Something to read

bimonthly European Copyright and Design Reports for 2009 has now been published. Three cases are covered in this issue: one is the ECJ ruling in Case C-32/08 FEIA v Cul de Sac on the applicability of Community design law to commissioned works. The other two are both from national courts: the Gruppo C Art dispute from the Court of Turin, which asks the fascinating question as to whether an author's right subsists in artistic philosophy, and the Central Vista decision of a UK hearing officer on the test of who ir what constitutes an "informed person" for the purposes of that increasingly complex puzzle that calls itself design law.

Gracie Fields, perhaps the most popular British entertainer of the inter-war years, was unhappy that the BBC had, without acknowledgement, used his work as a source for a television dramatisation of part of her life featuring the actress Jane Horrocks (pictured as Gracie) - the programme, Gracie!, was apparently the most watched show ever on BBC4, with an audience of 1.4 million.

The biographer, David Bret, was reportedly unhappy that his work was used without attribution and was quoted by the Standard as saying:

"It even repeats a mistake contained in the book, talking about seven people having been killed in Arras. Irene Bevan, Gracie’s stepdaughter who authorised the book, ticked me off because that was wrong. In the bombing there may not have been any people who died — and at the most there were two. Harry Parr-Davies’s constipation in the film also shows that they have used my book as a source as no-one ever knew this until I revealed it — you just didn’t used to talk about these things."

I can understand why the author might have expected the courtesy of an acknowledgement, but if all that was being used were facts, it is hard to see how he has any right to one.

As regards the constipation (about which, fortunately, no further information is proffered), given that this was, apparently, true, Mr Bret cannot claim any rights to prevent other people referring to it. It is hard to see why there should be any difference if the fact about the bomb in Arras is (as asserted by Mr Bret) false - and it is hard to see what possible claim Mr Bret might have in respect of the copying of the false facts - unless any of this blog's readers have another idea??

"It even repeats a mistake contained in the book, talking about seven people having been killed in Arras. Irene Bevan, Gracie’s stepdaughter who authorised the book, ticked me off because that was wrong.

"In the bombing there may not have been any people who died — and at the most there were two. Harry Parr-Davies’s constipation in the film also shows that they have used my book as a source as no-one ever knew this until I revealed it — you just didn’t used to talk about these things."

Now you don't see it, now you do ...

Matthew Rimmer for supplying the link.

The Penny Drops: the Convergence Survey 2009

here

The Digital Economy Bill - initial copyright reflections

here and, impressively, you can also keep up with an RSS feed and email updates to which you can subscribe.

No doubt the main heat in the Bill - and the thing that will determine whether it makes it into law before the forthcoming election next May (or thereabouts) - is going to be generated by the provisions of Clauses 4 to 16 which deal with enacting the graduated response (aka "three strikes") provisions in the Digital Britain report, as amended by subsequent Government prevarication. However, while copyright law might underpin these provisions, they operate to amend the Communications Act, not the Copyright, Designs & Patents Act 1988, so this blog is not going to dwell on them (at least, so long as you overlook Jeremy's post from yesterday!).

Instead, we will look at the Bill from a copyright purist's perspective. That means that there are only 4 clauses that are relevant:

• Clause 17, which is discussed further below
• Clause 42, dealing with orphan works and other extended licensing systems - this was expected to be included in the Bill, although, if anything, the powers to make life easier for copyright users are broader than expected.
• Clause 43, increasing the penalties for certain criminal copyright infringements to £50,000 per offence; and
• Clause 44, extending the public lending right scheme provisions of the CDPA to cover audio books and e-books. Is this the world's first legislative attempt to define an e-book, I wonder? [and in any event, at least we now have legislative authority to resolve, in the affirmative, the contested issue of whether the word e-book should contain a hyphen.] The Government thinks that an e-book is "a work, other than an audio-book [which is also defined], recorded in electronic form and consisting mainly of (or of any combination of) written or spoken words or still pictures." Do 1709's friends agree? Interesting that it is quite close to the Communications Act definition (section 405) of a television programme as "any programme (with or without sounds) which (a) is produced wholly or partly to be seen on television; and (b) consists of moving or still images or of legible text or of a combination of those things." So the main difference between a TV programme and an e-book is whether the images move!

But where is there any debate or discussion about Clause 17 - this is essentially open book for the Secretary of State at BIS (or whatever department is responsible for copyright policy from time to time) to re-write Part I of the CDPA "for the purpose of preventing or reducing the infringement of copyright by means of the internet, if it appears to the Secretary of State appropriate to do so having regard to technological developments that have occurred or are likely to occur."

The safeguards are, essentially, that (i) he/she can't introduce any new criminal provisions (ii) people affected have to be consulted; and (iii) the changes have to be set out in a Statutory Instrument that has to be approved by both Houses of Parliament - but that seems to be an end to any need for primary legislation to change copyright law. Ever. If the change can be said to be about reducing copyright infringement on the internet.

All sorts of interesting questions arise - could the Secretary of State abolish ALL fair dealing rules under this power? The powers are also not only to toughen the law - could the Secretary of State introduce sweeping new fair use rules - this would have the effect of reducing infringment of copyright on the internet, because if these uses are authorised, they are no longer be infringing!

What safeguards apply to make him/her ensure that they change the rules consistent with the UK's international obligations (WTO, Berne and Brussels)? How is the Berne three-step test applied? Is this an appropriate power for a minister to have in a modern democracy?

I can certainly see the advantage of being able to move fast to change the rules to keep up with the internet - and have even worked on some cases to which that principle might apply - but is this the most appropriate way to do that?

Digital Economy: if you hate the Bill, you'll love the petition

Open Rights Group briefing: Illicit P2P file sharing.

Here comes a pan-European copyright regime?

here

here.

Professor Visser adds that, personally, he is of the opinion that both questions should be answered in the negative, because the Infosoc directive does not oblige Member States to introduce a private copying levy system at all, let alone give any guidance on who should be the debtor. He also thinks that any other answer would have some serious free movement of goods implications, adding:

"There is little doubt however that the problems underlying these questions are of a rather fundamental nature regarding the future and desirability of (non-harmonized) private copying levies in a networked global economy".

Recent publications

the article which follows it in this issue is "Is Sampling Always Copyright Infringement?" by my Polish friends Tomasz Rychlicki and Adam Zieliński, co-authors along with DJ Twister of "Sampling and scratching in US copyright and Polish law: a comparative analysis", published in the Journal of Intellectual Property Law Practice earlier this year (click Intellectual Property Quarterly, published by Sweet & Maxwell in association with the Intellectual Property Institute, features "The 'Three Step Test' in European Copyright Law: Problems and Solutions" by Jonathan Griffiths (Queen Mary), as well as "Copyright and the Fourth Estate: Does Copyright Support a Sustainable and Reliable Public Domain of News?" by University of New South Wales lawyers Kathy Bowrey and Catherine Bond.

The curious case of the psychoacoustic Beatles' tracks

http://www.myfoxla.com/dpp/entertainment/music/bluebeat-emi-beatles-lawsuit-20091119 and here http://www.pcmag.com/article2/0,2817,2356200,00.asp

Anti-suit injunction keeps copyright suit out of the US courts

[2009] EWHC 2783 (Ch) was a Chancery Division decision of Mr Justice Lewison earlier this month on a subject which has recently generated much thought but not too many judicial decisions: anti-suit injunctions in intellectual property disputes.

Skype, an internet telephony company domiciled in Luxembourg, claimed that proceedings which Joltid brought against it in the United States were in breach of a jurisdiction clause in a licence between them and sought an anti-suit injunction. According to that agreement, Skype had offered free downloads of Joltid's software so that users could enjoy the benefits of free phone calls. Under the agreement, Skype received the worldwide right to use a compiled object code form, although control of the source code was reserved to Joltid alone. Clause 19 read as follows:

"Governing Law and Jurisdiction. Any claim arising under or relating to this Agreement shall be governed by the internal substantive laws of England and Wales and the parties submit to the exclusive jurisdiction of the English courts".

Joltid subsequently claimed that Skype had breached the licence agreement by dealing with its source code and purported to terminate the agreement. Skype, maintaining that it was still entitled to use the software, brought proceedings for a declaration that there was neither a breach by them nor a valid termination, since Joltid had supplied Skype with the source code rather than the object code. Joltid in turn sought declarations that the termination was valid, plus financial remedies, and injunctions with global effect.

After Skype commenced its proceedings, its owner agreed to sell a large part of it to investors who planned to operate Skype on much the same basis. Joltid claimed that this meant that there would be continued infringement of its copyright globally. Having registered its copyright in the source code in the United States, Joltid then brought proceedings there against Skype and its new owner, the investors and other parties. Skype was none too happy about this US action which, it alleged, was in breach of clause 19.

Mr Justice Lewison granted the injunctive relief sought. In his view,

* Whether a claim fell within an agreed jurisdiction clause was a matter of contractual interpretation, to be decided according to national law, and it had to be construed liberally in accordance with what rational businessmen would have intended.

* The decision of the Court of Justice of the European Communities in Case C-281/02 Owusu v Jackson meant that discretionary considerations such as those relating to forum non conveniens did not apply to decisions of courts in EU Member States so as to stay their own proceedings.

* In Owusu there was no ruling as to whether a Member State court could, or should, grant an injunction to prevent proceedings being taken in another jurisdiction, and the proposition that the test was the same was not borne out by authority.

* Regarding the US proceedings, there was a valid contract which Joltid had breached.

* The exclusivity agreement was itself supported by other considerations: the partieshad chosen a neutral forum, the copyright licence was worldwide and a breach somewhere must have been contemplated; accordingly witnesses and documents could be located anywhere in the world. Thus the standard considerations on forum non conveniens should have little weight against the clause; otherwise it would be deprived of its intended effect.

The 1709 Blog is relieved that the court gave effect to the intention of licensor and licensee as expressed in Clause 19. It can be frustrating for lawyers who draft clauses in plain English to watch as sundry jurisdictional issues are raised in court which appear to sink the fragile ship of contractual intent.

Recent publications

bimonthly European Copyright and Design Reports contains full-text reports of three cases, of which one is a Scottish decision, Toner v Kean Construction (Scotland) Ltd, a decision of the Outer House, Court of Session, on procedural issues relating to when and whether a single action for infringement of copyright in architectural drawings can be brought against two defendants.

How Bow Wow Wow Row Now Concluded

this feature in The Tripwire (why, I ask, are they reading this when there are so many earnest copyright publications gathering dust on the shelves ...?): entitled "George Clinton Wins Landmark Court Battle Over “Bow Wow Wow, Yippie Yo Yippie Yea”", it reads (in relevant part):

"Whether or not you believe George Clinton was actually the first (along with two fellow songwriters) to pen the phrase in 1982’s “Atomic Dog” may be another story altogether. No matter what your feelings on the matter, we wouldn’t suggest using the phrase in your lead single anytime soon, or you will probably be paying Bridgeport Music a large sum of money. The suit was filed against Universal Music Group for their group, Public Announcement, using the phrase in their 1998 release “D.O.G. In Me” that a panel of federal judges ruled to be in violation of Clinton’s copyright ...".

Have you noticed, by the way, how almost every legal decision is now deemed to be a landmark ruling?

Illustration above: Nipper learning the "bow wow" lyrics ...

here] to the consultation on changes to exemptions for charitable, not-for-profit and other Third Sector organisations in relation to licences required for the public playing of sound recordings and broadcast music.

The changes involve repealing existing exemptions [Duly noted. Repeals mean finding Parliamentary time. If time is given over for these repeals, perhaps it will be possible to tag other bits of legislative copyright reform on to them]. This will simplify the law and help greater understanding of the rights of music users and those who own the copyright.

Following the consultation, Phonographic Performance Limited (PPL) the collecting society whose members this affects, have agreed a number of initiatives, working with PRS for Music to help Third Sector organisations that will require PPL licences when the repeals take effect next year. They aim to ensure a joined up approach from PPL and PRS for Music.

The key initiatives are:

• A new joint licensing scheme: this aims to simplify the process for a Third Sector organisation obtaining a licence for playing sound recordings and broadcast music. This will cut down on administration costs for both users and collecting societies. [This looks sensible and is a good advertisement for what can be done by talking and negotiating]

• A code of practice and independent complaints mechanism: The code will detail the service customers can expect. Where disagreements do occur, music users want an independent, quick and affordable complaints mechanism. With PRS for Music already having implemented this in July 2009, PPL will also develop a code of practice linked to an independent complaints reviewer. [It will be good to see what happens to the role of the Copyright Tribunal and to find out whether the independent complaints mechanism can be used as a model for other sectoral special cases]

• PPL consulting Third Sector organisations with the Community Sector Law Monitoring Group (CSLMG) to agree affordable tariffs" [If affordability is the only criterion, rights holders might have a rough ride here. Presumably there will be countervailing criteria such as fairness ...].

Telenor won't be ordered to block The Pirate Bay, says Norwegian Court

here.

Substantial 'a difficult word' says Court of Appeal

[2009] EWCA Crim 2293, 9 November 2009, is a decision of the Criminal Division of the Court of Appeal, England and Wales (Stanley Burnton LJ, Penry Davey and Sharpe JJ). Put simply, between October 2003 and January 2006 Gilham ran a business selling components and devices for games consoles marketed by Microsoft, Nintendo and Sony. Those companies used protective technological measures to prevent counterfeit or 'pirate' copies of games from being played on their consoles. Gilham sold modification chips (modchips), either by themselves or pre-inserted into games consoles together with the equipment needed to fit them. In some cases, a purchaser would have had to download software and install it.

Once installed, the modchips enabled counterfeit games to be played on the consoles. The running of the games had the following effect: during the playing of DVDs and CD-ROMs on which games were sold for use with the games consoles, data was transferred from the disk into the console's random access memory (RAM). At the point at which the game was played, the data in the RAM was overwritten by different data from the disk. The screen would display images of scenes, characters and objects which had been created by those responsible for the composition of the game.

Gilham was charged with offences arising out of his dealing with modchips. According to the prosecution, the modchips were devices, products or components which were primarily designed, produced or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures within the meaning of section 296ZB of the Copyright, Designs and Patents Act 1988 as amended. He was also charged with money-laundering offences relating to the proceeds of sale.

In order for the prosecution to prove an offence contrary to eg section 296ZB(c)(i), it had to prove that (i) the game was, or was included in, a copyright-protected literary work; (ii) the playing of a counterfeit DVD on a games console involved the copying of such a work; (iii) such copying was of the whole or a substantial part of the work; (iv) the games console and/or genuine DVDs (ie copies of the copyright work or works created by or with the licence of the owner of the copyright) included effective technological measures within the meaning of section 296ZF which were designed to protect those works and (v) Gilham, in the course of business, had sold or let for hire a device, product or component which was primarily designed, produced or adapted for the purpose of enabling or facilitating the technological measures.

Convicted, Gilham appealed. The matter before the Court of Appeal was whether the playing of a counterfeit DVD involved substantial copying of a copyright work. According to Gilham, the trial judge had wrongly directed the jury as to the meaning of 'substantial', arguing that a display on a screen could not be a substantial copy of a copyright work.

The Court of Appeal dismissed Gilham's appeal, holding as follows:

* 'Substantial' was a difficult word to pin down. It could mean 'not insubstantial' or 'of ample or considerable amount, quantity of dimensions'.

* The key issue was whether, in creating Gilham's work, substantial use had been made of the skill and labour which had gone into the creation of the copyright work and thus of those features which made it an original work.

* The quality or importance of what had been taken was much more important than the quantity: it depended therefore not just on the physical amount taken but on its substantial significance or importance to the copyright work, so that the quality or importance of the part was frequently more significant than the proportion which the borrowed part bore to the whole.

* The recitals to Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society emphasised the importance of protecting copyright and related rights in multimedia products such as computer games. Accordingly, if devices such as modchips could be sold with impunity, the United Kingdom would not be conferring the protection of those rights required by the Directive.

* It also accorded with common sense to say that a person who played a counterfeit DVD on his games console, and saw and heard the visions and sounds which were the subject of copyright, did make a copy of at least a substantial part of the game.

* In this case the game as a whole was not the sole subject of copyright; rather, the various drawings which resulted in the images shown on the screen or monitor were themselves artistic works protected by copyright. The images shown on the screen were copies, and substantial copies, of those works.

* Even if the contents of the RAM at any one time were not a substantial copy, the image displayed on screen was: what was shown on-screen when the pause button on a game console was pressed was a still image, a copy of an artistic work, generated by the digital data in the RAM. The fact that players did not normally pause the game was immaterial, since it was sufficient that a transient copy was made.

* On the basis of the foregoing, Gilham was rightly convicted of the offences charged under the Act and of the money laundering offences relating to the proceeds of his sales.

At paragraph 30 the Court added this comment:

" ... we repeat with emphasis what Jacob LJ said in Higgs about the trial of cases involving recondite issues of copyright law before a jury. Cases that, for example, involve determination of difficult questions whether a copy is of a substantial part of a copyright work, can and should be tried in the Chancery Division before specialist judges. They can be so tried much more efficiently in terms of cost and time than before a jury, and questions of law can if necessary be determined on appeal on the basis of clear findings of fact. In appropriate cases, the Court will grant injunctive relief, and a breach of an injunction will lead to punishment for contempt of court. If the facts proven against a defendant show that he has substantially profited from criminal conduct, proceedings for the civil recovery of the proceeds of his crimes may be brought under Part 5 of the Proceeds of Crime Act 2002".

Perpetual motion?

here are by no means unique, but they are a sobering proposition for would-be users to consider. Thus, under Grant of Rights the text reads:

"You hereby grant to Motionbox a non-exclusive, royalty-free, perpetual [shucks, I'd hoped the licence might terminate when the copyright did ...], world-wide, irrevocable, transferable license with the right to grant sublicenses through multiple tiers of sublicensees (including, without limitation, licensing your User Content to our Partners [who currently include Bebo and AOL]) to publicly display, publicly perform, distribute, store, transcode, syndicate, broadcast, reproduce, edit, modify, create derivative works, and otherwise use and reuse your User Content (or any portions or derivative works thereof) in any manner, in any medium, for any purpose. Motionbox and its Partners reserve the right to display advertisements in connection with your User Content and to use your User Content for advertising and promotional purposes. If you mark your Content as "Public User Content", you acknowledge that any Motionbox user may exercise the Motionbox User Rights with respect to such Public User Content as set forth below. For more information on User Content, please review our Privacy Policy".

Er, perhaps not.

"Give it back!". "Shan't!". Court of Appeal rules ...

[2009] EWCA Civ 1156 allowed the appeal and remitted the case for further submissions as to the continuation of the interim order. Giving judgment for the Court, Leveson LJ said, at paras 50 to 54:

Belgian SatCab questions head for Luxembourg

here.

Media Law and Practice

here.