‘A Whiter Shade of Pale’ – copyright doesn’t fade over time

here). ‘A Whiter Shade of Pale’ was recorded in 1967. Gary Brooker’s music was adorned by Matthew Fisher’s now world-famous organ solo (above), but Fisher proceeded to wait 38 years to claim his share of the copyright. The case involves a number of issues but the key question was whether Fisher should be entitled to future royalties on the song when he had left it so long to claim them.

The trial judge had granted three declarations: (1) Fisher is a co-author of the song; (2) Fisher is a joint copyright owner, with a share of 40%; (3) Brooker and Onward Music’s licence to exploit the work was revoked on 31 May 2005.

The Court of Appeal set aside (2) and (3) on the basis of delay (acquiescence and laches) – producing the bizarre result that Fisher would be a co-author with no copyright ownership. Although there’s no statutory limitation period to a copyright claim, delay is a potential bar to an injunction – which is granted at the discretion of the court. Mummery LJ argued that because Fisher’s ultimate goal was an injunction he should not be allowed the copyright interest that would provide the basis for it.

The House of Lords, however, distinguished between the property right and the potential injunction. Property rights are not discretionary. To refuse a property right because it might lead to an inequitable injunction would be ‘the tail wagging the dog’. If Fisher were to use his newly asserted property right to seek an injunction, the court would be free to determine whether to grant it. The Lords were unanimous in their decision – even tickled pink. Baroness Hale exclaimed as she danced the light fandango: ‘As one of those people who do remember the sixties, I am glad that the author of that memorable organ part has at last achieved the recognition he deserves.’

Tenenbaum filesharing trial opens in Boston

http://news.cnet.com/8301-1023_3-10298079-93.html

http://copyrightsandcampaigns.blogspot.com/2009/06/gertner-nixes-barlow-as-tenenbaum.html

Photo: Professor Charles Nesson in his trademark turtle neck top

Scottish judge refuses to bar architect's copyright infringement claim

Mark Cruickshank (Maclay Murray Spens) has furnished us with a splendid explanation. he writes:

"Toner alleged infringement of copyright by Kean and CRGP in respect of architectural plans which he had prepared. He argued that he had not been fully paid for his work and that, therefore, there was no implied licence granted to Kean and CRGP to use the plans. He alleged that CRGP had directly infringed copyright by using a substantial part of the plans to obtain an amendment to a planning consent, while Kean had indirectly infringed by constructing a building in conformity with those plans.

Kean and CRGP requested a Debate (ie a hearing on the legal merits of the claim) to argue that Toner's case against them was not competent and that it was neither legally relevant nor specific enough to make out a case and should be dismissed. They raised a number of competency arguments, all of which involved fairly technical issues of law and/or related to compliance with Scottish procedural rules on pleadings. They included the arguments that Toner had no title to sue, that there was no competence to sue more than one defender [that's the term used in Scotland for 'defendant'] in the same action with a separate and independent basis for each claim, and that there were no pleadings setting out the statutory/common law basis for raising the action. In terms of the relevancy/specification arguments, again there were a number of submissions made by the defenders, for example that the damages claimed against each defender amounted to 'double counting', that Toner's case on damages was not properly set out and that it was not possible to sue for damages for copyright infringement when also seeking to affirm the contract or for damages and additional damages under the same pleading claim.

The judge, Lord Bannatyne, took a common sense approach and criticised the defenders' attacks as resulting from taking aspects of the pleadings in isolation rather than reading them in context. Also, for example, on the inclusion of more than one defender in the same action he took the view that the two cases were clearly intimately connected, which pointed to it being in the interests of justice/convenience that the cases both be in the same action. Lord Bannatyne then rejected all of the defenders' arguments and found firmly in favour of Toner.

This sensible decision should discourage such future attempts to knock out cases based on highly technical arguments. This is not the end of the matter, however, and the matter will proceed towards a full trial with Toner having to prove his case of copyright infringement based on the facts".

Many thanks, Mark, for the explanation.

Peer-to-Peer: a new book

practitioner Alain Strowel, is a title that has "flavour of the month" stamped all over it, as it is launched for the benefit of a readership currently struggling to make sense of the Pirate Bay drama, the debate over "three stripes and you're out" and the martyrdom of here.

Flotsam and jetsam

Korea Times).

HADOPI has been delayed yet again (report saying that internet copyright filtering doesn’t work. Filters are systems for ISPs to automatically detect and block certain types of content, such as copyright-infringing content.

The American Library Association has created online tools to check if you’re within US fair use rules: the speculating on the copyright implications of machines being authors.

BBC Radio Humberside, Hull-based Kingston Communications, the monopoly supplier of the Hull telephone system is, via its ISP Karoo , disconnecting broadband users accessing or sharing content unlawfully when alerted by content owners. Disconnected subscribers to Karoo are required to sign an agreement undertaking not to repeat the behaviour in order to have their service reinstated. Karoo can take advantage of its unique position in the Hull marketplace - they provide the only ISP in the area via Kingston Communications' telephone system - not even British Telecom operates lines in Hull.

This is a disconnection policy that may be desirable from a content owner's perspective but is less desirable for the residents of Hull who have no option but to obtain telcoms supply from Kingston and Karoo. It is also a policy that, in the view of the Open Rights Group, is unacceptable. And what would the Competition Commission or OfCom make of it, we wonder.

To close on a balanced note , Karoo should perhaps be congratulated on the quality of their system. New technologies added to BitTorrent protocols can now encrypt data to prevent an ISP being able to identify that a file is a torrent file - but not in Hull apparently.

When lawfully seized items can't be retained

European Copyright and Design Reports (Sweet & Maxwell, 6 times a year). In short, this was a ruling that the police had no power to retain property under the Police and Criminal Evidence Act 1984 s.22 against the wishes of the person otherwise entitled to possession of it, once a decision not to prosecute has been taken, in order that a private body (in this case FACT) could consider whether to bring a prosecution, or indeed while that private prosecution was being brought.

This action was brought by the Vickermans, a husband and wife team who ran a video search engine website. This was not a file-sharing website, but it did provide thousands of links to third party websites which hosted videos. Following a complaint by FACT, a private commercial organisation representing the interests of the audio-visual industry, that this website was hosting two third party file sharing websites, the police obtained a warrant to enter the Vickermans' premises on the basis that there were reasonable grounds for believing that offences of conspiracy to defraud and money laundering had been committed. On this basis the police lawfully seized internet server equipment and associated documents. That property was later released by the police into the possession of FACT for the purposes of the police investigation.

When eventually the Crown Prosecution Service decided not to prosecute, the Vickermans asked for the return of the seized property. The police said they couldn't, since FACT was considering whether to bring a private prosecution. At this point the Vickermans sued for delivery up of the seized property as well as damages for conversion, while FACT began a private prosecution (still proceeding) in respect of various copyright offences.

So could the police retain the seized property under the Police and Criminal Evidence Act 1984 s.22 even after the CPS had decided not to prosecute, if the retention was for the purpose of assisting a private prosecution? The Vickermans argued that the police power to retain property ended once the CPS decided not to prosecute. The police and FACT both contended that retention was permitted because it was for use as evidence at a trial and forensic investigation for an offence which was the subject of an ongoing prosecution.

Sharp J ruled in favour of the Vickermans. He held as follows:

* The power of the police under the Act to seize, use and retain property was conferred on them for the better performance of their public functions and for law enforcement purposes: those purposes did not include the seizure, use or retention by the police of private property to assist private interests. Parliament never considered whether private property, once seized by the police, could be used by a private body for its own purposes (including considering whether it should bring a private prosecution or bringing a private prosecution).

* While the right of private bodies or individuals to bring a private prosecution was well established, it did not carry with it the automatic right to override private property rights in the absence of an order of the court, nor did it carry with it the powers conferred by Parliament by the police. Accordingly, the police had no power to retain property lawfully seized under the Act against the wishes of the person otherwise entitled to possession of it once a decision not to prosecute had been taken.

Big brother in a bother? Orwell that ends well

Justin Gawronski, who was reading 1984 on his Kindle for a summer assignment and lost all his notes and annotations when it simply vanished. "They didn't just take a book back, they stole my work", he is reported to have said.

the Telegraph, msnbc.

A Touch of Flaux

Buds of May' agreement, (ii) the 'Silas' agreement. Clauses 4(1) and 4(2) of the Buds of May agreement referred to the terms for payment for broadcast and other exploitation. By Clause 4(1):

"The payment by YTV to [Excelsior] of the said sum ... in respect of the purchase of the rights ... granted shall entitle YTV to broadcast the Film/Programmes by television on two occasions either simultaneously or non-simultaneously from all the transmitters of the IBA serving ITV or Channel Four Provided Always that if YTV shall further repeat the television broadcasting of the Film/Programmes in the United Kingdom the sum of £3,000.00 ... per broadcast hour shall be due and payable by YTV to [Excelsior] within Twenty-One Days of the date of such further repeated transmission ...".

Similar repeat fees per broadcast hour were also due under clause 4(1) of the Frost and the Silas agreements. By Clause 4(2):

"It is mutually agreed that if YTV shall transmit or authorise the transmission distribution or exploitation of the Film/Programmes in overseas territories by means of open circuit or 'free' television broadcasting toll or pay cable television broadcasting satellite television broadcasting or by way of non-theatric exhibition or in the form of videograms for sale and hire to the general public there shall be payable to [Excelsior] Eight Per Cent of the adjusted gross income accruing to YTV from such broadcasting authorised broadcasting and other distribution or exploitation …".

Excelsior accepted that the intention of the parties was that clause 4(1) of the Frost and Silas agreements would have the same scope and effect as clause 4(1) of the Buds of May agreement.

The digital terrestrial channel ITV2 was launched in December 1998, as a free-to-air service on cable and digital terrestrial television, followed by the digital terrestrial channel ITV3 in 2004. In March 1999, after five episodes of 'A Touch of Frost' were transmitted on ITV2, Excelsior sent YTV an invoice for those transmissions on the basis of an entitlement to be paid £3,000 per broadcast hour in accordance with clause 4(1). YTV did not pay that invoice on that basis, being prepared to pay only on the basis of a 15 per cent royalty under clause 4(2). According to YTV, ITV2 was a 'catch up' channel and that any repeat on ITV2 would attract only royalties.

Excelsior then sued YTV, seeking a declaration that, in relation to each of the agreements, it was entitled to payment of the flat rate fees per broadcast hour under clause 4(1) for broadcasts on ITV2 and ITV3. YTV denied liability, arguing that the repeat fee under that clause was only payable in respect of repeats on the channel generally known, in 1990 and 1992, as ITV, but now as ITV1. Its case was that in respect of broadcasts of the programmes on ITV2 and ITV3, Excelsior was only entitled to payment of royalties under clause 4(2); since those royalties had been paid, nothing was currently due.

Flaux J dismissed Exscelsior's claim ("I have reached the very firm conclusion that the transmissions of the programmes covered by the three Agreements are not within the terms of clause 4(1) of those Agreements, properly construed"). In his view

* Evidence was admissible as to what particular words or phrases meant at the time that the contract was made, having regard to the factual background or matrix reasonably available to the parties in the situation in which they were at the time of the contract.

* Precontractual negotiations were however neither relevant nor admissible.

* The principles of construction would be distorted if clause 4(1) were given a wider meaning than the words of the clause would bear, merely because the television industry had developed in a manner that was not foreseen when the agreements were made and which turned out to be disadvantageous to Excelsior in terms of claiming fixed rate fees under clause 4(1).

* The phrase "such further repeated transmission or transmissions simultaneously or non-simultaneously from all the transmitters of the IBA serving ITV or Channel 4" encompassed only repeats on ITV1, but not transmissions on ITV2 or ITV3.

* A literal reading of clause 4(2) suggested that it covered only transmission and exploitation in oversees territories. A robust and purposive construction should be adopted when interpreting that clause, to ensure that other means of transmission and exploitation than analogue transmission on ITV and Channel 4 in the UK fell within its payment regime.

* Since clause 4(1) did not cover transmissions on ITV2 or ITV3, the fact that such transmissions were not covered by clause 4(2) either did not enable Excelsior to extend the scope of clause 4(1), which did not cover digital transmission on ITV2 or ITV3.

Whoever said contractual interpretation wasn't a huge bundle of fun?

press release from the World Intellectual Property Organisation (WIPO) last week reported on a meeting of Representatives of WIPO member states, reading-impaired organizations, publishers and a technology consortium which discussed how the intellectual property system can best meet the needs of visually impaired people by improving timely access to copyright-protected content. According to this item,

"The proliferation of digital technologies has added a new dimension to the question of how to maintain a balance between the protection available to right owners, and the needs of specific user groups, such as reading impaired persons. More than 160 million blind or visually impaired people around the world stand to benefit from a more flexible copyright regime adapted to the technological realities of the day.

At a time when the sighted are enjoying unprecedented ease of access to copyright-protected content, a combination of social, economic, technological and legal factors, including the operation of copyright protection systems, are converging to impede access to this content by the blind or other print-disabled persons. Speakers examined the needs of visually impaired persons as they relate to intellectual property, particularly in terms of how to improve timely access to copyright-protected content.

Opening the meeting, WIPO Director General, Mr. Francis Gurry, announced that, in the framework of its visually impaired persons (VIP) initiative, WIPO will be launching a website - http://www.visionip.org/ – dedicated to attracting support, exchanging views, and disseminating information to all interested parties.

Ambassador Mr Swashpawan Singh, Advisor to Mr. Gurry on the VIP initiative, pointed out that the continued progress in this area would depend upon the commitment and support of member states and on their ability to take on board the interests of all stakeholders. He added that “it is clear that without contravening the legitimate interests of right holders, greater quantities of copyright-protected material – both analog and digital – could be made available in accessible formats and disseminated across multiple jurisdictions in a timely way, to enhance opportunities for the literacy, independence and productivity of VIPs.” WIPO’s task is to facilitate a process which could lead to the desired outcomes within a reasonable time frame.

... Mr Chris Friend, Strategic Objective Leader Accessibility, World Blind Union ... was confident that the cooperative efforts between publishers and the visually impaired sector would result in more accessible materials. He underlined that a binding international instrument on the needs of the visually impaired would complement those efforts by ensuring, for instance, the cross-border circulation of books in accessible formats. Blind readers in 19 countries across Latin America would have access to Braille or audiobooks produced by the organization for the blind in Spain (ONCE). The Francophone Africans would do the same with the French collections from Canada, France, Belgium and Luxemburg and Switzerland. The Portuguese organizations could share with Brazil, Angola and Mozambique.

Mr Herman Spruijt, President, International Publishers Association (IPA) said that the publishing sector was willing to “contribute its fair share” in finding solutions to the important issue of disability access and highlighted the complexities of dealing with different needs and interests of multiple stakeholders in a fast-moving stream of technological development. He urged parties to be flexible in achieving a common goal rather than creating an artificial polarization. He commended the consultative approach adopted by WIPO to move forward with the VIP initiative ...".

The 1709 Blog will endeavour to keep readers up-to-date on this issue. Checks will also be made from time to time on the www.visionip.org website, to see if it is more accommodating to the needs of the partially sighted than it is at present.

No 'making available' without 'reproduction' rules German court in CELAS case

GEMA and the UK collecting society MCPS-PRS, the District Court of Munich (Landgericht München) decided on 25 June 2009 that CELAS has no right to prohibit reproductions of the Anglo-American repertoire of EMI Music Publishing Ltd online in Germany.

The District Court of Munich held that, in general, making available copyright works online required imperatively both making available rights and mechanical reproduction rights, since the act of making available online was technically not feasible without a reproduction. In such a case of union of rights, however, German copyright law did not allow a splitting of making available rights and mechanical reproduction rights for online uses. The court held that, as a consequence, EMI could not have validly transferred only mechanical reproduction rights for online uses to CELAS while the making available rights were still managed by GEMA.

The decision confirms that, in Germany, GEMA still functions as a one-stop-shop for the world-wide repertoire which offers all making available and reproduction rights necessary for online uses. Users do not have to negotiate separate deals with business models such as CELAS or here.

Google Book: Commission tests the water ...

Via Stephanie Bodoni (Bloomberg) comes breaking news that the European Commission has intensified its review of Google Book, to analyze how it might affect authors' and publishers' copyrights. The European Commission's operation is described at this stage as "a fact-finding mission, not an investigation".

The Commission wants precise details on the exact scope of the US$125 million settlement, as well as how many European works and publications are potentially affected.

Repeat infringers in New Zealand: never mind the punishment, what about the policy?

rather controversial proposed amendment to the NZ Copyright Act 1994 in the form of section 92A which read:

“s 92A - Internet service provider must have policy for terminating accounts of repeat infringers

(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.

(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner”.

While sections 92B – E have come into force (dealing with other aspects of Internet service provider liability for copyright infringement), the entry into force of section 92A has been delayed on two occasions to allow for the formulation of a voluntary "ISP Copyright Code of Practice" (“the Code”) to provide guidance for Internet Service Providers (“ISPs”) and right-holders (“RH”) on how section 92A is the operate.

In the absence of agreement between ISPs and RHs the Minister of Commerce, who is responsible for IP legislation, has instructed Ministry of Economic Development officials, the Ministry responsible for the Intellectual Property Office, to undertake a review “to build on information gathered during ISP and RH negotiations on the Code, and to take account of industry and subscriber concerns”.

Following two meetings of a working group comprising “intellectual property and internet law experts” aCopyright Tribunal (with an appeal to the High Court). The Tribunal is an administrative tribunal, comprises three members (two at least of which have many other professional commitments), it appears that the Tribunal has only issued 13 decisions since 1977 and is most used to dealing with disputes relating to licensing schemes rather than the issue of whether copyright subsist and has been infringed. While a RH can, in the alterative, apply to the court for determination of the infringement issue, it will be interesting to see how often RHs take their case to the Copyright Tribunal.

The original section 92A was the subject of much comment and speculation in the media – it will be interesting to see what public and industry response there is to the current proposal. The deadline for submissions is Friday 7 August 2009".

If you're thinking of responding, do please note the deadline (why are important deadlines so often in the middle of the holiday period -- or are there no holidays in New Zealand at that time?). And if you want to discuss this topic with Elena, who is definitely an enthusiast, you can email her here

explains:

‘The governments of Antigua and the United States battled for several years before the WTO over whether US restrictions on online gambling discriminated against foreign firms. The WTO sided with Antigua in several preliminary stages, but the US kept contesting the body's findings. So to increase the pressure, Antigua asked WTO arbitrators to give it permission to suspend its obligations under sections of the TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement related to copyrights, trademarks, patents, industrial designs and trade secrets. The arbitrators agreed in December 2007, finding that Antigua could request the WTO's permission to suspend its obligations up to a value of $21 million annually.’

The Pirate Bay - it's all about give and take

reports:

‘Pandeya said plans are under way to introduce a monthly fee to be able to use The Pirate Bay, but he said the fee could be worked off by, for example, sharing downloaded content or lending storage capacity to others on their PCs in exchange.… GGF claims the site will fully address the legal issues that troubled it before because income will be distributed between filesharers, copyright holders and others involved. Pandeya said that although no deals have been struck yet, his company is currently in negotiations with some of the world’s largest players” within the music industry. “It’s been positive,” he said, declining to name the companies involved in the talks.’

The principle of getting free content in exchange for sharing content or lending capacity sounds like nothing much is changing in the world of P2P file-sharing. But whatever model they use, GGF are going to need to get weaving if they are to relaunch the site in a month with the consent of all relevant copyright owners.

Pick on someone your own size, buster!

Are these American right owners wise to have turned against these small victims?