Friday, 24 February 2017

New Spanish decision might offer support for 'direct licensing'

Mark Knopfler live in Bilbao by Aherrero
Most venues and festivals have a blanket annual licence with their local music collection society, and would pay a percentage of their box office revenues to compensate composers and lyricists, and their music publishers, for the use of music. In the UK that rate (Tariff LP) is currently 3% of box office paid to PRS for Music (this Tariff is under review). This rate is meant to cover ALL music used - the only exception in the past used to be the exclusion of the 'grand right' for dramatico-musical works which were intended to be accompanied in performance by dramatic action(for example opera and musicals) where the right was usually directly licensed by music publishers on behalf of authors.  

A Spanish court has ruled against collection society SGAE in favour of a venue which had negotiated to pay performance royalties directly to artists. The ruling, by Judge Pedro Macías in the commercial court of Badajoz in Extremadura, centres on two shows by veteran Spanish rock group Asfalto and comedian Pablo Carbonell at Badajoz’s 325 capacity Sala Mercantil venue in 2010.

When SGAE (Sociedad General de Autores y Editores) noted that the usual fees for the concerts had not been paid, it announced its intention to collect, only to be told that  “the artists had reached a private agreement between them” and the Mercantil, according the venues legal team, OpenLaw. Judge Macías’s affirmed the composers “exclusive rights to the exploitation of the work, without any limitations other than those established by law” 

“The owners of these rights are the authors, so they are the ones who should be able decide what to do with them,” comments OpenLaw’s Andrés Marín. “If a composer and performer negotiate directly with a third party and agree to give away or even collect their copyrights directly, the SGAE has no right to try to collect, or recover, the rights the artist has not claimed.

The ruling certainly supports the developing practice of 'direct licensing' where performing artists who compose their own material are choosing to bypass their local performing right organisations (PROs) in favour of collecting performing right royalties directly. At last year's International Live Music Conference, Mark Knopfler's manager Paul Crockford highlighted the efficiency of self collection for Knopfler - and the practice of (large) discounts some collection societies were giving to promoters to assist in the collection of these revenues. 

However, a spokeswoman for SGAE said that that the PRO’s lawsuit was aimed at the Mercantil, not the performers, and that Judge Macías displayed a “clear misunderstanding” of copyright law by failing to distinguish between the rights of performers, composers and publishers: “The performers said to the court that they’d received their royalties, and the court understood that to mean the composers had, too,” she told IQ magazine. “It was a clear misunderstanding of Spanish copyright law, which distinguishes between the rights of composers and artists.” (In both cases, it should be noted, the composers and performers were one and the same). She said that Spanish creators can, if they wish, opt out of SGAE’s collective licensing (in the UK this is called a Clause 7G arrangement) but that in the case of the two disputed shows, neither performer had done so. “If any of our members want to withdraw certain rights, there’s a procedure for it,” she explains. “But what we can’t do is have both systems: If they have a blanket licence, they can’t then administer their rights directly as well, it would be chaos for us.”

OpenLaw, said the decision shows traditional collection societies are ultimately subordinate to the wishes of copyright holders – and demonstrates a “clear victory over the unjustified position of dominance that SGAE exerts over many of Spain’s music venues and artists”.

The  Court of Justice of the European Union recently decided in Soulier and Doke, C-301/15 that the InfoSoc Directive grants a 'high level of protection' to is authors. That case concerned reference for a preliminary ruling from the French Conseil d’État (Council of State) to clarify if a legal framework intended to encourage the digital exploitation of literary works (books) published in France before the 1st January 2001 and which were no longer commercially distributed by a publisher and are not published in print or digital format was compatible with Article 2(a) and Article 3(1) of the Directive. The court held that the Directive must be interpreted as precluding national legislation that gave an approved collecting society the right to authorise the reproduction and communication to the public in digital form of ‘out-of-print’ books. Despite contrasting hints in the past in which the CJEU appeared to employ the terms 'authors' and 'rightholders' interchangeably, the Court reinforced the idea that who the InfoSoc Directive intends to grant a 'high level of protection' to is authors. It would appear that, post-Soulier and lacking specific 'EU-endorsed authorisation' to the contrary, national legislative initiatives (including licensing schemes) that fail to incorporate appropriate and streamlined procedures to (i) inform authors of possible future uses of their works, and (ii) obtain their relevant, individual, consent are likely to be regarded as incompatible with EU law.

This year's International Live Music Conference is hosting a panel titled "Direct Licensing: Rates, Rights and Wrongs on Thursday March 9th chaired by Jon Webster from the Music Managers Forum, and with representatives from direct licensing agency PACE, collection societies PRS for Music and Buma Stemra and from Yourope, the European festivals association and explains the panel as: "The widespread system of promoter rebates given by some PROs (performance royalty organisations) came under scrutiny at ILMC last year. As a result, several artists are now choosing to license their songwriting performance royalties directly, a situation that left promoters facing unexpected licensing fees during the 2016 festival season. The upshot is a three-way conversation between performance royalty organisations, promoters, and artists, as existing relatively simple administrative models are reviewed making the whole process more complicated for all. Add in various tariff updates, and performance royalties is an interesting area right now. Jon Webster invites specialists and guest speakers to help clarify the current situation and what the solutions might be."

Swedish appellate court allows web blocking

The Swedish Court Of Appeal has overturned the ruling in the District Court Of Stockholm in 2015 which had dismissed an application that would have forced internet service providers to block The Pirate Bay and other platforms linked to music and other piracy  - a move opposed Swedish ISP Bredbandsbolaget

The Patent And Market Court of Appeal has now ruled in favour of music and movie companies, ordering Bredbandsbolaget to implement web-blocking of both The Pirate Bay and another piracy site called Swefilmer. The court confirmed that their judgement was in part influenced by the web-block injunctions that have been ordered elsewhere in the European Union.

Torrentfreak reports that judge Christine Lager said in a statement: "In today's judgment, the Patent And Market Court held that right holders such as film and music companies can obtain a court order in Sweden against an ISP, which forces the ISP to take measures to prevent copyright infringement committed by others on the internet. The decision is based in EU law and Swedish Law should be interpreted in the light of EU law. Similar injunctions have already been announced, such as in Denmark, Finland, France and the UK, but the verdict today is the first of its kind in Sweden".

The verdict decision is not open to appeal. 
The Advocate General Maciej Szpunar recently opined to the Court of Justice of the European Union (CJEU) that The Pirate Bay makes acts of communication to the public on a referral by the Dutch Supreme Court (Hoge Raad der Nederlanden) in Stichting Brein, C-610/15, and that web blocking by depriving internet users of access to The Pirate Bay would be proportionate to the significance and seriousness of the copyright infringements committed on that site.

AND see this new article on the IP Kat from Nedim Malovic (Sandart & Partners) on the decision and that the court noted that it is indeed possible under EU law for rightsholders to obtain an injunction [pursuant to Article 8(3) of the InfoSoc Directive] against an intermediary whose services are used to commit a copyright infringement, even if the ISP only provides its customers with internet access.

ITV loses Copyright Tribunal appeal

UK national broadcaster ITV has lost its appeal to the  High Court appeal against the 2016 Copyright Tribunal ruling that set rates for the current (2014-2017) period with PRS for Music, the collection society which represents composers, lyricists and music publishers in the United Kingdom. The Tribunal agreed that PRS could increase the tariff beyond the 2013 fee payment of £23 million per annum to a new base rate of £24 million for all ITV uses (including breakfast TV) adjusted by (a) BARB viewing figures for ITV during each year and (b) the percentage change in RPIJ (the RPI inflation measure). On appeal the High Court told ITV that the Tribunal  "had not made an error of law in reaching its decision".

Commenting on the decision, PRS Commercial Director Paul Clements said: "In June 2016, the copyright tribunal decided a dispute over the terms of ITV's broadcast licence in PRS For Music's favour. The tribunal decision set down clear and compelling reasons for an increase in the licence fee, reflecting the right value for our members' music". "While ITV chose to appeal this decision, I am pleased that the High Court has now rejected their arguments and upheld the original tribunal decision" adding "This result is very real evidence of our commitment to secure the right value for our members' work".

European Copyrigh Reform: Open Letter from European Research Centres

On 14 September 2016, the European Commission published a package of reform proposals, including two Regulations (that have direct effect in Member States) and two Directives (that will have to be implemented into national laws).


EU Copyright Reform Proposals Unfit for the Digital Age

We are independent legal, economic and social scientists, and represent the leading European centres researching intellectual property and innovation law.

It is likely that you personally are being lobbied with regard to a complex Copyright Reform package that extends to 3 Regulations and 2 Directives (supported by over 400 pages of Impact Assessments).

The proposals say the right words on the cover: “EU Copyright Rules Fit For The Digital Age. Better choice & access to content online and across borders. Improved copyright rules for education, research, cultural heritage and inclusion of disabled people. A fairer online environment for creators and the press.”

While the Proposed Directive on Copyright in the Digital Single Market (COM(2016) 593 final) contains a number of reasonable, common sense measures (for example relating to cross border access, out-of-commerce works, and access for the benefit of visually impaired people), there are two provisions that are fundamentally flawed. They do not serve the public interest.

Article 11 seeks to create an additional exclusive right for press publishers, even though press publishers already acquire exclusive rights from authors via contract. The additional right will deter communication of news, obstruct online licensing, and will negatively affect authors.

Article 13 indirectly tries to amend the E-Commerce Directive (2000/31/EC) that arranges the liability of online intermediaries for user generated content into a shared responsibility of rights holders and service providers. The proposals will hinder digital innovation and users’ participation.

With respect to both provisions, independent empirical evidence has been ignored, consultations have been summarised in a misleading manner, and legitimate criticism has been labelled as anti-copyright. We urge you to look inside the copyright package and seek out independent expertise.

In order to facilitate debate, we have produced two short appendices to this letter, setting out the key flaws of the proposals, and listing sources of evaluation. There is independent scientific consensus that Articles 11 and 13 cannot be allowed to stand.

First signatories include academics of the following Research Centres: The Centre for Intellectual Property and Information Law (CIPIL), University of Cambridge, United Kingdom; Centre d’Etudes Internationales de la Propriété Intellectuelle (CEIPI), University of Strasbourg, France; RCUK Copyright Centre (CREATe), University of Glasgow, Scotland, UK; Chair for Civil and Intellectual Property Law, Humboldt University, Berlin, Germany; Institute for Information Law, University of Amsterdam, Netherlands; Max Planck Institute for Innovation and Competition, Munich, Germany; Center for Internet & Society (NEXA), Politecnico di Torino, Italy; Universitat Oberta de Catalunya (UOC), Barcelona, Spain; SciencesPo Paris, France; Tilburg Institute for Law, Technology and Society & Tilburg Law and Economics Center, University of Tilburg, Netherlands

You may agree with the letter - you may disagree! But it's well worth a read and you can download the letter here

and here's a link  to the form where academics can join the letter

Wednesday, 22 February 2017

T Bone Burnett takes aim at DCMA safe harbours

T Bone Burnett by Kulturvultur (2007)
Congress enacted the Digital Millennium Copyright Act (“DMCA”) nearly two decades ago, aiming to provide a  balance between the needs of content creators, who were struggling to protect their intellectual property in the digital age, and fledgling Internet companies, who feared being held liable for the misdeeds of  their customers - giving the technnology companies the benefit of 'safe arbour' protection provided service providers “reasonably implement” a policy that provides for the termination of “repeat infringers” in “appropriate circumstances.”
But is that balance right? 

Singer, songwriter and producer T Bone Burnett has delivered a telling contribution to the US Copyright Office's review of Digital Millennium Act 'safe harbour' provisions in the USA, saying in a video that whilst the law that was supposed to "balance the internet's openness with creators' ability to earn a living wage from their work  ..... [T]hose safe harbours have failed".

"The problems are familiar", he adds. "[And] they are well described in the record of these proceedings, from the broken Sisyphus climb of 'notice and takedown' to the gunpoint negotiations and pittance wages forced upon creators by the Google monopoly. The Big Tech ITOPIANS can track us across dozens of networks, devices and profiles to bombard us with micro-targeted ads, but they can't even identify unauthorised copies of our work and keep them off their own servers and systems. Or they won't".

"The problem here isn't technology", T Bone adds, saying "Creators welcome the digital revolution and its power to connect, amplify, and inspire. A modern recording studio looks more like a cockpit than a honky tonk, and that's just fine. The problem is business models - designed to scrape away value rather than fuel new creation, focused on taking rather than making. To restore technology's place as the rightful partner of tomorrow's creators, we need change".

"The safe harbours must be restored - so only responsible actors earn their protection, not those who actively profit from the abuse and exploitation of creators' work. Technology must be enlisted to make the system work better, not to roadblock progress in a pointless arms race of whack a mole and digital deception. Creators must be given meaningful tools to earn a living from their art". 

"The false prophets of the internet may have imagined an egalitarian open source creative wonderland - but what we got was a digital playground for a handful of mega corporations and web moguls living fat off the artistic, cultural and economic value everyone else creates online".

"It's time for Congress to close the loopholes in section 512 of the DMCA. Our culture is at stake. And it's time for musicians to join with us, the Content Creators Coalition, to make that happen. Your career depends on it. On behalf of music creators, thank you to the Copyright Office for this proceeding and for considering these views".

On the same matter, the recent decision of the Second Circuit Court of Appeals  in the MP3tunes case is of interest: the Second Circuit noted that copyright infringement is a strict liability offence with no requirement to prove unlawful intent. Moreover, both uploading and downloading can constitute infringement. Because the DMCA does not define “repeat infringer,” the court adopted this ordinary meaning and held that “all it [takes] to be a ‘repeat infringer’ [is] to repeatedly [upload or download] copyrighted material for personal use.”

The Second Circuit also found that MP3tunes’ repeat infringer policy was not reasonable as a matter of law because, whilst the site did respond to takedown notices from copyright owners and terminated the accounts of some users, “MP3tunes did not even try to connect known infringing activity of which it became aware through takedown notices to users who repeatedly sideloaded files and created links to that infringing content in the index.”

Image:  Kulturvultur

Monday, 20 February 2017

Search Engines act to demote pirate results

The UK IPO has announced today that Google and Microsoft have signed an anti-piracy agreement with the creative industries, in the form of the UK record industry trade body, the BPI and the US Motion Picture Association.

The government has been facilitating the talks (which have apparently been going on for several years)  which have now led to a Voluntary Code of Conduct.
The objective is to reduce the visibility of pirate sites to those casually searching for content.  Currently if one searches for music and film titles, often pirate sites appear high up in the search results.

The Code was agreed on 9 February 2017, will come into force immediately, and sets targets for reducing the visibility of infringing content in search results by 1 June 2017.
Minister of State Jo Johnson MP will oversee the implementation of this Code of Practice, and the IPO will work with all parties to evaluate progress.  The implication is that, if progress is not made, legislation may follow.  The announcement handily arrives just before the issue was due to be debated by the House of Lords as part of the progress of the Digital Economy Bill.  The full IPO press release is here.

The Code is currently limited to the UK, but the creative industries hope that it will become a model adopted throughout the world.  You can hear Eddy Leviten from the Alliance for IP talking about it on the BBC Radio 4 Today programme at [at about 06.50am]


This CopyKat from David Laio


VG Media, an association of publishers including Handelsblatt and Axel Springer, has brought a claim against Google in relation to the German 2013 Ancillary Copyright Law. This law was designed to compel Google to pay for publishing summaries of news content in web searches, which Google argues is only for indexing purposes. In addition Google claims its search service helps publishers reach a wider audience.

This is the fifth claim VG Media has made against Google, with three of those claims having been decided in Google’s favour (with the rest still pending). In 2014 Google had previously removed snippets in relation to one such claim made by VG Media, but the consortium responded by characterising this behaviour as an abuse of Google’s dominant position. Some have suggested VG media had hoped to compel Google into licensing agreements, see here

The Berlin District Court has recently asked the European Court of Justice for clarity on a technical point, whether the law had been properly submitted to European Commission authorities under a process of review called “notification”. This could be a potential stumbling block for the lawsuit – the ruling is currently expected on the 9th of May this year so stay tuned.

Paul McCartney sues Sony/ATV

Paul McCartney will be able to reclaim the rights to music which Sony/ATV currently hold as of October 2018 under US Copyright Act (the right discussed here in relation to Duran Duran, which also involved Sony/ATV). McCartney has previously asked Sony/ATV to acknowledge his rights to terminate copyright transfers of his music but did not receive this confirmation. As such, McCartney is seeking a judicial declaration allowing him to reclaim his copyright. No doubt this will be influenced by the Duran Duran case, which was granted leave to appeal by Mr Justice Arnold earlier this month.

Copyright Law Reviews 

Canada: The Canadian government plan to review copyright laws next year and commissioned a study on views of Canadian businesses (reported here). In particular the study found that follow-the-money strategies (which focus on methods such as reducing online advertising revenues and disabling payment to intermediaries) have a mixed record of success, especially with the continuing popularity of online advertisers who prioritise reaching large audiences over enforcing copyright. It is also interesting to note rights holders tended not to give fighting online piracy a high priority, as many believe that “their scarce resources are better invested in other battles and counted on global organizations to pursue the fight.”

US: In a recent speech, House Judiciary Committee Chairman Bob Goodlatte said that several copyright policy proposals would be voted on during the current legislature. Goodlatte said one of the first proposals will focus on the US Copyright Office to ensure that it "keeps pace in the digital age", including granting the Office autonomy and the creation of a searchable database of all copyright works – a monumental task indeed. Industry observers also suggested that music licensing and a small claims tribunal would be possible other proposals. See here for more details.


The estate of the late Anthony Barré (known as Messy Mya) is suing Beyoncé for the use Barré’s voice in the song “Formation”. Sample audio clips were allegedly taken from a hit YouTube videos including one named ““Booking the Hoes From New Wildin”. The claim is for more than $20 million in back royalties and other damages, as well as credit for being a writer, composer, producer, and performer. Listen to the clips here.

Thursday, 9 February 2017

Going for Gold': 3D Scanning, 3D Printing and Mass Customisation and the Future of Intellectual Property Law

Another free seminar from the City University Law School - but you do need to register. 

13.00  Wednesday 1st March 2017

College Building
City, University of London
St John Street

United Kingdom

The growth of 3D technologies impacts on intellectual property law, leading to a number of implications including copyright, design and licensing issues amongst others. Such challenges question the enforcement, object and purpose of IP laws whilst exploring the opportunities presented through this technology.

Building on the Commissioned Research carried out for the UK Intellectual Property Office (UKIPO) (2013-2015), the paper will first set out the findings, conclusions and recommendations from this project before moving on to a consideration of the AHRC-funded project titled 'Going for Gold: A Legal and Empirical Case Study into 3D Scanning, 3D Printing and Mass Customisation of Ancient and Modern Jewellery' . 

In presenting the two funded projects and its findings, the paper will outline the IP issues arising from this emerging technology, whilst questioning the impact of 3D scanning and 3D printing on the future of IP law.

The Speaker is Professor Dinusha Mendis (Professor of Intellectual Property Law and Co-Director of the Centre for Intellectual Property Policy and Management (CIPPM)). 

Sign  up here,-3d-printing-and-mass-customisation-and-the-future-of-intellectual-property-law

Image: 3D-printed propeller for model airplane