1709 Blog: for all the copyright community

Wednesday, 26 October 2016

French Representatives Discuss EU Commission Copyright Proposal

The Commission of European Affairs of the French lower Chamber, the Assemblée Nationale, examined last week a report on copyright protection in the European Union (EU), written by Representatives Marietta Karamanli and Hervé Gaymard (the Rapporteurs).

The Commission published on September 14 its proposal to update the EU copyright laws, which include a proposal for a Directive on Copyright in the Digital Single Market  (see here for Eleonora’s review on the IPKat blog). The Representatives’ report was written before the Commission publication, but it anticipated the proposals. The Rapporteurs, however, do not seem quite interested in change. They do not believe it is necessary to modify Directive 2001/29, the InfoSoc Directive, and even believe it would be “inauspicious,” as the InfoSoc Directive“ does not constitute an obstacle to the construction of a large digital single market” as envisioned by the European Commission.
Mandatory harmonization of exceptions? Well… peut-être…

The Rapporteurs are against mandatory harmonization of exceptions of the rights of reproduction and communication to the public in all the Member States, as it had been recommended by Julia Reda’s report, because “[n]ational flexibility in this field is a prerequisite for the development of a stable environment for creators and conducive to creativity.”

During the October 18 meeting of the Commission of European Affairs (video is here), Hervé Gaymard stressed the importance of strictly supervising these exceptions (encadrement strict), which choice and implementation, according to him, are best left to the Member States

As of now, the InfoSoc Directive lays out twenty exceptions to the exclusive rights of copyright holders which Member States may or may not chose to implement in their laws. The InfoSoc Directive’s only mandatory exception is laid out in its article 5.1., which directs Member States to exempt from the reproduction right temporary acts of reproduction which sole purpose is to enable a transmission in a network between third parties by an intermediary, or a lawful use, such, for example, “caches” and other technical copies made by users of computers for faster access by websites. Articles 5.2 and 5.3 of the Directive provides a list of exceptions which Member States may choose to implement. Recital 32 of the InfoSoc Directive specifies that this list of optional exceptions is “exhaustive.”

This led to Member States having quite a different copyright framework. We saw last week that France recently, but somewhat reluctantly, implemented the ‘freedom of panorama’ law in its IP Code. Other Member States implemented this exception more broadly, or not at all.

The EU Commission noted in its 2015 Communication towards a modern, more European copyright framework that:

“[t]he fragmentation of copyright rules in the EU is particularly visible in the area of exceptions. The exceptions set out in EU law are, in most cases, optional for Member States to implement. Often exceptions are not defined in detail. As a consequence, an exception in the law of one Member State may not exist in a neighbouring one, or be subject to different conditions or vary in scope. In some cases the implementation of a given exception in Member States' law is narrower than what EU law permits. Most exceptions do not have effect beyond a given Member State. “

New mandatory exceptions may be ahead. Article 3.1 of the proposal for a new Directive would create a mandatory exception “for reproductions and extractions made by research organisations in order to carry out text and data mining of works or other subject matter to which they have lawful access for the purposes of scientific research.” This new exception was discussed at the October 18 meeting, and Hervé Gaymard is favorable to it, but only if it leads to non-commercial works.

Article 4 of the new directive would provide an exception for “the digital use of works and other subject-matter for the sole purpose of illustration for teaching.” Hervé Gaymard declared to be favorable to this exception, as MOOCs must be allowed to develop, but only if in accordance to the French law and if it is not, for example, detrimental to the French school books market.

Article 5 of the new Directive would provide an exception for “cultural heritage institutions, to make copies of any works or other subject-matter that are permanently in their collections, in any format or medium, for the sole purpose of the preservation.” Hervé Gaymard is in favor of this exception, which would benefit France’s patrimony.

Mr. Gaymard concluded that the Rapporteurs were in favor of new mandatory exceptions, but only if they were they are framed, proportionate to the aim pursued and if they are not detrimental to creators’ income.

No fair use, non!

The Rapporteurs are suspicious of the American fair use, because it is unpredictable and “potentially unfavorable to creation” and is even “likely to cause significant damage to the authors.” The authors cite the Hargreaves Review of Intellectual Property and Growth as a proof of the “potentially harmful nature” of fair use. Indeed, this report had concluded that the UK was better off without fair use, as “significant difficulties would arise in any attempt to transpose US style Fair Use into European law “(see paragraph 5.19 of the Hargreaves Review).

The Hargreaves Review supported the use of the exceptions system as applied in the EU, rather than the US fair use system, although interpreting this report as saying that fair use is of a “harmful nature”, as the Rapporteurs did, may be a bit of a stretch. The Hargreaves Review presented some of the positive aspects provided by fair use, which the Rapporteurs chose not to report. One of the positive aspects of fair use reported by the Hargreaves Report is that it allows US judges “to take a view as to whether emerging activities in relation to copyright works should legitimately fall within the scope of copyright protection or not” without the need of the intervention of the legislature. One can understand that the Rapporteurs are not keen on giving such powers to the French courts. France is, after all, a civil law country, not a common law country.

Data portability, pourquoi pas?

Finally, the Rapporteurs “welcom[ed] the proposal for a regulation for cross-border portability of content, which will allow users to enjoy, wherever they are in the territory of the Union, the programs to which they subscribed in their State of habitual residence. But they stress the idea that portability should be strictly temporary, and that temporality must be a precise definition, without which the settlement would disproportionately infringe the principle of territoriality of rights, which is the base of the financing system for the creation, notably in France.”

This is only the start of the discussion about the EU Commission proposals. Stay tuned…

Picture courtesy of Flickr user Cata Fuentealba under a CC BY 2.0 license.

Monday, 24 October 2016

CopyCamp – 27-28.10.2016

David Liao informs us that the 5th International CopyCamp Conference will be taking place on October 27 and 28 this year at the Kinoteka Multiplex in Warsaw.

With a particular focus on the future of copyright in Europe, CopyCamp aims to provide a forum for citizens and experts alike to discuss the opportunities and challenges of copyright in today's digital world. Balanced and multi-sided debate will be hosted in a friendly space and participants are encouraged to share ideas and present opinions to an international audience.

Themes to be discussed include:

·         Copyright and Art;

·         Remuneration Models;

·         Copyright, Education and Science; and

·         Copyright Lawmaking.

For those who cannot attend in person, it will also be possible to follow the event via live stream or at a later time through recordings published online.

Further details can be found here.

Tuesday, 18 October 2016

The new, but narrow, French freedom of panorama exception

The French law for a Digital Republic (Loi pour une République Numérique) finally came into force on October 7. Its article 39 modifies article L. 122-5 of the French intellectual property Code, which now recognizes some limited freedom of panorama rights. It is now legal in France to reproduce and to represent, without having to secure the authorization of the copyright holder, “architectural works and sculptures, located permanently on public roads, made by natural persons to the exclusion of commercial uses."

« Les reproductions et représentations d'œuvres architecturales et de sculptures, placées en permanence sur la voie publique, réalisées par des personnes physiques, à l'exclusion de tout usage à caractère commercial. »

The law does not define however, what is a “commercial use,” and reading the congressional records is not of much help.
France’s lower Chamber, the Assemblée Nationale, had added a freedom of panorama right to the original bill, presented by junior minister Axelle Lemaire. Its scope was broader than the freedom of panorama exception finally enacted, as it would have authorized reproduction of “architectural works and sculptures, located permanently on public roads, made by natural persons for non-profit purposes" (see article 18 ter of the bill).

« Les reproductions et représentations d’œuvres architecturales et de sculptures, placées en permanence sur la voie publique, réalisées par des particuliers à des fins non lucratives. »

The French Senate changed the wording for this exception, narrowing it somewhat as it would have only authorized “reproductions and representations of architectural works and sculptures, located permanently on public roads, made by individuals, excluding any use for direct or indirect commercial nature" (see article 18 ter of the bill).

« Les reproductions et représentations d'œuvres architecturales et de sculptures, placées en permanence sur la voie publique, réalisées par des personnes physiques, à l'exclusion de tout usage à caractère directement ou indirectement commercial. »

Then the Commission mixte paritaire, a commission composed of seven Representatives and seven Senators whose duty is to find a compromise on the text of a bill in case both Chambers differ in their views, yet again changed the wording for this freedom of panorama exception. It was only provided from now on if “made by natural persons to the exclusion of commercial uses."

« Les reproductions et représentations d'œuvres architecturales et de sculptures, placées en permanence sur la voie publique, réalisées par des personnes physiques, à l'exclusion de tout usage à caractère commercial. »

This still leaves us in the limbo as to what exactly is “commercial use.” Unfortunately, we cannot turn to the European Union law for guidance as to its signification. Indeed, article 5.3(h) of the Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (the “InfoSoc Directive”) gives Member States latitude to have or not have a freedom of panorama exception for “use of works, such as works of architecture or sculpture, made to be located permanently in public places,” but does not mention nor define commercial use.

Not having a definition of what must be considered to be a commercial use will undoubtedly chill the enthusiasm of photographers, who may hesitate to post on their web sites, blogs, or on social media, the images they have taken of buildings, houses, statues, churches, or fountains located in public spaces.

It is not even clear from the wording of the French law if it is only the individual who took the picture who must not benefit commercially for this use, or if anybody, including any platforms, must not benefit from that use. Many web sites or blogs, while not commercial, are participating in advertising programs.  Some bloggers are using a free blogging program, such as wordpress.com, which runs ads on free blogs to cover their costs. In this case, it is the platform which benefits from the ads, not the blogger. It could also be argued that blogging platforms and social media sites commercially benefit, albeit indirectly, from all that User Generated Content uploaded on their sites, images of French public buildings and sculptures included. Will it take a lawsuit to clarify how the law must be interpreted? On va voir…

Image is courtesy of Flickr user Kyriazis under a CC BY-NC-ND 2.0 license.

Monday, 17 October 2016

The Copykat: what Tibbie has to tell us this Monday

This blog post is the first written by our new intern, Tibbie McIntyre.

“And if you hurt me – Well, that’s okay baby, only words bleed”

Ed Sheeran won’t be quoting his international hit ‘Photograph’ anytime soon in relation to his current lawsuit in front of a California federal court.

Ed Sheeran et al are currently attempting to have the ‘Photograph’ case - worth $20m - dismissed on administrative grounds. Sheeren’s hit, ‘Photograph’ is alleged to infringe ‘Amazing’, recorded and released by Matt Cardle, winner of the 2010 season of The X Factor.

As a lawyer, solving your client’s issues quickly and cost-effectively is the best way to keep them happy. That’s why the initial litigation strategy employed by most defending lawyers is to attack the basis of the complainant’s claims. Where a defendant is said to be infringing a patent, her lawyers will probably try to argue that there was never any patent in the first place. In copyright cases – the same holds true – with one side probably arguing that copyright never subsisted in the work in question.

In this particular case, Sheeran’s lawyers have plead to have the case dismissed, asserting – as filed on 7 October – that the lawsuit consists of “vague, disorganized, redundant, argumentative and scandalous allegations”, which “defy the most fundamental pleading requirement of providing short, concise and plain statements”. The second prong of attack taken by Sheeran’s lawyers is to take issue with “unduly vague allegations that “certain Defendants” performed certain unspecific acts without any effort to distinguish between the eleven different Defendants”.

With the ‘Blurred Lines’ decision having been roundly criticized since its release because no melody or harmony features were similar in either of the two songs, attempting to have the case dismissed at this early stage is a prudent move from Sheeran’s lawyers. The original complaint in Sheeran’s case states that the alleged copying was “on a breathtaking scale” and was in fact “in many instances, verbatim, note-for-note copying.” We will watch this case with interest.

The doctrine of exhaustion of distribution rights in computer software does not apply to back-up copies (copies held on a non-original medium).

The Court of Justice of the European Union (CJEU) ruled on October 12 that the doctrine of exhaustion of distribution rights in computer software does not apply to back-up copies.

Ranks et Vasiļevičs is a case concerning two Latvian nationals who are alleged to have sold copyright-protected Microsoft software on an online marketplace between 29 December 2001 and 22 December 2004 (see also here).

The questions put before the court were “whether Article 4(a) and (c), and Article 5(1) and (2), of Directive 91/250 must be interpreted as meaning that the acquirer of a used copy of a computer program, stored on a non-original material medium, may, under the rule of exhaustion of the rightholder’s distribution right, resell that copy where (i) the original material medium of that program, acquired by the initial acquirer, has been damaged and (ii) that initial acquirer has erased his copy or ceased to use it.”

Essentially, the court’s ruling states that:

  • An initial acquirer of software under an unlimited user licence is entitled to resell the software to a new acquirer under the doctrine of exhaustion of distribution right. Importantly, however, the software being resold must be stored on the original material medium.
  • In contrast, copies of software stored on a non-original material medium (i.e. backup DVDs/CDs/floppy disks) cannot be resold without the authorisation of the rightholder, even where the original material medium has damaged/destroyed/lost.

The CJEU emphasizes that the rightholder has an exclusive reproduction right under Art 4(1) of Directive 91/250. Exceptions to this right are found in Art 5 of the Directive, therefore the initial acquirer of software under an unlimited user licence – in certain circumstances – is entitled reproduce the software. The crux of this case is that the CJEU states that exceptions to exclusive rights must be interpreted strictly, according to settled case law of the Court (Painer, C145/10, paragraph 109).

Electronic Frontier Foundation calls on internet users to petition to reform the Digital Millennium Copyright Act’s pro-DRM provisions

The Electronic Frontier Foundation (EFF) is preparing comments in response to the U.S. Copyright Office’s request for additional comments in connection with its ongoing study on the “anti-circumvention” provisions of the Digital Millennium Copyright Act (DMCA).

As reported here by Ben, under Section 1201 of the DMCA, people attempting to fix a broken object subject to some sort of protection measure can be sued for violating copyright law. The consequence being that manufacturers can hold consumers to ransom – dictating who can fix consumer products and how much consumers need to cough up for the privilege.   

Corynne McSherry, EFF’s legal director, writes:

"In practice, the DMCA anti-circumvention provisions haven’t had much impact on unauthorized sharing of copyrighted content. Instead, they’ve hampered lawful creativity, innovation, competition, security, and privacy. … People are realizing how important it is to be able to break those locks, for all kinds of legitimate reasons. If you can’t tinker with it, repair it, or peek under the hood, then you don’t really own it—someone else does, and their interests will take precedence over yours.”

EFF is drafting comments that it hopes will result in a strong and practical set of recommendations. You may read more the issue or sign the petition here, and read more on how to contribute your own thoughts/ideas to the Copyright Office here.

Saturday, 15 October 2016


A Liverpool man has pleaded guilty to illegally distributing chart hits online, potentially costing the music industry millions of pounds and depriving the creators of the content fair remuneration for use of their work. Wayne Evans was arrested at his home in Everton last year following a joint investigation between PRS for Music and the City of London’s Police Intellectual Property Crime Unit (PIPCU). Evans pleaded guilty on Friday, 7th October at Liverpool Crown Court to illegally uploading the UK’s Top 40 singles to various torrent sites as they were announced each week by the Official Charts Company. The 39-year-old, known online as OldSkoolScouse, was also distributing tracks through his own website, including ‘acappella’ music to be used for DJ-ing and remixing. The conviction results from a case that began with a joint investigation between UK performance right collection society PRS for Music and PIPCU. Sentencing will take place next month (on November 11th).

And more music! The Music Managers Forum has published 'Dissecting the Digital Dollar Part 2' saying "While recognising that record companies continue to make significant investments in new music, many in the music community believe that there needs to be a frank conversation about how streaming income is shared" and "Many people felt that the share received by heritage artists, session musicians and songwriters needs particular consideration, and that a ‘performer equitable remuneration’ system like that that operates in the radio sector and the ‘contract adjustment mechanism’ proposed in the draft European copyright directive might be ways to address some of these concerns" and "Artists and songwriters would generally prefer more digital services to be licensed through the collective licensing system, though managers recognise that there can be issues with that approach. CMOs should seek to address those issues" amongst many other interesting things! You can download a copy of the report yourself here

The US Copyright Office is asking for comment on that thorny issue of copyright and 'fixing things'. Back in 2015 The US Register of Copyrights Maria A Ms. Pallante noted that the anticircumvention provisions of Section 1201 of the DMCA prevent consumers from “engaging in activities, such as the repair of their automobiles and farm equipment, which previously had no implications under copyright law”. That issue had been in the news, not least as at the end of 2015 Senators Grassley and Leahy, the Chairman and Ranking Member of the Committee on the Judiciary, published a letter to the Copyright Office asking it to analyse the impact of copyright law on “software-enabled devices” (such as cars, phones, drones, appliances, and many more products with embedded computer systems). This issue they said was "crucial because technology and the law have evolved in a way that no one could have intended when Congress wrote the present copyright laws, and that evolution has restricted customers’ freedoms to repair, understand, and improve on the devices they buy". Car makers including General Motors and other vehicle manufacturers such as tractor maker Deere & Co had opposed a ruling from the Copyrght Office agreeing with this, saying vehicle owners could visit authorised repair shops for changes they may need to undertake - much to the annoyance of drivers and farmers! Now you can have your say! The EFF have already taken a lead saying "Let’s send a strong message to the U.S. Copyright Office and lawmakers: copyright law should not criminalize research and repair". More here and here. Request for Additional Comments here

And finally, Kanye West, Jay Z and Frank Ocean have prevailed in a $3 million copyright-infringement lawsuit filed against them in 2014 by singer songwriter Joel McDonald. A federal appeals court has now that the trio’s 2011 hit “Made in America,” from Kanye and Jay Z’s “Watch the Throne” album, did not copy a 2009 track by McDonald: McDonald claimed that the artists plagiarised his song after their “Watch the Throne” producer, Mike Dean, bought one of McDonald’s CDs. The appeals court upheld a September 2015 dismissal of the suit saying "“We have considered all of McDonald’s arguments and find them to be without merit.” 

Our two new intern bloggers, David Liao and Tibbie McIntyre, will be taking over the COPYKAT from next week  - we wish them well. We are sure they will be finding marvellous titbits and morsels of copyright news to keep everyone well fed with up to date copyright news.  

News from CREATe: events and copyright education

CREATe, the RCUK Centre for Copyright and New Business Models in the Creative Economy at the School of Law - University of Glasgow, is organising a series of public lectures and PhD development workshops this autumn. 

The calendar can be viewed here.

In particular, CREATe public lecture series will investigate topical policy issues such as the EU Copyright Reform in a post Brexit environment, Open Access to scholarly publications and the press publisher right proposed in the Copyright in the Digital Single Market draft Directive. 

Attendance to the public lectures is free but subject to registration due to limited space availability.

The next event is scheduled for Wednesday October 19th when CREATe's Director, Prof. Martin Kretschmer, will deliver the inaugural lecture on the extremely current topic "EU Copyright Reform in a Brexit Environment"This lecture will investigate what a digital single market means in an interconnected world in which copyright still slices content by territory, and where the balance between artists, investors and users still reflects an analogue world of linear exploitation. Finally, the lecture turns to Brexit. Can the UK become a digital Island?

In addition, as is explained more at length here, CREATe is also delighted to announce the release of the second episode of the award-winning series The Game is On

Drawing inspiration from well-known copyright and public domain work, as well as recent copyright litigation, this series of short films provides a springboard for exploring key principles and ideas underpinning copyright law, creativity, and the limits of lawful appropriation and reuse. 

Friday, 14 October 2016

Introducing our Two New Interns

We are very happy to welcome two interns to our blog, David Liao and Tibbie McIntyre. They will join us for six months and will provide you copyright news and tidbits.

David Liao

David Liao is currently an intellectual property trainee at the London office of Berwin Leighton Paisner. David discovered his enthusiasm for IP while studying Law at the University of Cambridge. David has since done pro-bono work with Own-it! and has a particular interest in copyright in the music industry. You can learn more about David here.

Welcome David and Tibbie!

Tibbie McIntyre

Tibbie McIntyre studied music (B.Mus) and law (LL.B) at the University of Glasgow. Tibbie is particularly interested in copyright and how it affects creativity, both online and offline. She has experience in advising small and medium-sized enterprises on IP strategy and conducting IP due diligence prior to equity investment deals. Tibbie is currently studying an LL.M in Intellectual Property & the Digital Economy at The University of Glasgow. You can learn more about Tibbie here.

Friday, 7 October 2016

A Big Tag with Fries and a Can of Spray Paint for You?

There is yet another copyright infringement case about the use by a corporation of the work of a graffiti artist (see here, here, here and here). This time, it is purveyor of Big Macs and other calorific delicacies McDonald’s which has been accused of copyright infringement for using a graffiti without authorization when creating the décor of its new graffiti-themed restaurants in the U.K. and Asia. 

The protected work had been created by the late Dash Snow, and it is the administrator of his estate who filed the suit in the Central District of California, on behalf of her and Snow’s minor child. Mc Donald’s introduced these graffiti restaurants this year in the U.K., but they did not receive a unanimous warm reception (see here and here). Plaintiff saw the allegedly infringing reproduction in a London McDonald’s and notes that “Hundreds of McDonalds around the world use near-identical interior design.” Plaintiffs had asked McDonald’s to remove the art when they discovered the use in June 2016, but the fast food chain refused, which led to the filing of this suit. The case is Jade Berreau v McDonald’s Corporation, 2:16-cv-07394 (Central District of California).

Snow signed his artwork using the stylized signature of his pseudonym “SACE.” The complaint alleges that an image of a wall in a McDonald’s restaurant in London “includes a brazen copy of Mr. Snow’s work” (see Complaint p. 2). Plaintiff alleges that Snow’s work is prominently placed on the wall, and that it is “the only element created by a famous artist” whereas the “remaining graphic elements are comprised of generic anonymous shapes and scribbles.” The complaint also alleges that McDonald’s reproduced Snow’s work for in-store marketing material. 

Plaintiff claims that McDonald’s infringed Snow’s copyright in his work. The graffiti had been painted by Snow on a New York wall and so it had been fixed in a tangible medium of expression. Plaintiffs filed a copyright registration for the work on September 17.

The complaint further argues that Dash Snow had “carefully avoided any association with corporate culture and mass-market consumerism,” that he was “diligent in controlling distribution channels of his work” and that “nothing is more antithetical to Mr. Snow’s outsider “street cred” than association with corporate consumerism— of which McDonald’s and its marketing are the epitome.” Therefore “Mr. Snow’s reputation and legacy have been irreparably tarnished, diminishing the value of his work” and that such unauthorized is deceptive because it is “ strongly suggesting that Mr. Snow endorses, sponsors, or is affiliated with McDonald’s and its products, causing (and substantially likely to continue to cause) mistake and confusion.” U.S. law provides only limited moral rights, but, under European moral rights laws, such a statement would support a claim of violation of the artist’s moral rights, which are perpetual.

Plaintiff also claims that, by placing Mr. Snow’s signature on the walls of its restaurants, McDonald’s has intentionally falsified copyright management information in violation of 17 U.S.C. § 1202 which forbids anyone to knowingly and intentionally, in order to induce, enable, facilitate, or conceal infringement, to provide false copyright management information. A similar argument had been made by graffiti artists Revok and Steel in their copyright infringement suit against Roberto Cavalli.

What is next? Another graffiti artist, Eric Rosenbaum, known as NORM, had filed a similar copyright infringement suit against McDonald’s last March, in the same court, the Central District of California, claiming copyright infringement, unfair competition, false advertising and misappropriation of likeness for having used one of his graffiti bearing his artist’s signature in McDonald’s restaurants in Europe and Asia. The case has settled, and so it is likely that it will be the case here as well.

Image is courtesy of Flickr user Manuel Faisco under a CC BY-NC 2.0 license.