Friday, 20 April 2018

Moral rights and architectural works in a recent Italian decision

Casa Bosco
To what extent can an architectural project be modified without the express consent of the architect without such modifications being an infringement of their moral right of integrity?

This is the question that not long time ago the District Court of Milan (Tribunale di Milano) addressed in Boeri v Agnoletto, decision No 1568/2018.


In late 2000s well-known architect Stefano Boeri was commissioned to realize an architectural project - then become 'Casa Bosco' - for ‘residential standardized units – Low Cost housing units’ in Milan by virtue of a contract that foresaw that the architect and the commissioning party would have the co-ownership of any resulting rights, and also that any separate use of the project – including for marketing purposes – by either party should be authorized in writing by the other party.

Following the finalization of the project and the decision of Boeri to leave it due to his political commitment with the Municipality of Milan, a new contract was concluded to prepare the final version of the project and obtain the necessary administrative/building permits. 

Also this contract envisaged that Boeri would co-own any rights to the project as finalized, save for the right to modify the project if any such modifications would be necessary to obtain the necessary authorization.

In 2014 Boeri brought proceedings for infringement of – among other things – Article 20(1) of the Italian Copyright Act. This provision states that, irrespective of economic rights and even after their transfer, the author of a work has the right to object to any deformation, mutilation or any other modifications, as well as any other act to the detriment of the work, that may be prejudicial to their honour or reputation. The architect claimed in fact that both modifications made to his social housing project ‘Casa Bosco’ and the transformation of the project into a for-profit enterprise indeed infringed his moral right of integrity.

The decision

The Court began its analysis by noting that Article 20(2) of the Act also states that [the translation from Italian is mine] “in works of architecture the author cannot object to any modifications that were necessary in the course of their realization. Similarly, they shall not object to any further modifications that were necessary to be made on a work that has been already realized.”

The judges noted that in Italian case law there have been two main interpretations of this provision. On the one hand, there is a restrictive view according to which the only possible modifications are those which in any case do not infringe the author’s moral right of integrity (hence, the provision would only apply with regard to economic rights). On the other hand, the prevalent view is that the derogation within Article 20(2) also applies to the right of integrity [this view appears preferable, also if one considers the fact that it is included within the provision devoted to moral rights]: the authorization of the author is not needed for any modifications that are detrimental to their honour or reputation should such modifications be indispensable to the realization of the work.

The modifications lamented by the architect concerned: (1) the removal of contractual clauses relating to the future sale of the units; (2) the modification of the ratio between free construction- and social construction-reserved areas. 

The Court held that the former would be outside the scope of the author’s rights as it would relate not to the project as such but the economic exploitation of the resulting units, and the latter related to something that the author had consented to by entering the relevant contracts.

The judges thus dismissed Boeri’s action.

Monday, 16 April 2018

The COPYKAT: licensing, lawsuits, and legislative updates

Community Health Systems fails Microsoft check-up on licensing

Technology giant Microsoft has filed a suit against Community Health Systems for “willfully infringing Microsoft’s copyrights through unlicensed use of Microsoft’s software,” according to a lawsuit filed last month. Microsoft also alleges Community Health Systems is guilty of willful breach of its contractual obligations, and implied covenant of good faith and fair dealing.

Community Health Systems is a Fortune 500 private company based in Tennessee, USA. CHS is the largest provider of general hospital services in the United States in terms of number of acute care facilities. According to its website, CHS’s affiliates own, operate or lease 126 hospitals in 20 states with approximately 21,000 beds. 

Microsoft and CHS have a number of licensing agreements for its software, which prohibit CHS from distributing, sublicensing, renting, leasing, lending or hosting any Microsoft software. The products in question include Microsoft’s Windows, Office, SQL Server and Datacenter.

According to the 2013 Business & Services Agreement (MBSA) signed between the parties, Microsoft has “the right to verify compliance with the license terms” through an independent auditor, Deloitte. In late 2016, Microsoft notified CHS that it was exercising its contractual rights to verify licensing and contract compliance.

Around this time, CHS was in the process of selling off (divesting) various hospitals to new management. As reported by the Nashville Business Journal, CHS has sold more than 30 hospitals in the past 15 months, and plans to sell more this year. CHS is alleged to have sweetened the divestment deals by providing its buyers access to Microsoft Corp. software. The lawsuit states that “despite having no right to do so, CHS intentionally facilitated the continued use of Microsoft software by these divested entities.”

CHS has apparently missed numerous mutually agreed upon deadlines, and has failed to provide complete data to Microsoft. Microsoft insists that this demonstrates CHS’s “unwillingness to comply with its contractual obligation and/or with the independent verification process.” Microsoft’s lawyers charge CHS with being “largely not responsive to, if not obstructionist of” the Deloitte audits.

For reference the complaint, Case 3:18-cv-00291, was filed March 15th in the U.S. District Court for the Middle District of Tennessee, and made public several days ago in early April. According to the Docket, Microsoft’s legal team has been granted a case management conference in early June. CHS has until May 7 to respond to the complaint.

"Grande" victory on vicarious liability in RIAA piracy case

The Recording Industry Association of America’s legal battle against Texan internet service provider Grande Communications has been given the green light proceed to trial, although with the vicarious copyright infringement claim removed.

Pursuant to the Judge’s recent order, the matter continues on the contributory copyright infringement claim alone. This move is considered by Torrent Freak to be a partial defeat for the RIAA’s piracy lawsuit, as the vicarious copyright claim against Grande Communications has been dismissed. 

By way of background, several major record labels including Universal Music, Capitol Records, Warner Bros and Sony Music - represented together by the RIAA - brought action against Grande Communications for the copyright infringements of its customers. The original complaint, Case 1:17-cv-00365, was filed in April 2017 in the Austin Division of Western Texas District Court.

Grande denied these accusations, and filed a motion to dismiss the case. In respect of the vicarious liability aspect, vicarious liability is established when the third party (the ISP) has the right and ability to control the actions of the direct infringer, and the third party derives a direct financial benefit from the infringement. 

The RIAA claims Grande can be held liable for vicarious infringement, because the ISP has a “direct financial interest in keeping pirating subscribers on board.” 

As detailed in the lawsuit, piracy tracking company Rightscorp has provided Grande with notice of specific infringers who are using Grande’s high-speed internet service to infringe various copyrighted works. Through this process, Grande has been put on notice and informed of more than one million infringements. 

Grande admitted that while it received millions of takedown notices from Rightscorp, these notices based on flawed evidence and, as “mere allegations,” are not worthy of acting upon. In particular, the ISP explained that the notices of copyright infringement generated by piracy watchdog company Rightscorp are “so numerous and so lacking in specificity, that it is infeasible for Grande to devote the time and resources required to meaningfully investigate them.” 

Contrary to the RIAA’s allegations, Grande asserted that it was not failing to remove infringers for profit reasons.  Will the case turn on Rightscorp’s expertise, and the quality of its notices?

This case has considerable similarities to the legal battle between BMG Rights Management and internet service provider Cox Communications, in which a Virginia federal jury ruled that Cox was responsible for the copyright infringements of its subscribers. The Court of Appeals for the Fourth Circuit later threw out the $25 million piracy liability verdict.

EU-ser Created Content: draft Copyright Directive fails to hit the right note with artists

About 18 months ago, the European Commission announced its proposal for a Directive on Copyright in the Digital Single Market, currently in draft stages  Industry groups are keen to ensure their opinions are taken into consideration, especially in instances where consumers share content which belongs to artists, authors, record labels, and television channels. On 12 April, various trade groups representing Europe’s creators and creative content producers published an open Letter to the European Council about the proposed Directive. 

While the Letter’s authors support the primary objectives of the proposed legislation, they suggest that, far from ensuring legal certainty, the directive as currently drafted “could be detrimental to our sectors,” which include journalism, film and TV, music, and sport. 

In particular, the problems seem to arise with sections addressing the “use of protected content” by ISPs and other platforms which “store and give access to large amounts of works and other subject-matter uploaded by their users”. 

The E-commerce Directive states that EU Member States shall ensure that internet service providers are not liable for copyright infringements carried out by its customers, on condition that: (a) the ISP does not have actual knowledge of illegal activity or information; and (b) the provider “acts expeditiously to remove or to disable access” to the illegal content, once they become aware of it (see Article 14 of the E-commerce Directive). This article provides certain entities with a “safe harbour” from copyright liability.

Accordingly, many User Uploaded Content (UUC) platforms, like YouTube, argue that they are not responsible for any copyright infringing material uploaded by their users. This principle originates from the e-commerce directive and holds that platforms are not liable for their users’ infringement, provided that they enforce takedown procedures initiated by copyright owners. The copyright industries – such as those mentioned above – want the safe harbour reformed so that it no longer applies to user-upload sites (Complete Music Update).

This draws into question how online platforms hosting UUC should monitor user behaviour and filter their contributions, rather than by reviewing content after it has been published and reported or “flagged” as copyright infringement. This may, as has been discussed with Facebook’s proposed use of artificial intelligence in copyright and hate speech monitoring, “inevitably require an automated system of monitoring that could not distinguish copyright infringement from legal uses such as parody” (The Guardian).

The relevant sections of the draft Directive are Article 2, Article 13(1) and Article 13(4). 

Article 2 defines which services fall under liability, mentioned further at Article 13. The latest draft could leave most UUC platforms outside the scope, despite the fact they continue to provide access to copyright protected works and other subject-matter (for example, music playing in the background of a makeup tutorial on YouTube). 

The problem with Article 13(1) as currently written is that it risks narrowing the scope of the right and contravening CJEU jurisprudence. The letter’s authors argue that “any new EU law should secure that this right is broad,” and “contain no additional criteria which could change via future CJEU rulings.” 

As for Article 13(4) and its relevant recitals, the authors suggest the language is tantamount to a new safe harbour, which would both “seriously undermine fundamental principles of European copyright,” and pose “unwarranted liability privilege risks breaching the EU’s obligations under international copyright treaties.”

The Letter closes with the authors’ promise to “remain at the Council’s disposal to find solutions to these points.” For more information on the proposed Directive, be sure to check out the IPKat’s numerous posts on the subject.

House Judiciary Committee goes for a modern remix of US Copyright Law

Copyright legislation is getting an update on the other side of the Pond, too. The United States House Judiciary Committee voted unanimously today (32-0) to approve House Bill 4706, “to provide clarity and modernize the licensing system for musical works under section 115 and to ensure fairness in the establishment of certain rates and fees.” More commonly known as the Music Modernization Act, the bill now heads for consideration by the full House of Representatives. The act has received wide bipartisan support from Democrats and Republicans alike, and appears to be “on the fast track” for approval. 

Speaking to ABC news, John Simson noted that Americans “...have a 1909 statue trying to govern 2018 technology, and it doesn't work.” Mr Simson is a professor at the American University and founding member of Sound Exchange, a non-profit organisation set up to collect and distribute performance royalties.

Title I (the first section) of the bill seeks to address how modern digital music services operate, by creating a blanket licensing system to quickly license and pay for musical work copyrights. Another key aim includes discouraging litigation in favor of simply ensuring that artists and copyright owners are paid in the first place without such litigation. 

Title II, entitled “Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society (CLASSICS) Act” will focus on public performance rights for pre-1972 recordings. In particular, musicians with pre-1972 recordings will receive royalty payments when their tracks are played on the radio, with royalties then allocated for recordings played on the Internet, cable, and satellite radio. 

Title III, the “Allocation for Music Producers (AMP) Act,” will ensure that record producers, sound engineers, and other creative professionals receive compensation for their work.

The Music Modernization Act will also create an American agency or “mechanical licensing collective,” that would house all music publishers under one roof. The digital streaming services will therefore pay the agency, which tracks and collects royalties on behalf of the artists.

IP Subcommittee Vice Chairman Collins noted that “the current music licensing landscape undervalues music creators and under-serves music consumers. Outdated copyright laws have produced unnecessary liabilities and inefficiencies within the music licensing system, and stakeholders across the music industry have called for reform. [...] This bill moves the music industry towards a freer and a fairer market, enabling it to leverage the present and future benefits of the digital age.” 

More statements from Judiciary Committee leaders on the their passage of the Music Modernization Act can be found on the committee website.

Spotify turns up the volume on licensing technology

On the topic of licensing, the day after the Music Modernization Act was approved by the Judiciary Committee (see above) Spotify announced plans to buy, a San Francisco-based company which provides licensing technology. The deal has been described by Reuters as the acquisition of a “cover song licensing firm to tackle copyright risks.”

As a company which offers “Big Data for Music Rights,” Loudr’s platform obtains mechanical licenses to distribute recordings as digital downloads, ringtones, CDs or vinyl records. Publishers are able to “digitalize their collection process and gain more insight into the rights they control,” and businesses are able to “discover and automate publisher payments for music content at scale.”

Spotify’s purchase of Loudr comes only months after being hit with a lawsuit seeking damages of up to $1.6 billion (£1.1 billion) by Wixen Publishing, the California-based company that represents Tom Petty, Neil Young, Rage Against the Machine, Missy Elliott and others. The Wixen lawsuit, like others, demonstrates the difficulty Spotify faces in tracking down the right publishers connected to songs, and ensuring the correct royalties finds its way to the appropriate rightsholders.

In its New York Stock Exchange listing document, Spotify disclosed that licensing and royalty payment problems are a key threat to its business model. To make its 35 million tracks available for listeners, Spotify requires licenses from the musicians and record labels who own the songs. Additionally, Spotify has a complex royalty payment scheme, and it is difficult to estimate the amount payable to musicians under their license agreements. Even if Spotify secures the necessary rights to sound recordings from record labels and other copyright owners, artists may wish to discontinue licensing rights, hold back content, or increase their royalty fees.

In a press release dated 12 April, Spotify explained the Loudr team of publishing specialists and technologists will join Spotify’s New York offices. “Loudr will contribute to Spotify’s continued efforts towards a more transparent and efficient music publishing industry for songwriters and rights holders.”

This update by Kelsey Farish

Thursday, 12 April 2018

PRS Explores Emerging Piracy Trends

On Thursday 19 April, PRS for Music will host a ‘PRS Explores’ session delving into music piracy and new emerging piracy trends. As piracy evolves away from ad-funded models, pirates are moving towards crypto-currencies such as Bitcoin and finding other routes to turn a profit. The session will assess recent developments and future advances, and discuss ways the creative industries can find workable solutions to better safeguard creative content online.

Speakers to include:

Matt Cope – Deputy Director of IP Enforcement, IPO
Detective Constable Steven Salway – Anti-Piracy Operations, PIPCU
Mark Mulligan – Managing Director, MidiA
Simon Bourn – Head of Litigation, Enforcement and Anti-Piracy, PRS for Music
Helen Saunders – Head of Operations and Intelligence at Incopro, IP and Tech Analysts

Starts at 5.30pm. Free admission. Please visit the PRS for Music Eventbrite page here for more details on the session and to register your attendance.

PRS for Music, 2 Pancras Square, London, N1C 4AG

Thursday, 5 April 2018

The COPYKAT delves into the Oracle for a glimpse of the true part of copyright

The dispute between Oracle and Google over Google’s use of copyrighted Java application programming interfaces (APIs) to design the Android operating system has reached another stage. The case which was initially filed in 2010 and included patent infringement claim, has generated a lot of attention in the technology industry [as reported previously here] as it deals with the question whether the use of Java programming language can be considered as fair use and it may have a significant chilling effect on software developers.

Following the jury trial in 2016, which found that the use of APIs by Google was acceptable, last week the US Court of Appeals for the Federal Circuit in Washington DC has reversed their ruling and decided to send the case back for trial in San Francisco in order to determine the amount of damages. The main issue that was considered by the court was whether Google’s use of copyrighted material was transformative, in order to qualify for the fair use defence. Google argued that it took selected parts of the API code and created its own interpretation for the purpose of creating new functionality. In the view of the appellate court, Google’s actions cannot be considered as transformative as “the copying is verbatim, or an identical function and purpose, and there are no changes to the expressive content or message”. Additionally, the fact that there is a mere change in the format  “(e.g., from desktop and laptop computers to smartphones and tablets) is insufficient as a matter of law to qualify as a transformative use”. Nonetheless, the court has not dismissed the possibility of using a fair use defence where the case involves copying of the computer code. As estimated in 2016 by IP research company Ocean Tomo, Oracle was seeking $9 billion in damages and profits from Google for selling allegedly infringing product. At the same time Google has made over $42 billion in revenues from advertising on Android. With the trial on the issue of costs in the Ninth Circuit, this is the space to watch.

A Google spokesperson commented on the judgment that “[t]his type of ruling will make apps and online services more expensive for users” and said that it is considering next steps in the case. Electronic Frontier Foundation (EFF) believes that this case “should never have reached this stage” as the works should not be eligible for the copyright. As observed by Corynne McSherry, legal director for the EFF, this decision will have a great implication for small software firms and brings legal uncertainty for large number of software developers. In effect, the uncertainty can result in reduced rate of innovation.

The EU Commission has published a document outlining the effects of Brexit in the field of copyright. Subject to any transnational agreement between the United Kingdom and the European Union, as of withdrawal date, i.e. 30 March 2019 00:00 (CET), the EU rules in the field of copyright “will no longer apply for the United Kingdom”. Unless the parties to the negotiations will not agree otherwise, the relationship between them will be governed by the multilateral, international treaties, such as the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT), the WIPO Performances and Phonograms Treaty (WPPT) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Accordingly, the principles of ‘most favoured nation’ and ‘national treatment’ under TRIPS agreement will apply.

The paper notes that that under the obligations of the multilateral treaties and with no “counterpart in the international conventions”, the level of protection will differ in relation to certain rights and where applicable “exceptions or limitations to those rights as that set out today in the EU copyright acquis”. On of examples is Directive 93/83/EEC, which allows broadcasters to clear the copyright only in the Member State where the signal is introduced. Following Brexit, the UK broadcasters will no longer benefit from this mechanism when providing cross-border transmissions and will be obliged to clear the rights in each of the Member States where the transmission occurs. Similarly, broadcasters in the EU providing cross-border satellite broadcaster services to the UK customers will have to secure the rights of the relevant rightholders. Additionally, after the Brexit date the EU collective management rights organisations will no longer be obliged to represent collective management rights organisations based in the UK for multi-territorial licensing. Orphan works which have been recognised in the UK will no longer be recognised in the EU under Directive 2012/28/EU. Persons from the UK will not be able to obtain accessible format copies from authorised entities in the EU under Directive (EU) 2017/1564 which allows on certain permitted uses of certain works for the benefit of persons who are blind, visually impaired or otherwise print-disabled. UK nationals will no longer be entitled “to maintain or obtain a sui generis database right in respect of databases in the EU” and correspondingly EU Member States nationals will not be able to obtain such right for the databases in the UK. The withdrawal of the UK from the EU will also affect the effect of Regulation (EU) 2017/1128 (entered into force on 1 April 2018) for UK nationals who will not be able to benefit from their digital content subscriptions when travelling to the EU.

Countries are taking more and more steps  to tackle piracy online - where a number of internet users distribute massive file-sharing infrastructure or share pirated live sports streams.

Last week has seen the publication of ‘Industrial Strategy’ plan in the UK which outlines strategy on how the Government and the creative industries can work together to protect rights of copyright holders. As observed in the document “online piracy continues to be a serious inhibitor to growth in the creative industries. Technologies like stream ripping and illicit streaming devices enable illegitimate access to content without rewarding its creators”. Such situation creates a growing concern for right holders about how their works are exploited online. In order to tackle the problem, the Government plans to host a series of roundtables with rightholders, social media companies and online marketplaces with the aim of brokering voluntary anti-piracy agreements. The measures to be introduced, one of which includes upload filters, “could include proactive steps to detect and remove illegal content, improving the effectiveness of notice and takedown arrangements, reducing incentives for illegal sites to engage in infringement online and reducing the burdens on rights holders in relation to protecting their content”. If such measures will fail to produce the desired outcome by 31 December 2017, the Government will consider further legislative actions in order to strengthen the UK copyright framework. At the same time, the UK Government is planning to address the problem of the so-called ‘value gap’ [read here] in both the UK and in Europe and is planning to make an additional £2 million available to support ‘Get it Right’ campaign. The aim of the action is to “educate consumers on the dangers of copyright infringement and direct them towards legitimate sources of creative content online”. The Government hopes that its action will help to build on the “UK’s position as a global leader and strengthen its advantage as a creative nation by increasing the number of opportunities and jobs in the creative industries across the country, improving their productivity, and enabling (…) to greatly expand our trading ambitions abroad”.

Similarly, Australian Government aims to tackle the problem of copyright infringement online and in February it has announced a review of its pirate site-blocking laws. The Department of Communications asked for feedback on how effective is the mechanism that was introduced in the Copyright Amendment (Online infringement) Act 2015. So far there were several responses from rightholders, which mainly came from the entertainment industry with the aim to expand the scope of the protection. As reported by Torrentfreak, one of the most ‘aggressive submissions’ arrived from the movie group Village Roadshow and TV provider Foxtel. Both entities were successful in having a number of websites blocked by local ISPs in Australia and now they would like to expand the law that would require online service platforms to block the websites with infringing content. As written by Graham Burke, Village Roadshow co-chief, “with all major pirate sites blocked in Australia, the front door of the department store is shut. However, pirates, facilitated by Google and other search engines, are circumventing Australian Laws and Courts and opening a huge back door”. In his view search engines and online platforms should be required to take reasonable steps in order to stop facilitating searches that lead to pirate sites. With an increasing number of links to illegal content appearing on online platforms, the rightholders want to include them in the scope of the legislation. Foxtel also observed a need to improve tackling live streaming, basing its observations on the framework of injunctions obtained in the UK last year by the Premier League and UEFA, which enable to block websites with pirated live sports streams. In their view similar framework should be available in the Courts of Australia.

In the US, Artur Sargsyan, owner of the and, has been sentenced for the crime of criminal copyright infringement for private financial game. His website has contained an enormous file-sharing infrastructure consisting of around 1 billion copies of copyrighted musical works that were available for download. At the same time the websites contained pop-up advertisements, which allowed Sargsyan to make a significant profit from the number of visitors downloading works from his websites. US District Judge Timothy C Batten has sentenced Mr Sargsyan to five years imprisonment to be followed by three years of supervised release. Additionally, he will be required to pay restitution in the amount of $458,200 and forfeit $184,769. As observed by US Attorney Byung J Pak, “Sargsyan operated one of the most successful illegal music sharing websites on the Internet”. The case was investigated by the FBI and a number of warnings have been sent to Mr Sargsyan to stop violating the law by illegally hosting and sharing copyrighted works. David J LaValley, Special Agent in Charge of FBI Atlanta says that Mr Sargsyan’s sentence “sends a message that no matter how complex the operation, the FBI, its federal partners and law enforcement partners around the globe will go to every length to protect the property of hard working artists and the companies that produce their art”. The Recording Industry Association of America (RIAA) has estimated the total monetary loss to its member companies at $6.3 billion.

Can a tattoo be protected by copyright? That is the issue which is at stake in in a multi-million dollar lawsuit between Solid Oak Sketches (which claims to acquire rights from various tattoo artists linked with NBA superstars) and Take-Two, publisher of the NBA 2K video game [as we have previously reported here]. Until 2016, when the case was brought, there was no decision rendered that would declare that tattoo designs can be considered as copyrightable work. Take-two in response to the lawsuit has filed a motion to dismiss the action as according to them the use of tattoos “was too fleeting to be considered an infringement” and was displayed briefly. As contented by the Plaintiff, “if an NBA2K player selects Messrs. James, Martin and Bledsoe in a (…) game (…), or 'employs the broad range of the video game’s features to focus, angle the camera on, or make the subject tattoos more prominent,' 'the overall observability of the subject tattoos can be fairly significant”. The US District Court Judge Laura Taylor Swain having heard both parties was not ready to adjudicate on the issue quickly. Therefore, she denied the motion to dismiss lawsuit on the basis of de minimis use and ordered more fact-finding in order to resolve the matter at a later stage of the case. In relation to fair use defence, the defendant argued that with their motion being denied, Solid Oak will now be able “to use that decision to shakedown each of the publications and television programs in which those players have appeared”. Despite those arguments, because of the difficulties inherent in conducting a side-by-side comparison of the video game and the Tattoos,” the judge has refused to dismiss the case. Therefore, she decided to order gathering of further evidence in connection with “the fact-intensive question of the applicability of the fair use defense”. It will be interesting to watch the further developments in the case as it might set a precedent on whether tattoos can be protected by copyright and how such protection can affect its bearers and companies willing to creatively depict them. 


In South Africa an almighty row is brewing over a rights scandal alleged to be the "biggest music rights scam in South African history". At the heart of the complaint is SAMRO, the Southern African Music Rights Organisation established by the South African Copyright Act: now the South African Minister of Arts and Culture Nathi Mthethwa has noted "with grave concern" the article published in City Press and News 24 Online News platforms on 1st April 2018 into what is “alleged to be the biggest music rights scam in South African history involving the legendary and multi-platinum selling gospel artist Hlengiwe Mhlaba. The report goes into worrying detail into the alleged theft over a period of years of royalties amounting to millions of rand due to the artist in question."

The Minister has given a directive to the legal unit of the Department of Arts and Culture to immediately initiate a process which will culminate in the appointment of a Commission that will be headed by a retired Judge. More here on the allegations made against SAMRO here and the Chief Executive of SAMRO, Nothando Migogo, responds here

This update by Mateusz Rachubka 

Wednesday, 4 April 2018

French Law's Principle of Strict Interpretation

One of the cardinal principles of French copyright law is the principle whereby any license/assignment of a copyright interest by an author is to be strictly interpreted such that any right not expressly mentioned is not granted.

An appellate ruling by the Court of Appeal of Aix-en-Provence (8 February 2018) is illustrative of this.  A professional photographer had licensed the rights to one of his photographs to an advertising agency for use in a real-estate promoter's brochure and website for the price of 844 euros.

He later learned that the photograph was used, without his authorization (but with credit, such that there was no issue regarding his right of attribution) in an advertising campaign, appearing inter alia in Paris Match, the well-known magazine.

He thus brought legal action against the agency for copyright infringement.

The Court started by recalling the provisions of Section L.131-3 of the French Intellectual Property Code pursuant to which the license (or assignment) of copyright is subject to the condition that each right be distinctly mentioned and that the license (or assignment) be delineated with respect to its scope, purpose, territory and duration.  This is the stautory provision that forms the foundation of the principle of strict interpretation.

On this basis, the Court agreed with the photographer that the licensed use was indeed strictly limited to use in the brochure and the website and nothing else.  It was not, as the defendant had argued, "implicit" that the license also covered the written press and periodicals (such as Paris Match):

"The license relates to the illustration of a brochure and there is no express mention of a press advertisement, such that use in Paris Match goes beyond the authorization that was given."

In an interesting aside, the Court rejects the defendant's contention that the quantum of the license fee could be used to construe the scope of the license; defendant had argued that the amount of 844 euros was much too high to be consistent with the limited scope claimed by the photographer and militated against such an interpretation. 

Monday, 26 March 2018

THE COPYKAT goes back to school

Cartoonist sues Infowars over Political Pepe Poster

The illustrator behind Pepe the Frog, one of the internet’s most popular meme characters, is suing Infowars for copyright infringement.

Matt Furie first illustrated Pepe the Frog, a "blissfully stoned" and "peaceful frog-dude" in 2005. According to the website Know Your Meme, Pepe became associated with the “Feels Good Man” reaction. By 2015 however, the 4chan and Reddit communities perpetuated a connection of Pepe to Donald Trump, with the latter even re-tweeting an image of Pepe as himself.

Several news outlets have explored how fringe groups connected with the American "alt-right" movement have attempted to adopt Pepe, mixing him with various images of hate (see the Daily Beast’s How Pepe the Frog Became a Nazi Trump Supporter and Alt-Right Symbol). Unsurprisingly, Furie has vowed to “aggressively enforce his intellectual property rights” to prevent the unauthorised use of Pepe, as previously discussed by IPKat and the 1709 Blog.  

In this latest complaint, Furie alleges that the American conspiracy theorist website Infowars has misused the Pepe character in merchandise, and in particular, in a "Make America Great Again" poster. In the poster, Pepe appears alongside President Donald Trump, and various other individuals associated with the President and/or with white nationalist views. Infowars claims these are “the heroes of the 2016 anti-establishment revolution,” and notes that “the establishment wants this [poster] taken down.”

Furie's lawsuit notes that damages alone are insufficient compensation for the alleged copyright infringement. He is therefore also seeking a permanent injunction to prohibit Infowars from using Pepe the Frog, or any derivative work based on Pepe.

This is not the first time Infowars has been caught out for copyright infringement. As reported by Buzzfeed in November 2017, InfoWars has copied more than 1,000 articles produced by Russian state-sponsored broadcaster RT without permission.

Chicago landmark featured in controversial political advert without sculptor’s permission
Continuing with the theme of American politics, the artist who created the iconic Cloud Gate in Chicago is “disgusted” that the National Rifle Association (NRA) has featured his sculpture in a recent advertisement.

Nicknamed "the Bean," Cloud Gate is a three-storey high mirrored oblong in central Chicago, created by Indian-born British artist Anish Kapoor. In their video entitled “The Clenched Fist of Truth”, the NRA flashes footage of the sculpture without Kapoor’s consent. In an open letter, Kapoor writes:

Cloud Gate reflects the space around it, the city of Chicago. [...] In the NRA’s vile and dishonest video, Cloud Gate appears as part of a montage of iconic buildings that purport to represent ‘Liberal America’ [...] The NRA in it’s nationalist rhetoric uses Cloud Gate to suggest that these ideas constitute a ‘foreign object’ in our midst. The NRA’s video gives voice to xenophobic anxiety, and a further call to ‘arm’ the population against a fictional enemy. [...] The NRA’s nightmarish, intolerant, divisive vision perverts everything that Cloud Gate – and America – stands for.

Although members of the public are welcome to take and share photographs of Cloud Gate, Kapoor owns the copyright to commercial images of the sculpture, and did not give the NRA permission to use it for their campaign. It is worth noting that the NRA may have chosen to feature a Chicago landmark as a reference to one of Chicago’s most famous former residents, Barack Obama.
However, “much to his shame,” Kapoor has decided to forego legal action against the NRA for its use of Cloud Gate. He explained that after considering his legal options, he was “not prepared for the financial and emotional cost of a protracted fight against the extremely aggressive [and] legalistic” NRA. This story comes at a time of heightened debate surrounding gun control in the United States, after a recent mass shooting in a Florida school left 17 dead.
Fair dealing exemption for Canadian classrooms

Federal Members of the Canadian Parliament have begun a mandated review of the Copyright Act, which is expected to carry on throughout 2018. One issue MPs are examining is the application of “fair dealing” exemption to classroom uses of copyright-protected materials.

In 2012, the Canadian government changed the Copyright Act to include “education” as a stated purpose in the fair dealing exemption. Doing so permits teachers and students to use copyright-protected materials for educational purposes, without having to obtain copyright permission or pay copyright royalties.

The Copyright Consortium of the Council of Ministers of Education, Canada (CMEC), has recently released the Education Ministers' Policy Statement on Fair Dealing. As Zach Churchill, Minister of Education and Early Childhood Development for Nova Scotia and Chair of the CMEC Copyright Consortium explained,  "It's important that copyright law balances the necessary protection of artists and writers works with the ability of teachers and students to use short excerpts from copyright-protected materials in their school work."

Fair dealing does not allow teachers to make unlimited use of any copyright-protected work without permission or payment. Rather, the fair dealing exemption only permits the use of “short excerpts” for educational purposes.

However, the Writers’ Union of Canada says poorly defined changes to the Copyright Act prompted many Canadian schools “to adopt radically expanded copying practices, abandoning the established licensing structure that saw writers and publishers compensated for the use of their work.”

The CMEC statement concludes by asserting that the current Copyright Act works to support Canadian students, without harming the publishing industry.

Copyright fees hit the wrong note with Japanese music schools

Fair dealing for educational purposes is also a hot political story in Japan. The Japanese Society for Rights of Authors, Composers and Publishers (JASRAC) is Japan’s largest copyright management agency. As reported by the Japan Times last year, JASRAC says that “when teachers play a song on the piano in front of their students without permission, they are committing a copyright violation.”

JASRAC announced that private music schools will be required to pay copyright fees, as the use of music to teach piano or other instruments infringes on the “right of performance” under Article 22 of the Japan’s Copyright Law. Kenzo Ohashi, a managing director at JASRAC, explained that music schools must pay copyright fees, because the schools cannot benefit from the exception for performances that are not for profit. JASRAC seeks to collect 2.5 per cent of all annual fees charged by the music schools.

Critics of the move include the Yamaha Music Foundation, which teaches nearly 400,000 students across more than 3,300 schools. Together with about 350 music school operators and other music businesses, they filed a lawsuit in Tokyo District Court against JASRAC, to argue that copyright fees should not be payable when using music for educational purposes.

In December 2017, the group of music-schools and instrument-makers asked the Agency for Cultural Affairs to suspend copyright fee collection until their ongoing lawsuit with JASRAC concludes. However, the collection of fees is supported by the Agency for Cultural Affairs. In a recommendation published on Monday, Ryohei Miyata of the Agency for Cultural Affairs issued a ruling in support of JASRAC collecting such fees. In response to this, JASRAC announced that collection of copyright fees will be started from the music class from April 1.

Calls to reform Australian fair dealing provisions

The Australians are also looking at Copyright law reform and modernisation in respect of fair dealing.

50 years after the passage of the Copyright Act 1968, the Government is now seeking commentary from the public in respect of how Australian copyright law can be modernised and updated. In a consultation paper (PDF) published earlier this month,  the Government highlights three areas of the Copyright Act which may benefit from modernisation: flexible exceptions, contracting out of exceptions, and access to orphan works.

While American “fair use” doctrine is rather flexible by comparison, the key difference between “fair use” and the Australian principle of “fair dealing” is that Australia’s laws set out defined categories of acceptable uses in statute. By way of illustration, Lifehacker explains that in the United States, the fair use doctrine made it permissible to use a VCR to record television at home in 1984. Doing so In Australia however was not legal until parliament created a specific exception in 2006, by which time VCRs were already obsolete.

The current fair dealing regime in Australia allows access to copyright content for criticism or review, parody or satire, reporting news, research or study, giving professional advice, and disability access. The government is now considering adding several new provisions, including those for the purposes of quotation, non-commercial private use, incidental or technical use, data mining and library use, and certain educational uses.

Amongst other questions, the consultation asks the public to what extent they would support the introduction of fair dealing exceptions, and what factors should be considered in determining fairness. Responses to the consultation may lead Australian lawmakers to consider a more adaptable approach to copyright law which is more in line with recent technological advances. The Australian Law Reform Commission has already proposed arguments in favour of adopting fair use.

The Department invites submissions by email, post, or website before 5.00 pm on Monday 4 June 2018.

Bollywood star calls copyright laws “rubbish”

Amitabh Bachchan is generally considered one of the greatest and most influential actors in Indian cinema. In addition to being a world-famous actor, director and producer himself, Bachchan is also the son of a famous Hindu poet and literary scholar, Harivansh Rai Srivastava (known by his pen name of Bachchan) .

Bachchan's work has been used in Movies and music multiple times, including in films "Silsila" and "Agneepath," both starring his son Amitabh. Indian newspaper FirstPost notes that Amitabh also often recites lines from his father's poetry at public functions and on TV shows.

In a recent blog entry, 75 year-old Amitabh voiced strong opposition to the prospect that his father’s works may come into the public domain, writing: “I oppose, disagree, lament, dispute, be in variance of, in vehement loud screams of voice”. The post continues in a rather upset, rambling tone. In particular, he expressed that he did not want his father’s works to be available “for the entire Universe to tread, scratch, mutilate, use in commercial consideration on their own creative discretion.”

Under India’s Copyrights Act 1957, original literary works enjoy copyright protection for a 60-year period which begins from the year following the death of the author. Bachchan passed away in 2003.

For Berne convention signatories, copyright must exist until a minimum of 50 years after the author's death (Berne Convention, Article 7). A number of jurisdictions, including the European Union and the United States, have chosen longer terms of 70 years after the author's death. India’s length is 60 years, but many countries have even shorter terms - some even at 25 years.

Nevertheless, Amitabh writes that his father’s writings are Amitabh’s alone, because “that is my inherited right .. it shall prevail .. ” He continues, “My inheritance be mine.. not another’s after the passing of its stipulated time in years .. 60 .. I am genetically my father’s son .. he be willed to me of all that be in asset of his .. his writings be his .. his heir be me .. his writings be mine .. MINE ! I shall not and will not allow its dilution to general public .."

Amitabh calls copyright law “rubbish” and asks, “how can individual property become public property?” It is somewhat disappointing to see that a man famous for his work in the dramatic arts is seemingly unable to appreciate the benefit of works entering the public domain. Maybe he should have skimmed through the 1709 Blog before sharing his own post...

Is Taylor Swift getting a copycat Reputation?

Taylor Swift’s latest music video, Delicate, has been criticised for its suspicious similarities to a 2016 Kenzo perfume advert directed by Spike Jonze.

In the Kenzo advert, we see a young woman portrayed by actress and dancer Margaret Qualley at a posh black tie event in a hotel. Looking beautiful in an evening dress but nevertheless seemingly uncomfortable and bored, she quietly slips out of the ballroom to pensively roam the hallways of the hotel alone. What made the advert so memorable was that Qualley suddenly starts a wild and garish dance to an upbeat song. W Magazine lauded the advert as “one of the best perfume commercials of all time,” and the Guardian called itone of the most engaging ads” of the year.

Earlier this month, Taylor Swift released the video for Delicate, the latest single off of her sixth studio album, Reputation. The video follows Swift as she walks through a glamourous hotel, increasingly fatigued with the attention of the press and her adoring fans. She manages to escape through the corridors and, under the premise of being invisible, performs a bizarre dance routine through the hallways.

In addition to the plot - in which a bored young woman has a crazy dance party in a fancy hotel - the videos share a colour scheme, choreography, and camera angles. Although Taylor’s dress is blue and Qualley’s is green, both are deep jewel tones and cut a similar, sleeveless silhouette. Twitter users were quick to point out that even the facial expressions of the two women appeared to mirror each other.

The Kenzo advert was a viral success because, as AdWeek explained, “the exuberantly choreographed video was less about technical innovation than about how it changes the way women are portrayed in marketing.” Fans of Swift may therefore be somewhat unnerved that the international pop star, known for being a creative, self-made woman (see Taylor Swift: from saccharine songstress to fearless feminist) has chosen in this instance to be so heavily inspired by another artist’s originality.

Despite claims that Swift’s video is a “blatant rip off”, a Kenzo representative told Dazed that they will not be making a comment on the matter. Although a lawsuit or formal complaint is unlikely, the controversy is already being heard out in the court of public opinion. Taylor Swift’s representation are yet to respond to the criticism.

Upcoming Events

The Humboldt Institute for Internet and Society in Berlin is hosting a workshop series to discuss the most urgent issues around music and copyright law in the digital society. The next workshop is “Deconstructing Intellectual Property Protection for Music” on 19 April - it’s been confirmed that at least one IPKat will be there! For more information visit the workshop website here.

The University of Cyprus is hosting a conference entitled "Pluralism or universalism in international copyright law" from 31 May through 1 June 2018. For more information visit the conference website here.

This CopyKat by Kelsey Farish