The CopyKat - a Monday round up

MPR reports that former 'Prenda Law' attorney and much criticised 'copyright troll' Paul Hansmeier has been ordered by a federal judge to sell his assets to pay his creditors. Earlier this year, Hansmeier filed for Chapter 13 bankruptcy, which enables a debtor to pay creditors over several years. But a bankruptcy judge has converted the case to a Chapter 7, meaning Hansmeier's assets will be sold to satisfy creditors. Reports say that in court, Judge Kathleen Sanberg said Hansmeier can't be trusted. saying "The debtor has a pattern and practice of dishonesty with the courts. This case was designed for one purpose only: to thwart the collection efforts of creditors," she reportedly said.

The latest bill from Hong Kong’s legislature, which seeks to make the territory’s copyright laws appropriate for the Internet Age, has caused quite a stir. Extra security was called in for the latest round of debates in the Legislative Council (LegCo).  Opponents say that the bill reinforces the position of business and copyright owners, but stifles freedom of speech. Opposition members put forward some 900 amendments to be discussed before the main bill is debated, though Legco president Jasper Tsang Yok-sing has already thrown out most of the proposals, fearing that the move is an  attempt to talk out the debate and delay the Bill’s enactment. The government previously tried in 2011 to update the existing 2006 law, but dropped that after similar freedom of speech concerns. IT sector lawmaker Charles Mok said on a Commercial Radio programme  that he saw clear public support for the three amendments proposed by the pan-democrats. These include the addition of a “contract override” clause, “user generated content” protection and “fair use” terms to protect derivative works by netizens. An association of leading entertainment companies in Hong Kong has urged the territory’s government to pass the proposed Copyright (Amendment) Bill without further delay. The Hong Kong Copyright Alliance held a meeting Sunday (December 13) at which it said that the revised law was necessary to combat online piracy.

A two-year-old lawsuit over the ownership of the copyright of 'Happy Birthday' is coming to a close, as publisher Warner/Chappell settles with the plaintiffs who kicked off the dispute. The "most important outcome": once the settlement process has been approved, 'Happy Birthday' will be in the "public domain" (ad yes I know I was criticised for using this phrase before. But whatever, this is clearly not an ideal outcome for Warner/Chappell, which was previously generating around $2m in royalties from the song annually. More on MBW here and the New York Times here.

ArtsTechnica tells us that Aurous, the 'Popcorn Time for Music' platform that debuted two months ago has agreed to shut down and to forfeit its domain to the Recording Industry Association of America, which brought the lawsuit that is now being settled. The deal also calls for the Aurous site's developer, Florida resident Andrew Sampson, and others associated with the site to pay the RIAA $3 million in damages. Although it's a sum that likely won't ever be paid, it's a judgement hanging over their heads and a sum that the RIAA believes sends a message of deterrence. "Aurous appropriately agreed to shut down," Cary Sherman, the RIAA chairman, said in an e-mailed statement. "It was the right thing to do. We hope this sends a strong signal that unlicensed services cannot expect to build unlawful businesses on the backs of music creators."

Intellectual Property Watch tells us that two new proposals concerning the rights of artists seemed to bring new energy to the World Intellectual Property Organization copyright committee last week. Proposals encouraged delegates to create a legal framework to help artists benefit from use of their works and royalties by intermediaries. The 31st session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) took place from 7-11 December. According to the summary by the chair, adopted by the SCCR on 11 December, both topics will remain on the agenda of the 32nd session of the SCCR, from 9-13 May 2016, under the agenda item “other matters.”  Meanwhile, a new text on broadcasting is being prepared for next session. More here.

And finally, the WIPO Arbitration and Mediation Center has published the first edition of its new quarterly Newsletter WIPO ADR Highlights yesterday. If you are interested in receiving future editions, you may subscribe at www3.wipo.int/newsletters/en/.  

The CopyKat

A US charity called the Association for Childhood Education International has filed a motion to intervene in the 'Happy Birthday' case as music publisher Warner/Chappell ponder their next move(s) after federal judge George H King ruled that Warner/Chappell’s copyright claim was invalid as they seemingly did not control the rights to the lyrics to the song. ACEI’s lawyers claim that the organisation had been receiving one-third of all revenues generated from Happy Birthday for over 20 years – and is largely reliant on this money to continue operating. ACEI argue that the song’s original author, Patty Hill, and her sister, Jessica Hill, had directly assigned rights to Summy Co – which would make Warner/Chappell the song’s rightful controller. Patty Hill, says the motion, was both a founding member and ‘active participant’ in ACEI “As the beneficiaries of Jessica Hill’s estate [which benefited from Patti's estate] both ACEI and the Hill Foundation have a very real and present interest in this litigation" - because if Warner/Chappell don't hold the rights to the lyrics - they do as heirs! More on MBW here and on TechDirt here.

That leaked document that revealed the EU Commission's plans for copyright in 2016 has sparked a lot of comment in cyber space - most name checking the IPKat!  In addition to tackling the issue of content portability in the spring, the draft suggests the Commission will explore a "follow-the-money" approach to enforcement, clarify rules for identifying infringers, and examine the crosss-border application of injunctions. The EU Commission is currently working on proposals for the modernization of copyright with the aim of providing a framework more suited to the digital age. The EU’s plan was set to go public exactly a month from today but last week the purrrrrfectly wonderful  IPKat said it had obtained a leaked copy of the draft communication from a ‘Brussels insider’. The main worry seems to be about linking - and the SEM Post opines that the plan "shows a very scary route the EU wants to take with links on the web, one that would hold a site owner liable if they link to any content that infringes on someone’s copyright.  Yes, a site owner could be liable if someone else they happen to link to has stolen content on that page, even if they had no idea if was stolen.This means that publishers – or anyone who publishes anything online, whether it be for business or a personal blog – could also need to consult a lawyer for every link they make, to know it is “safe” to link to". Julia Reda, the Pirate Party member of the European Parliament representing Germany, wrote on her site about the leaked draft on copyright reform and it could have a profound affect on the entire internet.

U.S. House Judiciary Committee chairman Bob Goodlatte (R-Va.) is right in the middle “listening tour” as part of an ongoing review of U.S. copyright law, and now he’s holding a hearing at UCLA that is aimed in part at Hollywood. Goodlatte has held 20 hearings on copyright law since announcing his review in 2013, with the focus on “determining whether our copyright laws are still working in the digital age.” More recently, he’s been travelling on a “listening tour” that takes him closer to key industries. Having started in Nashville,  Variety says he was recently at Santa Clara University in Northern California  to get a Silicon Valley perspective. The EFF says the main points raised by the technology companies were: (1) Statutory damages are far too high, and bringing them into rational territory could help solve other problems. (2)The Digital Millennium Copyright Act's DRM provisions urgently need reform. (3) Fair use has to do a lot of work, so it's a good thing judges have enabled it to do so and (4)  It's not just copyright—End User License Agreements have diminished our ownership rights. The line-up of experts and panellists in Santa Clara was diverse and impressive, and included people like Internet Archive founder Brewster Kahle, Ted Ullyot, who works for the technology investment firm of Andreessen Horowitz, musician Zoe Keating, iFixit CEO and DMCA activist Kyle Wiens, and of course EFF's own staff attorney Kit Walsh.

U.S. District Court Judge Gail Standish has dismissed a copyright lawsuit against Taylor Swift by using some lyrical terminology. Musician and songwriter Jessie Braham has accused Swift of stealing “Shake It Off” lyrics from his song “Haters Gonna Hate,” and attested that he had the song copyrighted back in February. Braham was suing Swift for $42 million in damages and a writing credit on her hit song. Standish wrote, “At present, the Court is not saying that Braham can never, ever, ever get his case back in court. But, for now, we have got problems, and the Court is not sure Braham can solve them.”

City Of London Police's IP Crime Unit (PIPCU) has arrested two people in Manchester on suspicion of being involved in the unlicensed distribution of music software online. PIPCU began investigating the arrested couple after being made aware of their online operation by record industry trade group the British Phonographic Industry (BPI). The accused allegedly ran a piracy operation that sold musical software - including digital products like backing tracks and pre-recorded instrumentals - at substantially reduced prices, without the permission of the owners of the works they are distributing.

And finally: readers are no doubt aware that on January 1st 2016, Adolf Hitler’s Mein Kampf, will enter the public domain in Europe, where the term of protection ends 70 years after the death of a work’s author, despite concerns.  Nazi propaganda minister Joseph Goebbels' diaries will similarly enter the public domain. But what about the writings of one of the Nazis’ most famous victims, Anne Frank, who died the same year as Hitler – 1945? It may surprise readers that the Swiss-based foundation that is the heir to the Frank family says the copyrights for the various versions of her work won’t expire for decades. The Anne Frank Fonds, a non-profit organization located in the Swiss city of Basel, was set up in 1963 by Anne’s father, Otto. The Fonds administers the rights to all writings by Anne Frank and says that copyright is crucial to protect her work from unchecked commercial exploitation. It seems that the 'Diary' we all know  (see illustration) was an edited compilation of two earlier works by Anne Frank, and that edited version was put together by her father, Otto, and first published in 1947. And the Foundation say Otto is a 'co-author' because of his role of editing, merging and trimming entries from her diary and notebooks and reshaping them into “kind of a collage” meriting its own copyright. As Otto didn't die until 1980, the Foundation say this work is still protected by copyright and will be until 2050. The two original versions by Frank, and various later translations,  were not published until 1986, so again the Trust says these remain in copyright, as do the versions edited by the German writer Mirjam Pressler, who is still alive (and is credited as a co-author with Otto of the 'definitive edition'). The diary was first translated in English in 1952 by Barbara Mooyaart, who is now 96. In the United States, the diary’s copyright will still end in 2047, 95 years after the first publication of the book in 1952. More here and here.

HAPPY BIRTHDAY ... Oh, and HAPPY BIRTHDAY

U.S. District Judge George King of the Central District of California is set to decide whether Los Angeles-based music publisher  Warner/Chappell Music has unlawfully been collecting licensing fees for the copyright to “Happy Birthday to You.” The case was brought in 2013 by two New York music producers, a California musician and a film producer who had each paid between $455 and $3,000 in licensing fees to Warner/Chappell Music, the music-publishing arm of Warner Music Group Corp., to perform the song. A Warner/Chappell representative said it sometimes charges major motion pictures between five and six figures to license the most recognizable song in the English language.  The publisher claims that the copyright derives from a 1924 songbook (lyrics) and 1935 piano arrangement (the melody). At that time in America lyrical and musical works enjoyed 95 years of copyright protection from publication (and registration), meaning the music will stay in copyright until 2030.  Under European provisions, the copyright expires 70 years after the death of the longer-living sister, which is the end of next year.

The class action, filed on behalf of anyone who was forced to pay similar fees starting on June 18, 2009, sought a declaratory relief and the return of “millions of dollars of unlawful licensing fees.” The claimant, led by Good Morning To You Productions, argue that it has "irrefutable documentary evidence, some dating back to 1893, [which] shows that the copyright to 'Happy Birthday,' if there ever was a valid copyright to any part of the song, expired no later than 1921 and that if defendant Warner/Chappell owns any rights to 'Happy Birthday,' those rights are limited to the extremely narrow right to reproduce and distribute specific piano arrangements for the song published in 1935." Robert Brauneis, co-director of the Intellectual Property Law Program at The George Washington University Law School, cast doubt in a 2009 law review article that “Happy Birthday to You” was copyrightable.
In the current case, both sides agree that sisters Mildred and Patty Hill composed and wrote the melody to the song “Happy Birthday to You”. The original melody for "Happy Birthday to You" was composed in by school teacher Mildred Hill in St. Louisville, Kentucky. The song was part of the composition for a song then called called "Good Morning to All," with lyrics by her sister Patty Hill and written in 1889 or 1890. The sisters later sold the copyright to the Clayton F. Summy Company in return for a sheet music royalty, who published a songbook called “Song Stories for the Kindergarten.”  Warner bases its claim of ownership on two copyright registrations in 1935 by that company which it claims included the now familiar “text,” or lyrics, to “Happy Birthday to You.” Warner/Chappell acquired Summy’s successor, Birch Tree Ltd., in 1988.

The Plaintiffs allege those copyrights were for piano arrangements and that “Happy Birthday to You” by then had reached widespread popularity, putting it in the public domain and say 
“Our argument has been all along that the copyright in 1935 only covered that particular piano arrangement,” and “There’s no evidence they [Warner/Chappell] ever acquired rights to the song "Happy Birthday to You" from anyone before 1935 when they registered the copyright.”
    
If Judge King declines to rule in favour of either the plaintiffs or the music publisher, the case could still go to trial.
     
And another but different Happy Birthday case in Turkey, where the Court of Appeal has had to decide if using the song "Happy Birthday" in a film - with Turkish lyrics - could be deemed the use of a musical work that involved novelty. Now the CopyKat professes to have scant knowledge of Turkish law - and any input and comment from the 1709 readers would be most appreciated (although we have added a handy link to some FAQs at the end of this blog). Anyway it seems the plaintiff in the case had brought an action before the trial court asserting that he had written a song called "Happy Birthday" ("Mutlu Yıllar" in Turkish), and that all financial rights in this musical work had been transferred to a second plaintiff by agreement in 2005. Both plaintiffs asserted that the defendants – the director and producer of the film Alone (Issız Adam) – had used the song unlawfully in a new film without permission, without indicating the lyricist of the musical work, and had paid no royalties. The plaintiffs demanded "material and moral damages".

The defendants claimed that the plaintiff was not the lyricist of the song, and that registration at the Musical Work Owners' Society did not give the plaintiff ownership rights and further, the defendants argued that the song which they had used in the movie Alone could not be characterised as a musical work.

As the plaintiff could not prove that he had obtained the permission of the lyricist of the original song and the person who had translated the lyrics from English into Turkish (and as the date of translation was not clear), the Court of First Instance dismissed the case. The plaintiff appealed. The Court of Appeal stated that "this song has been anonymously used by society for at least 60 years and the Turkish version of the song is not the original musical work." The Court of Appeal reviewed the case and decided that the song's original lyrics and melody belonged to a foreign party, and that using the song "Happy Birthday" with Turkish lyrics involved no novelty and therefore could not be considered a musical work within the scope of Article 1/B of the Code of Intellectual Property Rights. As a result, the Court of Appeal rejected the appeal. More on Turkish copyright laws here.

USA The National Law Journal and more on CBS News here 

Turkey http://www.internationallawoffice.com/newsletters/detail.aspx?g=139de4a9-68fd-48ec-bd04-b6956dd80dfc / Decision of the 11th Civil Chamber of the Court of Appeals, 2013/8293 E, 2014/13652 K.

The CopyKat

You will probably remember the fact that 'Happy Birthday to You” is now the subject of a lawsuit brought against the publishing arm of Warner Music Group, which claims copyright ownership in the song, which was registered in 1935. The complaint, from a disgruntled film producer who had to cough up $1,500 to use the track, was filed in federal court in Manhattan and claims that “Happy Birthday to You” has been in the public domain since at least 1921. The suit seeks class action status on behalf of anyone who paid a royalty to use “Happy Birthday to You” in the past four years. The song allegedly generates at least $2 million a year in licensing fees for Warner/Chappell Music, Inc. In their last filing, the plaintiffs  claimed that the words were published in a variety of formats pre-1935, going back to 1893.  Well, Warners have now filed a status update which offers the first glimpse of some of the defences Warner may use. In it's brief statement, Warner's lawyers explain it's on the plaintiffs to prove that the 1935 copyright registration "was not intended to cover the lyrics to Happy Birthday to You" saying: "Certificate E51990 applies on its face to a "published musical composition" entitled "Happy Birthday to You" and the listing under the byline is as follows: "By Mildred J. Hill, arr. by Preston Ware Orem; with words." The certificate further states: “(© is claimed on arrangement as easy piano solo with text).” ... All of this, as well as the validity of the copyright, is prima facie presumed true in this litigation. The parties have agreed to a schedule that has discovery on the copyright issue continuing through to September 2014. Once evidence is collected, the two sides will submit motions arguing their case in November. ArtsTechnica say that the parties appear to have agreed to litigate the copyright validity issue on the papers, without a trial.

Currently sound recordings in the USA created before February 15th 1972 fall outside of the federal Copyright Act. And now the owners of sound recordings CAN collect royalties for their use on satellite radio and Internet radio services like SiriusXM, this matters - and collection society Sound Exchange estimated that it could collect 15% or so more than the $590 million it collected in 2013 if the recordings were covered. In 2011, the U.S Copyright Office issued a report recommending Congress take action to change this, but so far, nothing’s happened. Except in Tennessee! State Senator Stacey Campfield decided to act, saying “The music industry—they came to me and said, ‘We’re not getting our royalties.’ They said it’s something that could have a big impact,” who has now introduced the “Legacy Sound Recording Protection Act” (SB/HB 2187) with Rep. G.A. Hardaway (D-Memphis) to close the federal loophole in Tennessee. 

Whilst on first reading "The bill seems quite reasonable" and it seems most of its language is copied directly from federal copyright law, there have been some comments on the narrowness of the bill. Attorney Brandon Butler told Metro Pulse “The bill is strikingly one-sided. It gives rights-holders even more power than they have under federal law, but it gives the public, including libraries, journalists, and even other artists, none of the reuse rights that federal law includes” adding “The law is likely unconstitutional because it lacks fair-use protections” . The Bill also fails to include any provisions related to the first sale doctrine, which might mean that the musical state becomes the only place in the USA where record shops cannot re-sell second hand LPs, with University of Tennessee Law School professor Gary Pulsinelli saying that if the Bill is passed as is, “It’s entirely possible a court would say that you can’t sell music recorded before 1972”. The draft Bill was provided to Senator Campfield by 'sometime' music industry lobbyist and copyright owner Tony Gottlieb, and has yet to reach a committee in either the House or the Senate in Tennessee.

Back to Trinidad and Tobago - whose rival collection societies graced these web pages not two weeks ago. Now it seems the newer of the two music collection societies, the Trinidad and Tobago Copyright Collection Organisation (TTCO), has threatened legal action against the National Carnival Commission (NCC) for $6 million worth of outstanding royalties owed to its members over the past six years. Speaking to the Trinidad Express, NCC chairman Allison Demas said her organisation, through attorneys, had written to the TTCO on the matter back in February 2013 but to date no response has been forthcoming. “They still have not answered all the questions posed. Our attorney requested a meeting last year. They never responded, and again we await to get a response this year from the TTCO” Demas said.

Joe Walsh

An eclectic 'supergroup' of Sting, Steven Tyler and Britney Spears , Don Henley, Ozzy Osbourne, deadmau5, Mick Fleetwood and Joe Walsh are among artists fighting copyright law reforms that would allow mashups without their permission. The may represent different music styles, but they are united in telling the U.S. Patent and Trade Office that artists, who write and make music, not copyright law, should determine who has rights to make remixes, sampling and mashups that include their songs. 

deadmau5

The artists were joined by letters filed in support of copyright stakeholder groups including the Copyright Alliance, ASCAP, BMI, the National Music Publishers Association, Writers Guild of America West and the Motion Pictures Association of America. The Eagle's Henley said: "As a songwriter and recording artist, I can tell you that approval over how my music is used is very important to me," adding "Every song I write is personal and has meaning to me. A sample or a remix takes a piece of art, cuts it up and then either reassembles it into something different or combines it with another person's work." The USPTO questioned whether existing copyright law needed to be updated to reflect innovation in the digital economy in a task force report last year and asked for comments on a large number of different copyright issues, including the question of mashups.

Mike Weatherley MP

If you wondered what the UK Prime Minister's advisor on IP thinks about online piracy, web blocking, the role of Google in protecting the interests of copyright owners, and custodial sentences for online piracy, Mike Weatherley, the conservative MP for Hove, has given an interview to CMU Daily's Business Editor Chris Cooke and you can read it all here.

Further to John's very clear report on the breaking news in the Svensson decision, over on the IPKat Eleonora has been having more of a ponder, and has now posted her "Early Thoughts On Svensson: communication/making available, new public,altering the scope of exclusive rights" - all this  - AND a great presentation for the joined BLACA and IPKat (very busy) copyright seminar chaired by Sir Colin Birss with Bird & Birds' Graham Smith on Wednesday night- Are Moral Rights Human Rights? - something this blogger now knows more about - but still doesn't know the answer to! Anyway, I digress, Eleonora on Svensson is well worth a read. 


And finally - shame on London: Viviane Reding, the EU's Justice Commissioner, has had clothing, jewellery and a cottage pie stolen from a locked official car in Mayfair after she attended debate at the Royal Institution. The cottage pie, apparently purchased to show European colleagues just how good British cooking can be, seems to have been judged the greatest loss. And the fact that rather important EU paperwork was completely ignored and was the only thing left behind by the thief brings a smug British grin on my face and can I ask - what does that say about the UK's views on the EU?! Eeeek.

Happy contest gives birth to a new song for you

Its probably the first songs I ever sang. And its been sung badly by millions of kids, mums, dads, friends, families, acquaintances and total strangers ever since. It's part of the musical furniture. “Happy Birthday To You” was published in the late 1800s by two sisters who taught at elementary school, and it was registered for US copyright, as “Happy Birthday To You” in 1935. Time Warner acquired the copyright in 1998. The song earns a reported $2 million each and every year from film use, advertising, and from TV and radio broadcasts and from public performances. It won’t enter the public domain until 2030 at the earliest.

Along with radio station WFMU, the Free Music Archive launched a competition in January to find a new copyright-free and free-to-use celebratory version of a birthday song. The winner, "It's your Birthday!" by Monk Turner and Fascinoma, has just been announced.  It was chosen by a panel of judges including Harvard Law Professor Lawrence Lessig and Yo La Tengo's Ira Kaplan:  it is – ahem – not quite as fun as the original – but that’s my personal opinion – you can make up your own minds by taking a listen here. Me, I am too miserable to have birthdays anyway, that cakes going in the bin. Bah, humbug. 

http://gizmodo.com/5985872/this-is-officially-the-best-copyright+free-way-to-sing-happy-birthday