The CopyKat

U.S. Internet provider Windstream is asking a New York federal court to shield the company from broad piracy accusations. The ISP filed a complaint against BMG and Rightscorp after it was accused of direct and contributory copyright infringement. The lawsuit follows on the heels of a similar complaint by fellow Internet provider RCN, which also seeks legal clarity in the wake of several conflicting decisions on whether or not Internet provider can be held liable for subscribers who share pirated file - but clearly prompted by the decision of a Virginia federal jury - in a case brought by BMG Rights Management against Cox Communications - who answered in the affirmative. 

PRS for Music has won the Copyright Tribunal reference brought against it by ‎ITV in July 2014 - a final hearing took place for two weeks in November 2015. The decision concerns, amongst other things, the annual sum ITV must pay to PRS for Music to use musical works in its programmes and broadcasts. In August 2015, PRS wrote to its members to announce it would be temporarily increasing the admin fees it charges on royalties collected from TV companies in order to fund the legal costs of the Copyright Tribunal hearing. The Tribunal decided that the base royalty (beginning in 2010) would be some £24 million for all ITV uses (including breakfast TV) adjusted by (a) BARB viewing figures for ITV during each year and (b) the percentage change in RPIJ (the RPI inflation measure). Michael Simkins LLP (now Simkins), who acted for the PRS, said the Tribunal's decision "is the most significant decision relating to such rights for almost 20 years, since the 1997 BSkyB case."

PRS for Music has also written to its members saying that from the end of June the BBC will need to seek prior approval from publishers for use of North American repertoire. Why? well it seems the BBC’s blanket licence with PRS for Music and a number of BBC Worldwide’s MCPS licences are due to expire on 30 June 2016 and whilst negotiations with the BBC to agree new licences continues, and the PRS have agreed that the existing licences will be extended for a 6 month period from 1 July 2016 to 31 December 2016, as a condition of extending BBC Worldwide’s TV Programme Sales licence, the MCPS Board has asked that the BBC seek prior approval from publishers for uses of North American repertoire in programmes which are sold into the US and Canada on a trial basis, although if approved any licence will be at MCPS rates. See more on use rates here and existing approvals here. 

New copyright legislation has come into effect in Cayman to provide greater legal protection for Cayman’s musicians, visual artists and others in the creative fields, and is the first step in modernising intellectual property legislation. Commerce Minister Wayne Panton said government had plans to present more bills in September to update existing trade mark legislation for local registration and design rights. 

Asparagus - yes - and copyright: A New Zealand company, Oraka Technologies has been awarded $4.1 million in damages in a copyright case involving an automatic asparagus grading machine. Tired of grading asparagus by hand, Oraka Technologies owner Michael Schwarz developed the first automatic asparagus sorter, known as the Oraka Grader, in the early 1980s and asked Napier Tool & Die to prepare drawings for a cup that transported the asparagus for the Oraka Grader, and Napier began manufacturing it for Oraka Technologies. But a rival company Geostel Vision used Napier to manufacture their own cup assembly that was alleged to be substantially copy of Oraka's design and in 2013 the Court of Appeal found that Geostel and Napier Tool & Die copied part of the machine. 

And staying "down under", Australia’s Full Federal Court has confirmed digital data streams are not protected by the Copyright Act. The court upheld Justice Annabelle Bennett’s December 2014 ruling that held that copyright did not subsist in digitally streamed broadcasts. The case is actually a taxation case (Commissioner of Taxation v Seven Network Limited), which revolved around whether payments made to the International Olympic Committee for broadcasting rights by Seven were royalties and therefore taxable. The court found that “a cinematograph film in which copyright subsisted under the Copyright Act is not made until the first copy is made” and that there was no way for the broadcast to be reproduced without an external receiving device. More on IPPro here and the judgment can be found here. Seven Network Limited v Commissioner of Taxation [2014] FCA 1411, 

The CopyKat - Caymans, C-More, Catchups and Costs

I imagine Sky TV will be breathing a partial sigh of relief - as over on the IPKat Eleonora has a very interesting update from the CJEU in Case C-279/13 C More Entertainment headlined with CJEU says that live broadcasts are not communication to the public within InfoSoc Directive but Member States can protect them and where the court has decided that "[The Information Society] [D]irective provides that broadcasting organizations may prohibit the provision to the public fixations of their broadcasts, so that everyone can access them from a place and at a time chosen individually."  the Court note[d] that, with regard to the nature and extent of the protection which Member States may recognize broadcasting organizations, the Directive does not harmonize any differences between national laws, so it does not preclude more protective provisions. Other relevant decisions are the Svensson case (C‑466/12), where the European Court ruled on (mere) hyperlinking holding that, while a link is an act of making available, where a work is already accessible on the open internet, then that act of making available does not require the consent of rightsholders because it is not a new public, and Bestwater where the CEU found that the framing of a work (or other protected material) which is freely available on a publicly accessible website is allowed, unless it is directed at a different audience than originally intended or is communicated (to the same audience or not) by using different technical means.

The Cayman Islands Minister of Commerce Wayne Panton has announced that the island's legislation will be updated to reflect current UK copyright laws. The minister explained the aim is to offer stronger intellectual property protection that is in line with Britain. As of now, Cayman Islands copyright laws date back to the UK Copyright Act of 1956. Whilst the UK repealed that Act in 1988, the Cayman Islands law remained the same. In a release sent this week government officials said the UK had extended its current copyright Act to the Cayman Islands. The Act has been extended by the Copyright (Cayman Islands) Order 2015, which was passed by the UK Privy Council on 19th March. The new set of copyright laws will replace the UK’s 1956 Act in the Cayman Islands and in its place will be the extensions of the UK’s 1988 Copyright Act. The Cayman Islands are a British Overseas Territory in the western Caribbean Sea. The territory comprises the three islands of Grand Cayman, Cayman Brac and Little Cayman, located south of Cuba and northwest of Jamaica

A New York judge has thrown out the 2012 lawsuit from TufAmerica accusing the Beastie Boys of sampling 1980s funk trio Trouble Funk without permission on 1989’s Paul’s Boutique, according to Time. The judge ruled that TufAmerica, didn’t have the exclusive rights to the two samples in question. After Trouble Funk’s deal with Island Records was terminated, TufAmerica agreed in 1999 to administer copyrights for only two of Trouble Funk’s members; an agreement with the third member was reached in 2012, but the judge ruled that those documents don’t justify TufAmerica’s copyright claim saying "Putting aside the issue of whether the 2012 agreement and 1999 agreements can be read together, the 2012 agreement conveys nothing more than the bare right to sue" and adding "It has long been the rule that [w]here ... an agreement transfers nothing more than the bare right to sue ... [it] cannot be the basis for standing under the Copyright Act".

Image from wikileaks

WikiLeaks has released  the "Investment Chapter" from the secret negotiations of the TPP (Trans-Pacific Partnership) agreement. The document adds to the previous WikiLeaks publications of the chapters for Intellectual Property Rights (November 2013) and the Environment (January 2014). Current TPP negotiation member states are the United States, Japan, Mexico, Canada, Australia, Malaysia, Chile, Singapore, Peru, Vietnam, New Zealand and Brunei. The TPP is the largest economic treaty in history, including countries that represent more than 40 per cent of the world´s GDP. Julian Assange, WikiLeaks editor said: "The TPP has developed in secret an unaccountable supranational court for multinationals to sue states. This system is a challenge to parliamentary and judicial sovereignty. Similar tribunals have already been shown to chill the adoption of sane environmental protection, public health and public transport policies." .

And another update on the IPKat - this time on the ITV v TVCatchup case ( [2015] EWCA Civ 204) and another referral to the CJEU by the  Court of Appeal (Lady Justice Arden and Lords Justice Kitchin and Underhill), dismissing TVC's appeal, and sending the case back to Luxembourg for a further preliminary ruling of the CJEU, this time on the "difficult question as to the scope of Article 9 of Directive 2001/29 and whether it permits the retention by a Member State of a provision such as s.73 of the CDPA which, in the particular circumstances set out in that section, affords a defence both to an allegation of infringement of copyright in a broadcast and of the copyright in any work included in the broadcast arising from the streaming of public service broadcasts to members of the public where that streaming takes place by wire (a) via the internet (but not including transmission by mobile devices via any mobile telephone network) and/or (b) to users situated in the original broadcast area. ...  I am satisfied that a ruling on this question is necessary for this court to give judgment" (Kitchin LJ). 

The Haiti earthquake aftermath  by Daniel Morel

And finally, following on from our recent blog on the award of $5.6 million in legal fees and costs against Perfect 10, photographer Daniel Morel has failed in an attempt to be awarded legal costs, despite being awarded $1.2 million by a jury in 2013 after his photos from the Haiti earthquake were widely distributed by news agencies Agence France-Presse (AFP)  and Getty after he put them on Twitter: On costs, US District Judge Alison Nathan said "Morel fought a fair fight and won," but added that "Academics and practitioners are... coming to terms with the implications of social media and traditional copyright law" and that the case  was a "close case on the merits" and involved "novel legal issues," so awarding attorneys' fees wouldn't be appropriate in this case. The Judge also noted that AFP and Getty made a $2 million settlement offer to Morel on the eve of trial, substantially more than the $1.2 million Morel could have received. The defendants made a "good-faith attempt at settlement," and that also disinclined the judge to award attorneys' fees. Morel's lawyer had billed him for $1.1 million, but , and noting "opaque and imprecise" billing methods, the Judge ordered that Barbara Hoffman could only receive a $164,580 payment according to Arstechnica.