Monday, 21 December 2015

PRS for Music and Soundcloud settle - war is over - for now

PRS for Music has written to its membership informing them that it has settled the recently launched legal action against the online music platform, which is widely used by PRS members. The licence covers the use of PRS for Music repertoire from SoundCloud’s launch, and extends to. cover SoundCloud in its plans to introduce subscription and advertising supported platforms across Europe in 2016. 

Robert Ashcroft, Chief Executive of PRS for Music said: “On behalf of our members, I am pleased that we have been able to reach a settlement with SoundCloud without extended legal proceedings. This ends over five years of discussions on the licensing requirements for the platform, resulting in a licence under which our members are fairly rewarded for the use of their music." adding "The safe harbours in current legislation still present ambiguity, and obstruct the efficient licensing of online services, but our agreement with SoundCloud is a step in the right direction towards a more level playing field for the online marketplace."

The letter from Karen Buse, Executive Director, Membership and International, reads: 

I wrote to you earlier this year to explain our action against the online music streaming service SoundCloud. After five years of unsuccessful licensing negotiations, we believed that we had no alternative but to start legal proceedings against them. However, we have since, through intense discussion and negotiation, managed to reach an agreement.

The agreement covers the use of repertoire controlled by PRS for Music since the service launched and is an important step in our quest to achieve a level playing field in the licensing of online services so that songwriters, composers and their music publishers can be paid properly for the use of their music online.

We believe this agreement to be the best outcome because it sets us on the path towards receiving proper reporting from SoundCloud of their use of your repertoire, enables royalties to be paid and also avoids the cost of legal proceedings.

Receiving enough accurate data on music uploaded to the platform remains a challenge but SoundCloud have committed to working with us to improve the quality of their reporting over time. We are conscious of the value that many of you derive from using SoundCloud and are pleased to have reached this landmark agreement. Whilst it is only one step along the road to a fully functioning online market, it is an important one. I would like to thank SoundCloud for breaking with the past and agreeing to work with us; a move which we feel is in not only your, but all rightsholders’, interests.

We expect you have questions about what this means for you. To help answer these, we’ve put together some frequently asked questions which can be viewed here.


Yours sincerely, 

Karen Buse Executive Director,
Membership and International
PRS for Music

Sunday, 20 December 2015

The CopyKat - a grumpy cat extends its claws

The three exceptions that the Pan-Democrats are seeking to add to the new copyright bill in Hong Kong are too broad, according to Copyright Tribunal deputy chairman Anthony Tong Tat-hay, who sought to allay web users’ concerns over civil and criminal lawsuits. Instead of opposing the bill, which will be tabled to the Legislative Council he added, the public should accept it and then continue to press for further consultation already pledged by officials. Tong said the Hong Kong law’s adoption of the British model for specifying what acts are to be exempted under a “fair dealing” doctrine (for parody, satire, caricature, pastiche, reporting and commenting on current event and quotation) is preferable to the US approach of a blanket “fair use” exemption, which internet users say offers the most protection. As to the exception for user generated content (UGC) Tong said  “It is imprudent to adopt UGC as it is still a guinea pig overseas [in Canada]“ adding "As responsible lawmakers, when it comes to a new law, they should not rush into it.” The third proposed exception of contract override, which would restrict contractual terms from overriding exceptions for parody, caricature and pastiche, would not directly affect end users, Tong said.  More here and here and here (in Chinese). To the frustration of government, opposition lawmakers in Hong Kong finally managed to push back discussion of the proposed Copyright (Amendment) 2014 bill until next year.


Ok Kat fans: Grumpy Cat Limited, the company behind the ever-angry feline, filed a lawsuit against coffee company Grenade Beverage LLC  for copyright and trademark infringement as well as trademark dilution, cybersquatting, breach of contract, and accounting. The lawsuit demands Grenade to stop using Grumpy Cat naming and imagery for products and sales, and seeks damages in the Californian federal court. The coffee company also operate the domain name grumpycat.com. Grumpy Cat image by Gage Skidmore.

A Virginia federal jury has reached it's verdict (PDF), ordering Cox Communications to pay $25 million to BMG Rights Management for turning a blind eye to music piracy with the jury finding that the company's behavior amounted to a willfully infringed copyright. In what could be a landmark copyright case, an ISP loses its "safe harbor." The verdict comes at the close of a two-week trial, which took place after US District Judge Liam O'Grady issued an opinion (PDF) slamming Cox's behavior, saying that the ISP isn't protected by the Digital Millennium Copyright Act "safe harbor" because the company did not "reasonably 
implement" a policy to terminate repeat infringers. More on ArtsTechnica here.
Abbott & Costello

Music Week reports that three Members of US Congress have introduced a bill aimed at modernising and changing the status of the country's Copyright Office. The bill, known as the Copyright Office for the Digital Economy Act or the CODE Act, is sponsored by Congresswoman Judy Chu, Congressman Tom Marino and Congresswoman Barbara Comstock. The draft bill was first released in June and, following months of discussion with various stakeholders, it now reflects "a consensus across various industries and public interest groups,” according to the sponsors of the legislation. The CODE Act would "ensure that our country has a Copyright Office that reflects the 21st century,” according to Congresswoman Chu.

A federal judge has dimissed claims by the heirs to Abbott and Costello against the producers of a Broadway play in which a character uses a sock puppet to perform part of the comedians’ famous “Who’s on First” routine. The copyright holders sued “Hand to God” producers, promoters and playwright Robert Askins in the Manhattan federal court for copyright infringement. Federal Judge George Daniels in Manhattan rejected the lawsuit Thursday, saying the play transforms the original routine enough that it does not violate copyrights. The lawsuit had claimed the play “copied the very heart” of “Who’s on First.”

And finally, The Nigerian Copyright Commission (NCC) has filed criminal charges against MTN Nigeria Communication and its Nigeria’s Chief Executive Officer, Ferdi Moolman, over alleged copyright infringements. In the two-count-charge, MTN and Moolman are alleged to have infringed on copies of the musical work of an Abuja based musician, Dovie Omenuwoma-Eniwo (aka Baba 2010). More here.

Saturday, 19 December 2015

Pandora shares soar after Copyright Royalty Board set new rate

Pandora, the world's largest Internet radio service, will pay record companies more money to stream its music following a long-awaited decision on Wednesday by the three-judge panel of the U.S. Copyright Royalty Board.  The Board, a panel of three federal judges, decides how much Internet radio stations such as Pandora must pay record companies. Under a 1995 law and its successors, disputes over this rate are settled by the Copyright Royalty Board.

But the new fee represents a comparatively small increase - the record companies were seeking much higher rates. The new statutory per-stream rate os paid to recorded music rightsholders by non-interactive digital 'radio' platforms such as Pandora and iHeartRadio.  the non-subscription per-stream rate set by the CRB will be $0.0017, which $0.0003 more per stream than recorded music rightsholders currently receive from Pandora. According to MBW calculations, that will mean Pandora paying out $94.1m more to recorded music rightholders next year compared to 2015 for the same amount of consumption. However this rate will only apply for definite in 2016 - the following four years (2017-2020) will be determined by fluctuations in the US Consumer Price Index, which could bring the rate back down - or push it further upwards. In the wake of the CRB's decision, Pandora shares, which had plummeted 27% in 2015 before closing Wednesday at $13.44, were surging 20% in after-hours trading.  SoundExchange has been arguing wants to almost double it to $0.0025. In 2014, Pandora paid out $446.4m to all music business rightsholders, according to its SEC filings. (From a total cost of sales of $508m). A rate court ruled that ASCAP is entitled to 1.85 percent of Pandora’s revenue, and this year, a court ruled that Pandora must pay 2.5 percent of its revenue to BMI for the use if songs - so by far the biggest share of revenues were paid to labels and artists in 2014: $407.8m. But SoundExchange said "We believe the rates set by the CRB do not reflect a market price for music and will erode the value of music in our economy" and one commentator noted "Whatever the case, a competitive marketplace - not federal judges - ought to be setting prices" adding "The radio business is changing quickly. The sooner government gets out of it, the better off artists and consumers will be."

http://www.bloombergview.com/articles/2015-12-16/deregulate-the-music-industry and http://www.thestreet.com/story/13398099/1/pandora-hit-with-higher-costs-as-royalty-board-hikes-streaming-rates.html

And Billboard explains more here

Protecting cuisine in Italy: photographs of dishes and recipes in recent case law

Not an average risotto
The recent and growing obsession with food and food porn [see here for a collection of IPKat posts] has been raising not just anthropological questions about ourselves but also IP-related questions. 

Among other things, what kind of protection (if any) is available to photographs of dishes and recipes?

1709 Blog friends Margherita Bariè and Marco Annoni (Carnelutti Law Firm) provide an overview of recent Italian case law on this very point.

Here’s what they write:

“In recent years, the food & beverage industry has undeniably risen to an ever more determining role among professionals of the legal world for the issues that it presents daily and submits to the attention of courts and law experts.

We refer to an industrial field which involves a significant share of the domestic market and accordingly an extremely large number of businesses that operate every day by offering more and more diversified and innovative services which, consequently, draw attention to problems and topics that have not been faced ad discussed so far.

To quote some figures disclosed by Federalimentare – the Italian Association of the Food Industry – during the presentation of its annual accounts of 2014 and of the outlook for 2015, the Italian food industry is the second segment in Italy’s manufacturing industry with a turnover of 132 billion, more than 58,000 businesses, 385,000 direct workers and 850,000 employed in farm production, with a growth outlook in 2015 of (+0.3%) in terms of consumption, (+1.1%) in terms of output and (+5.5%) in exports. 

This performance was also and mostly achieved thanks to the positive trend generated by Expo 2015 and by the so-called “Italian sounding” effect which allows the Italian food industry to rank unquestionably among the world’s best.

The purpose of this post is to identify new legal developments facing cooking blogs, particularly with regard to photographs of dishes and culinary recipes.

Photographs of dishes

We believe that this kind of photographic works may receive protection as creative works, where they  display sufficient originality. In other words, as well-known court decisions established, “the photographer’s reproduction modality must convey an additional and different message than the material crystalised representation, thus rendering a personal interpretation capable of making one work stand out among others having the same subject matter” (Court of Roma, 2 August 2003 and Court of Milan, 7 July 2011, all available on www.darts-ip.com)

Thus, “the requisite of the creativity of the photographic works subsists anytime authors did not merely reproduce reality but inserted his imagination, taste, or sensibility in the shot to convey their emotions” (Court of Milan, 6 March 2006, on AIDA, 2007, page 792, and Court of Milan, 7 July 2011, published on www.darts-ip.com).

Culinary recipes

The Court of Milan recently delivered a decision on the specific protection of cooking blogs (Court of Milan, 10 July 2013, n. 9763, published on www.darts-ip.com). 

The judgment of the Milan Court basically dealt with the uncommon issue of whether a kitchen recipe may be protected by copyright – specifically a homemade kind of preserved meat – posted on a cooking blog.

In fact, the topic under review did not concern essentially the contents of the recipe or the specific combination of ingredients to make a specific food, but rather the manner to post a preserved-meat recipe. 

The Court – and the authors of this article – regarded this form of expressive representation of the recipe as deserving protection as a creative work.

Specifically, according to the Court, protection afforded by copyright “is based, in fact, not on the contents of the recipes of the various kinds of preserved meats or of the instruction to the various preparation steps, but rather on the form of expression that needs to be regarded as relevant for the purposes of the requested protection.  It includes both the language and the exposition of the elements that make up the texts – albeit of simple construction – and the material result of the activity to search and select elements that are considered relevant and important. In the case under review, these form the most significant element of originality that reveals the subsistence of an albeit minor – as is standard practice in the field of copyright – personal contribution of the author, which is not restricted to the mere schematic exposition of elements that are already known and fully available to any party”.

The quoted decision could at first sight appear an isolated case of minor importance in the industry under review. However, it could potentially become a genuine precedent capable of opening the way to many judgments on similar cases.

Moreover, although this decision specifically concerns information on a cooking blog, it could be used as starting point for the protection of creative internet contents of many companies that operate in the food industry, for instance companies – nearly all today – that dedicate much of their internet pages to the description of their products, which will thus rely, not only on the protection against unfair competition, but also on the protection granted by provisions on copyright."

Friday, 11 December 2015

The CopyKat - a Monday round up

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

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

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

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

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


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

Thursday, 10 December 2015

Dreams are my reality: a new event

Yes, it's an event ...
In May 2015 the EU Commission issued its Digital Single Market Strategy (DSMS) [here and here], in which it announced plans to reform EU copyright. 

In particular, the Commission indicated that a review of the copyright rules could encompass content portability and geoblocking; exceptions and limitations; and online enforcement.

The DSMS was followed by the launch of public consultations on the review of the Satellite and Cable Directive, and the role and responsibilities of online intermediaries and platforms.

As reported by The IPKat, yesterday the Commission:
  1. issued a proposal for a regulation on the cross-border portability of online content services in the internal market;
  2. released a new Communication Towards a modern, more European copyright framework, in which it anticipated that policy and legislative action would be taken in respect of: (a) exceptions and limitations; (b) exclusive rights (including both clarifying issues facing linking and considering whether any action specific to news aggregators is needed); and (c) enforcement (including Follow the Money strategies, commercial-scale infringements, application of provisional and precautionary measures, and injunctions and their cross-border effect);
  3. launched a public consultation on the evaluation and modernisation of the legal framework for the enforcement of intellectual property rights.
... to discuss what lies
ahead for our beloved EU copyright!
In parallel to this, also the EU judiciary has been having a significant impact on shaping copyright rules, with judgments that promise to have a profound impact on exclusive rights (including linking and the right of communication to the public) and exceptions and limitations alike.

On 14th January 2016 I am organising a new event, to be held at the London offices of RPC to review and discuss all these recent developments, including the feasibility (and desirability as such) of proposed Commission action.

Places are limited (with some tickets available for full time students), to provide everybody with the opportunity to discuss fully the present and future of EU copyright.

For those who cannot attend in person, it will be also possible to follow the event in either live streaming or at a later time via YouTube.

CDP points are also available.

For more information and to register just click here!

Tuesday, 8 December 2015

Dear EU "when you consult - please listen to what we say"

On the eve of the scheduled December 9th release of and vote on the foundational policy for future European copyright reform laws, the Communication from the European Commission to the European Parliament on copyright reform, a broad coalition of more than twenty companies and organisations representing news publishers and other digital content and services providers, as well as consumers, and civil rights advocates have fired off new salvos in the battle between digital rights stakeholders and EU copyright reform proponents. The main complaint seems to be that there is no point consulting if the EU has already set its own agenda.

The Computer & Communications Industry Association (CCIA) has now announced that it and other members of the coalition, including the Center for Democracy and Technology (CDT), have sent letters to First Vice-President of the European Commission Frans Timmermans and to Members of the European Parliament, raising concerns about lack of adequate consultation with stakeholders prior to the scheduled release on December 9th communique. The CCIA is a U.S. based organization with offices in Europe and includes Amazon, Facebook, Google and Yahoo. Another coalition organization titled their missive, “ Dear European Commission, could you at least pretend you’re listening to us? “.

The Communication will set the copyright agenda for years to come. It is a vital part of the European Commission’s Digital Single Market (DSM) Strategy announced in May of this year. 

http://www.forbes.com/sites/lisabrownlee/2015/11/27/eu-copyright-reform-computer-comms-industry-major-stakeholders-coalition-raise-concerns/

Saturday, 5 December 2015

The Last Word on the UK Orphan Works Scheme for 2015?


As we mentioned in our posting to mark the completion of the first 12 months of the UK's Orphan Work Licensing scheme, the IPO has now published its own report on the first year's operation. The report also covers some limited analysis of the EU Orphan Works Directive scheme.

The report is mercifully brief (24 pages) and aided by a number of tables and infographics to display the data. As part of the legislative process concerning Part 6 of the Enterprise and Regulatory Reform Act 2013 which, inter alia, set up the IPO sponsored scheme, the minister agreed to report back to Parliament after the first year, and this document fulfils that undertaking.

Since we have already looked at the statistics for the first year in our earlier posting, it is intended just to examine the other main points which come out in the IPO report. These are:
  • Experience of using the system has led to a refinement of the guidance on how to conduct diligent searches;
  • Some usage fees have been adjusted thanks to feedback from users and others.
  • No licences have been refused and no returning rights holders have come forward to claim their works.
The report also looks at the results of a survey of users of the scheme conducted by the IPO. The IPO acknowledges that the sample size (19 respondents) is too small to draw any firm conclusions from, but nonetheless, the feedback has been useful and may lead to future amendments to the system. In particular there is a table showing the various points at those who did not complete their application, abandoned the process.

And finally the report looks briefly at the experience of the EU Directive mandated process, which is open to major institutions such as publicly funded libraries, archives and museums etc. Only 10 UK institutions have so far registered with the OHIM (which administers the EU system), but this compares favourably with a total of 61 registrations across the whole EU. These 10 institutions are not identified in the report and between them they have created 53 entries in the OHIM database together with 14 records relating to embedded works, although again no details are included. Interestingly the UK registrations have resulted in 2 rights holders coming forward to claim their works. This compares with 25 returning rights holders across the whole of the EU for a total of 1399 registrations. It remains to be seen whether these figures indicate that some of the searches have been less than diligent (given that registrants self-certify and this is not checked either by OHIM or the national authorities such as the IPO).

The 1709 blog's good friend John R Walker will be delighted to know that the IPO collected £1,492 in administrative fees for the first 12 months, and is holding £8,001.97 in licence fees on behalf of any rights holders, should they become known within the next 8 years.