The 1709 Blog: March 2019

Tuesday, 26 March 2019

BREAKING NEWS - EU Parliament approves copyright reform

have been adopted by the European Parliament, with 348 votes in favor and 274 against in the European Parliament, meaning Articles 13 and 11 are one step further on to becoming enshrined in EU law. In the wake of the vote, the chair of ICMP, the global trade body for music publishing, Chris Butler said: “We extend our appreciation to MEPs across party lines and EU Member States for their hard work through this challenging legislative process. We are grateful for important provisions supporting songwriters and composers, recognising that music must be given its rightful value. “We're particularly pleased to secure sector-specific safeguards for music publishers in Articles 4 and 12. These battles were hard-fought, amount to crucial wins for music in Europe and are particularly important for our independent publisher members.” ICMP Director General John Phelan commented: “Four years of titanic tussling later, our work to solve the ‘Value Gap’ now begins a new stage after this vote. Namely, to ensure that those who make the music make a fair return. ICMP will keep working with all European governments to transpose this law appropriately. ‘Safe Harbours’ must not become archipelagos for platforms to devalue music. Today redoubles our determination in that mission.”

Proposals to delete Article 13 were not put to a vote. Pirate Party MEP Julia Reda tweeted that voting on individual amendments were rejected by a majority of just 5 votes, before tweeting "Dark day for internet freedom: The @Europarl_EN has rubber-stamped copyright reform including #Article13 and #Article11. MEPs refused to even consider amendments. The results of the final vote: 348 in favor, 274 against".

The text now needs a formal approval by European ministers but is one major step closer to officially becoming law. It will then have to be transposed into national legislation by EU countries.

Saturday, 23 March 2019

THE COPYKAT

The fallout from the 4th Circuit took a long hard look at how and why Cox would be protected by US "safe harbor" provisions that protect service providers from liability when users infringe copyright. - and here the Court ruled against Cox on a key point. The DMCA provides a degree of protection to ISPs and other platforms that respond expeditiously to takedown requests. But one of the requirements is that the ISP and other intermediaries to have "adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of subscribers … who are repeat infringers." The appeals court said that as it stood, Cox wasn't entitled to rely on safe harbor because it did very little if anything even when told about repeat offenders - an important precedent. Grande had been accused of operating a similarly ineffective system for dealing with infringers and infringement, and the RIAA pursued the ISP arguing that Grande should be liable for its users' infringement. Now a US Court has agreed with that position in a summary judgement that quotes BMG v Cox and affirms that those seeking safe harbour protection in the US must "reasonably implement" a policy for disconnecting repeat infringers or they will lose safe harbour protection in circumstances where the "ISP has not 'reasonably implemented' a repeat infringer policy if the ISP fails to enforce the terms of its policy in any meaningful fashion". The new decision noted the December Magistrate Judge's opinion in this case, which concluded that the "undisputed evidence shows that though Grande may have adopted a policy permitting it to terminate a customer's internet access for repeat infringement, Grande affirmatively decided in 2010 that it would not enforce the policy at all, and that it would not terminate any customer's account regardless of how many notices of infringement that customer accumulated, regardless of the source of the notices, and regardless of the content of a notice". The court agreed, saying Grande's systems were even worse that Cox's: "Grande thus did even less than Cox to 'reasonably implement' the kind of policy required for the protections of ... safe harbour ..... if lax enforcement and frequent circumvention of existent procedures disqualifies a defendant from the safe harbour's protections, the complete nonexistence of such procedures surely must do likewise"

partially sided with real estate giant Zillow in important decision involving the long-running copyright battle with photography company VHT over how property photos can be used online. The 9th U.S. Circuit Court of Appeals ruled that Zillow did not willfully infringe on copyrights for 28,000 real estate photos for its home improvement section, now known as Zillow Porchlight in a turnaround in the case from when Zillow lost a jury trial in 2017 and was ordered to pay $8.3 million in damages to VHT. U.S. District Judge James L. Robart had already reviewed the Seattle jury's decision and had ruled that “the jury had no rational basis on which to conclude” that 22,109 of those photos violated VHT’s copyright and reduced the damages award down to a little over $4 million. However Judge Robart upheld a piece of the original verdict that held Zillow liable for willfully infringing on 2,700 photographs, a key victory for VHT and the basis for keeping the damages at around $4 million: the appeals court also sided with VHT when it maintained the prior ruling that several thousand tagged, searchable photos displayed on Zillow did not constitute a “fair use” but criticised VHT's methods of dealing with the infringements before filing their suit. “We are pleased with the results of this appeal,” Zillow said in a statement. “We take copyright protection and enforcement seriously and will continue to respect copyright permissions across our platforms.” One final consideration is whether the infringing use is as a 'compilation' - so one infringement - or multiple infringements of each image used with the appellate court saying: “If the VHT photo database is a ‘compilation,’ and therefore one ‘work’ for the purposes of the Copyright Act, then VHT would be limited to a single award of statutory damages for Zillow’s use of thousands of photos on Digs. But if the database is not a compilation, then VHT could seek damages for each photo that Zillow used.

Have you seen the than $150 million in damages alleging that the uses lack the necessary synchronisation licences. “Unfortunately, instead of recognizing the integral role of songwriters to its company, Peloton has built its business by using their work without their permission or fair compensation for years,” said David Israelite, president and CEO of the National Music Publishers’ Association adding “It is frankly unimaginable that a company of this size and sophistication would think it could exploit music in this way without the proper licenses for this long, and we look forward to getting music creators what they deserve.”

It seems there is an ever growing list of comedians, artists and other creators who want to take a pop at @FuckJerry and owner Elliot Tebele , the wildly popular Instagram meme account that does seem to be very good at finding material for its users, but doesn't seem to be very good at crediting or compensating people when they use their works. First in line with a complaint about alleged used it to advertise its JAJA tequila brand. (The post no longer appears to be on the FuckJerry Instagram page.) According to Coker’s lawyer, this is the first case of its kind brought against FuckJerry. But it's not as simple as it seems - jokes are a thorny issue when it comes to proving appropriation - especially when the 'idea' of a joke has been borrowed - but expressed in a new way. This one could be interesting! Jerry Media took some flak for its role in promoting the disastrous Fyre Festival and, after controversy over how the @fuckjerry account was crediting third party works, Tebele said that the account would no longer post images if the original creator couldn’t be identified saying: “In the past few years, I have made a concerted, proactive effort to properly credit creators for their work ..... [W]e have also updated our policies to make sure we are responsive to creators whenever they have reached out to us about posts.”

The EU Parliament will vote next Tuesday (March 26th) on whether to endorse an overhaul of the EU’s two-decade old copyright rules as Google and internet activists stepped up their criticism of a requirement to install copyright filters. Websites and businesses across Europe are protesting controversial changes to online copyright being introduced by the European Union. Ahead of a final vote a number of European Wikipedia sites are going dark for a day, blocking all access and directing users to contact their local EU representative to protest the laws. Other major sites, such as Twitch and PornHub, are showing protest banners on their homepages and social media. Meanwhile, any users uploading content to Reddit will be shown a #saveyourinternet message.

Sunday, 17 March 2019

The US ratification of the Marrakesh Treaty: what has changed?

Juliette Guillemot Bell

The 1709 Blog is delighted to host the following contribution by Juliette Guillemot Bell on the recent US ratification of the Marrakesh Treaty.

Here’s what Juliette writes:

“On February 8, 2019, the Marrakesh Treaty Implementation Act (MTIA), signed into law on October 10, 2018, aligned U.S. copyright law with the requirements of the Marrakesh VIP Treaty by (1) broadening the scope of section 121 of the Copyright Act, and (2) creating a new section – 121A – to address the cross-border aspects of the Treaty.

Section 121 - “Limitations on exclusive rights: Reproduction for blind or other people with disabilities”

Prior to the adoption of the MTIA, section 121 allowed “authorized entities” to reproduce and distribute copies or phonorecords of previously published “nondramatic literary works” in “specialized formats” exclusively for use by “blind or other persons with disabilities.” While the MTIA did not modify the preexisting definition of “authorized entity” [a nonprofit organization or a governmental agency whose primary mission is to provide specialized services (such as education or information access) to blind or other persons with disabilities], it expanded the scope of copyrighted works, formats, and beneficiaries under section 121:

Previously, section 121 only covered “nondramatic literary works” and thus excluded, among others, dramatic works (e.g. the published script of a play). The MTIA made section 121 applicable to all literary works, as well as musical works fixed in the form of text or notation. The Marrakesh VIP Treaty contracting parties also clarified in an agreed statement that audiobooks fall within the scope of the Treaty;
Section 121 no longer refers to “specialized formats,” defined by reference to specific technologies (such as braille, audio, or digital text), but to “accessible formats,” which are defined broadly as an “alternative manner or format” giving an “eligible person” access to a copyrighted work “as feasibly and comfortably” as a person without a disability;
Section 121 no longer refers to “blind or other persons with disabilities” but to “eligible persons,” i.e. individuals who are blind, have a visual impairment or perceptual or reading disability, or have a physical disability that prevents them from reading normally (for example, a physical disability preventing a person from holding and manipulating a book).

It is worth noting, as clarified by the MTIA, that section 121 only provides limitations on exclusive rights for activities taking place in the U.S. and that the cross-border aspects of the Marrakesh VIP Treaty are dealt with under section 121A (see below).

It is also worth noting that the U.S. did not confine the application of section 121 to copyrighted works that cannot be "obtained commercially under reasonable terms for beneficiary persons in that market," as allowed by the Treaty [Canada, on the other hand, has opted to use this possibility], and did not make the limitations on exclusive rights under section 121 subject to remuneration (also allowed by the Treaty).

Section 121A - “Limitations on exclusive rights: reproduction for blind or other people with disabilities in Marrakesh Treaty countries”

Section 121A addresses the cross-border aspects of the Marrakesh VIP Treaty by allowing the exportation and importation of copyrighted works in accessible formats between the U.S. and other countries who have signed the Marrakesh VIP Treaty. Authorized entities may export copies of copyrighted works (as defined under section 121) in accessible formats to either (a) another authorized entity in a country that is a party to the Marrakesh VIP Treaty, or (b) an eligible person in such a country, provided that the exporting entities do not know or have reasonable grounds to know that the copies will be used other than by eligible persons. In addition, authorized entities, eligible persons, and agents of eligible persons may import copies of copyrighted works in accessible formats.

Section 121A also provides that authorized entities engaged in such activities must establish and follow their own practices to:

Ensure they serve “eligible persons” (as defined under section 121);
Limit the distribution of accessible format copies to eligible persons and authorized entities;
Discourage the further reproduction and distribution of unauthorized copies;
Maintain due care in, and records of, their handling of copies of copyrighted works, while respecting the privacy of eligible persons; and
Make publicly available the titles of works for which they have accessible format copies (and the formats in which they are available), as well as information on their policies, practices, and authorized entity partners.

The ratification of the Marrakesh VIP Treaty by the U.S. marks an important milestone in addressing the 'global book famine,' referring to the fact that over 90% of all published materials cannot be read by persons with print disabilities. According to WIPO Director General Francis Gurry “The U.S. already houses the world’s largest repository of accessible English-language material, representing a major increase in the global resource base for visually impaired people living in countries that have joined the Marrakesh Treaty.""

Friday, 15 March 2019

Marc Jacobs looks to dismiss Nirvana case

Nirvana T-shirt (EMP)

In December 2018 there were a number if press reports that detailed that legal representatives for the grunge band Nirvana were suing fashion brand Marc Jacobs for copyright infringement, primarily for using an iconic wobbly yellow and black smiley face design. The brand recently released the Bootleg Grunge T-shirt and sweatshirt as a part of its overall ' Redux Grunge' grunge-inspired collection and seemingly acknowledges the 'inspiration' for the T-shirt the tee with reference to a reissued design from 1993 initially created by Perry Ellis. At the time of those reports The t-shirt and sweatshirt are still being sold on Marc Jacob’s website and across retailers.

Now Marc Jacobs is seeking to have the copyright infringement case dismissed; Jacobs questions whether Nirvana LLC even owns the copyright in the happy face illustration that was created by Kurt Cobain. It then argues that - while its happy face t-shirts are clearly influenced by the iconic Nirvana merchandise, the imagery on its garments is sufficiently different to not constitute copyright infringement. Jacob's also notes that its products don't include the text "flower-sniffin, kitty-pettin, baby-kissin corporate rock whores" which was on the back of the band's original shirts. And where the Nirvana t-shirts bore the band's name, Jacobs' say 'Heaven', albeit in a very similar font.

Marc Jacobs T-shirt

"[The original image filed with the US Copyright Office] includes the word 'Nirvana'. The accused products do not. The [registration] includes the 'flower sniffin' writing. The accused products do not. The [registration] includes a smiley face with Xs as eyes. The accused products do not; they use a different letter for each eye, the letters M and J, signifying Marc Jacobs".

So the Marc Jacobs defence appears to be that whilst their T-shirts are 'Nirvana-esque' - they are not copies: Inspiration, not appropriation. The designer’s motion for dismissal acknowledges the designs as “inspired by vintage Nirvana concert T-shirts from the 1990s,” but also contests that he “reinterpreted the design to incorporate [a Marc Jacobs] branding element into an otherwise commonplace image”.

"The only similarity between what is covered by the [registration] and the artwork contained on the accused products ..... is the use of a substantially circular outline for the smiley face and a squiggly line used for a mouth, with a tongue sticking out".

Lawyers for Jacobs also stress that, not only was it Cobain who actually created the original image, but that his widow and daughter approved of the fashion firm's creation. It says: "As friends of the brand, Ms [Courtney] Love and Ms [Frances Bean] Cobain helped celebrate the release of the collection".

https://hypebeast.com/2019/3/nirvana-marc-jacobs-lawsuit-smiley-face

Thursday, 14 March 2019

Authentic or not? That is the question.

Concetto spaziale, Attese, Lucio Fontana 1965

The certificate of authenticity is one of the most important documents for a work of art.

Authentication of contemporary or modern art can also occur indirectly, through the publication in the artist’s catalogue (raisonné or general). Accordingly, many art disputes raise from the refusal of artists’ foundations or archives to include certain works in the artist’s catalogue, implicitly denying their authenticity, and thus decreasing or altogether removing their economic value.

Recently, the Court of Milan decided a case concerning one “cut” made by Lucio Fontana, that his foundation refused to include in the artist’s catalogue. According to the foundation, after realizing the work, the artist would have discarded it, being irremediably damaged by the joining of the frame to the canvas while the color was still fresh. The fact that the work was discard would be further proved by the lack on the work of either the date and the artist’s signature, these being two elements which usually characterize Fontana’s original works.

The Court reversed Lucio Fontana Foundation’s decision and held the work authentic. More specifically, the Court found that no accident occurred, and that the lack of date and signature cannot be considered decisive in determining whether the work was discarded by the artist or not. The Court considered the artwork as an atypical piece in Lucio Fontana’s artistic production, compared to other artistic and similar artworks already included in Lucio Fontana’s catalogue.

The decision is interesting as the Court – though considering the work authentic- rejected the plaintiff’s request to include the work in the artist’s catalogue. The Court implicitly recognized a link between archiving and authentication, stating that the freedom of opinion cannot be compressed and that the Foundation is free in certifying the authenticity of artworks on owners’ request.

The decision of the Court of Milan can still be appealed. Meanwhile, it will be interesting to see how the market will consider the work: as an authentic work or not? The sale price will likely be the main clue.

Wednesday, 13 March 2019

THE COPYKAT

China Press Publication Radio Film and Television Journal has reported that China generated more than 2.35 million new registrations for copyright works in 2018, up 17.48 percent than the previous year. . Among the registrations, artworks accounted for 42.2 percent of the total copyright work registrations, followed by photography and written works, based on data released by the National Copyright Administration. The number of copyright work registrations in Beijing topped the country in 2018, with 919,543 registrations, or 39.1 percent of the total number, followed by Jiangsu and Shanghai, with 302,175 and 261,642 copyright work registrations, respectively. Statistics showed that China received nearly 3.46 million new copyright registrations including works and software in 2018, an increase of 25.8 percent year on year.

ReDigi has confirmed that it plans to take its long running copyright infringement case to the US Supreme Court, but it has asked for a little more time to prepare its formal submission to American’s most senior judges. The ReDigi company operated a marketplace where people could sell their "second-hand" MP3s. No one is the slightest bit interested in reselling MP3s online any more, of course, but they were in 2012 when EMI first sued the company. At the heart of this case is the question of whether or not the so called ‘first sale doctrine’ – the principle under US copyright law that says you can resell a CD without the copyright owner’s permission – should also apply to digital content. The courts sided with the record industry in 2013 and then again on appeal last year with the Second Circuit Court of Appeals holding that the unapproved resale of MP3s online constituted copyright infringement. Meanwhile ReDigi suspended its operations and sought chapter eleven bankruptcy protection.

A children’s book called “Oh, the Places You’ll Boldly Go!” based on the famous Dr. Seuss story “Oh, the Places You’ll Go” isn’t infringing on the famous tale’s copyright, or the rights in Star Trek, a federal court has ruled. Judge Sammartino in California said in a summary judgment that "although Defendants certainly borrowed from Go!, at times liberally, the elements borrowed were always adapted or transformed. The Court therefore concludes, as it did previously that Defendants’ work, while commercial, is highly transformative,”

EU’s somewhat controversial Copyright Directive when it comes up for final its vote in plenary at the end of this month. The plea comes in a letter from 227 organisations representing authors, composers, writers, journalists, performers and others working in all artistic fields, news agencies, book, press and music publishers, audiovisual and independent music producers. A spokesman for the informal alliance, #Yes2copyright, said, “This is a historical opportunity. We need an internet that is fair and sustainable for all. This is why we urge EU policymakers to adopt the directive quickly, as agreed in trilogue negotiations.” The Directive has already been agreed by all three EU political institutions, but must pass a final vote by a full meeting of the European Parliament at the end of this month before member states will have two years to create national legislation to match.

Following on from our last CopyKat, Take-Two Interactive has reached a settlement with a Grand Theft Auto V cheat developer who it sued for copyright infringement last summer. TorrentFreak reports that defendant Erik Cameron has admitted to copyright infringement, breach of the game's End User License Agreement, and profiting off his violations of the law, and will pay Take-Two an undisclosed sum. Cameron will also be permanently prohibited from developing, promoting, or using any software program that alters Take-Two's owned software in any way, creating derivative works, or otherwise encouraging others to follow in his footsteps.

Japan has shelved a bill with stricter copyright controls and increased penalties for infringement, after academics, manga artists and fans all aired concerned over the proposals. With piracy on the increase, the Japanese government had sought to broaden the criminalization of downloads of copyrighted materials from videos and music to cover all types of content. But academics, manga artist groups and others have said the envisioned expansion to also cover materials including manga, computer games and literary pieces could affect freedom of expression by fans and hinder legitimate activities, such as research. “We have yet to eliminate the worries of both copyright holders and (internet) users,” said House of Councilors member Masaaki Akaike, who heads the ruling Liberal Democratic Party culture panel, adding “We should work on it anew.”

Songwriters and music publishers furious with Spotify over US rate appeal

US publishers and songwriters have hit out at an appeal made by the US streaming services, including Amazon and Spotify, who have now formally objected to the new mechanical royalty rate set by the recent Copyright Royalty Board (CRB) ruling, with royalty rates for streaming and other mechanical uses set to rise 44% for the compulsory licences over the next five years. That decision was ratified last month (February 5th), when the CRB published the final rates and terms for songwriters. The top line revenue share figure to be paid by streaming services will rise, over a number of years, from 10.5% to 15.1%.

The streaming companies were given 30 days to lodge official opposition to the ruling if they wished: Apple Music declined, but Spotify and Amazon, have now both filed a notice of appeal. Pandora and Google have also asked the CRB to review its decision. In a statement yesterday the National Music Publishers Association (NMPA) said that a “huge victory for songwriters is now in jeopardy” due to the streaming services’ filings. The NMPA called the appeal a “shameful” move which equates to “suing songwriters”.

Amazon, Spotify and Pandora issued a joint statement saying: "The Copyright Royalty Board, in a split decision, recently issued the US mechanical statutory rates in a manner that raises serious procedural and substantive concerns. If left to stand, the CRB's decision harms both music licensees and copyright owners. Accordingly, we are asking the US Court Of Appeals for the DC Circuit to review the decision".

The CEO of the NMPA, David Israelite, said last month, when the CRB's decision was confirmed, that if any of the tech companies did appeal the CRB ruling it would "in effect declare war against songwriters". He added: "Apple has announced it will not appeal. The others won't say. We will know soon whether some digital companies want to be partners or want to attack the songwriters who make their businesses possible. Stay tuned".

With the appeal process now confirmed, Israelite criticised the tech companies, noting that whilst the whole industry had collaborated to ensure the passing of the Music Modernization Act in the US, but that any hope that this kind of collaboration would become the norm "was snuffed out today when Spotify and Amazon decided to sue songwriters in a shameful attempt to cut their payments by nearly one third".

He added: "The Copyright Royalty Board spent two years reading thousands of pages of briefs and hearing from dozens of witnesses while both sides spent tens of millions of dollars on attorneys arguing over the worth of songs to the giant technology companies who run streaming services. The CRB's final determination gave songwriters only their second meaningful rate increase in 110 years. Instead of accepting the CRB's decision which still values songs less than their fair market value, Spotify and Amazon have declared war on the songwriting community by appealing that decision".

"No amount of insincere and hollow public relations gestures, such as throwing parties or buying billboards of congratulations or naming songwriters 'geniuses' can hide the fact that these big tech bullies do not respect or value the songwriters who make their businesses possible" adding "We thank Apple Music for accepting the CRB decision and continuing its practice of being a friend to songwriters. While Spotify and Amazon surely hope this will play out in a quiet appellate courtroom, every songwriter and every fan of music should stand up and take notice. We will fight with every available resource to protect the CRB's decision".

In a blog post, Spotify again responded saying that it believes “songwriters deserve to be paid more”, but argued that there are “significant flaws” in the CRB’s new rate structure. MBW says that although Spotify’s language on these “flaws” is, in parts, a little vague, but saying “We are supportive of US effective rates rising to 15% between now and 2022 provided they cover the right scope of publishing rights. But the CRB’s 15% rate doesn’t account for all these rights. For example, it doesn’t consider the cost of rights for videos and lyrics.” Israelite rubbished that suggestion too when contacted by MBW. He stated: “Wow. I didn’t think Spotify could sink much lower – but they have. This statement is one giant lie. I’m sure a PR team spent a great deal of time and energy crafting a statement to try to deceive artists and songwriters. They must think artists and songwriters are stupid. They are not.”

Elsewhere, Spotify's spat with Warner/Chappell in India continues, with Spotify insisting it can rely on compulsory licences provided for by Indian copyright law. Earlier this week the International Confederation Of Music Publishers said it supported the Warner publishing company in fighting Spotify's claim that where direct deals are not possible it can utilise a compulsory licence when streaming songs in India.

And whilst we are on Spotify, in Europe the streaming company has announced that it is filing a competition (anti-trust) complaint against Apple with the European Commission, regarding the latter's somewhat controversial 'app tax'. Apple currently charges any third-party app developer a 30% commission on all sales made through the Apple App Store – including music streaming subscriptions. Spotify co-founder and CEO Daniel Ek posted a blog saying: "In recent years, Apple has introduced rules to the App Store that purposely limit choice and stifle innovation at the expense of the user experience – essentially acting as both a player and referee to deliberately disadvantage other app developers. After trying unsuccessfully to resolve the issues directly with Apple, we’re now requesting that the EC take action to ensure fair competition" adding "Apple requires that Spotify and other digital services pay a 30% tax on purchases made through Apple’s payment system, including upgrading from our Free to our Premium service. If we pay this tax, it would force us to artificially inflate the price of our Premium membership well above the price of Apple Music. And to keep our price competitive for our customers, that isn’t something we can do.

Apple have now responded.

https://www.adweek.com/digital/spotify-amazon-google-and-pandora-appeal-44-hike-in-music-streaming-royalties/

https://www.musicbusinessworldwide.com/spotify-accused-of-giant-lie-as-it-defends-attempt-to-block-songwriter-pay-rise-in-the-us/

https://musically.com/2019/03/13/spotify-complaint-european-commission-apple/

https://www.musicbusinessworldwide.com/spotify-backed-by-rival-music-streaming-platforms-in-apple-app-tax-row/

https://www.musicbusinessworldwide.com/apple-blasts-spotify-for-suing-music-creators-as-it-defends-app-tax/

Friday, 8 March 2019

“Not a country for subbers”: the inclusion of subtitles in movies vs the enforcement of authors’ economic and moral rights

Netflix and (copyright) chill? The 1709 Blog is delighted to host the following reflections by friend Federica Pezza (Hogan Lovells) on films, subtitles and ... copyright (what else?).

Here's what Federica writes:

"It’s Friday night, you had a pretty bad day at work and – why not – it is raining outside. Still, while heavily lying on your sofa, you cannot stop smiling. You are watching your favourite TV series on Netflix, while holding a lovely popcorn family bag and sipping your favourite beer.

Life is wonderful, isn’t?

Also our daily copyright story is about Netflix and TV series. However, no Popcorn is involved (this time). So, for a deeper understanding, you’d better throw your family pack away and take some Mexican nachos instead.

Plus, no matter what series you are watching right now, just turn subtitles on.

As you might have guessed, this is a story which starts in Mexico and directly gets to the Academy Awards.

Main character of this fairy tale, indeed, is the director Alfonso Cuaron, who was recently awarded three Oscar for his movie “Roma”, a black-and-white production in Spanish and Mixtec, distributed worldwide thanks to Netflix. Interestingly, in all of his interviews, the director expressly acknowledged the merits of such a singular choice, declaring that the diffusion of his film worldwide would have not been the same without Netflix intervention.

Everything nice and fine so far.

However, you might not know that just one month before the Academy Awards, the same Mexican director had been complaining with the media company due to a very singular – IP-related – issue. Apparently, this related to the inclusion, by Netflix, of Iberian-Spanish subtitles. In Cuaron’s view, such an inclusion would have been “parochial, ignorant and offensive to Spaniards themselves”. This because, in the director’ opinion, the two languages - Mexican Spanish and European Spanish - would not, actually, be so different to require a specific translation. On its side, following Cuaron’ complaints, Netflix decided to drop the “European Spanish” subtitles from “Roma” in Spain, replacing it with an option for European Spanish closed captions.

From our perspective, despite the nice happy ending, the episode is interesting insofar as it gives us the opportunity to analyse, from a copyright standpoint, the current legal status of subtitling and subtitles in the EU.

Article 6 bis of the Berne Convention recognises the moral right of integrity, which consists of the possibility for the author of a work to object to any distortion, modification of or other derogatory action in relation to it, which would be prejudicial to the author’s honour and reputation. Notwithstanding its fundamental role, however, the mentioned right has been implemented differently across the various Berne Union countries.

For example, the definition of integrity is certainly narrower in the United Kingdom, than what is the case elsewhere: under Section 80 (2) CDPA a derogatory "treatment" is indeed required. Also, in the same country, when it comes to translations of literary and dramatic works, these modifications are expressly excluded from the scope of the right. However, according to scholarly literature, "the exclusion of translations from the definition should be confined to true and accurate translations, as it is difficult to see why an author should not be able to object to a translation which murders his work or distorts its meaning" (1987 French case of Zorine (Leonide) v Le Lucernaire L. Bently & B. Sherman "Intellectual Property Law" 4^th Edition, 2014, p. 285).

Differently, in civil law jurisdictions, given the central role played by the author’s personality, there would be better chances of success. In this sense, an interesting example is offered by the (quite dated) claim brought in Italy by fims director Borowczyk against the Cinematic Company for the dubbing of his movie “Docteur Jekyll et les Femmes”. In that circumstance, ruling in favour of the plaintiff, the Court of First Instance of Rome (Trib. of Rome 23 June 1984 in Foro.It 1985) acknowledged the undeniable right of the author under Article 20 of the Italian Copyright Act (integrity right) to oppose the circulation of those versions of the movie he did not directly take care of. Still, as one might argue, one thing is dubbing and another, very different - and way less intrusive ‘treatment’ - is subtitling…

What about economic rights? Apparently, when it comes to the merely-commercial side of things, the law is clearly on the side of copyright owners. Article 8 of the Berne Convention states: “Authors of literary and artistic works protected by this Convention shall enjoy the exclusive right of making and of authorizing the translation of their works through the term of protection of their rights in the original works”. For this very reason, two years ago, in Sweden, Eugen Archy, the founder of Undertexter.se, a fan-made subtitles site, was held liable of copyright infringement by the Amsterdam District Court, given that “that subtitles can only be created and distributed after permission has been obtained from copyright holders”. In the same way, in Italy in September 2018, following proceedings brought by the Italian Federation for the Protection of Audio-visual contents ("FAPAV") , the fan-made site Italiansubs had to interrupt its allegedly “copyright infringing” activity.

Therefore, as long as economic rights are concerned, the current trend in relation to subtitles seems to be pretty much the same across different Member States. Still, in this sense, further questions might arise with regard to the protection of subtitles as derivative works. And in fact, in the EU, differently from the US, infringing works might qualify for protection under copyright law, provided that the originality requirement is satisfied. However, to date, it is yet to be clarified how the notion of originality should be constructed in this context.

In all this, the weekend is on us … The above suggests that while a few countries might not be for subbers (any longer), it is always and everywhere a country for couch potatoes. Happy weekend!"