the ISP actually access the protected subject-matter made accessible on the third party’s website, because the directive requires that the measures which the Member States must take in order to conform to that directive are aimed not only at bringing infringements of copyright and of related rights to an end, but also at preventing them.

The Oberster Gerichtshof also seeks to know whether the fundamental rights recognised at EU level preclude a national court from prohibiting an ISP, by means of an injunction, from allowing its customers access to a website which places protected subject-matter online without the agreement of the rightholders, when that injunction does not specify the measures which the ISP must take and when that ISP can avoid incurring coercive penalties for breach of the injunction by showing that it has taken all reasonable measures.

In this connection, the Court notes that, within the framework of such an injunction, copyrights and related rights (which are intellectual property) primarily enter into conflict with the freedom to conduct a business, which economic agents (such as internet service providers) enjoy, and with the freedom of information of internet users. Where several fundamental rights are at issue, Member States must ensure that they rely on an interpretation of EU law and their national law which allows a fair balance to be struck between those fundamental rights.

With regard, more specifically, to the ISP’s freedom to conduct a business, the Court considers that that injunction does not seem to infringe the very substance of that right, given that, first, it leaves its addressee to determine the specific measures to be taken in order to achieve the result sought, with the result that he can choose to put in place measures which are best adapted to the resources and abilities available to him and which are compatible with the other obligations and challenges which he will encounter in the exercise of his activity, and that, secondly, it allows him to avoid liability by proving that he has taken all reasonable measures [so there's plenty of flexibility: the injunction simply identifies the end to be achieved, leaving it up to its addressee to decide what steps are reasonable to achieve that end]. 

The Court therefore holds that the fundamental rights concerned do not preclude such an injunction, on two conditions: (i) that the measures taken by the ISP do not unnecessarily deprive users of the possibility of lawfully accessing the information available [in order to respect the freedom of information of internet users] and (ii) that those measures have the effect of preventing unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging users from accessing the subject-matter that has been made available to them in breach of the intellectual property right  [in order to respect the intellectual property rights of rights owners]. The Court states that internet users and also, indeed, the ISP must be able to assert their rights before the court. It is a matter for the national authorities and courts to check whether those conditions are satisfied.

Taking a look at the judgment, this blogger notices that the word 'proportionality' is used just once, in the context of implementing the measures transposing the InfoSoc Directive, where

"[46] ... the authorities and courts of the Member States must not only interpret their national law in a manner consistent with that directive but also ensure that they do not rely on an interpretation of it which would be in conflict with those fundamental rights or with the other general principles of EU law, such as the principle of proportionality ..."

while 'reasonable' gets six mentions and is the requisite description of the measures which the injunction's addressee must take. As a common lawyer he feels more at home with the R-word, but he has often mused on the points at which the reasonable and the proportional overlap and the points on which they depart.

The CopyKat - Chinese walls, blocks, strikes and a football focus

More than 845,000 publications were registered in China for copyright protection in 2013, up about 23% year-on-year according to official statistics. A spokesman from the National Copyright Administration of China (NCAC) told a press conference that more than half of registrations were made in Beijing.The growth  was put down to the increased awareness of copyright protection and the use of copyright as an important financing device. Photographs accounted for more than half of registrations, and applications for software protection rose by about 18% in 2013, to more than 164,000. Tibet, Inner Mongolia and Xinjiang topped the list of growth regarding software, with applications growing by about 95% in Tibet.

Also in China, the popular video sharing website tudou.com has been ordered to pay two companies a total of 370,000 yuan ($61,129) for violating their copyrights in a film and a television programme.The claimants, EDKO Film Co and CNTV.cn, sued tudou.com for copyright infringement with the case heard at the Shanghai No.1 Intermediate People's Court. The court ordered Tudou to pay EDKO Film 125,000 yuan on January 17 for violating their agreement regarding the 2012 film Cold War. The production company, the sole copyright holder for Cold War on the Chinese mainland, pointed out that the film, which made 200 million yuan in the first 11 days of its release, was still playing in theaters at the time Tudou began showing it. In a separate case, the court ordered Tudou to pay CNTV.cn 248,000 yuan for violating the latter website's exclusive rights to show a popular food documentary series, A Bite of China, online, The series was first aired on China Central Television (CCTV) in May 2012.

The author of two books about South Africa’s political transformation is suing the makers of the documentary Miracle Rising: South Africa, which aired on the History Channel,  for over R2 million (approx £110,000) damages for allegedly adapting or reproducing from his work without his authorisation. Geoffrey Heald won the first round of his legal battle against Randburg production company Combined Artists CC when a North Gauteng High Court judge ruled that his claim would have to be tested by a trial court. Judge Bill Prinsloo dismissed Combined Artists’ exception that Heald’s claim did not reveal any cause of action against them.

Adolf Hitler's Mein Kampf is back in the news - with reports that a version, annotated with notes, will be published in 2016 following a reversal of a decision by the state of Bavaria which owns the copyright in te book and initially funded the annotated version,  to block any publications. The book itself will fall into the public domain in 2016. The Bavarian governor's chief of staff, Christine Haderthauer, had previously said that Hitler's anti-Semitic memoir amounted to incitement and the government would file a criminal complaint if anyone tried to publish the book. The state has now revised its ruling. “We have changed our minds,” said Ludwig Spaenle, the Bavarian Minister of Culture. He said Bavaria would not oppose the project because it was in the interests of “freedom of science” saying "the freedom of science to confront the topics which, in its view, are necessary is thereby not restricted". What would happen if the book was published in its original version in Germany remains unclear although the state stressed in a statement that it would seek to prevent any other full or partial publication of the 1924 book, written whilst Hitler was in prison.

Further to our update on possible criminal actions against 100 or more pubs in England and Wales who use foreign satellite services to show live Premiership football matches, the Telegraph reports that the Premier League is lobbying for an amendment to the Intellectual Property Act, currently making its way through the UK Parliament. FAPL has received backing from the record industry for an amendment to the Copyright, Designs and Patents Act 1988 that currently allows many venues – such as pubs or gyms, that do not charge patrons to enter their premises – to show broadcasts of video recordings without a licence from the copyright holder. Commenting on the Section 72(1) defence under the CDPA ("The showing or playing in public of a broadcast to an audience who have not paid for admission to the place where the broadcast is to be seen or heard does not infringe any copyright..."  for the recorded music sector David Harmsworth, PPL’s director of legal and business affairs, said: “It’s a very strange technological anomaly in the law that if music videos are broadcast rather than played from a system in the gym, then the gym doesn’t need a licence. Actually, the UK is in violation of European law on this. The discussions we’ve had with the Government on this suggest something will be done, although it may end up that the Intellectual Property Bill is not the vehicle.” See here for earlier comment on the IPKat on s72. 

The Dutch High Court has overturned a lower court order forcing two internet service providers in the Netherlands - XS4ALL and Ziggo - to block their subscribers from accessing the ever controversial music file sharing site The Pirate Bay. Calling the blocks "ineffectual", the court stated that the blocks would "constitute an infringement of [people's] freedom to act at their discretion".Blocking orders have been upheld in the United Kingdom, France and Belgium and the AG's opinion UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH und Wega Filmproduktionsgesellschaft GmbH (see Jeremy's blog here)  was that Member States are to ensure that copyright holders or holders of related rights are able to apply for an injunction against intermediaries whose services are used by a third party to infringe their rights - and that specific blocking measure(s) imposed on a provider relating to a specific website are not, in principle, disproportionate.

And finally, the Writers Guild of America West has added its thoughts to the debate on reforms to US copyright laws, with TorrentFreak saying that not only calls for a balance in copyright law, but stresses that censorship, surveillance and chilling of critical speech have no place in copyright policy. Interestingly the writers oppose moves by the Hollywood studios and the recorded music sector to put in place new penalties in the digital age - the studios argue that high damages are needed as a deterrent, and are looking at a proposal which would make streaming of copyrighted videos a felony. Noting the 'chilling effect' of the latter, the WGAW warn that the current legislation stifles innovation as people may be hesitant to start innovating businesses, fearing that copyright holders may come after them. With regard to the DMCA, the WGAW suggests that the Government could set up a common template for takedown notices, making them easier for smaller copyright holders to issue and for websites to process and finally, the writers warn against the voluntary anti-piracy agreements that have emerged recently, including the six-strikes Copyright Alert System - saying that these initiatives are not always in the best interests of consumers.

2013 - The Copyright Year

In January the Paris High Court highlighted the tension that can exist between the right of publicity (droit à l'image in French law parlance) and artistic freedom. In this case a renowned Spanish artist used some photographs taken of his former girlfriend to create works of contemporary art.  As the pictures at issue were intimate in nature, she objected and based her action on article 9 of the  Civil Code which protects privacy and the right of publicity.  The artist retorted that he was entitled to rely on article 10 of the European Convention on Human Rights protecting freedom of expression (including artistic expression). And our beloved FrenchKat let us know that the court decided that the right of publicity (or rather privacy here) trumped the artistic freedom of expression.

And progress on the creation of a Global Repertoire Database (GRD) for musical works moved ahead in 2013 - with the project moving into the technology build, with a first release of the database due in 2015. At the end of January, The High Court in London handed down its decision in SAS Institute Inc. v World Programming Ltd in which it applied the CJEU's decision about which aspects of a computer program may be protected by copyright - and here the programming languages were not protected by copyright. Arnold J's analysis was interesting -   when considering the originality of a programming language the Judge used the "intellectual creation" test, rather than the "skill, labour and judgment" test. Assuming a computer language is not a computer program, Iona commented that this implies that the test for originality is now harmonised for all works rather than just for computer programs, databases and photographs. Arnold J also said that even if he had found that a programming language could be an intellectual creation, it did not follow that it had to be a work.

This year a few key words kept coming up again and again - fair use, reform (or review) of copyright law, safe harbor, blocking orders and the TPP all spring to mind - but more on those later. In February The new “Copyright Alert System” finally launched across all of the major Internet providers in the United States of America including  AT&T, Cablevision, Comcast, Time Warner, and Verizon. Suspected infringers will be flagged up to the Internet providers as part of a “six strikes” program. If a user is accused of downloading the latest box office smash or hot music track,  the user will initially receive “educational notices” designed to warn the user that they have misbehaved. Ignore the notice will results in the next stage of the ‘six strikes’ programme, with an escalation in actions as the process continues. After receiving two “educational” Copyright Alerts, alleged violators will be sent two additional alerts requiring a response; the most severe "mitigation" steps, which would come after the fifth and sixth detected infringement, could reduce or “throttle”  the customer's bandwidth or redirect that person's browsing automatically to an anti-piracy information page. In the UK, and having successfully secured injunctions to force all the major UK ISPs to block access to The Pirate Bay in 2012, the recorded music sector trade body in the UK, the BPI, took successful action to force internet service providers to block access to three more file-sharing websites - with Arnold J agreeing to blocks on Fenopy, H33t and Kickass Torrents. And Eleonora tackled the interesting and very topical question of whether linking can constitute a communication to the public after the European Copyright Society opined that linking was NOT communication to the public within Article 3 of Directive 2001/29/EC. South Korea became one of the first in a growing queue of jurisdictions to bring in fair use: Article 35-3 (Fair Use of Copyrighted Material)  states that  “the copyrighted work may be used, among other things, for reporting, criticism, education, and research” and Article 35-3.2 lists factors to be used to determine if a use is fair (which seem similar to the fair use factors listed in section 107 of the U.S. Copyright Act):  "In determining whether art. 35-3(1) above applies to a use of copyrighted work, the following factors must be considered: the purpose and character of the use, including whether such use is of a commercial nature or is of a non profit nature; the type or purpose of the copyrighted work; the amount and importance of the portion used in relation to the copyrighted work as a whole; the effect of the use of the copyrighted work upon the current market or the current value of the copyrighted work or on the potential market or the potential value of the copyrighted work." 

In March came news that reverberated through the year when the US Court of Appeal for the 9th Circuit (California) unanimously ruled that Gary Fung, the Canadian owner of BitTorrent website isoHunt, had "induced" users to download and distribute films and TV programmes, and that he could not rely on the DMCA safe harbor provisions for protection. Also in the US, Maria Pallante, head of the US Copyright Office, told US politicians that "the law is showing the strain of its age and requires the attention of Congress" Pallante said that "a central equation for Congress to consider is what does and does not belong under a copyright owner’s control in the digital age. I do not believe that the control of copyright owners should be absolute, but it needs to be meaningful. People around the world increasingly are accessing content on mobile devices and fewer and fewer of them will need or desire the physical copies that were so central to the 19th and 20th century copyright laws." Two of the founders of the Pirate Bay failed in their final appeal against their convictions for copyright infringement in the Swedish criminal courts, with the European Court of Human Rights finding that Sweden had rightly convicted the pair, and finally in March the US Supreme Court ruled in Kirtsaeng v John Wiley & Sons that textbooks and other goods made and sold abroad can be re-sold online and in discount stores without violating U.S. copyright law. In a 6-3 opinion, the court overturned a copyright infringement award to publisher John Wiley against Thai graduate student Supap Kirtsaeng, who used eBay to resell copies of the publisher’s copyrighted books that his relatives first bought in Asia at cut-price rates.  But did it add clarity? Well this case sits uncomfortably alongside the EMI v ReDigi decision in the US which followed (where District Judge Richard Sullivan in Manhattan ruled that the  'first sale' doctrine does not apply to digital goods) which itself sits uncomfortably alongside  the European Court of Justice's (ooops, old skool, sorry Merpel, we meant the CJEU) 2012 decision in case C-128/11 UsedSoft GmbH v Oracle International Corp which held that "An author of software cannot oppose the resale of his ‘used’ licences allowing the use of his programs downloaded from the internet. But then again, a German Regional Court in Berlin held that UsedSoft reasoning does not apply to content such as eBooks and audiobooks because the CJEU had anchored their decision on the Software Directive 2009! Can anyone believe the average consumer would understand the nuances in any of this?

Cariou's photograph  (L) and Price's transformation (R)

In April with copyright reform firmly on the agenda in the USA, Ireland, Australia, the UK and Europe, Iona explored the fascinating topic of transformative art - and fair use: In Cariou v Prince the US Court of Appeals for the 2nd Circuit decided that use of certain photographs in a new piece of art did not necessarily infringe copyright in the photographs as the use could be transformative and therefore fair. The claim was bought by Cariou, a professional photographer who, over the course of six years in the mid-1990s, lived and worked among Rastafarians in Jamaica. The relationships that Cariou developed with the Rastafarians allowed him to take a series of photographs that Cariou published in 2000 in a book titled Yes Rasta. Richard Prince, an "appropriation" artist the used a number of the photos in new works and in the majority of these the court found "Prince's artworks manifest an entirely different aesthetic from Cariou's photographs. Where Cariou's serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince's crude and jarring works, on the other hand, are hectic and provocative." So fair use.

In May the Recording Industry Association of America (RIAA) urged Congress to overhaul the "safe harbor" provision of US copyright law that shield websites from infringement actions provided they remove infringing material after being notified, saying the DMCA is too burdensome for copyright holders. In a rare case on copyright in architecture, a federal District Court in the USA has awarded $1.3 million damages to a Texas design firm, finding that Houston-based Hewlett Custom Home Designs, Inc. had a valid claim for infringement against Frontier Custom Builders, Inc. Also in May came the first mentions of the Trans Pacific Partnership Agreement – with the EFF calling it “the biggest global threat to the Internet since ACTA” saying “The United States and ten governments from around the Pacific are meeting yet again to hash out the secret Trans-Pacific Partnership agreement (TPP) on May 15-24 in Lima, Peru. The TPP is one of the worst global threats to the Internet since ACTA." Also in May, Harper Lee, the 87-year-old author of to Kill A Mockingbird, launched an ultimately successful claim alleging that her son of her former agent , one Samuel Pinkus, had devised a "scheme to dupe” the author, taking advantage of her declining hearing and eyesight to get her to assign the book's copyright to him and a company he controlled.  And finally, a Dutch court has dismissed a case brought by Dutch anti-piracy group BRIEN, saying that privacy laws protecting bank account holders are more important than providing information to identify potential  defendants in an alleged  copyright infringement case. The ruling by the Amsterdam district court favoured ING Bank, saying that that the bank does not have to reveal who has access to a bank account, whose number is posted on the website FTD World.

June began with Russia introducing tough new anti-piracy laws, and at the same time the major record labels began blitzing Russia’s social networks, including Russia’s main social networking site vKontakte, with copyright takedowns. The removal 'en masse' of illegal music by the huge social networking site causing outrage among its users. The new new laws, approved by  the State Duma, pushes the responsibility of swiftly removing infringing content onto the services and service providers, who otherwise may find themselves blocked at the ISP level. In the UK, progress on post Hargreaves' copyright reform continued, and the UK's Intellectual Property Office (IPO) published the first pieces of draft secondary legislation for technical review on private copying, parody, quotation and public administration - with some like the film archive owners association FOCAL still worried about the reforms. Album artwork designer Roger Dean, famous for his album covers for the band Yes brought an interesting claim against the producers and the director of Avatar, James Cameron; and Stevie Wonder offered to perform live for international negotiators who were in Morocco trying to forge a deal to give the visually impaired greater access to reading material. In a very amusing video message; the blind singer-songwriter urged WIPO delegates to agree saying “So do it, we get it signed, sealed, delivered, I’m yours.” Wonder said he’d fly to Marrakesh to celebrate with delegates if they struck a deal - and they did!

Ahhhh July! In a case between the owners of the rights to the literary works of William Faulkner and Sony Pictures over Woody Allen's 2011 film Midnight in Paris, Judge Michael Mills of the US District Court for the Northern District of Mississippi (as Eleonora said at the time - quite unsurprisingly) ruled that use of a single line from a full-length novel singly paraphrased and attributed to the original author in a full-length Hollywood film did not amount to copyright infringement. The Government of New Zealand said it was delaying a review of copyright laws until the Trans-Pacific Partnership negotiations are over, saying it would not be practical while the talks are underway. The setback frustrated the Telecommunications Users Association which said the review is long overdue after already being delayed for five years. And Grammy-nominated singer-songwriter Aimee Mann told the Hollywood Reporter that artists are being systematically robbed of digital royalties. Mann brought a legal action against MediaNet, the 1999 venture, originally called Musicnet set up by EMI and BMG and joined by AOL Time Warner and RealNetworks and then sold to a private equity firm in 2005. Later in the year the case moved forward with Judge George King accepting a number of Mann's arguments.

The US House Judiciary Committee, which launched a “comprehensive review” of copyright law earlier this year - continued with it's epic task in July. The Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on the role of copyright in innovation although commentators noted that the line up before the Committee was a little 'one sided' with the Washington Post noting "innovators are almost entirely absent from the list. The witnesses include the executive directors of the Copyright Alliance and the American Society of Media Photographers, and the general counsel of Getty Images. One website pointed out that completely absent were: representatives from the information technology industry, whose innovations have transformed the market for copyrighted works over the last two decades, and who have repeatedly argued that overly-broad copyright law has stifled innovation" as well as actual creators - who often end up with very little from the copyright pie but in whose name much is argued And as the summer heat intensified, the UK Government announced their major strategy paper on the media and telecoms industry, entitled "Connectivity, content and consumers: Britain's digital platform for growth".

Big bad August:  Cyberlocker service HotFile was found liable for copyright infringement in an action brought by the the Motion Picture Association of America on behalf of five member studios. The copyright infringement suit, filed  in 2011, alleged that the company paid incentives to those who uploaded popular files to the system, that were widely shared. It's affiliate program still offers payment "calculated based on a percentage of the total value of premium accounts purchased by users who download the affiliate's uploaded files." SoundExchange, the US non-profit that collects royalties for musicians from satellite radio firms, Internet radio services and cable music channels, said it has filed a suit against SiriusXM seeking to recover what it calls "massive underpayment" of digital royalties over a six-year period. The organisation said the satellite radio firm underpaid by "$50 to $100 million or more" by taking a number of impermissible deductions and exemptions in calculating its royalty payments from 2007-2012. Sirius also faced a claim from sixties band The Turtles who led a $100 million lawsuit arguing that the satellite broadcasting company has infringed on millions of older recordings from thousands of artists, and that Sirius cannot rely on section 114 of the US Copyright Act for protection – as pre 1972 recordings are subject to state law. 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 song. And the now somewhat controversial Robin Thicke (along with Pharrell Williams and T.I.) filed a suit in federal court in California against both the family of Marvin Gaye and a publishing company that holds the rights to some of Funkadelic’s compositions asking for a pre-emptive declaration that  “Blurred Lines” – Thicke's party anthem of 2013 - does not borrow from the defendants works. It failed, and litigation seemed imminent as the year ended.

Onwards to September: In the latest chapter of the Google Books saga, Judge Denny Chin gave Google some cause for optimism. After a mere 40 minutes oral hearing, Judge Chin appeared to favour Google’s fair use claim. Chin repeated the many public benefits that Google Books provides, noting that even his law clerks use it to perform citation checks. He also acknowledged amicus briefs from libraries and humanities professors that support the benefit the project has for researchers. Given these arguments, he posed a question to Authors Guild attorney, Ned Rosenthal: “aren’t these transformative uses, and don’t they benefit society?” Patrick reported that When Rosenthal argued that the project may lead to lower compensation for authors, Chin noted examples where people had bought works after finding information about them through Google Books. When Rosenthal argued that this was a matter for Congress, Chin quipped: “[d]oes anything get done in Congress these days?” He later followed this by asking Rosenthal: “[w]hat are you suggesting? That I don’t decide…and wait for Congress?”. Patrick also reported on the trails of the US Post Office which was ordered to pay a historic $685,000 to Frank Gaylord after it issued a stamp that infringed copyright in Gaylord’s war memorial statues.  a separate claim from Robert Davidson, who created the sculpture called Lady Liberty of the Las Vegas Strip followed later in the year. In the UK the Copyright Licensing Steering Group (CLSG) published a report detailing the successes of implementing Richard Hooper and Ros Lynch's's plans for a Digital 'Copyright Hub' over the past 12 months and plans for implementation of the main recommendations,  and ensure continued cross-border collaboration focused on further streamlining of copyright licensing. And Spain passed legislation that made it a criminal offence to run a website that provides links to sources of unlicensed content, and anyone convicted of running such an operation could face up to six years in jail in "aggravated cases". The law only targets those sites that are run for profit (but that includes those making "direct or indirect profit") and the Spanish government has said that carrying advertising would be sufficient to bring a website into the system. 

In October  The 'Happy Birthday' lawsuit that is (still) winding its way through the US federal courts - seeking clarity on whether the music publisher Warner Chappell has a valid copyright in “Happy Birthday to You”  - was moved on a step. U.S. District Judge George H. King (Central District of California) ordered that certain tangential claims be stayed until further notice, while the case will move forward on the central claim alone. Elsewhere, the Irish Government published "Modernising Copyright”: According to the Summary of Recommendations  "The centerpiece recommendations relate to the establishment of a Copyright Council of Ireland and specialist intellectual property tracks in the District and Circuit Courts, and to the introduction of tightly-drawn exceptions for innovation, fair use, and very small snippets of text in the context of online links." Eleonora posed the question "Should droit de suite become a "global right"?" and Antigua took action to suspend US copyrights - and recoup the country's losses - which have been set at $21 million each year by the WTO who had challenged the USA's total prohibition on cross-border online gambling services

November November: the Hollywood Reporter told us that the Russian government plans to form an agency in charge of copyright observance amid a series of moves aimed at cracking down on piracy. The Economic Development Ministry has submitted plans for an Agency for copyright control, which is to be formed on the basis of the existing Patent Agency, but will have much broader authority and would be report directly to government.  In the United Kingdom, The Court of Appeal upheld the High Court's decision in SAS v WPL, confirming that copyright cannot protect the look and feel of computer programs. And in UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH und Wega Filmproduktionsgesellschaft GmbH Advocate General Cruz Villalón decided that an internet provider can be required to block access by its customers to a website which infringes copyright provided such a court injunction must refer to specific blocking measures and achieve an appropriate balance between the opposing interests which are protected by fundamental rights. Almost simultaneously the Public Prosecutor in the Court of Rome blocked Italian users access to vKontakte, and the Paris Tribunal de Grande Instance gave its long awaited ruling in the Allostreaming matter - proceedings under Section L.336-2 of the French Intellectual Property Code (which implements Article 8 (3) of the 2001 EU Copyright Directive). The Court found that the impugned websites did indeed infringe copyright (by unauthorized communication to the public) and ordered the ISPs to implement the necessary measures to prevent access to a defined list of websites (for 12 months).  The ISPs were ordered to do so by any efficient means and in particular by means of blocking the domain names.  It ordered the search engines to take the necessary steps to prevent the appearance on their services of any result linking to the infringing websites (for 12 months). Next door in Belgium an Investigating Judge used powers under the Code of Criminal Proceeding and ordered ALL Belgian operators and internet service providers (ISPs) to block access to content hosted by the server linked to the root domain name thepiratebay.org. This decision was upheld by Supreme Court in Belgium who also said this was not a monitoring obligation on the ISP and was legitimate under 15(1) E-Commerce Directive

Beastie Girls?

In December the European Commission launched a public consultation as part of its on-going efforts to review and modernise EU copyright rules. The consultation was framed thus:  "Over the last two decades, digital technology and the Internet have reshaped the ways in which content is created, distributed, and accessed. New opportunities have materialised for  those that create and produce content (e.g. a film, a novel, a song), for new and existing  distribution platforms, for institutions such as libraries, for activities such as research and for  citizens who now expect to be able to access content – for information, education or  entertainment purposes – regardless of geographical borders"  The Review of the EU Copyright Rules invited stakeholders to share their views on areas identified in the Communication on Content in the Digital Single Market including territoriality in the Single Market, harmonisation, limitations and exceptions to copyright in the digital age; fragmentation of the EU copyright market; and how to improve the effectiveness and efficiency of enforcement while underpinning its legitimacy in the wider context of copyright reform." But be quick! And  U.S. Copyright Office Register of Copyrights, Maria Pallante, updated Billboard on the review of US copyright laws, begun this year by Rep. Bob Goodlatte, the new chairman of the House Judiciary Committee. TV broadcasters reiterated their position against Aereo in a brief filed with the U.S. Supreme Court in December, labelling a lower-court decision denying their request to shut down the Internet TV startup “nonsensical” and saying Aereo’s legal arguments defied common sense: also in December, news broke that the 'Wonder' effect works: the Israeli Ministry of Justice published a bill in which it is proposed to add an exception to the Copyright Act (as well as an exception to the Performers and Broadcasters Rights Act) following on from the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.  And fair use, a topic that (along with reforms and blocking orders) has underpinned the Copyright Year, raised its head again in the very public spat between the Beastie Boys and toy company Goldieblox. Was Goldieblox's use of a reworked version of the Beastie Boys track 'Girls' in an advert (that the toy company said was meant to empower young girls to enter science and engineering) fair use? Or were they simply taking commercial advantage of the band - who have been publicly and resolutely against their music appearing in adverts? And whilst it appeared that the US wasn't too keen on introducing a US style doctrine of fair use into the Trans Pacific PartnershipTreaty (which stalled slightly as large swathes of the secret text were put online for all to see and a number of countries rallied against certain US led provisions), the Australian Law Reform Commission recommended introducing a 'fair use' style exception in the form of  "a flexible fair-use exception as a defence to copyright 
infringement'.

The last words - firstly from a letter to the Times in London on the 17th December from a group of copyright users - often drowned out in the debate on copyright by the loud voices of the content industries and the technology sector: Signatories including the British Library, the National Portrait Gallery, the Society of College, National and University Libraries, the Association of Independent Museums and the Wellcome Trust, said: "The Government is on the brink of bringing in new laws which will be fundamental in ensuring that the UK can compete globally. We urge this forward thinking approach to avoid a breakdown in respect for our copyright laws because they no longer reflect the use of digital technologies in everyones' lives". To me this chimes with that iconic graphic from the noughties - the young music fan with the ubiquitous ipod headphones dangling from his his ears, and the motto "I steal music - and I'm not going away!". Reforms, treaties and even judge driven solutions to modern problems are all well and good - but we need pragmatic and effective legislative reforms for copyright - for the benefit of all stakeholders - as Maria Pallante said in December "It's important for investors to do well. It's important for corporate licensees to do well. But at the end of the day, if we want the respect of the public, and we really want to be able to say our law is functioning the way the Constitution envisioned it would, it has to work for creators." 

The EFF's 2013 in Review: The Next Great Copyright Act? here

As ever - readers will have their own views on what should (or perhaps should not) be in their copyright year - The CopyKat writes from a UK/US, music industry and Anglo-Saxon perspective: that said, last year (amongst other things) I missed the immensely important amendments to the Canadian Copyright Act and not one but five Canadian Supreme Court decisions (on the same day, no less!) as well as a very confusing German music sampling case. So please let us know if you think something important is missing - comment is free on the 1709 blog! And Happy 2014.