German media reports on alleged copyright infringement by a senior conservative politician (see for example this article in the Handelsblatt). Siegfried Kauder (CDU) recently proposed that copyright infringers should be disconnected from the Internet for three weeks – without a trial, based only on repeat complaints by copyright owners to the relevant internet service provider. He saw this as a milder alternative to criminal prosecution or costly warning letters (costly for the infringer who must pay the right holder’s attorney’s fees).

While that suggestion is constitutionally problematic and was not really taken seriously by anyone even within his own party, it seems to have prompted someone to investigate whether Kauder himself abides by copyright law at all times. Well, apparently not. It is alleged that at least two photographs on his website, showing castles in his constituency, were put there without a licence. The author is not credited either, which would make for an additional infringement of moral rights.

A quick Google Images search reveals the identity of the apparent authors, but as yet neither of them has given a public statement. The pictures have been taken down from Mr Kauder’s website but can still be accessed via archiving sites.

His political rivals and most of the media are understandably delighted by this (minor) scandal. He who sits in the glasshouse should not throw stones or suggest disabling other people's Internet access and all that. However, some people have pointed out that Mr Kauder will hardly have created the website himself. According to the information provided there, it was indeed designed by someone else, but of course that does not answer the question who selected or provided the photographs.

Assuming the person who designed the website also chose the photos and Mr Kauder was unaware that no licence had been given, he would probably not be deemed a direct infringer. He would be liable as a “Störer”, though. The German law concept of “Störerhaftung” does not translate easily – “disturbance liability” would be the literal translation, but liability for breach of a duty of care is probably more accurate in this context. That means that he should have checked that permission to use the pictures had been granted and that he must now make sure that the photos are not used again on his website, but he will not be liable to pay damages.

Not such a big deal then, perhaps, but I guess the public embarrassment hits him harder than a few hundred or thousand euros in damages would. What do you think: poetic justice, preposterous witch-hunt, or politics as usual?

Copyright vs Competition law - a new dawn in European broadcasting??

http://www.musiclawupdates.com/07Marchlawupdates.htm

today's announcement that Princeton University is enforcing an Open Access policy forbidding academics from transferring the copyright in their articles to journal publishers is so significant. Academics are required to licence their work instead, so that they retain the copyright and are therefore able to reproduce it elsewhere without having to seek the permission of the publisher. This could spark a welcome trend which would allow academics and universities to maximise their outputs and revolutionise knowledge sharing.

Certainly in the UK, where most universities now have institutional repositories which host research outputs (scholarly articles written by their academics), this trend would be welcome and would resolve numerous difficulties in attempting to interpret publisher policies. Part of the problem is that academics are often unaware of the terms they agree to when they sign a Copyright Transfer Agreement (for an example see pieces and comments to the Monbiot article (including from the publishers themselves) which indicate moves afoot in the publishing world. But what is increasingly obvious is that the current mainstream system cannot continue forever; something's got to give, and one wonders whether Princeton has just thrown down the gauntlet to universities everywhere...

Photo from Flickr: Princeton University by Yakinodi (CC-BY 2.0)

Copyright in court judgments: a matter of access

"The Courts: judgment day" on 25 September. It touches on one of this blogger's favourite topics -- the accessibility of court rulings.  Since England and Wales is a common law jurisdiction in which the decisions of higher courts bind lower ones and even courts of equal standing will not depart from the reasoning of an earlier court without giving at least the semblance of a rational explanation, access to judicial decisions is more than a pleasant pastime for legal dilettantes and an urgent necessity for law students: it's part of the manner in which the legal system works.  Bearing this in mind,

"When the broadcasters finally begin to show English and Welsh judges delivering sentences in court, anyone will be able to watch the spectacle on TV or online. But if they turn to Google to look for a transcript of, say, a court of appeal judgment, the chances are that they will be unable to find it.

This remarkable situation – which, given the importance of case law in this country, is all the more extraordinary – has arisen because of the Ministry of Justice's decision to release significant judgments through a long-standing contract with a site called Bailii (the British and Irish Legal Information Institute). The legal establishment holds Bailii in justified admiration. The site has done a wonderful job of making case law freely accessible to lawyers: books about law are notoriously expensive. It includes historic and European data that is otherwise very difficult to find. But Bailii is a charity [as to who pays, or should pay, for Bailii, see jiplp here], it struggles to afford to host its 297,000 judgments, and does not allow search engines to index them. In some instances it is not even clear whether the crown or the judge concerned holds the copyright to the words, and reproducing them on any other site is forbidden.

The argument for opening up judgments to real public view and scrutiny is an overwhelmingly strong one. The UK supreme court has set an excellent precedent by releasing all of its judgments in a searchable format (and, just as importantly, summarising them succinctly)....

Now a group of digital activists called Judgmental is promising to publish judgments in a searchable format. It is very important – especially in the light of the Cabinet Office's consultation on Making Open Data Real – that its efforts will not be thwarted by threats to sue for breach of copyright. It would certainly be an irony if the MoJ's drive to see justice publicly done were matched by a parallel determination to keep case law texts as inaccessible as possible. "To be able to obey the law, you have to be able to find out what it is," say Judgmental's founders. "And it would useful to be able to find that out online."

... Lawyers and judges are trained to understand and to interpret the law. But in the digital age, no one should be denied the ability to find and read it in an accessible and searchable format.
The argument for opening up judgments to real public view and scrutiny is an overwhelmingly strong one".

BAILII's Copyright Policy can be found in full here.  From the reference to "META tags" it looks as though it may have been established quite a long time ago, when we were all still suspicious of search engines, spiders and robots and when there were still serious doubts as to the legal, commercial and ethical dimensions to their use.  This blogger holds BAILII in awe and in esteem, but wonders whether the time has come for BAILII either to take a fresh look at its copyright policy or to explain more clearly the reasons that lurk behind it and which may justify its retention in an era in which the use of search engines is pretty well standard in every walk of life.    He also doubts whether in reality (i) BAILII would ever have the inclination and the funds to pursue an action for copyright infringement against any search engine, (ii) the courts would grant injunctive relief, taking into account the public interest in greater access to primary legal sources and (iii) the interesting issue of damages in the absence of any convenient head of commercial loss.  It would be good if BAILII and Judgmental could work together for the common good which they both so palpable have at heart.

Lets Face The Music, And Pass?

http://www.musiclawupdates.com/09Novemberlawupdates.htm

and here http://www.facebook.com/4ELEVEN512

PDF) to approve the digitisation and making available of out-of-print books and journals was signed by representatives of European rights holder societies, creators, authors and libraries. It has taken nearly a year, but all stakeholders in the process were finally able to agree on three main principles whichwould allow cultural organisations to make a greater portion of their collections available online:

1. Agreements must be negotiated on a voluntary basis by all relevant parties to determine what is to be digitised and to ensure that the items in question are no longer in "commerce" (works which were once published and which neither publisher nor author intends to re-print and sell again). Moral rights are key to this process and authorship(where known) must be acknowledged;


2. Collective licences may be granted by collection management organisations where a substantial number of authors and publishers are represented. Digital library projects must be widely publicised and rights holders given the option to opt out of any collective licensing scheme;


3. Collection management organisations may limit licences to those of represented rights owners only (rather than on behalf of all rights owners) if agreements include trans-border and/or commercial uses of works.

However, whilst an agreement of this kind is clearly satisfactory to rights holders, it remains to be seen whether libraries and other cultural institutions will truly benefit. The Hargreaves' Review of Intellectual Property.

Photo: 'More old books...' by guldfisken (Flickr), reproduced under CC-BY-2.0

Tenebaum damages back to starting point

http://www.courthousenews.com/2011/09/20/39931.htm

Photo: Tenenbaum's lawyer, Harvard law professor Charles Nesson in a fetching turtle-neck sweater.

"Shaky and ill-prepared": public performance law in South Africa

Public performance of Punch and Judy?
No: it's just lawyers coming to blows
as to what "public performance" means

Earlier this month, in "Two may be company, but can one be a crowd?", here, the 1709 Blog hosted a letter from an anxious reader, writing on behalf of a friend, about what constitutes "public" for the purposes of performance in public.  The post was popular, attracting 14 comments. It has also drawn this substantial piece from South African copyright live-wire Graeme Gilfillan (Nisa Global Entertainment), who writes:

A cursory review of the meaning applied used/provided/defined for “public performance” in the South African Copyright Act 98 of 1978 as amended (“the Act”), at the South African Music Performance Rights Association (SAMPRA) website and Southern African Music Rights Organization (SAMRO) website, confirms that the concept and definition applied to the “public performance” is shaky and ill-prepared for a dispute or legal challenge. Indeed it would appear that there is no case law precedent on this in South African law history (I stand to be corrected on this), and a dispute concerning “public performance” in South Africa would have very specific consequence on musical and literary works, rather than sound recordings and films.

A detailed search of the South African Copyright Act 98 of 1978 (“the Act”) yielded the following results:

a.       The word ‘public’ is not defined in the Definitions section (or anywhere else) in the Act, though the word ‘public’ is used in the following contexts in the Act:

a.       Of, to and by the public

b.      A public delivery

c.       A public place

d.      Performing in public

e.      Place of public entertainment

b.       The phrase “performing the work in public” appears once in the Act, in Ch 1 Sec 6 (c);

c.       In the Act provides in Ch 1 Sec 9 (e) for “communicating the sound recording to the public” and the entire Section 9 makes no reference to ‘perform or performance’. The word “communicating’ appears nowhere else in the Act, and neither it nor ‘communicate’ are defined in the Act.

d.      The phrase “public performance” does not appear in the Act.

e.      The word “performance” is defined in the Definitions (xxxii) of the Act as follows:

““performance” includes any mode of visual or acoustic presentation of a work, including any such presentation by the operation of a loudspeaker, a radio, television or diffusion receiver or by the exhibition of a cinematograph film or by the use of a record or by any other means, and in relation to lectures, speeches and sermons, includes delivery thereof; and references to “perform” in relation to a work shall be construed accordingly: Provided that performance” shall not include broadcasting or rebroadcasting or transmitting a work in a diffusion service”

f.         The word ‘perform’ is not defined in the Act

g.       In terms of the nature of works eligible for copyright, the Act makes reference to ‘perform’ or ‘performing’ or ‘performance’ only in

a.       Sec 6 (musical and literary works),

b.      Sec 9 A(royalties i.r.o. sound recordings)

c.       Sec 11 B (computer programs)

No other works eligible for copyright include, or make reference to, the words ‘perform’ or ‘performing’ or ‘performance’

At the local performance rights (in musical and literary works) collection society SAMRO’S website, the 1709 Blog reader’s friend would be advised, inter alia the following:

“According to copyright law not only the person performing music in public is liable, but also the proprietor of the premises who permits their permises to be used for such performance in public.”

“Please be aware that a licence issued by the SABC does not entitle the holder to give a performance in public of SAMRO’s copyright music included in broadcast programmes. The agreement between SAMRO and the SABC for the broadcasting of copyright music covers only the reception of such music within the domestic circle. Where broadcast music is rendered audible in public, a separate licence from SAMRO is necessary”. 

“As a user of copyright music it is a requirement under the South African Copyright Act that you pay for the music that is broadcast, performed or “diffused” by your establishment. SAMRO’s Licensing Department is a hugely important aspect of the society, designed to ensure that music users in South Africa, of whatever size, are properly licensed for the performance of copyright music”  

“Music users are broken down into different groups: 

·         Essential users (which are entities like broadcasters, promoters and others);
·         Necessary users (like piano bars, discotheques, nightclubs, etc);
·         background users (like restaurants, retail estabishments and hotels);
·         Incidental users (like cafes,and hair salons). 

Remember that the licence issued by SAMRO is a blanket one authorising the broadcast, performance or “diffusion” of any of the million musical works that SAMRO controls on behalf of both our own members and those of its affiliated societies worldwide. The licence is usually in a form of a contract, which runs from year to year and due to the many ways in which musical works are performed, the fees payable under SAMRO’s licence can vary. There are around 46 different tariffs established to ensure we cater for all different types of music users. (see tariffs in this section).”

At the local collection society for owners of sound recordings SAMPRA’s website, the 1709 Blog reader's friend would be advised inter alia the following:

“Is there any legal requirement to pay SAMPRA licence fees?  

The Copyright Act imposes an obligation on those who wish to broadcast, communicate to the public or diffuse copyright sound recordings, to pay a licence fee to the relevant copyright holder(s). SAMPRA is authorized by the members of RiSA to grant licences to and collect licence fees from users of their copyright sound recordings. If you do not obtain a licence from SAMPRA, you will be infringing these copyrightholders' rights when you broadcast, diffuse or communicate to the public, any of their sound recordings” 

“What does "communicating to the public" mean?  

Communicating to the public is the playing of a sound recording in public (i.e. a non-domestic environment). Just because music is rendered audible for free, the audience is small, there is no admission fee, or the communication to the public is confined to members of a club, or a limited area, it does not mean that it is not a communication to the public. Music rendered audible at an event such as e.g. an office party or a year-end function constitutes a communication to the public. People often reason that "If it is my CD, why can't I play it whenever and wherever I want?" Ownership of the physical CD or Cassette does not confer any rights in the copyright material contained in the sound carrier onto the purchaser or holder in good faith, other than the right to be a licensed user of the copyright material contained on the sound carrier for personal use only” 

“Under section 9 of the Copyright Act 1978 ("the Act"), the copyright in relation to a sound recording is the exclusive right to do all or authorize any of the following acts, amongst others:·         Broadcasting the sound recording
·         Causing the sound recording to be transmitted in a diffusion service, unless the service transmits a lawful broadcast, including the sound recording, and is operated b the original broadcaster
·         Communicating the sound recording to the public".

Crystal clear?  We hope so!

The Pirate Party has secured 8.5% of the vote in elections for Berlin's state parliament, easily exceeding the 5% threshold needed to gain seats and it is thought to be line to have fifteen new representatives in power. It came fifth of all parties and the Pirates secured around 15% of the vote in the under 30 age group. It’s the most high-profile success for a Pirate Party since 2009, when the Swedish Pirate Party won a seat in the European Parliament following the original trial of the four Pirate Bay founders. Founded in 2006, the Pirate Party originally campaigned on file-sharing and data protection on the Internet, but has since branched out to tackle education and citizen rights. For the Berlin election, the party also called for free public transport and votes for over-14s, while campaigning against secretive privatisation deals.

“At the moment the Pirate Party of Germany does not have any paid employees,” Sebastian Nerz, chairman of the German Pirate Party, told TorrentFreak. “Everyone working for the party – including myself – is working in an honorary capacity" adding “In contrast, Members of Parliament are paid for their work. In addition they receive state money to pay for assistants and co-workers. This will enable those Pirates to work full-time for the party, thus giving us much more work force”. German polling analyst Holger Liljeberg commented that the Pirate Party was “in tune with the Berlin vibe with their relaxed campaign – they focus a lot on liberalism, freedom and self-determination.” He might be right, the UK Pirate Party only managed to attract 1,340 votes across nine seats, or 0.34 percent of the vote, in the last United Kingdom elections two years ago.

The centre-left Social Democrats with 29.5% of the vote and led by popular Berlin Mayor Klaus Wowereit will now form a coalition administration with one of the smaller parties. "Shipmates ahoy" ......... ???

The Guardian Monday 19th September 2011

http://www.guardian.co.uk/world/2011/sep/18/pirate-party-germany-berlin-election

here). A craze is not a craze without an iconic figure becoming somehow involved, and to be sure, we have one now. Elvis Presley is at the centre of yet another fairness compensation lawsuit (thanks to Jeremy for pointing this one out to me).

Elvis Presley Enterprises, LLC v Arista Music

In December 2010, Elvis Presley Enterprises, LLC, filed a lawsuit before the Landgericht München I, which has also dealt with some of the other fairness compensation cases outlined in my abovementioned post. The defendant is Elvis’s German record company, Arista Music (formely RCA Records). Apparently, in 1973 chronically ill-advised Elvis was persuaded by his manager Tom Parker and Arista Music to sign away all German rights in his entire back catalogue (allegedly some 1,000 recordings) for $5.4 million. What is more, his manager received 50% of that sum.

Elvis Presley Enterprises, LLC claims that this consideration is strikingly disproportionate in relation to the profits generated from Elvis’s songs by Arista Music. That is probably true. Indeed, § 32a UrhG was actually introduced with just such a situation in mind: a record company with considerably more bargaining power than the artist persuades him to agree to a buy-out for a comparatively meagre sum, the work brings in huge profits, and the author or performer does not benefit financially from his work’s or performance’s outstanding financial success.

Consequently, the Elvis case appears to be quite straightforward. Upon closer scrutiny, however, there are two problems that make this case a rather tricky one.

Applicable law

First, there is the issue of applicable law. “The law of the country where protection is claimed, silly,” some might be tempted to say. But wait, things are a bit more complicated. § 32a UrhG does not have anything to do with copyright infringement. It does not punish tortuous behaviour but gives a claim for the amendment of a contract. In other words, § 32a UrhG does not give the author or performer a copyright claim, but a contractual claim, albeit one pertaining to copyright law. The territoriality principle does not extend to copyright contract law.

In copyright contract law, the applicable law is determined according to ordinary private international law, i.e. the Rome I Regulation (EC 593/2008, see here http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:177:0006:0016:EN:PDF. There are three possible factual scenarios.

In the first possible scenario, the contract contains a choice of law clause that renders German law applicable. In the second possible scenario, the contract contains a choice of law clause that renders US-American law applicable (or indeed a third country’s law, but that would seem highly unlikely in the present case).

In the third possible scenario, the contract does not contain a choice of law clause. In the absence of a choice of law by the parties, Article 4 Rome I Regulation comes into play. Copyright contracts do not fall within the scope of any of the examples in Article 4 (1). According to Article 4 (2), then, the applicable law is the law of the country where the party required to effect the characteristic performance of the contract has his habitual residence. Alas, there is a dispute, or at least a profound lack of clarity, as concerns copyright contracts. One might think that the characteristic performance is the transfer of rights effected by the author. Yet there are voices that argue that the characteristic performance is effected by the publisher who exploits the works and pays the author. At least in case of a so-called buy-out where the author receives a one-off payment and no further royalties, I would favour the first position. If the court in the Elvis case happens to share my view, US-American law will apply.

The Merits of the Case if US Law is Applicable

Assuming the contract did contain a choice of law clause and German law was chosen, § 32a UrhG applies, of course.

Assuming American law is applicable either by the parties’ choice or due to conflict of law rules, it must be determined whether § 32a UrhG is an overriding mandatory provision for the purposes of Article 9 Rome I Regulation that must be given effect regardless of the applicable law. Fair enough, but how can we tell?

Now, as we all know one should always read the neighbouring provisions of the one you are dealing with. If you do that, you will encounter § 32b UrhG. § 32b UrhG makes the application of § 32a UrhG mandatory even if the applicable law is not German law. § 32b UrhG provides exactly that, namely that §§ 32, 32a UrhG remain unaffected by choosing a foreign law. There is a big BUT, though.

§ 32b UrhG only applies to authors. Whereas § 79 (2) (2) UrhG declares § 32a UrhG and a couple of other provisions to apply, mutatis mutandis, to performers, it does no such thing when it comes to performers. There is no room for an analogous application of the provision either (for an instructive article on § 32b UrhG – in German – see Hilty/Peukert, Das neue deutsche Urhebervertragsrecht im internationalen Kontext, GRUR Int 2002, 643). Since the Elvis case concerns performers’ rights, § 32b UrhG does not apply.

It follows that the case fails if US-American law is applicable.

The Merits of the Case if German Law is Applicable

Let’s assume that German law turns out to be the applicable law and § 32a UrhG can in principle be invoked. Before we can turn to the question whether the consideration received is strikingly disproportionate in the light of the profits generated (my guess would be that it probably is), there is the issue of legal standing (Aktivlegitimation).

The rights conferred by § 32a UrhG cannot be transferred. Upon the author’s or performer’s death, it passes on to the author’s or performer’s heirs. According to the official Elvis Presley website (here ), his heirs were his parents and his daughter Lisa-Marie, and when his parents died they left everything to Lisa-Marie as well. Her inheritance was held in trust until she turned twenty-five; she then formed a new trust, the Elvis Presley Trust. Elvis Presley Enterprises, Inc. is the business entity of the trust and the parent company of the claimant.

Since the author or performer may not transfer their § 32a UrhG right and the heir cannot have better rights than the author or performer, it is impossible for the heir to transfer her § 32a UrhG right, too. Therefore, as I see it Elvis Presley Enterprises, LLC lacks legal standing. That would be more of a technical issue that could easily be rectified if Lisa-Marie Presley were still the sole proprietor, but she sold 85% of Elvis Presley Enterprises, Inc. in 2005. Consequently, I would be frankly astonished if the current claim by Elvis Presley Enterprises, LLC were successful.

Conclusion

Under any scenario, the likelihood of Elvis Presley Enterprises, LLC being successful in their § 32a UrhG claim would seem very small indeed.

Provided that German law is applicable, however, Lisa-Marie Presley stands a good chance of coming into some money if she claims further compensation pursuant to § 32a, 79 (2) (2) UrhG. 

  

Some reading matter

Looking for something to read? Here's a short selection of recent material from some IP journals.

Published in Sweet & Maxwell's Intellectual Property Quarterly (IPQ) is "An EU Copyright Code: What and How, if Ever?" by Trevor Cook (Bird & Bird) and Estelle Derclaye (University of Nottingham). According to the IPQ's summary of this collaboration between practice and academe:

"In 2011 we are celebrating 20 years of EU copyright harmonisation. However, in contrast to most other intellectual property rights, which are now both harmonised and unified, copyright harmonisation is unfinished business ad unification has not yet commenced. The new decade may augur changes in this respect. While the Commission hinted at unification in the field of intellectual property (art.118) and some academics think this is the next step forward (Wittem Code 2010), this article takes stock and weighs the pros and cons of future EU legislative action both as to its form and content".

"Media CAT v Adams: the CAT that did not get the cream", by Gary Moss (McDermott Will & Emery) is available online to subscribers of the Journal of Intellectual Property Law & Practice (JIPLP) and will soon be published in hard copy too.  According to the abstract:

"In February 2011 His Honour Judge Birss, sitting in the Patents County Court (PCC), handed down a judgment in the case of Media CAT Limited v Adams & Others. 

The judgment is illuminating since it casts some light into the murky world of how some individuals and companies have sought to enforce copyright claims against members of the public in circumstances which could, at their most charitable, be described as suspect. It also highlights certain procedural issues which can arise in such cases and which will be of considerable interest to practitioners, not least in relation to the potential abuses which can arise from unfettered use of the Norwich Pharmacal procedure".

Also available online in JIPLP pending its paper publication is "Copy-right-brain v left-brain: the use of musicologists in Canadian copyright infringement cases" by the Canadian-based team of Emir Aly Crowne and Varoujan Arman.  This article deals with expert evidence:

"Musicologists (experts in music) provide crucial evidence to courts in copyright infringement actions, especially in an age of digital samples and ‘mash-ups’. 

Surprisingly, there are only two reported decisions in Canada in which a musicologist or professor of music was qualified as an expert witness. In this article, we examine those cases and consider the practical application and challenges of retaining a musicologist in copyright infringement cases".

Still with JIPLP but this time already published in print is "Approaching or overtaking: transferring copyright in Germany and in the UK" by Dominik Skauradszun (Oppenländer Rechtsanwälte). According to the abstract,

"British and German law provide diametrically opposed answers to the question of the transferability and thus the marketability of copyright property assets. 

Under the current legal situation in Germany, the non-transferability dogma of copyrights is maintained. The law thus continues to follow the monistic theory. However, in recent years it has been observed in German legal literature that this dogma has been eroded. In fact, there are examples showing that the copyright can be legally transferred. 

This development is interesting because German copyright goes one step further than the situation in the UK. Whereas moral rights cannot be transferred under British copyright law, and a waiver is possible at best, in Germany moral rights can factually be transferred under both the law of succession and employment law".

"Can I quote this headline?" is the eye-catching title of a survey of fair use practice in seven jurisdictions which appears in this month's issue of Managing Intellectual Property (MIP). The countries represented are Canada, China, France, Israel, Japan, UK and US.

For a conveniently high-level view of the battle between Mattel and MGA Entertainment for the hearts and minds of American doll purchasers, you can read the unattributed feature, "Barbie and Bratz: the Feud Continues", in the current issue of WIPO Magazine, available online here.

The Authors Guild, who sued Google for scanning in-copyright books back in 2005 (a suit that is still pending), are now suing the libraries that allowed Google to scan their collections. Google has given the libraries copies of their scans and the libraries have since pooled them in the HathiTrust Digital Library. Now the HathiTrust is on the point of permitting unlimited downloads of those works it deems to be ‘orphans’. Press release here for further details.

SRA report is worth setting out in full.

Davenport Lyons: Greed clouds judgement and results in £20K fine

Six thousand letters demanding compensation sent on behalf of clients to alleged unlawful file sharers led to a hefty fine at a recent Solicitors Disciplinary Tribunal (SDT) hearing for solicitors David Gore and Brian Miller from law firm Davenport Lyons.

The SDT found all six allegations proven and fined both men £20,000, awarding interim costs to the SRA of £150,000, with.full costs still subject to a detailed assessment.

The letters the solicitors sent out demanded compensation and costs, and warned that recipients faced further action and increased costs if the matter was not settled as a matter of urgency.

The SRA's investigation revealed that the concerns of those who had received letters and protested their innocence were ignored. The SDT found, in effect, that Mr Miller and Mr Gore became too concerned about making the scheme profitable for themselves and their firm. Their judgement became distorted, and they pursued the scheme regardless of the impact on the people receiving the letters—and even of their own clients.

An SRA spokesperson said: "We welcome the decision of the SDT, which follows a lengthy and complex investigation by members of SRA staff.

"Some of those affected were vulnerable members of the public. There was significant distress. We are pleased that this matter has been brought to a conclusion and hope that it serves as a warning to others.

"Solicitors have a duty to act with integrity, independence and in the best interests of their clients. Solicitors who breach those duties can expect to face action by the SRA."

Guest Contribution - comments on Copyright Term Extension

Martin Kretschmer, Professor of Information Jurisprudence and
Director, Centre for Intellectual Property Policy & Management at Bournemouth University and a friend of this blog has contributed the following thoughts on the copyright term extension. The comments are Martin's alone and do not purport to represent the views of any of the other authors of this blog:

The deed is done. Copyright term extension for sound recordings from 50 to 70 years was adopted yesterday (12 September 2011) by qualified majority in the European Council. The remaining opposition came from Belgium, the Czech Republic, Luxembourg, the Netherlands, Romania, Slovakia, Slovenia and Sweden. Austria and Estonia abstained.

The chorus of approval has been interview with the NY Times yesterday, I said: "This is a dreadful day for musicians and consumers. Policymakers are schizophrenic, speaking a language of change and innovation, but then respond to lobbying by extending the right which gave rise to the problem in the first place. This only entrenches a cynical attitude toward copyright law and brings it into further disrepute."

Sweden and Belgium issued dissents after the vote in the Council. They are worth quoting in full: Interinstitutional File: 2008/0157 (COD)
Declaration by Sweden
Throughout the negotiations, Sweden has had strong reservations regarding the commission’s proposal to extend the term of protection for sound recordings.
As regards copyright regulation in general Sweden has always stressed the importance of taking all relevant aspects and involved interests into account, in order to maintain a fair balance in the copyright system. We believe this to be essential if we are to successfully uphold respect for the copyright system in the future.
Extending the term of protection for sound recordings as proposed is neither fair nor balanced. It therefore risks undermining the respect for copyright in general even further. Such a development is very unfortunate for all those who depend on copyright protection to make a living.
Sweden believes there to be good reasons for measures aiming at improving the situation for those professional musicians and other artists who often operate under economically difficult conditions. Extending the term of protection will however not primarily be of benefit to this group.
Against this background Sweden regrets the decision to adopt the proposal amending Directive 2006/116/EC of the European Parliament and of the Council on the term of protection of copyright and certain related rights.
Belgian declaration
With regard to the proposal for a directive on the term of protection of copyright and certain related rights, Belgium believes that a term extension is not an appropriate measure to improve the situation of the performing artists. Furthermore, we believe that the negative consequences the proposal entails do not outweigh the advantages it brings. We can therefore not support this proposal.
It seems that the measure will mainly benefit record producers and not performing artists, will only have a very limited effect for most of the performing artists, will have a negative impact on the accessibility of cultural material such as those contained in libraries and archives, and will create supplementary financial and administrative burdens to enterprises, broadcasting organisations and consumers. Therefore, the overall package of the proposal appears, as demonstrated by a large amount of academic studies [1], unbalanced.
Finally, one has to observe that several initiatives which have clear links with and impact on the proposal, have recently been adopted or announced by the Commission in its Communication of 24 May 2011 [2]. These initiatives include for example a proposal for a directive on orphan works, a new initiative on collective management, and a new initiative on online distribution of audiovisual works. Taking into account this global approach of copyright issues in the internal market, we think that it would only be reasonable to re-examine the merits of this proposal in the context of this global approach.

[1] See e.g. "The Proposed Directive for a Copyright Term Extension – A backward-looking package" Centre for Intellectual Property Policy & Management (CIPPM, Bournemouth University), the Centre for Intellectual Property & Information Law (CIPIL, Cambridge University), the Institute the Institute for Information Law (IViR, University of Amsterdam), and the Max Planck Competition and Tax Law (Munich); N. HELBERGER, N. DUFFT, S. VAN GOMPEL, B. HUGENHOLTZ, ‘Never forever: why extending the term of protection for sound recordings is a bad idea’, EIPR 2008, 174; S. DUSOLLIER, ‘Les artistes-interprètes pris en otage’, Auteurs & Media 2008, 426.
[2] Communication from the Commission of 24 May 2011, A Single Market for Intellectual Property Rights Boosting creativity and innovation to provide economic growth, high quality jobs and first class products and services in Europe, COM (2011) 287

Sound Recording Term Directive adopted

Ben's post on Friday, the Council of Ministers this morning adopted the new Copyright Term Extension, with an implementation deadline of 2 years.

There is of course no formal text yet, but the language which will form the new Directive can largely be found here As usual, lots of "minor" details are left to Member States to implement and no doubt that is where the lobbying machine will next be turning - for example, for sound recordings where copyright will revive, Member States have to protect the "acquired rights of third parties" who have been exploiting public domain material.

Interestingly, the list of dissenting countries is quite long - Belgium, the Czech Republic, Netherlands, Luxembourg, Romania, Slovakia, Slovenia and Sweden all voting against and Austria and Estonia abstaining - so enthusiasm for this measure is still far from unanimous.