Sherlock Holmes case settles

I

In May we reported that after a series of ill advised attacks on writers properly using what were clearly public domain stories and materials featuring the iconic fictional detective Sherlock Holmes, the Estate of Sir Arthur Conan Doyle had nevertheless decided to sue a Hollywood film producer a new movie which follows Sherlock Holmes during his retirement. The author's Estate claimed that the plot of the new film "Mr Holmes", starring Sir Ian McKellen and based on the Mitch Cullin novel "A Slight Trick of the Mind" infringed on the Conan Doyle's short story "The Adventure of the Blanched Soldier" published in 1926 in Strand magazine. Defendants to the action include Miramax studio, film distributor Roadside Attractions, and director Bill Condon. The action was filed with the United States District Court of New Mexico.


In June 2014 the US Court of Appeals for the 7th Circuit issued its decision in Leslie Klinger v Conan Doyle Estate, in which upheld the decision of the US District Court for the Northern District of Illinois - Eastern Division that author Leslie Klinger was free to use material in the 50 Sherlock Holmes stories and novels that were no longer protected by copyright. Writing on behalf of the Court, Circuit Judge Richard Posner recalled the decision in Silverman v CBS, in which the 2nd Circuit held that when a story falls into the public domain, its story elements - including its characters - also do. Works derived from earlier works whose copyright has expired may nonetheless be protected, but copyright will only extend to the "incremental additions of originality contributed by the authors of the derivative works."  The Supreme Court refused an appeal.

Elementary?

But there is a difference here: the allegation was that material had been copied from a work that was still in copyright:  "A Slight Trick of the Mind" is set in 1947 and the long-retired Sherlock Holmes, now 93, lives in a remote Sussex farmhouse with his housekeeper and her young son: "He tends to his bees, writes in his journal, and grapples with the diminishing powers of his mind. The alleged similarities included that development that 'Dr Watson has remarried and moved out of Baker Street'. The Estate also suggested that the details of Holmes' retirement are developed from elements of the final 10 stories; that  Cullin's book copies the development that Holmes possesses 'a personal warmth and the capacity to express love for the first time' - saying 'Conan Doyle also changed Holmes in later life by giving him a gentleness and kindness Holmes did not possess in public domain stories'. The Estate also claimed that Cullin's book copied entire passages from copyrighted stories and even used the same address for Watson found in  “The Adventure of the Illustrious Client” which is still protected.

Now Benjamin Allison, the attorney for the Arthur Conan Doyle Estate, has told TheWrap that it has reached a settlement in principle with filmmakers: The terms of the settlement are still unknown, but Cullin’s novel will cite the use of copyrighted material moving forward. Law360 confirms that papers have been filed to settle the case. 

In a somewhat more friendly approach than earlier legal actions and public statements, Mr Allison went on to say “We admire both the book and the movie — and we have told the defendants that” adding “But much of the setting, plot and especially the character and emotional makeup of Sherlock Holmes as an older man come straight from copyrighted stories. Those stories are among the most original and creative works of modern fiction, and they should not be ripped off just because older Conan Doyle stories are in the public domain.”

The film has grossed close to $17 million since its domestic (US) release on July 17.

https://www.thewrap.com/ian-mckellen-drama-mr-holmes-copyright-infringement-suit-settled/

A new case for Sherlock Holmes

Illustration by Howard K. Elcock

The Estate of Sir Arthur Conan Doyle is suing Hollywood film producers over a soon-to-be released blockbuster movie which follows Sherlock Holmes during his retirement. The author's Estate, which has been involved in several high-profile legal battles, now claims that the plot of the new film "Mr Holmes" infringes on the Conan Doyle's short story, "The Adventure of the Blanched Soldier" published in 1926 in Strand magazine. Defendants to the action include Miramax studio, film distributor Roadside Attractions, and director Bill Condon, who previously directed "Chicago" and "Dreamgirls".  The movie - which stars Sir Ian McKellen as the fictional detective - is due to be released in the UK and the U.S in July. 


The complaint, filed in New Mexico, says: 'Reviews of early screenings, together with trailers released in the United States, reveal that the motion picture uses the same elements from Conan Doyle's copyrighted stories.' The film is based on the book "A Slight Trick of the Mind" and  the Author of the book Mitch Cullin,  and his publisher Random House, are also named as defendants.

A Slight Trick of the Mind is set in 1947 and the long-retired Sherlock Holmes, now 93, lives in a remote Sussex farmhouse with his housekeeper and her young son: "He tends to his bees, writes in his journal, and grapples with the diminishing powers of his mind. But in the twilight of his life, as people continue to look to him for answers, Holmes revisits a case that may provide him with answers of his own to questions he didn’t even know he was asking–about life, about love, and about the limits of the mind’s ability to know."  

Sir Ian as Sherlock Holmes

The alleged similarities include that 'Watson has remarried and moved out of Baker Street'. The Estate also suggests that the details of Holmes' retirement are developed from elements of the final 10 stories; another element is that Holmes possesses 'a personal warmth and the capacity to express love for the first time' saying 'Conan Doyle also changed Holmes in later life by giving him a gentleness and kindness Holmes did not possess in public domain stories,'

Holmes and Watson appeared for the first time in print in 1887 and all of the works are now in the public domain, except for the last 10 in the U.S. These were published from 1923 to 1927. In June 2014 the US Court of Appeals for the 7th Circuit issued its decision in Leslie Klinger v Conan Doyle Estate, in which upheld the decision of the US District Court for the Northern District of Illinois - Eastern Division that author Leslie Klinger was free to use material in the 50 Sherlock Holmes stories and novels that were no longer protected by copyright. Writing on behalf of the Court, Circuit Judge Richard Posner recalled the decision in Silverman v CBS, in which the 2nd Circuit held that when a story falls into the public domain, its story elements - including its characters - slso do. Works derived from earlier works whose copyright has expired may nonetheless be protected, but copyright will only extend to the "incremental additions of originality contributed by the authors of the derivative works." 

Last year, the U.S Supreme Court refused to hear an appeal in the matter by the Estate, meaning that that only the final 10 volumes have copyright protection until December 31, 2022.  

A useful comment on the new claim can be found here http://www.forbes.com/sites/davegonzales/2015/05/31/the-strange-case-of-mr-holmes-vs-us-copyright-law/ which notes "In the trailer for Mr. Holmes, it is very clear that Holmes has taken up in Sussex and at one point starts writing his own stories to get the history straight. Both of these characteristics only exist in the latter stories, most notably 1926’s “The Adventure of the Lion’s Mane,” which is written from Holmes’ perspective and takes place during his retirement in Sussex. Complicating the issue, two public domain stories reference Sherlock’s Sussex retirement and beekeeping practices, “His Last Bow” and “The Adventure of the Second Stain.”

2014 - THE COPYRIGHT YEAR

2014. What a year! Blocking orders and the legality of linking were perhaps the big news in Europe; in Australia, Canada and the UK copyright reform and revision were in the air; in the USA Sherlock Holmes, the copyright in performances, APIs, pre-1972 sound recordings and Aereo's mini antennae all stirred up the ether; Kim Dotcom's extended stay in New Zealand kept turning up great nuggets of news; the previously invincible the Pirate Bay seemingly had some serious knock backs, Canada looked to improve on take down systems and selfies became big copyright news - and there was much more! 

2014 began with the news from Canada that Quebec artist Claude Robinson’s lengthy battle with Cinar Corp. over copyright infringement had ended  with a partial victory in Supreme Court. The case centred on Robinson's creation, in the early 1980s, of preliminary sketches and scripts for a prospective TV series for children that he called Robinson Curiosité; In 1995, Cinar and co-producers France Animation and Ravensburger introduced a new TV series, with characters strikingly similar to Robinson’s concept.  The  Supreme Court of Canada finally upped Robinson’s total award from the $2.7 million figure set by the Quebec Court of Appeal, but without restoring it fully to the $5.2 million awarded by Superior Court Judge Claude Auclair in 2009. The USA was our next stopover with news that the smallest of the three major record labels, Warner Music Group (WMG) has submitted a proposed settlement to its ongoing digital royalty dispute class action with artistes. WMG proposed a two-part compromise to artists with record deals that pre-date 2002. Affected artistes would see an increase digital royalty rates  - and a share of a pot of $11.5 million.  Not much really. This was followed by new research, based on a survey of 2,000 internet users in France, that found that the 2009 ‘three strikes’ system in France (the 'Hadopi' law) has not deterred individuals from engaging in digital piracy and the system does not reduce the intensity of illegal activity of those who did engage in piracy. More from Europe: In Case C-355/12 Nintendo v PC Box the CJEU said that circumventing a protection system may not be unlawful. And as the month ended the EU Commission said that it had serious doubts about Italian Communication Authority's (AGCOM) draft online copyright enforcement regulation. 

And so on to February: In Utah, District Judge Dale Kimball blocked TV streaming company Aereo from operating in several Western U.S. states, at least until the U.S. Supreme Court took up a related case in April. Judge Kimball ruled that Aereo's retransmission of video signals was "indistinguishable from a cable company." He said that if Aereo continued to do business, it would damage broadcasters' ability to negotiate with legitimate licensees, siphon viewers away from their websites and subject them to potential piracy. This was the beginning of a series of 'bad news' days for Aereo. But the bigger news in Europe was all about links and linking - and all hail Svensson! The CJEU in Svensson (C-466/12) ruled that a clickable hyperlink (as well as a framing link) to an authorised and publicly available work does not infringe the communication to the public right, because the public is not new. So it's all about the "new public" ! The IPKat's recent '2014 Copyright Awards'  gave the decision its 'most important copyright case' gong - and Eleonora commented that "In particular, the 'new public' criterion may not appear that straightforward to both understand and apply. Surely there may be some subjective connotation in determining 'the public taken into account by the copyright holders when they authorised the initial communication.' The question is: how can those who provide links be sure about the intention of the relevant righholder? Although it could not be an exaggeration to suggest that one may surely link but do so at his/her own peril, it is hard to think of a case that had a higher potential to affect our daily activities over the internet than Svensson." Elsewhere MEPs strongly backed a new European bill that will allow music download sites to secure single music rights licences from collective management organisations that are valid across the EU, voting 640-18 in favour of adopting the Collective Rights Management Directive and In the southern hemisphere the long-awaited report by the Australian Law Reform Commission into the adequacy of Australia's copyright exceptions was published with the headline recommendation that Australia introduce a flexible 'fair use' style exception. 

March began with some settlements - mellow March maybe? Liberation Music settled Lawrence Lessig's August 2013 federal complaint which said that the music company were wrong to force the take down of one of Lessig's lectures from YouTube that featured clips of user-generated videos showing people dancing to Phoenix’s track “Lisztomania”. The settlement includes an admission  from the music company that Lessig had the right to use the song and Liberation admitted Lessig's use of the song was protected by fair use - and agreed to adopt new policies around issuing takedown notices. Viacom and YouTube settled Viacom's 2007 litigation with a joint statement saying  "This settlement reflects the growing collaborative dialogue between our two companies on important opportunities, and we look forward to working more closely together". And 'transformative' artist Richard Prince reached a settlement with Patrick Cariou, the photographer who accused Mr. Prince of violating his copyrights by using Mr. Cariou’s pictures of Rastafarians as the basis for a series of paintings that sold for millions of dollars. The IFPI published their downloadable Digital Music Report 2014 - which showed that music fans’ growing appetite for subscription and streaming services had helped drive recorded music revenue growth in most major music markets in 2013, with overall digital revenues growing 4.3 per cent - and Europe’s music market expanding for the first time in more than a decade. In Australia where the High Court had bucked the growing trend for courts to issue blocking injunctions forcing ISPs to block access to websites, Music Rights Australia's General Manager Vanessa Hutley said Australian government should undo what the High Court did in the iiNet case. And THAT selfie surfaced - you remember - the one of Ellen DeGeneres and assorted Hollywood Stars at the Oscars - which prompted a slew of comments here and on the IPKat - about who actually owned the copyright in the much copied image: DeGeneres for setting up the snap? Bradley Cooper who pushed the button? All of the featured stars? Sponsor Samsung?  Or the Academy of Motion Pictures Arts and Sciences who staged the event? More on sefies and a monkey would soon follow! Google announced an appeal in the 'Innocence of the Muslims' case where actress Cindy Lee Garcia had persuaded Chief Judge Alex Kozinski and a colleague in a split three-judge panel  of U.S. 9th Circuit Court of Appeals that she held a copyright in her performance in a trailer for the controversial film, despite appearing for only five seconds - but with dissenting judge N. Randy Smith accusing the panel's majority of writing new law saying "We have never held that an actress' performance could be copyrightable". Finally the Court of Justice of the European Union gave judgment in Case C-314/12 UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft mbH, finding that an internet service provider may be ordered to block its customers’ access to a copyright-infringing website - but such an injunction and its enforcement must, however, ensure a fair balance between the fundamental rights concerned. So, blocking orders: fine so long as they're reasonable!

Mini-antennae - on a slippery slope?

April and Spring is sprung - well in England it is! In the U.S. the Aereo appeal to the Supreme Court began - where several Supreme Court justices expressed scepticism at the Aereo business model at an early hearing, saying that it looked like the company had created to a "technical workaround" to bypass copyright laws. But some justices also raised concerns that a decision siding with the television broadcasters could have far-reaching effects on new Internet, cloud and other technologies - and companies such as Google, Microsoft, DropBox and Box would then be swept up in other questions about the reach of copyright laws. The Court of Justice of the European Union gave judgment in Case C-435/12 ACI Adam BV and Others v Stichting de Thuiskopie, Stichting Onderhandelingen Thuiskopie vergoeding deciding that "The amount of the levy payable for making private copies of a protected work may not take unlawful reproductions into account. And having just launched her own copyright consultancy E-LAWnora, Eleonora provided a comprehensive and detailed account of the 22nd Fordham IP Conference from the heart of beautiful Manhattan - with posts on Aereo here, Enforcement here, fair use and freedom of speech here and copyright revision around the world here. 

Unfrozen?

May may be fair. It may not: Oracle won an important victory against Google when an U.S. appeals court decided Oracle could copyright parts of the Java programming language, which Google used to design its Android smartphone operating system - although use could still fall under the doctrine of  'fair use'. In June 2012 U.S. District Judge William Alsup had ruled that the Java APIs replicated by Google were not subject to copyright protection and were free for Google to use.  A German court ruled that an American psychologist — and not Jesus Christ — was the author of a book that she said Christ dictated to her in a "waking dream." The late Helen Schucman said she was a vessel for the words of Christ in her book A Course in Miracles, and a German Christian group called the New Christian Endeavour Academy argued that they were therefore free to put text from the book up on their website without permission or payment. The Higher Regional Court in Frankfurt disagreed - regardless of "divine inspiration". In New Zealand the summary of the FBI's case against Kim Dotcom was made public. It alleged the German millionaire knowingly infringed copyright, monetarily rewarded other people for doing so and made more than $175 million in the process. And Rightscorp Inc  - the "provider of monetisation services for artists and holders of copyrighted Intellectual Property"  - and who send out numerous press releases - announced  the addition of 500,000 new copyrights to it's representation catalogue, bringing its total ownership portfolio to over 1.5 million copyrights and said it would begin operating in Europe. What fun. A tweet by Iain Wright MP saying "After two years in the making and committee sitting on Monday, [UK] Govt pulls copyright exceptions on private copying and parody. Farcical" caused some consternation over revisions to UK copyright laws (more on those later), whilst in Australia TechDirt opined that "After a long process in which the Australian Law Reform Commission (ALRC) carefully reviewed all sorts of proposals and evidence on copyright reform, and released some sensible proposals, Australia's Attorney General George Brandis, has ignored all of it, preferring to only listen to a Hollywood front group". And finally it seemed that Disney might be softening it's approach to perceived copyright infringements in the form of user generated content and fan fiction. A number of bloggers have noticed that people from all over the world have taken copyrighted content from “Frozen” (including the infectious song “Let It Go”) many of which uses could undoubtedly infringe Disney’s intellectual property - fair use or no fair use - were seemingly ignored.  

June began with the case of Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd and Others,  case C‑360/13, where the Court of Justice of the European Union held that browsing and viewing articles online does not require authorisation from the copyright holder, with PRCA director general Francis Ingham saying: "We are utterly delighted that the CJEU has accepted all of our arguments against the NLA". PRCA had lost in the High Court and the Court of Appeal in the UK and David Pugh, managing director of the NLA, stressed that the result of the case had no bearing on the licences NLA Media Access issued to Meltwater and other media monitoring agencies or to those agencies' clients telling PR Week  "Media monitoring agencies still require a licence to copy online content to create paid-for services for their clients and their clients still need a licence to receive those services. Peter Sunde, co-founder of file-sharing website The Pirate Bay, was arrested in southern Sweden and sent to serve his outstanding sentence for copyright violations after being on the run for nearly two years.  Back over the pond the 'Sherlock Holmes' litigation reached what seemed to be its final (and logical) conclusion with the US Court of Appeals for the 7th Circuit deciding for author Leslie Klinger in his battle with the  Conan Doyle Estate, upholding the decision of the US District Court for the Northern District of Illinois that Mr Klinger was free to use material in the 50 Sherlock Holmes stories and novels that are no longer protected by copyright. Writing on behalf of the Court, Judge Richard Posner recalled the decision in Silverman v CBS, in which the 2nd Circuit held that when a story falls into the public domain so does it's story elements - including its characters. Works derived from earlier works whose copyright has expired may nonetheless be protected, but copyright will only extend to the "incremental additions of originality contributed by the authors of the derivative works."   The Hamburg District Court (25b C 431/13 and 25b C 924/13) ruled that under certain conditions commercial wireless local area network (WLAN) operators in hotels and holiday apartments cannot be held liable for their guests using the WLAN connection to upload movies illegally to filesharing websites - here where guests could use the Internet temporarily by using a password and confirming that they "assume liability for all actions taken" and that they were aware that "alleged abuse can result in legal actions". And as the month ended  the U.S. Supreme Court ruled that Aereo had violated US copyright laws by “capturing broadcast signals on miniature antennas and delivering them to subscribers for a fee.” In  a 6-3 split decision, SCOTUS handed down a decision which will prevent Aereo selling a service that allows its subscribers to watch television programs over the Internet almost simultaneously with broadcasts, agreeing that Aereo was infringing the broadcasters right to 'perform' their copyrighted works 'publicly'. 

In July the second big 'selfie' debate erupted after a spat between Wikipedia and British photographer David Slater. Slater's camera was apparently stolen by a monkey (a crested black macaque) while he was on a trip to Indonesia in 2011 and the monkey seemingly took a few shots of herself. So the big question arose - who owns those snaps? Wikipedia argued that since was is the monkey and not a human being who took the pictures, there was no copyright; it thus posted the pictures on the entry for the endangered macaque without asking for the photographer's permission. Slater was not best pleased, not least as he later claimed he had set up the camera and had amended the images. After another round of interesting and mostly informed comments, our own poll found that 6% of readers though the monkey owned the copyright: "she's the author, after all". 30% of readers plumped for "Only humans are authors so the photographer owns the copyright as the nearest relevant human". 52% shared the opinion of the US Copyright Office that  "There is no copyright in works authored by animals: they are a gift to humanity which we can all use". Just 4% said "The United Nations should set up a special agency to own and control uses of all non-human works like this" and 5% said "Whichever human gets to it first can keep it, just like any other bona vacantia". Aurelia posed her own thoughts in her very interesting piece Monkey See, Monkey Do, Monkey get Copyright, too? As the year ended the appeals court in New York state said that a caged chimpanzee called Tommy could not be recognised as a "legal person" as it "cannot bear any legal duties" although the Nonhuman Rights Project say the state has previously conferred legal "personhood" status on domestic animals who were the beneficiaries of trusts, as well as extending rights to non-human entities such as corporations. Similarly in 2007 an Austrian Supreme Court refused to appoint a woman as legal guardian of a 26 year old chimpanzee called Hiasl as he was not a person in a case that was referred to the European Court of Human Rights. Interestingly in December  this year, in another case brought by the Nonhuman Rights Project, a court in Argentina allowed a claim for habeas corpus - for Sumatran orang-utan Sandra - who had been born in captivity and was being held at Buenos Aires Zoo - finding she deserved the basic rights of a non human person, including freedom and pending appeal should be released to a sanctuary; but does that extend to the right to copyright authorship we ask? Elsewhere in mainland Europe, a court in Spain overturned a previous ruling that had led to the blocking for a number of file-sharing sites in a blow to the content industries. The appeals judge in the wonderfully named Court of Instruction No.10 said there were "insufficient grounds" for blocking the offending sites in order to protect intellectual property rights - although this prompted fresh calls to extend or revise the so called Law Sinde in Spain which was meant to have allowed web blocking as a remedy against internet piracy from March 2012. Back in the UK doubts were raised about one of the new UK copyright exceptions (for private copying) when the Joint Committee on Statutory Instruments (JCSI) said it was unclear whether the introduction of a new private copying right without a mechanism for ensuring rights holders receive "fair compensation" could be permitted under European law. Finally, on this blog, guest blogger Tom Ohta of Bristows LLP provided us with a very useful update on where the UK was with orphan works in Orphan works in the UK: a caring home at last?  and digital licensing took a step backwards when the Global Repertoire Database project for music was shelved.

Ahhhh August! Sirius XM faced the first of a number of challenges brought by major record labels and a number of recording artists over its royalty-free broadcasting of pre-1972 music (which of course includes a wide repertoire including classic rock n roll and tracks from the likes to Bob Dylan, The Beatles and the Rolling Stones). The plaintiffs believe that state rather than federal laws protect the misappropriation of older sound recordings. The labels' actions were brought alongside a class action led by Flo & Eddie of the Turtles in which the band behind "Happy Together" contended that state law protects pre-'72 music and the broadcaster can't rely on statutory royalty rates for the recordings - and a further claim from collection society SoundExchange claiming Sirius XM underpaid federal royalties for pre-'72 tunes.  The Legislative Affairs Office of the State Council circulated the "Copyright Law of the People’s Republic of China (Draft Revision for Review) (the Draft Revision)" for public comments. The proposed changes include (a) new provisions for private agreements for the ownership of copyrights - in particular between employer and employee (b) new provisions to govern the administration and regulation of  collection societies and (c) new provisions that would move China on from calculating damages based on the  actual loss suffered by the right holder to a more flexible system that would include 'account for profit' and/or fixed damages up to RMB 1 million. And back to the case of Sherlock Holmes, Leslie Klinger prevailed in his clam for legal costs against the Conan Doyle Estate. In its ruling the same three-judge appellate panel who heard the case ruled that Mr. Klinger was entitled to (a rather modest) $30,680 in legal fees saying “The Estate opposes Klinger's request on the same hopeless grounds that it had urged in its appeal, but does not question the amount of fees as distinct from Klinger's entitlement to an award of any amount of fees in this case” adding “Unless Klinger is awarded his attorney's fees, he will have lost money … in winning an appeal in which the defendant's only defense bordered on the frivolous: A Pyrrhic victory if there ever was one,” and “It's time the estate, in its own self-interest, changed its business model”.  Giving the decision Judge Richard Posner went further, criticising the Estate's 'disreputable business practices' and noting that the Estate had threatened Mr Klinger and his publisher Pegasus Books and the Judge rebuked the Estate for 'extortion' and added that Mr Klinger had performed a 'public service'. Now incarcerated, Pirate Bay co-founder Peter Sunde filed a complaint about the conditions at the mid-level security facility Västervik Norra, saying the prison authority has failed to arrange a meeting between him and a representative of the Church Of Kopimism - a church which (of course) supports file sharing.

September: The first decision against SiriusXM appeared with a California federal judge delivering a "legal earthquake" by declaring Flo & Eddie of The Turtles "the victors in a lawsuit against SiriusXM over the public performance of pre-1972 sound recordings" by finding that SiriusXM had violated the Turtles' pre-1972 master copyrights by playing their music without licensing it or paying performance royalties. U.S. District Judge Phillip Gutierrez ruled against SiriusXM, holding that California state law, as it is written, gives the master recording owner exclusive performance rights. Consequently, the judge further ruled in Flo & Eddie's favour on all causes of action as it applied to public performance, but not to alleged reproduction copyright violations.  

Also in September, blocking injunctions were in the news again and back to Italy where the Italian Administrative Court ('TAR') referred AGCOM's Regulation on Online Copyright system to the Constitutional Court, seeking clarification as to whether administrative blocking conforms with constitutional principles including freedom of expression, economic freedom and proportionality.  UK Culture Secretary Sajid Javid warned internet search engine companies that legislation could be introduced if they do not make "real progress" in clamping down on links to pirate websites. He told the Annual General Meeting of the record label's trade association the BPI that he and Business Secretary Vince Cable had written to leading firms such as Google requesting they work with the content sector in finding a way to stop giving easy access to sites which violate copyright. And a federal judge in New York ruled that Grooveshark, the controversial online music streaming service, had infringed on thousands of their copyrights. Judge Thomas P. Griesa of United States District Court in Manhattan ruled that Grooveshark was liable for copyright infringement because its own employees and officers had uploaded a total of 5,977 of the labels’ tracks without permission. Those uploads are not subject to the “safe harbor” provisions of the Digital Millennium Copyright Act with the judge saying “Each time Escape streamed one of plaintiffs’ songs recordings, it directly infringed upon plaintiffs’ exclusive performance rights”.  

In October, the headline news in the UK was the introduction of the new exceptions to copyright added into the Copyright Designs and Patents Act 1988 - most notably for parody, caricature and pastiche which had been explained in March 
2014 by the IPO in its Guidance for creators and copyright owners. The new legislation came hard on the heels of the CJEU's September musings in Deckmyn which acknowledged parody as a autonomous concept in EU law, and went some way to explaining how the InfoSoc Directive exception for the purpose of caricature, parody or pastiche should be applied in Europe:  The Court of Justice for the European Union noted that ‘parody’ must be defined in accordance with its usual meaning in everyday language and also found that a parody need not display an original character of its own, other than that of displaying noticeable differences with respect to the original work parodied saying "the only, and essential, characteristics of parody are, on the one hand, to evoke an existing work while being noticeably different from it and, on the other, to constitute an expression of humour or mockery. In addition The CJEU held that that the application of the exception for parody must strike a fair balance between, on the one hand, the interests and rights of authors and other rights holders and, on the other, the freedom of expression of the person who wishes to rely on that exception but added that if a parody conveys a discriminatory message, a person holding rights in the parodied work may demand that that work should not be associated with that message. It is for national courts to balance interests but the exception must be interpreted uniformly throughout the European Union. The CopyKat said that we should expect case law soon - but what does that cat know! Also introduced were exceptions in the UK for (i) Personal Copies for Private Use and (ii) Quotation and (iii) education along with non commercial research, disability, libraries and archive and public administration. The private copying exception does not apply to computer programs but will permit the making of a personal copy of an individual’s own copy of a work, for that individual’s private use for non-commercial purposes and the exception for quotation permits the use of a quotation from the work (whether for criticism or review or otherwise) provided that the work has been made available to the public. Also in the UK, the orphan works licensing scheme pursuant to s77 of the Enterprise and Regulatory Reform Act 2013 launched, and the UK government confirmed another two years of funding for the City Of London Police's Intellectual Property Crime Unit (PIPCU) which has been spearheading a number of anti-piracy initiatives since its launch last year. Mike Weatherley MP, the UK Prime Minister's then Intellectual Property Advisor, published the third of his copyright reports, called 'Copyright Education and Awareness' and Mr Justice Arnold called for a 'holistic' approach to copyright reform in his 2014 Herchel Smith lecture, noting no fewer than 7 reasons why a new Act is needed, including technological change and the wrong implementation of Directives. 

It was a busy month! Also in October the U.S. a three-judge panel of the U.S. Court of Appeals for the 11th Circuit  stirred up a hornets nest in Cambridge v. Patton by rejecting a broad ruling on how to determine fair use in an educational setting. One academic website noted "The decision guarantees the case has a long and litigious road ahead of it by reversing the district court’s opinion and sending the case back for further deliberations" and "Rather than strike a decisive blow against fair use, the legal concept that places some limits on the rights of copyright holders, the appeals court instead issued a stern warning against quick-fix, one-size-fits-all solutions to legal disputes - specifically, the idea that copying less than a chapter or 10 percent of a book automatically protects an institution from a lawsuit" - a so called 'bright line' guideline. And also in the U.S.more bad news for SiriusXM when Los Angeles Superior Court Judge Mary Strobel said that having initially favoured Sirius's arguments in a case brought by the major record labes, she was considering the earlier decision of Judge Phillip Gutierrez which she found "persuasive". And in Europe in the BestWater case, the Court of Justice of the European Union followed Svensson and handed down a "landmark" verdict - ruling that embedding or framing copyrighted videos is not copyright infringement, even if the source video was uploaded without permission. The CJEU said as long as the original video was not altered or communicated to a new public, embedding it is not seen as a new communication, with the court saying "“The embedding in a website of a protected work which is publicly accessible on another website by means of a link using the framing technology … does not by itself constitute communication to the public within the meaning of [Article 3(1) of the EU Infosoc Directive] to the extent that the relevant work is neither communicated to a new public nor by using a specific technical means different from that used for the original communication”. 

In November, Canada’s Copyright Act was substantially changed - but the 'Notice and Notice' regime, which will require internet intermediaries, such as ISPs and website hosts, to take certain actions upon receiving a notice of alleged copyright infringement, was deferred until January 2, 2015. In the U.S. The U.S. Supreme Court confirmed that it  would not hear an appeal in the "Sherlock Holmes" case (Leslie Klinger v Conan Doyle Estate) and the Barry Diller backed TV-over-the-Internet startup Aereo filed for bankruptcy. 60s pop band The Turtles won a second victory against SiriusXM Holdings Inc., with U.S. District Judge Colleen McMahon in Manhattan rejecting Sirius' request to dismiss the lawsuit accusing the satellite radio company of playing pre-1972 songs from the band without permission or paying royalties. She said that unless Sirius raised any factual issues requiring a trial by December 5th, she would rule outright for the plaintiff, Flo & Eddie Inc.  And the Innocence of the Muslims case and the concept of copyright in performances moved onwards with the 9th U.S. Circuit Court of Appeals confirming that it would rehear the case en banc.  In Australia, the Brisbane Times reported that websites that host or link to copyright infringing movies and TV shows could soon be blocked if the Australian cabinet approved a government submission to tackle online copyright infringement and that ministers were likely to recommend that the government put a requirement on internet service providers to forward letters about alleged copyright infringement from movie and TV studios to their customers - more on that as the year ended. The report also said it was likely ministers will recommend making it possible for rights holders to seek an injunction in court to require multiple internet providers block websites hosting infringing content. A group of 77 prominent computer scientists filed a petition with the U.S. Supreme Court urging it to review the earlier controversial ruling that allowed Oracle to claim copyright on APIs - the essential building block for many everyday software operations. The brief, filed by the Electronic Frontier Foundation, comes in support of Google, which has appealed to the Supreme Court after losing a decision to Oracle in May. you will remember that decision, issued by the Federal Circuit appeals court, reversed a California judge’s conclusion that APIs (application programming interfaces) are not subject to copyright because they are simply a process or a method of instructing one computer program to communicate with another — as opposed to source code or literary works, which are considered original works protected by copyright with the Washington appellate court saying "We conclude that a set of commands to instruct a computer to carry out desired operations may contain expression that is eligible for copyright protection". They had been wanted in July! the UK Government faced a challenge to it's new private copying exception in the form of a judicial review over its implementation of the legislation. The claimants are the British Academy of Songwriters, Composers and Authors (BASCA), Musicians' Union (MU) and UK Music. Whilst they support the introduction of a private copying exception to keep up with the development of technology and practice, they say the government has introduced the exception without means of 'fair compensation' for musicians, composers and rightholders.  Having already ruled that “Private users are obligated to check whether their wireless connection is adequately secured to the danger of unauthorized third parties abusing it to commit copyright violation” Jeremy alerted us to McFadden, where a German court asked  the CJEU "if a person offers [free] non-password-protected access to the Internet" and that is used by an unknown user to illegally download or upload copyrighted material "then can the person offering the Internet access be absolved of legal liability on the basis that he is but a ‘mere conduit’ under the EU’s ‘E-Commerce’ Directive 2000/31/EC?"

And sport - well the fallout from the FAPL's partial success in the linked cases of C-403/08 Football Association Premier League Ltd and Others v QC Leisure and Others and C-429/08 Karen Murphy v Media Protection Services Ltd continued. At the start of the year BBC Wales reported that a large number of pubs in the Cardiff and Swansea areas, suspected of showing live afternoon Premier League football matches using foreign satellites, were facing legal action. And sure enough, that followed. Interestingly by the end of the year the Premier League's argument that the UK ban on showing live Saturday afternoon football looked like a red herring - even BBC pundit (and ex England striker) Gary Lineker called a 3pm Saturday kick off a 'rare' thing - with early and late Saturday afternoon matches now commonplace alongside 'Super Sunday' and Monday night matches to satisfy paymasters Sky and BT. In November, one of our readers posed the question about the legality of foreign satellite football pictures (which clearly filled their pub up on Saturday afternoons) but also mentioned that the foreign satellite provider they had paid for this service had 'disappeared'. Almost immediately after that question was posed, four pubs in Stoke, Durham, Rochester and Swindon were ordered by the High Court to pay a total of £30,000 in costs to the Premier League (Scottish cases here) - putting a real damper on the decoder wheeze. And the FAPL also turned its attention to Twitter, forcing Vine to suspend the account of Time Warner owned popular sports site Bleacher Report for posting unauthorised six second video clips of goals from Premiership football matches (which are reserved to NewsCorp in the UK).  And at the end November, the final founder of file-sharing site The Pirate Bay, Fredrik Neij, referred to as one of the world's most wanted hackers, was arrested by border authorities in Thailand after attempting to enter the country from Laos, where he was living.

Troll hunting? and it's MY copyright!  - (C) the CopyKat

December - the season of festive cheer. Finland decided to ditch copyright levies on digital devices . Instead a special government fund will be set up to compensate artists for private copying of music and movies. Spain has previously announced a more controversial aggregators' levy pushing Google to pull Google News in Spain this month. Swedish police seized servers, computers and other equipment used by The Pirate Bay, seemingly doing substantial damage to the service and effectively taking the controversial file-sharing platform offline. The takedown directly affected the service's thepiratebay.se domain, and had a knock on effect on other domains and proxies used to access the site. The Paris High Court released its decision in the site blocking case brought by SCPP (the recorded music industry's representative body) in relation to the Pirate Bay sites.  In accordance with Section L.336-2 of the Intellectual Property Code, the action was brought against the ISPs (and not the site operators themselves).  The Court allowed the action and ordered the ISPs to block access to the infringing sites. In Australia Attorney General George Brandis and Communications Minister Malcolm Turnbull wrote to the major copyright holders to urge them to come up with ways to discourage people from infringing copyright online, saying that if the code of practice is not agreed with 120 days, the government will impose its own rules to crack down on illegal downloading and streaming of material on the internet. Blocking again - and news in December that the Motion Picture Association Of America was now looking to secure web-blocks in the U.S without requiring new U.S. legislation. In the Aereo litigation, lawyers for the plaintiff networks asked for relief from the automatic litigation stay, set off by Aereo's late-November bankruptcy filing. And what's Christmas without a mention of trolls - or  copyright trolls to be precise. There were numerous stories in 2014 beginning in February with a federal court in Canada in the Voltage Pictures case saying "the rise of so-called' copyright trolls' - plaintiffs who file multitudes of lawsuits solely to extort swift settlements - requires the court to ensure that the litigation process and their scarce resources are not being abused". In late November news had broken that the Prenda Law 'trolls' John Steele, Paul Hansmeier and Paul Duffy, had escaped further sanctions and a motion for contempt when  U.S. District Judge David R. Herndon said that whilst a rather annoyed  individual defendant Anthony Smith had “uncovered questionable financial activity” on the part of Duffy, Hansmeier and Steele, and that they had not " conducted themselves in a professional manner” and the court suspicious of their previous representations, that "suspicion is not a sufficient basis for a finding of contempt.” By December news broke that Hansmeier had filed more than two dozen lawsuits accusing Minnesota businesses of violating state and federal disability laws. Also in troll news, Rightscorp began to take a battering in the online world, as did Malibu Media, after federal records showed that the porn film owner had filed more than 2,000 copyright infringement lawsuits across the nation, including more than 200 in Florida. And the decision by the District Court in TufAmerica Inc v W B Music Corp was said by some to slam the door on 'sample trolls' by seemingly side stepping the decade old Sixth Circuit appellate court ruling that music samplers should “Get a license or do not sample", now allowing use by Jay Z of a one word sample. That said, to be fair to the likes of Malibu and Tuf America - they are using the established law to protect their copyrights, and their business models. Indeed one federal judge pointed this out in June: querying the "troll" label, Judge Michael Baylson said that Malibu was "an actual producer of adult films and owns valid copyrights. As the year ended an interesting case from Italy established the legality of a new entrant to the collective rights playing field, Soundreef, after a challenge from the established monopoly, SIAE. The French Kat  updated us on the TF1-Daily Motion case in the Paris Court of Appeals, again looking at the liability of "intermediaries"; and Hungarian folk singer, Mitsou, accused Beyoncé and husband Jay Z of ripping off her hit “Bajba, Bajba Pelem", a folk tune passed on to her by her grandmother. More ominously, what started as the hacking of Sony Pictures - with the leak of films, embarrassing emails and private data - ended with the claim by the FBI that North Korea was behind the attack - when the film The Interview depicting the fictional plot to assassinate North Korean leader Kim Jong-un was pulled from cinemas by the major cinema chains - putting claims of copyright infringement somewhat into the shade as cries of cyber warfare echoed out. With the U.S threatening to put North Korea on its state sponsor of terrorism list for it's 'cyber vandalism', North Korea denied any link to hackers, the so called 'Guardians of Peace' and asked for a joint investigation into the threats with the U.S. authorities. China's state controlled Global Times said "The US society stands on the upper stream of global competition of culture. It needs to show some good manners instead of being too aggressive. The American elites should not just speak like gentlemen, but behave like them."

So there you have it, my copyright year! As the year ended internet radio service Pandora hit back at the action by The Turtles, claiming that the musicians’ lawsuits amounted to an illegal restriction on freedom of speech, and it is asking a court to put a stop to the Turtles’ demands;  after extensive lobbying by songwriters and musicians, Congress was also taking an interest at looking at reforms in U.S. copyright law to reflect the shift away from the 'sale' of music to streaming models; And the European Commission made it clear that 2015 will be a year for copyright reform - as well as reform in the telecoms and online sector, and will push for further moves to break down national barriers to create what it calls a digital single market.

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 common law perspective: So please let us know if you think something important is missing - comment is free on the 1709 blog but please be polite and thoughtful!

You can also see the EFF's International Copyright Law: 2014 in Review

Soooooo 2014

And so all that is left to say is onwards and upwards to 2015 and a Happy New Year to all with an interest in Copyright! 

From us here and all of our friends (some pictured, left) have a happy, peaceful and prosperous 2015.

No final case for Holmes

The U.S. Supreme Court has confirmed that it wont won't hear an appeal in the "Sherlock Holmes" case (Leslie Klinger v Conan Doyle Estate) in which in which the Court of Appeals for the 7th Circui upheld the decision of the US District Court for the Northern District of Illinois - Eastern Division that author and lawyer Mr Klinger was free to use material in the 50 Sherlock Holmes stories and novels that are no longer protected by copyright.

The CopyKat - keeping the word

In the 1980s, when Brian Sheppard created his Maven computer program that played Scrabble, he typed in a lot of words - more than 100,000 of them, all from the Official Scrabble Players Dictionary (OSPD) and Merriam-Webster’s Collegiate Dictionary. Sheppard continued to update his software by hand until 1996, when a Scrabble player who helped assemble the third edition of the OSPD gave him the words via a digital file. Electronic word lists have circulated freely ever since. But maybe things are about to change. Hasbro Inc., which owns the rights to Scrabble in North America, is now seeking to license the use of word lists. Last year Merriam-Webster published a new, fifth edition of the OSPD and separately, Merriam-Webster published a third edition of the Official Tournament and Club Word List (The OWL), sold only to members of the North American Scrabble Players Association (NASPA) - and Hasbro claims the copyright on them: it recently  told NASPA that it had concerns about the revised word lists getting loose. It wanted to ensure that digital versions of the new OSPD and OWL were not freely downloadable from applications that contained them, as the current lists often have been. With competitive Scrabblers regarding Hasbro’s action as restricting - a battle is looming. More here on what might be a fascinating battle.

The U.S. 11th Circuit Court of Appeals has affirmed the award of fees for defence attorneys in an "objectively unreasonable" copyright action  - here brought by InDyne Inc., against  Abacus Technology Corporation.  The District Court in Florida had previously found that InDyne failed to present evidence sufficient for a reasonable jury to find that the copied portions of software were “original and thus deserving copyright protection.” - and indeed the Plaintiffs no longer possessed a copy of the software or even a clear software revision history. Indyne, Inc. v. Abacus Technology Corporation, Jerry Reninger, and Matthew Boylan, Case Number 14-11058, decided September 24, 2014. Echoes of Judge Richard Posner's criticism of the actions of the Conan Doyle Estate in the Sherlock Holmes litigation when he awarded costs $30,679 to defendant Leslie Klinger sprang to mind: Here Judge Posner in 7th Circuit appellate court said that the Doyle estate's business strategy was plain; "charge a modest fee for which there is no legal basis, in the hope that the 'rational' writer or publisher will pay it rather than incur a greater cost in challenging the legality of the demand.". Calling the model 'a form of extortion' Judge Posner said 'It's time the estate changed its business model' and complemented Klinger for performing a "public service" for fighting against a “disreputable” business practice and  further noted that the Estate, which had suggested in a letter to Mr. Klinger’s publisher that it might prevent the book from being sold at Amazon or Barnes & Noble unless a $5,000 use fee were paid, had been “playing with fire,” calling such an action a violation of antitrust law. More on Sherlock here and here.

Law.com has an interesting follow-up to the surprise settlement in the five-year-old legal battle between Marvel Comics and Jack Kirby’s heirs, noting that a major copyright issue remain unresolved. The children of the legendary artist filed 45 copyright-termination notices in September 2009, seeking to reclaim what they saw as their father’s stake in such Marvel characters as the Avengers, the X-Men, the Fantastic Four and the Incredible Hulk. Marvel, joined by its then-new parent company Disney, responded with a lawsuit, which ultimately saw the Second Circuit Court of Appeals affirm that Kirby’s contributions to the publisher between 1959 and 1963 were on a  “work for hire” basis and therefore not subject to copyright termination. A Supreme Court hearing was expected but the settlement means the grey area surrounding work for hire before 1978 remains, although experts say given that 56-year window — or 35 years for copyrights transferred after 1979 — it’s only a matter time before another case, more likely to involve a musician/songwriter than a comics artist, makes its way to the Supreme Court, requiring the Supreme Court justices to weigh in.

Straying into designs: Along with additions to the copyright exceptions for format shifting, quotation and parody, the Intellectual Property Act also became law on the 1st October in the UK, meaning it is now a crime to intentionally infringe on a registered design. The changes set out in The Intellectual Property Act have been introduced to reduce the scale of registered design infringement by acting as a deterrent. The changes also increase protection for the holders of registered designs and more effectively deter and punish perpetrators of blatant design infringement. The new Act also outlines that individual board directors can be held accountable for infringement. The Act means that intentionally infringing a registered design and producing a copy that differs from an original in only immaterial respects now becomes a criminal offence punishable by up to 10 years in prison.

And finally in the Philippines, the Court of Appeals has rejected a plea by car manufacturer Honda to copyright the design of one of it's engines, and has upheld the trial court’s decision to cancel the copyright registrations for Honda’s engine designs that had previously been granted by the National Library. Section 172 (h) of the Philippines Intellectual Property Code (IP Code) provides that copyright protection is available for literary and artistic works that include “original ornamental design or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art.”  In reaching a decision, both the trial court and Court of Appeals relied on the Supreme Court's decision in Ching vs. Salinas (GR No. 161295, June 29, 2005), which explained that a useful article and industrial design may be copyrightable only if such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of the utilitarian aspects of the article.  Here the Court of Appeals further explained that to be copyrightable the design must be capable of existing independently from the article itself, meaning that, at the very least, the design must be able to stand on its own in terms of decorative quality or value.  In this case, the Court of Appeals agreed with the trial court that the colour-coded components of Honda’s engine do not meet this two-part test, and could not be copyrightable.  They were neither artistic creations with incidental utilitarian functions or artistic works incorporated in a useful article.   Moreover, the specifications in the copyright applications merely describe the original or unique appearance of the engine, and such appearance cannot be equated to a decorative quality or artistic work.  The case is TLA Corporation, et al. vs. Honda Motor Company Ltd. and the National Library (CA-G.R. CV No. 98777, Aug. 5, 2014).