THE COPYKAT

After our very last post, more on dance steps! Former "Fresh Prince of Bel-Air" star Alfonso Ribeiro has been involved in a lawsuit with Take-Two Interactive, publisher of the video game "NBA 2K," and the publisher of "Fortnite" over avatars in the games being able to do the dance that his character popularised on the hugely popular '90s sitcom ' the 'Carlton Dance'. But now that action has taken a knock back as details of a letter from Saskia Florence at the US Copyright Office to Ribeiro's attorney, David Hecht surfaced as part of federal court documents in California. In the correspondence, Florence wrote that the moves are "a simple dance routine." adding "as such, it is not registrable as a choreographic work".  

The EU Commission has removed a rather odd blog post that attacked internet campaigners, admitting its language was not appropriate and that it could be interpreted as offensive. The post was positioned as a response to the various battles around the EU's planned copyright directive, which introduces a series of reforms, and pointed to the aggressive and polarising lobbying from the tech sector. The post was titled ‘The Copyright Directive: How the mob was told to save the dragon and slay the knight’ and the controversial text included the opinion (that seems related to Brexit) that “We know from recent elections and referendums that simple memorable slogans – however untrue or unobtainable – can go a long way to winning over hearts, minds and voters. Never let the truth get in the way of a catchy slogan”. The post went further in its criticism of the tech sectors efforts to  mislead the public by employing dubious campaigning tactics saying  “It appears as if the largest search and video platforms in the world are afraid of regulation – despite having overwhelming dominance on the internet. Furthermore, there is ample evidence that ‘big technology’ has even ‘created’ grassroots campaigns against the copyright directive in order to make it look and sound as if the EU is acting against the ‘will of the people'”. A statement in place of the post now reads: “This article published by the Commission services was intended to reply to concerns, but also to misinterpretations that often surround the copyright directive proposal. We acknowledge that its language and title were not appropriate and we apologise for the fact that it has been seen as offending”. In related news, representatives of European Union governments have endorsed the compromise reached with the EU Parliament on the overhaul of the bloc's copyright rules, the Romanian presidency of the EU said in a statement on Twitter.

And with that  final draft of the European Copyright Directive now being considered, a number of organisations representing independent record labels and music publishers, songwriters and their collecting societies published a letter calling on the EU Council and European Parliament to vote through the copyright reforms. Independent label's group IMPALA and the Independent Music Publishers International Forum led the call for support for the Directive to now be adopted along with support from the European Composer And Songwriter Alliance, and collecting society groups CISAC and GESAC, with the letter saying "We, the undersigned organisations, representing authors, composers, writers, journalists, photographers and others working in all artistic fields, news agencies, book, press and music publishers, audiovisual and independent music producers, call on the Council Of The European Union and the European Parliament to adopt the Directive On Copyright In The Digital Single Market".

Perhaps in preparation for EU reforms,YouTube has announced changes to it's 'strikes' system as it applies to content flagged for violating the company’s Community Guidelines. Starting February 25th, the first time a creator’s content is flagged, they will get a one-time warning and their flagged content will be removed. Prior to this change, there was no warning, and a first strike would result in a 90-day freeze on live streaming. A second strike would result in a two-week freeze on video uploads.  A YouTube spokesperson told Gizmodo that the strike policies for Community Guidelines and copyright are entirely separate, and that YouTube employees don’t get directly involved copyright disputes. The spokesperson said that if YouTube receives a DMCA takedown notice, they must legally comply with that request and remove the content. Community Guidelines violations—like harmful, hateful, violent content, and spam—are reviewed and decided upon by members of the YouTube team, according to the spokesperson.

The Copyright Royalty Board in the US has published the new mechanical royalty rates that will apply for the use of music in America. The new rates were first published a year ago and include a top line 44% increase in the revenue share rate being paid by the streaming services, which will rise from 10.5% to 15.1%. After a further period of consultation with submissions from both music owners and music users a ‘final determination’ has now followed - although participating parties still have one more chance to appeal. Benjamin Semel who represents the National Music Publishers Association commented: “The final determination that became effective today is even stronger than the initial determination, as the judges clarified an important definition during the rehearing motion phase, providing additional protection against streaming services using product bundling to exclude revenues from the royalty pool”. NMPA President & CEO David Israelite said that digital music companies would ‘declare war on songwriters’ should they appeal the 44% streaming royalty rise decided by the Copyright Royalty Board adding  “Apple has announced it will not appeal. The others won’t say. We will know soon whether some digital companies want to be partners or want to attack the songwriters who make their businesses possible. Stay Tuned.”

US Radio lobbyists and a bipartisan coalition of lawmakers in Washington DC are backing the Local Radio Freedom Act, which would limit the royalties radio stations have to pay for the use of recordings. Similar bills failed in 2017 and 2015 and of course the rapidly passed Music Modernization Act did much to update the law on music use in the USA. Now 124 congress members and five senators have signed on as initial co-sponsors. The bills argue that radio stations "provide free publicity and promotion to the recording industry and performers," so they should not be obliged to pay "any new performance fee, tax, royalty, or other charge." If such fees were imposed, the bill's proponents argue, it would cause "severe economic hardship." Or perhaps just reduce profits for broadcasters.

And finally, in Trinidad & Tobago, Police have arrested seven people in Port of Spain for copyright infringement..The seven vendors were targeted during an exercise which saw officers of the Port of Spain Division, the Municipal Police, and officials from Awesome Copyright interview CD vendors in Independence Square and Charlotte Street. Various CDs and sound equipment were seized with the arrests made pursuant tof Section 41 of the Trinidad and Tobago Copyright Act. The offence carries a jail term of up to ten years and/or a fine of up to $250,000.

The CopyKat. Friday the 13th without Jason Voorhees, sounds like a nightmare!

The Flamingos

June was certainly an interesting month in the world of copyright, and below you will find a selection of stories that have caught the eye of our new intern Matthew Lingard in the past month, supplemented by a couple of notes from Ben Challis!

Readers of this Blog will be aware that  there have been actions in New York, Florida and California about the existance of a 'common law' or state law right in the performance of pre-1972 sound recordings in the United States. These have been met with mixed results: Whilst some class actions exist, the main players have been the former members of the 60s combo The Turtles (Flo & Eddie) against internet broadcaster SiriusXM. Flo & Eddie had some initial success, although lately the prevailing mood has been with Sirius XM rather than the rights holders: In a new case  a court has again agreed with a broadcaster, here iHeartMedia, who had argued that the plaintiffs, husband and wife team Arthur and Barbara Sheridan, who own a number of master recordings from the pre-1972 era of popular musicincluding those The Flamingos and J.B. Lenoir,  had failed to make out a viable claim under state laws - with the court finding “By selling such recordings, the Sheridans did not, and could not, divest the compositions of their copyright protection. But they could, and did, divest the recordings of performances of those compositions of common law copyright protection by selling those recordings to the public.” For Judge Tharp, the primary issue on copyright was whether Illinois provides copyright protection to pre-1972 recordings sold to the public without licenses for public performance. And to this question the court had a simple answer - in Illinois, publication “extinguishes the common law copyright”. Judge Tharp explained “Both the Illinois Supreme Court and the Seventh Circuit, however, have construed the concept of dedication to the public to include acts by which members of the public could access copies of the work — particularly through sales,” Tharp said. Judge Tharp dismissed all claims saying “the dismissal is based on the incurable lack of any state law cause of action, rather than curable pleading deficiencies, the dismissal is with prejudice.”More on the Cook County Record here.

30 leading content creators and on-demand entertainment companies from around the world have launched the Alliance for Creativity and Entertainment (ACE), a new global coalition dedicated to protecting the dynamic legal market for creative content and reducing online piracy. The worldwide members of ACE are Amazon, AMC Networks, BBC Worldwide, Bell Canada and Bell Media, Canal+ Group, CBS Corporation, Constantin Film, Foxtel, Grupo Globo, HBO, Hulu, Lionsgate, Metro-Goldwyn-Mayer (MGM), Millennium Media, NBCUniversal, Netflix, Paramount Pictures, SF Studios, Sky, Sony Pictures Entertainment, Star India, Studio Babelsberg, STX Entertainment, Telemundo, Televisa, Twentieth Century Fox, Univision Communications Inc., Village Roadshow, The Walt Disney Company, and Warner Bros. Entertainment Inc.

ASCAP, the American Society of Composers, Authors and Publishers, and YouTube have signed a voluntary multi-year agreement, effective immediately, for U.S. public performance rights and data collaboration. The mutual goal of this agreement is to work together to ensure that ASCAP members get paid more fairly and accurately for the use of their music on YouTube. The deal combines ASCAP’s database of 10.5 million musical works with YouTube’s data exchange to aid in identifying songwriter, composer and publisher works on YouTube. The agreement is retroactive, allowing ASCAP to be compensated for content streamed on YouTube since the company’s 2013 deal to operate on a compulsory interim license with ASCAP. ASCAP CEO Elizabeth Matthews said, “This agreement achieves two important ASCAP goals – it will yield substantially higher overall compensation for our members from YouTube and will continue to propel ASCAP’s ongoing transformation strategy to lead the industry toward more accurate and reliable data. The ultimate goal is to ensure that more money goes to the songwriters, composers and publishers whose creative works fuel the digital music economy.

Dead sure: Will Jason Voorhees file an amicus brief?

The ongoing legal battle between Victor Miller, the original screenplay writer of Friday the 13th, and Horror Inc/Sean Cunningham continues to rumble on. Miller is seeking to terminate the grant of his rights in the script to recover ownership of the franchise but faces opposition from Cunningham, who directed and produced the first film and produced a number of further films. Miller is trying to use the provision in US copyright law that allows authors to terminate a grant of rights and reclaim ownership, giving him back Friday the 13th. Meanwhile, Cunningham and Co. are saying that Miller's screenplay was a work-made-for-hire, which invalidates any right he has to claim ownership in this case. Is there a settlement is sight? Its a complex case, not least as after the original film, a series of eleven more films followed and these in turn developed Jason Voorhees- now the main (much loved?) character in the franchise. Therei s also a television show, novels, comic books, video games, and tie‑in merchandise. Miller's attorney Marc Toberoff told The Hollywood Reporter: “Whereas Miller will thereby recover the U.S. copyright to his original film treatment and screenplay this does not prevent the continued exploitation by Plaintiffs or their licensees of prior derivative works, including the 1980 film and its many sequels; it solely relates to new derivative works after the effective 2018 termination date. Furthermore, as the U.S. Copyright Act has no extra-territorial application, the foreign rights to Miller’s screenplay remain with Plaintiffs or their licensees”.  Matthew adds: In simple terms this suggests that Miller will retain ownership of the concepts that were present in the original screenplay. As Jason Voorhees as he is currently portrayed is a relatively new addition to the franchise, Cunningham et all would retain the rights to utilise his character. Therefore we could see the scary possibility of Friday the 13th Films in the US that don’t feature Jason in addition to films in the same franchise made for outside the US that do. It is highly doubtful that a major studio is going to roll the dice on a film that has to be effectively rewritten dependant on the jurisdiction of release. Though the Friday the 13th films are a franchise that still draws fans, they are not significant in number enough to justify it. Until then horror fans will have to suffer without another Friday the 13th film.

When a group of museums and researchers in the Netherlands unveiled a portrait entitled The Next Rembrandt, it was something of a tease to the art world. It wasn’t a long lost painting - but a new artwork generated by a computer that had analysed thousands of works by the 17th-century Dutch artist Rembrandt Harmenszoon van Rijn. We've had monkeys taking photos - now theconversation.com asks "Should robot artists be given copyright protection?". 

Do robots dream of electric sheep?

Cross party support to make US radio 'pay to play'

A bipartisan group of legislators led by Representatives Jerry Nadler and Marsha Blackburn have reintroduced the Fair Play Fair Pay Act, a bill that would establish a public performance right for sound recordings on terrestrial radio, forcing stations to pay labels and artists for using their material, and correct the unusual position in the USA where there is no performance right for sound recordings on AM/FM stations (although there is for satellite and internet radio, and those royalties are collected by the collection society SoundExchange). 

If the bill passes, and is signed into law by President Trump, it would put webcasters like Pandora and iHeartRadio, which pay statutory royalties for their online radio platforms, on an equal footing with AM/FM radio, who would have to reimburse the owners of sound recordings for using their copyrights. 

Members of Congress say the bill will not be used to lower royalties that radio stations now pay to publishers and songwriters, which stations have always paid for the use of their songs. 

The legislators also say the bill will "make a clear statement that pre-1972 recordings have value and those who are profiting from them must pay appropriate royalties for their use," a reference to the ongoing web of litigation involving recordings made when copyright was still a matter of state law. As previously reported, sound recordings made after 1972 are covered under federal copyright law.

Representatives Nadler, Blackburn, Conyers, Issa, Deutch and Rooney issued  a joint statement saying: "Our current music licensing laws are antiquated and unfair, which is why we need a system that ensures all radio services play by the same rules and all artists are fairly compensated. Our laws should reward innovation, spur economic diversity and uphold the constitutional rights of creators. That is what the Fair Play Fair Pay Act sets out to accomplish: fixing a system that for too long has disadvantaged music creators and pitted technologies against each other by allowing certain services to get away with paying little or nothing to artists."

The National Association of Broadcasters (NAB), the radio industry's leading trade group, opposes the bill and president and CEO Gordon Smith said the bill "would impose a job-killing performance royalty on America's hometown radio stations,"  "NAB remains committed to working with Congress on balanced music licensing proposals that help grow the entire music ecosystem, promote innovation, and recognize the benefit of our free locally-focused platform to both artists and listeners."

http://www.billboard.com/articles/business/7744254/fair-play-fair-pay-bill-congress-radio-pay-artists

A second bill has now been introduced: The new PROMOTE Act is based on the premise that as the radio stations argue that basically airplay is free promotion for the acts and the labels, artists should have the right to decline the promotion and ask that their records not be played. More on CMU Daily.

http://www.completemusicupdate.com/article/second-bill-in-us-congress-seeks-to-address-radio-royalties-issue/

Image: Kmccoy

THE COPYKAT

This CopyKat by Tibbie McIntyre

The WS Society – Intellectual Property Conference – 20 April

You are warmly invited to attend the upcoming Intellectual Property Conference hosted by the WS Society. The event will take place on Thursday 20 April 2017, 9:00am – 1:00pm, at The Signet Library in Edinburgh.

The event promises to provide a wealth of information and discussion for IP practitioners, with panels covering;

-          The UK IP system post Brexit

-          Recent developments in IP contracts and licensing agreements

-          Brexit, PGIs and trade marks

-          IP in the Scottish FinTech sector – a case study

-          Panel session: the experiences of in-house counsel – what’s on their agenda?

-          Case law update – impact and implications

Speakers at the conference offer a wide range of expertise, including Stephen Rowan of the IPO, Ross Nicol of Maclay Murray & Spens, Mark Cruickshank of RBS and Anoop Joshi of Brodies. Gill Grassie will chair the conference.

The day should provide a valuable forum for IP practitioners to meet and discuss the impending impacts of Brexit on IP. For further information, please see the information page.

Seizure of over 10,000 pirated textbooks in Kenya

Pirated textbooks worth approximately Sh5.5 million were seized two weeks ago during a raid conducted by the Kenya Revenue Authority (“KRA”) and the Kenyan Ministry of Education.

The Kenya Publishers Association responded positively to the seizure, emphasising that pirates generate large incomes yet pay no taxes to the state. David Waweru, chairmen of the Kenya Publishers Association, stated that the pirated books “have poor binding and print quality. The text is illegible and unfriendly to the learners.” Examples of the poor quality pirated books can be viewed here. Waweru called for the facilitation of a new copyright bill which would enact stricter laws with heavier penalties for pirates.

“Digital Economy Bill criminal provisions are too broad” says experts

The Digital Economy Bill (“the Bill”) is currently making its way through the UK Parliament. The Bill deals with a variety of issues, including ticket touting, broadband provision and digital copyright. The digital copyright provisions are particularly controversial because a copyright infringer that causes any loss of money to a copyright holder will fall under the criminal liability provisions. Opponents of the current draft argue that the broad definitions in the criminal liability provision puts casual file-sharers at risk of prison-time. Additionally, the maximum prison term for copyright infringement is to be increased five-fold from two to ten years. TorrentFreak posits a nightmarish scenario for a young woman who downloads a single film after the passing of the Bill.

A group of experts sent a letter to the UK Government last week arguing that the criminal liability at Clause 35 of the Bill is too wide. (*N.B. the letter refers to clause 28 because it was published before the latest amendment of the Bill.) The letter argues that clause 35 is not compatible with the foreseeability and proportionality principles found in EU law and the European Convention on Human Rights (“ECHR”).

The foreseeability test

Per the letter sent to the government, the foreseeability test

“requires that the law needs to be sufficiently clear and precise in its terms to afford individuals an adequate indication of the circumstances where, and the conditions upon which, online copyright infringement may attach criminal liability i.e. specifically in particularly serious or commercial-scale online copyright infringement cases.”

The current drafting of the provision is broad enough to envision that an individual could potentially spend ten years in prison for sharing one file. The writers of the letter argue that “the Bill should explicitly state that criminal liability may attach only to commercial-scale or particularly serious copyright infringers.”

The proportionality test

It is argued in the letter that clause 35 does not adhere to the proportionality test found within EU law and the ECHR. Proportionality as it is applied to internet usage monitoring in investigating suspected infringers is used to bolster the argument that the provision in clause 35 is too broad to be proportionate. In the case of proportionality of internet usage monitoring, two factors are of importance;

1.       The depth and scale of the internet usage monitoring

2.       The scale of the infringement against which the monitoring is being carried out (commercial-scale would be justified, whereas it is more difficult to justify internet usage monitoring in small-scale infringement)

The issue with the current drafting in terms of adherence to the proportionality principle is that there is no differentiation between commercial-scale and small-scale infringement.

The solution

The solution, as proposed, would be to draft the provision so that ‘commercial-scale loss’ of income by copyright holders attracts criminal liability, rather than any loss. Additionally, ‘risk of loss’ should not attract criminal liability in infringement circumstances, and only ‘serious risk of causing commercial scale loss’ should attract criminal liability. This small amendment would lift the threshold for criminal liability to apply to those seeking to generate income from copyright infringement, rather than to encompass individuals engaging in non-commercial infringement.

The Bill is due to have its 3^rd reading in the House of Lords this Wednesday, 5^th April 2017. We await with anticipation as to whether this amendment will be made.

US Supreme Court NOT to hear case on whether safe harbour applies to pre-1972 music recordings

The US Supreme court has refused to hear the appeal filed by Capitol records relating to pre-1972 song recordings. The judgement handed down by the 2^nd Circuit on 16 June 2016 stands.

Background – safe harbour

Safe harbour is the qualified limitation of liability for hosting providers which host third party content, where users have uploaded copyrighted content (the law can be found here). It was introduced through the Digital Millennium Copyright Act (“DMCA”). Many in the music industry are opposed to the current formulation of the safe harbour principle, citing the ‘music value gap’ as a major loss of revenue (for more on this, please see here). Both the DMCA and the 1976 Copyright Act (which the DMCA amended) are federal laws because they emanate from Congress – the safe harbour principle is a creation of federal law. The 1971 Sound Recordings Amendment Act - an Act designed to protect against unauthorised duplication and piracy of sound recordings - is also a creation of federal law. The 1971 Sound Recordings Amendment Act came in to force in 1972.

At stake in this case was whether pre-1972 sound recordings are covered under the safe harbour rule, since pre-1972 sound recordings are protected under state law rather than federal law.

Capitol Records et al. argued that the safe harbour rule should not apply to pre-1972 song recordings, thereby inducing liability for Vimeo for the uploading of pre-1972 song recordings onto its platform.

The 2^nd circuit court found for Vimeo, stating that “we find no reason to doubt that § 512(c) [the safe harbour provision] … protects service providers from all liability for infringement of copyright, and not merely from liability under the federal statute.” This decision stands, and all infringement of copyright on Vimeo et al. by 3^rd party users is still covered by the safe harbour principle.

UK’s PRS for Music launches new online tool for live music performances

PRS for Music recently launched a new online tool designed to help rights holders manage royalty income from live performances.

The online tool allows users to upload set lists or programmes from performances whilst on the move with a phone or tablet. Over 1,000 set lists and programmes were reported to PRS in the first 24 hours of the launch, covering performances across 23 countries. The ease and convenience of the new tool is an essential factor in helping rights holders gain income from their copyrighted works. Members can report all live performances – including a small gig at a pub, DJing at a club, a classical concert or a sold-out stadium show.

PRS for Music members should log on to their online account and click ‘report your performance’ to access the new tool.                                                     

Reintroduction of Fair Play, Fair Pay Act in the US

A group of bipartisan legislators in the US have reintroduced a bill which is designed to put AM/FM radio into the same situation as webcasters – such as Pandora and iHeartRadio.  AM/FM radio stations pay nothing to perform music yet webcasters are required to pay statutory royalties for playing music on their online radio platforms.

A joint statement from the bipartisan group stated that "Our current music licensing laws are antiquated and unfair, which is why we need a system that ensures all radio services play by the same rules and all artists are fairly compensated."

A statement by Content Creators Coalition asserted that "for decades, artists have been forced to let their music generate billions of dollars of advertising profit to the corporate investors of radio companies while not being paid one cent for their art. It is past time for Congress to right this wrong."

THE COPYKAT

Hello to Robo Lawyer - created to make hyperlinking easy - and the website describes Robo as follows: "​I am Robo Lawyer programmed to help reduce legal risks related to publishing hyperlinks on the Internet. I am currently programmed to help you if you are from European Union. I know the EU law and the rulings of the Court of Justice of the EU, especially the ruling in the famous GS Media case." Robo lives as a chatbot in Messenger, so you need a Facebook account if you fancy a chat. The creator is Tomasz Zaleski (Eversheds Sutherland Poland). 

Songwriter? Lyricist? Need some help with copyright? Going for a Song tells the story of Tina and Ben, a music composer and a lyricist who create an original song and discuss how to market it. This new tool helps musicians learn how UK copyright law regulates different aspects of the journey of a song, from its creation to its distribution.

A motion to dismiss has been filed by attorneys representing Cher in the copyright infringement case filed against her by graphic designer Moshik Nadav concerning the artwork and in particular the graphics on the cover of Cher's Closer To The Truth release. The 2013 album was Cher’s 25th studio release. Nadav’s suit, in the Southern District of New York, names Cher, Warner Bros. Records, a design company and the albums’ art and design director as defendants and seeks $5 million in damages. According to Nadav's complaint, two logos that appear on Cher's album infringe on the copyrights to his Paris and Paris Pro logos, which he claims were created using his typography, featuring “artistic elements, such as swashes having various thicknesses, end drops and unique lettering.” Section 202.1 of the US Copyright Act, which gives examples of works not copyrightable, including “mere variations of typographic ornamentation, lettering or coloring" but here Nadav says Cher's work is substantially similar to his own logos - and he has obtained copyright registrations for those - but this looks like an uphill battle. More here.

Alleged KickassTorrents owner Artem Vaulin's defence team have said he will appeal last week's extradition ruling. Lead counsel Ira Rothken stresses that the refusal of the Polish court to grant bail and the unprecedented allegations violate the human rights of his client. The team is confident that they can book a positive outcome on all fronts. Last week a Polish court ruled that Vaulin could be extradited to the United States.

California’s Supreme Court is set to decide if the state’s copyright law protects the performing right as part of the sound recording copyright - an important question as federal copyright law only protects sound recordings released post 1972. It was in California where the Turtles secured their big win, with a court there ruling that there was a general performing right for sound recordings, a landmark ruling that forced both Sirius and Pandora to agree settlements with the wider record industry, especially once a New York court indicated there was likely a performing right under that state’s copyright law as well - but that new York decision has now been overturned on appeal.  Now the Nine Circuit Court Of Appeal has asked the California's Supreme Court to rule on the matter once and for all. Requesting the opinion the Ninth Circuit said this “is warranted if there is no controlling precedent and the California Supreme Court’s decision could determine the outcome of a matter pending in our court” and “This appeal not only meets both criteria, but also presents an issue of significant public importance”. The Californian court does not have to accept the question.

One of the more incredible allegations about Prenda Law, the copyright-trolling operation that sued people for downloading movies online, was that the lawyers behind it might have created and uploaded some of the porn in question simply as a way to catch more offenders. Now ArtsTechnica tells us this may well be true, and despite repeated denials by the Preda lawyers, in a new update it seems they were indeed making movies:  "Steele pled guilty in Minnesota to federal charges of "conspiracy to commit mail and wire fraud" and to money laundering. And guess what? In 2011, Team Prenda had in fact become porn producers (They continued to have other "real" clients at that time as well.)" and "On at least three separate occasions in Chicago, Miami, and Las Vegas, Steele and [Paul] Hansmeier... contracted with adult film actresses and produced multiple short pornographic films" 

Torrentfreak also updates us on trolls, saying "A copyright troll that terrorized service providers over alleged copyright infringement is set to forfeit the very assets that made its entire campaign possible. After losing an aggressive lawsuit against Giganews, Perfect 10's multi-million dollar bill will now be satisfied by the Usenet provider liquidating the adult publisher's intellectual property".  Perfect 10 was originally an adult entertainment magazine that also operated a subscription website featuring images of women. In November 2014, the U.S. District Court for the Central District of California found that Giganews was not liable for the infringing activities of its users. Perfect 10 was ordered to pay Giganews $5.6m in attorney’s fees and costs and this was upheld on appeal.  

Term Extension - the UK moves forward

Sir Cliff - timeless

Well, we blogged it was coming, and now the term of copyright protection for sound recordings in the UK runs for a marvellous 70 years, rather than the paltry 50 years that was previously the case. The move, which came into effect on November 1st and was dubbed "Cliff's Law" after the veteran hitmaker Sir Cliff Richard (who backed the campaign to extend the copyright period) has not been without its critics, many of who said the move would only benefit record labels: The European Directive (2011/77/EU) that implemented the change requested that each country introduce measures to ensure artists received some benefit from extra 20 years of copyright protection. The specifics of those benefits in the UK have been in development for most of the year, and the Intellectual Property Office has now announced the following initiatives

- A "session fund" paying many performers (such as session musicians) 20% of revenues from sales of their recordings.

- A "clean slate" provision, whereby a producer may not make deductions from payments to performers (such as advances of royalties) from publication of a recording.

- A "use it or lose it" clause - which allows performers and musicians to claim back their performance rights in sound recordings if they are not being commercially exploited.

What will be interesting will be the detail. Whilst the EU had said that the extended term would benefit record producers who would generate additional revenue from the sale of records in shops and on the internet allowing them to adapt to the rapidly changing business environment and help them maintain their investment levels in new talent, major record labels are extremely good at reducing artiste royalties to next to nothing, often by reducing revenues on which those royalties apply. To be frank, 20% of nothing is, well,  nothing. So the detail of how session players and featured artists get paid remains to be seen. If labels are required to "set up a fund into which they will have to pay 20% of their revenues earned during the extended period" then the key will be what those revenues actually are: 20% of gross revenues would be nice. 20% of net revenues will probably be next to nothing if labels are allowed to deduct costs and overheads.  Many heritage artistes already only receive a minute shares of revenues - which often look even more one-sided in the digital age where record label manufacturing, packaging and distribution costs are virtually zero:  prolonging that situation for 20 years won't help musicians and performers very much.

Confirming the new measures, IP Minister James Younger said "The new rules bring lasting benefits for our world class recording artists. These changes demonstrate the government's ongoing commitment to, and support for, our creative industries - who are worth billions to our economy. Artists who performed on sound recordings will benefit from this extension of copyright protection from 50 to 70 years. The changes should help ensure that musicians are rewarded for their creativity and hard work throughout their careers".

Meanwhile Jo Dipple of cross-industry trade body UK Music said: "UK Music welcomes today's announcement on extending the term of copyright for sound recordings. We are pleased that the government is implementing changes that acknowledge the importance of copyright to performers and record companies. This change will mean creators can rightfully continue to make a living from their intellectual property and works".

The extension will not be applied retrospectively, so tracks that have already fallen into the public domain, including the Beatles Love Me Do, remain outside of copyright protection.

https://www.gov.uk/government/news/musicians-benefit-from-extended-copyright-term-for-sound-recordings

Metall auf Metall II – The Curious Case of Free Use and Sampling



Kraftwerk album 'Trans Europa Express'

Sabrina Setlur single 'Nur Mir'

I have only now got around to reading and reporting on ‘Metall auf Metall II’ – a case on free use and sampling decided by the Higher Regional Court of Hamburg (OLG Hamburg) on 17 August (case reference 5 U 48/05). The facts of the case are as follows:

The claimants are members of famous German band ‘Kraftwerk’. In 1977, they released a record that included the title ‘Metall auf Metall’ (‘metal on metal’), which they also produced.

Twenty years later, German rapper Sabrina Setlur had a hit with her title ‘Nur Mir’ (which in context translates as ‘to me only’). The defendants are the producer and the composers of ‘Nur Mir’. They sampled a sequence of two seconds from ‘Metall auf Metall’, put it on a loop and used it as the continuous rhythmic layer for Ms Setlur to rap over on ‘Nur Mir’.

According to the claimants, this constitutes an infringement of their neighbouring rights as producers of the sound recording ‘Metall auf Metall’ (§ 85 (1) (1) UrhG; German law provides no author’s right protection for sound recordings).

The case has already been all the way to the Federal Supreme Court (BGH), was reversed and remanded, and now the OLG Hamburg has granted leave to appeal on legal grounds again because the judges don’t seem too sure they have reached the right conclusion this time round.

In a nutshell, the conclusion they did reach was that ‘Nur Mir’ constitutes an infringement because it would not have been unreasonably cumbersome to produce a ‘sound-alike’ rhythm sequence.

In the decision that reversed and remanded the earlier judgment by the OLG, the BGH held that § 24 UrhG on free use applies mutatis mutandis to neighbouring rights. § 24 UrhG reads:

 

(1)   An independent work created by free use of the work of another person may be published and exploited without the consent of the author of the used work.

(2)   Paragraph (1) shall not apply to the use of a musical work where a melody has been recognisably borrowed from the work and used as a basis for a new work.

According to the BGH, § 24 (1) BGH does not apply if it is possible to produce the sampled sound sequence independently, or if the sampled sequence is protected as a melody under § 24 (2) UrhG.

Independent Work

In order to be an independent work created by free use for the purposes of § 24 (1) UrhG, the new work must keep sufficient distance to the borrowed original traits of the used work, to the extent that the original traits of the elder work fade into the background in view of the originality of the new work (established BGH case law). Quite when that is the case is a bit of a mystery, though. Especially in cases on parody, courts and commentators do rather a lot of squirming and modify the requirement of ‘fading to the background’. It is said to suffice if the new work keeps a great ‘inner distance’ to the work from which it borrows, especially if an ‘artistic engagement’ (‘künstlerische Auseinandersetzung’) with the borrowed work takes place, but also if the ‘inner distance’ is realised by some other means in the view of an independent observer who knows the elder work but also possesses the intellectual understanding required for the new work. In principle, though, the standard is a strict one. Are you confused yet?

In any case, the OLG found that ‘Nur Mir’ possessed an entirely different character from ‘Metall auf Metall’, even though the rhythm sequence was clearly audible throughout the track. Making allowances for the hip hop genre, the judges stated that it would be asking too much if one were to demand a rhythmic figure in a hip hop track to fade to the background in such a way as to be barely recognisable. The additional elements were deemed enough to turn ‘Nur Mir’ into an independent work according to § 24 (1) UrhG.

Rhythm vs Melody

Fans of Stomp or will be disappointed to learn that a rhythm section does not qualify as a melody for the purposes of § 24 (1) UrhG. Unequivocally rejecting musicologist definitions as too vague and nondescript, the OLG judges reiterated the case law definition of melody as a ‘self-contained and ordered sequence of notes’ (‘in sich geschlossene und geordnete Tonfolge’). § 24 (2) UrhG does not preclude the borrowing of harmonies, rhythms, original instrumentations or special sound effects because such features do not constitute a melody. They held that the short sequence from ‘Metall auf Metall’ was a ‘rhythm surface’ (‘Rhythmusfläche’) comprised of overlapping ‘shreds of notes’ (‘Notenfetzen’). The result may be original and attract copyright protection as a musical work, but it is not a melody. The court also mentioned that § 24 (2) UrhG is a very controversial piece of legislation anyway and as such should be interpreted narrowly.

Possibility of Producing a Sound-Alike

So far so good for the defendants, but their case dies here. The BGH did not provide any guidance as to the criteria that should be met to find for a possibility of producing a sound-alike, so the OLG came up with its own definition. Given that ‘Nur Mir’ was produced professionally and for commercial purposes, the skills and technological possibilities open to a music producer with average equipment are decisive; the reference point is the time when sampling took place (1997 in the case at hand).

According to the OLG, it is not necessary that the sound be identical, but that it would be regarded as equivalent by prospective consumers that are familiar with and possess a certain amount of sensitivity for musical issues without being extraordinarily exacting. Expert witnesses managed to produce an equivalent sound-alike to the ‘Metall auf Metall’ sequence in less than two days. The court held that this was a reasonable amount of time to ask before permitting someone to encroach upon another’s rights without having to seek permission and free of charge. The judges were not entirely certain whether they got these criteria right, though, which is why they granted leave to appeal on legal grounds to the BGH once more.

Conclusion

It strikes me as a bit odd that it constitutes an infringement of neighbouring rights if something that may easily be replicated is sampled, but if something very elaborate that is difficult or impossible to replicate (and probably more original) is sampled, that’s OK. What do you think, dear readers?