Some strong words in a letter from Lord Michael Grade on YouTube's position on Article 13 and EU copyright law reform in the Financial Times, with a touch of Brexit to spice it all up. Noting that creativity is something Britain does particularly well at, "and, with the uncertainties of Brexit ahead, is of greater importance as a growing sector of our economy." Lord Grade comments, adding "After years of scrutiny the European Commission, Council and Parliament have concluded YouTube must take some responsibility for the content it publishes. The platform remains in denial, abetted by those who join in its scaremongering" and "The EU is at a crucial stage of considering measures that will end this injustice. The present, and the future is online. Rules need to apply. Netflix pays for its content, why shouldn’t YouTube? If you want to run a TV channel or a music service, then you need to pay for the content you use — content other people have financed. Reform will end this freeloading and level the playing field, which has to be good news for consumers too."
The Australian Government has also rejected loud appeals from the tech community and the tech giants who argue that proposed reforms to copyright law will diminish the internet's primary role as a communications tool and allow corporate interests to 'censor' the internet to the detriment of the common citizen, with TechDirt saying the new system would be 'begging for abuse'. What's all the fus about? Updating its copyright law from one which provides for site-blocking of infringing sites with judicial oversight to one which does website site-blocking of infringing sites, and mirror-blocking without judicial oversight, search results blocking, and expands the definition of the types of sites to be blocked from those with the primary "purpose" of infringement to those with the primary "effect" of infringement: The Australian Parliament passed the new law to beef up web-blocking rules as part of the The Copyright Amendment (Online Infringement) Act 2018 which was passed by the House Of Representatives last month and now by the Senate. The Federal Senate’s Environment and Communications Legislation Committee commented “The Committee is of the view that the amendments proposed by the bill are likely to improve the operation of the injunctive scheme in section 115A [of the Act], and represent a measured and proportionate response to concerns identified by stakeholders in relation to the operation of that scheme” and “In this respect, the committee also notes that the majority of submissions received by the committee supported the bill and recommended that it be passed unamended.” Welcoming the passing of the amendments, Australia's Minister For Communications, Mitch Fifield said "The government has zero tolerance for online piracy. It is theft and damaging to our creative economy and local creators. We are committed to protecting Australia's creative industries and the world-class content we produce every year. The passage of our legislation today sends a strong message to online pirates that Australia does not tolerate online theft".
Banksy may have pulled off the art world's 'stunt' of the decade at Sotheby's in October when one of his paintings, which had just sold for £1.4 million in October, self shredded as soon as the hammer went down, but now his own YouTube post on the prank have also been 'shredded' - this time it seems by French media giant Canal+ who have successfully argued that the footage of the stunt is theirs, and asked YouTube to remove the original, which it did: "Video unavailable This video contains content from Canal Plus, who has blocked it on copyright grounds,” a message now reads instead.
CMU Daily reports that the estate of late Pantera guitarist ‘Dimebag’ Darrell Abbott has fought off a copyright infringement lawsuit over the sale of replicas of his signature guitar, which features a distinctive lightning bolt design (known as the 'Dean From Hell'). The US judge in the case has told designer Buddy ‘Blaze’ Webster, who created the artwork in the 1980s, that the time period for him to bring his case to court had now (long) passed. Webster had said that the delay was due to stalled negotiations with Dean Guitars and that he had waited to file his case out of respect for the musician’s mourning family, as well as personal issues of his own. Whilst the judge said that some of these reasons were “admirable”, they did not warrant allowing the delayed case to proceed.
The British artist Anish Kapoor released a statement declaring “victory over the NRA,” in reference to his months-long battle with the National Rifle Association over the organisation’s unauthorised use of an image of his bean-shaped reflective sculpture Cloud Gate (2006) in Chicago’s Millennium Park. Kapoor’s said the NRA has complied with his demands to remove the image from what he called its “abhorrent video” The Violence of Lies, which attacks the mainstream media with inflammatory rhetoric as images (including one of Cloud Gate) flash across the screen. “Their bullying and intimidation [have] not succeeded,” Kapoor’s statement reads. “This is a victory not just in defence of the copyright of my work, but it is also a declaration that we stand with those who oppose gun violence in America and elsewhere.” More on Art News here.
Core copyright industries have contributed more than $1.3 trillion to US gross domestic product (GDP) in 2017, and accounted for 6.85% of the US economy. They employed nearly 5.7 million workers in 2017, accounting for 3.85% of the entire US workforce, or 4.54% of total private employment in the United States, according to the International Intellectual Property Alliance (IIPA)’s “Copyright Industries in the U.S. Economy: The 2018 Report - which is available but only for subscribers to IP-Watch. More details here.
Internet service provider Cox Communications efforts to move the copyright infringement case it is facing from the American recorded music sector looks like it has failed after the judge in the case published a written statement explaining why he has resisted the shift. The case was filed in the Virginian court that had already heard the partially successful case brought by BMG Rights Management against Cox: BMG argued that Cox should be held liable for the copyright infringement of its customers, because it only paid lip service to its obligations under the Digital Millennium Copyright Act to be able to benefit from safe harbour protection. BMG prevailed at first instance and and whilst that ruling was set aside on appeal many felt the comments of the appellate court were more than useful to rights owners. Cox subsequently settled with BMG. Judge Liam O'Grady has declined to give the case up saying that it makes sense to hear the new action in the court where the BMG dispute was argued out, as many of the issues will be the same saying "Although defendants claim this court's ruling on the DMCA's safe harbour provision will not be relevant to this case, this court's prior ruling will at the very least touch on the issues presented here. The considerable judicial resources this court expended on reaching this ruling on an issue of first impression - a ruling that was upheld by the [appeals court] - cannot be ignored". The 4th Circuit Court of Appeal said that 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" abd Cox wasn't entitled to rely on safe harbor because it did very little if anything even when told about repeat offenders.
Internet services company Cloudflare is also on the receiving end of another lawsuit in the US which could again test the liabilities of the net firm when it provides services to piracy websites - this suit from wedding dress makers Mon Cheri Bridals and Maggie Sottero Designs who are suing the net firm for contributory infringement because it allegedly provides services to websites based out of China that sell copies of the two companies' bridal wear to customers back in the US - and which uses pictures from the plaintiff's own websites to promote the counterfeit copies. The Recording Industry Association of America had previously accused Cloudflare of contributory copyright infringement and in a submission to a US government report on piracy, the RIAA states that: "[Piracy] sites are increasingly turning to Cloudflare, because routing their site through Cloudflare obfuscates the IP address of the actual hosting provider, masking the location of the site".
Universal Music has taken legal action over podcasts published by a global website for poker fans - PokerNews - which they say infringes their copyrights by including tracks controlled by the major label without permission. The major has sued PokerNews owner iBus Media (actually incorporated in the Isle of Man, a self-governing British Crown dependency in the Irish Sea between Great Britain and Ireland) for wilful copyright infringement in the Californian courts. The lawsuit states that: "Among the content made available by iBus Media on PokerNews, and through other forums, are hundreds of podcasts that intentionally incorporate significant portions of plaintiffs' copyrighted musical works". On the Pokernews website it does say “All Content published by PokerNews on the Site (apart from User-submitted Content), including, without limitation, images, photographs, graphics, animations, videos, audio and text . . . are owned by PokerNews and/or its licensors and is protected by copyright and other intellectual property or other proprietary rights.” UMG clearly disagrees!
New Zealand's Minister of Commerce and Consumer Affairs Hon Kris Faafoi, has released an issues paper marking the first stage of public consultation on changes to the Copyright Act 1994, saying all Kiwis should consider taking part. “Copyright affects all New Zealanders. We create copyright works when we take a photograph, record a video, or write an email, and we use copyright works by watching a sports broadcast, streaming a movie, listening to music, or reading a book,” says the minister.
A group of Satanists who sued Netflix and Warner Bros for $50 million (£38 million) in a copyright row over the TV drama series Sabrina have "amicably" settled the lawsuit. The Satanic Temple claimed the entertainment giants copied its depiction of goat-headed deity Baphomet in The Chilling Adventures Of Sabrina. The only publicly released terms was that "The unique elements of the Satanic Temple's Baphomet statue have been acknowledged in the credits of episodes which have already been filmed."
MBW reports that YouTube’s Global Head of Music, Lyor Cohen has called the implications of 'Article 13' into question within a monthly newsletter sent to a large group of industry executives as YouTube and Google continue to fight back against the planned copyright reforms in the EU. Cohen warned of what he sees as dangers surrounding the passage of the new European Copyright Directive – including provision Article 13, which would see platforms like YouTube become legally liable for copyright-infringing content uploaded by its users saying "“we believe that the current proposal will create severe unintended consequences for the whole industry. We still have a couple of weeks to work together towards a better final version of the law concluding that songwriters and recording artists might earn LESS money in the future if the reforms are implemented without change. In reply five major European music-industry trade organisations including the IFPI, the ECSA and IMPALA fired off a strongly worded collective response titled “YouTube’s Fact Free Fear-Mongering" saying "“YouTube’s campaign against Article 13 of the Copyright Directive shows a lack of respect for the EU democratic process of law making ....[T]he revisions to the Directive have been under discussion for over four years already and the three main institutions of the European Union have all given their position. The Commission, Council and Parliament have all reached the same conclusion, that there is a value gap, also referred to as a transfer of value, where user upload services are making vast sums of money on creators’ content uploaded by their users, but not paying the right holders who own that content fairly. The result is a serious distortion in the European digital market place which harms right holders, other digital services and citizens. To correct that situation, platforms like YouTube should have to take responsibility for the content they use and monetize, by fairly remunerating their creators and right holders."
One thing to add would be that even if YouTube were paying over a 'fair share' to the recorded music sector - are they in turn paying over a 'fair' share to the actual creators - the recording artistes? Many would say they receive a pittance and a tiny tiny share of digital revenues and little improvement has been made. Much still to think about! And does 'Big Content' need YouTube more than YouTube needs Big Content? More on this and the EU reforms from a BoingBoing perspective here .
A judge in the U.S. has issued a somewhat scathing opinion in connection with the activities of an alleged 'copyright troll'. In response to an early discovery request by Strike 3 Holdings, Judge Royce C. Lamberth describes the plaintiff as a "cut-and-paste" serial litigant whose lawsuits "smack of extortion". The company runs away at the first sign of a defense, he added, while noting his court is being used "as an ATM". TorrentFreak says that Strike 3 Holdings is one of the most active copyright trolls in the United States, filing more than 1,800 copyright infringement cases in the past 13 months. “Its feigned desire for legal process masks what it really seeks: for the Court to oversee this high-tech shakedown. This Court declines,” the Judge concludes.
AND finally....If you watch YouTube videos without a YouTube Premium subscription, you might have seen a recent pop up advert warning about article 13! And not to be left out of a strong reaction to the planned reforms, and specifically Article 11, Google is threatening to (possibly) shut down Google News once news aggregators were subject to the 'link tax'.
The UK's Intellectual Property Office has said it has plans to simplify the way websites which contain copyright infringing material are blocked - currently the system is based on injunctive relief that must be obtained from a court - giving orders are often easy to circumvent. In a statement the IPO confirmed that the UK government was now considering "the evidence for and potential impact of administrative site blocking - as opposed to requiring a high court injunction in every case - as well as identifying the mechanisms through which administrative site blocking could be introduced". The IPO's announcement also covered their position on devices that came pre-loaded with apps that can be used to easily access infringing streaming and other content - something of real concern to the entertainment and sports sectors. The government's IP Minister, Sam Gyimah, said that recent criminal prosecutions of individuals concerned with the distribution of devices that enable infringement showed the current law to be working, but he said that education of the public and the involvement of Trading Standards officers would be followed up, as would new new anti-piracy measures such as administrative site blocking.
As of the end of October, six of the eleven “Trans Pacific Partnership" member states had ratified the Trans Pacific Partnership 11 Agreement. The agreement will go into effect in two months’ time on December 30 this year. The amendment of Japan's copyright law will be effective on the same day, and the statutory term will be extended to life + 70 years from January 2019, including for those creators whose copyrights would have expired on December 31, 2018. The Diet's Upper House approved the move to match US (and EU) law, and the provision has been retained even though the United States government has withdrawn from the TPP agreement (at least for now). What is interesting is how the "war extension" in copyright law might (or might not) be accommodated.
Lucien Greaves, spokesmen and co-founder of The Satanic Temple ("TST"), has tweeted that the Temple is taking legal action against Netflix in connection with the "Chilling Adventures of Sabrina". TST has decided to take this route because of what Greaves claims is copyright infringement. He claims the statue of Baphomet in the hall of the school depicted in the show is a copy of TST’s deity.
From Hell to Heaven? Led Zeppelin have asked the Ninth Circuit appeals court to reconsider its recent ruling in the "Stairway To Heaven" copyright lawsuit 'en banc' to determine the law in the case that involves allegations that the 1971 classic is rip-off of the 1968 instrumental song "Taurus" recorded by Spirit and written by Randy "California" Wolfe's whose estate brought the claim. The group's representatives argue that by overturning the original judgement, the appeals court could "cause jurors to find infringement just because the same unprotected elements are present, upsetting the 'delicate balance'" between copyright protection and the freedom of music creators to employ common techniques and musical elements when composing music" and "if uncorrected," the Ninth Circuit's recent conclusion will "allow a jury to find infringement based on very different uses of public domain material" which, it then argues, "will cause widespread confusion in copyright cases in this circuit." You can compare the two recordings here and a very interesting analysis by TJR here. 'Top 10 Sound Alike Songs' here.
Seven sports photographers have been given another chance to pursue copyright allegations against the National Football League (NFL) in the U.S. The World Intellectual Property Review reports that the NFL had asked that the US Court of Appeals for the Second Circuit hold an en banc rehearing of the matter, which was decided against the NFL last month - this has been denied. The 2013 complain relates to claims by the photographers against against the NFL, all 32 NFL teams, the Associated Press (AP), and image companies Replay Photos and Getty Images that the defendants exceeded the terms of original licence agreements that granted limited use of certain images. The case was filed in the US District Court for the Southern District of New York (image: C Watts). And finally, Lyor Cohen is the latest YouTube executive to take aim at the planned reforms to EU Copyright Law, and in particular Article 13. An ex-record label man himself, Cohen is now YouTube’s global head of music and he posted a warning about the new Copyright Directive saying “Let me be clear: we understand and support the intent of Article 13. We need effective ways for copyright holders to protect their content” adding “But we believe that the current proposal will create severe unintended consequences for the whole industry. We still have a couple of weeks to work together towards a better final version of the law. The music industry should really pay attention to these unintended consequences - the system that largely contributes to their success is at risk of major change in the European Union”, opining that "Remixes and covers, tutorials, fan tributes, parodies" were all at risk, and that "these are such powerful promotional tools for the industry". More on the Verge here.
Professor Uma Suthersanen (Queen Mary University of London) is giving a lecture at the City Law School on the 27th November, exploring the EU's design right jurisprudence
"The EU design regime adopted a new “market-based approach”, which protects both functional and aesthetic designs. Nevertheless, it is recognised that certain types of functional designs can give rise to unduly restrictive effects on legitimate competition, within certain product sectors. Accordingly, Art.8(1) Community Design Regulation expressly excludes "features of appearance of a product which are solely dictated by its technical function”; the paramount rationale being the protection of competitive innovation. The past decade has spawned three separate interpretations of the functionality exclusion, the most paradoxical being the linkage drawn between aesthetic considerations and functional presence. A further layer of analysis derives from the functionality exclusion within the Community Trademark Regulation. A final challenge to juridical coherence is the EU Court’s earlier Flos decision widening national copyright law to embrace all sorts of designs, and presumably functional designs. It is submitted that the CJEU's decision in Doceram (2018) is perhaps the right approach - whereby it rejects all three previous interpretations, but weaves one which marries them all. The approach is also logical if one accepts that the functionality exclusions within design, trade mark and copyright laws must be interpreted in pari materia within an increasingly-aligned EU IP law" This is free, but you need tor register and you can SIGN UP HERE
27th November 2018 at 15.00 R203 City, University of London Northampton Square London
As the CopyKat reported earlier this week, the technology sectors are continuing their assault on planned reforms to EU Copyright law, and now the Electronic Frontiers Foundation has joined the likes of Google, YouTube and Facebook in criticising the planned copyright law reforms. In a letter the EFF say has been sent to everyone involved in the upcoming "Trilogues", the meetings held between representatives from European national governments, the European Commission, and the European Parliament, Cory Doctorow argues that the reforms contained in Articles 11 and 13 of the Copyright Directive are "ill considered and have no place in the Directive", concluding that instead of effecting some "piecemeal fixes to the most glaring problems", the Trilogue takes a simpler approach, and removes them from the Directive altogether.
Having previously opined that the vote in the European Parliament that passed the draft Directive "brought the EU much closer to a system of universal mass censorship and surveillance, in the name of defending copyright" and that Articles 13 and 11 would create "upload filters" and the “link tax”, the EFF's views are perhaps unsurprising - you can make of the points raised as you will, as the letter is set out in full is below: The Electronic Frontier Foundation is the leading nonprofit organization defending civil liberties in the digital world. Founded in 1990, EFF champions user privacy, free expression, and innovation through impact litigation, policy analysis, grassroots activism, and technology development. We work to ensure that rights and freedoms are enhanced and protected as our use of technology grows. We are supported by over 37,000 donating members around the world, including around three thousand within the European Union. We believe that Articles 11 and 13 are ill-considered and should not be EU law, but even stipulating that systems like the ones contemplated by Articles 11 and 13 are desirable, the proposed text of the articles in both the Parliament and Council texts contain significant deficiencies that will subvert their stated purpose while endangering the fundamental human rights of Europeans to free expression, due process, and privacy. It is our hope that the detailed enumeration of these flaws, below, will cause you to reconsider Articles 11 and 13's inclusion in the Directive altogether, but even in the unfortunate event that Articles 11 and 13 appear in the final language that is presented to the Plenary, we hope that you will take steps to mitigate these risks, which will substantially affect the transposition of the Directive in member states, and its resilience to challenges in the European courts . Article 13: False copyright claims proliferate in the absence of clear evidentiary standards or consequences for inaccurate claims. Based on EFF’s decades-long experience with notice-and-takedown regimes in the United States, and private copyright filters such as YouTube's ContentID, we know that the low evidentiary standards required for copyright complaints, coupled with the lack of consequences for false copyright claims, are a form of moral hazard that results in illegitimate acts of censorship from both knowing and inadvertent false copyright claims. For example, rightsholders with access to YouTube's ContentID system systematically overclaim copyrights that they do not own. For instance, the workflow of news broadcasters will often include the automatic upload of each night's newscast to copyright filters without any human oversight, despite the fact that newscasts often include audiovisual materials whose copyrights do not belong to the broadcaster – public domain footage, material used under a limitation or exception to copyright, or material that is licensed from third parties. This carelessness has predictable consequences: others — including bona fide rightsholders — who are entitled to upload the materials claimed by the newscasters are blocked by YouTube and have a copyright strike recorded against them by the system, and can face removal of all of their materials. To pick one example, NASA's own Mars lander footage was broadcast by newscasters who carelessly claimed copyright on the video by dint of having included NASA's livestream in their newscasts which were then added to the ContentID database of copyrighted works. When NASA itself subsequently tried to upload its footage, YouTube blocked the upload and recorded a strike against NASA. In other instances, rightsholders neglect the limitations and exceptions to copyright when seeking to remove content. For example, Universal Music Group insisted on removing a video uploaded by one of our clients, Stephanie Lenz, which featured incidental audio of a Prince song in the background. Even during the YouTube appeals process, UMG refused to acknowledge that Ms. Lenz’s incidental inclusion of the music was fair use – though this analysis was eventually confirmed by a US federal judge. Lenz's case took more than ten years to adjudicate, largely due to Universal's intransigence, and elements of the case still linger in the courts. Finally, the low evidentiary standards for takedown and the lack of penalties for abuse have given rise to utterly predictable abuses. False copyright claims have been used to suppress whistleblower memos detailing flaws in election security, evidence of police brutality, and disputes over scientific publication. Article 13 contemplates that platforms will create systems to allow for thousands of copyright claims at once, by all comers, without penalty for errors or false claims. This is a recipe for mischief and must be addressed.
Article 13 Recommendations To limit abuse, Article 13 must, at a minimum, require strong proof of identity from those who seek to add works to an online service provider's database of claimed copyrighted works and make ongoing access to Article 13's liability regime contingent on maintaining a clean record regarding false copyright claims. Rightsholders who wish to make copyright claims to online service providers should have to meet a high identification bar that establishes who they are and where they or their agent for service can be reached. This information should be available to people whose works are removed so that they can seek legal redress if they believe they have been wronged. In the event that rightsholders repeatedly make false copyright claims, online service providers should be permitted to strike them off of their list of trusted claimants, such that these rightsholders must fall back to seeking court orders – with their higher evidentiary standard – to effect removal of materials. This would require that online service providers be immunised from Article 13's liability regime for claims from struck off claimants. A rightsholder who abuses the system should not expect to be able to invoke it later to have their rights policed. This striking-off should pierce the veil of third parties deputised to effect takedowns on behalf of rightsholders ("rights enforcement companies"), with both the third party and the rightsholder on whose behalf they act being excluded from Article 13's privileges in the event that they are found to repeatedly abuse the system. Otherwise, bad actors ("copyright trolls") could hop from one rights enforcement company to another, using them as shields for repeated acts of bad-faith censorship. Online service providers should be able to pre-emptively strike off a rightsholder who has been found to be abusive of Article 13 by another provider. Statistics about Article 13 takedowns should be a matter of public record: who claimed which copyrights, who was found to have falsely claimed copyright, and how many times each copyright claim was used to remove a work. Article 11: Links are not defined with sufficient granularity, and should contain harmonised limitations and exceptions. The existing Article 11 language does not define when quotation amounts to a use that must be licensed, though proponents have argued that quoting more than a single word requires a license. The final text must resolve that ambiguity by carving out a clear safe-harbor for users, and ensure that there’s a consistent set of Europe-wide exceptions and limitations to news media’s new pseudo-copyright that ensure they don’t overreach with their power. Additionally, the text should safeguard against dominant players (Google, Facebook, the news giants) creating licensing agreements that exclude everyone else. News sites should be permitted to opt out of requiring a license for inbound links (so that other services could confidently link to them without fear of being sued), but these opt-outs must be all-or-nothing, applying to all services, so that the law doesn’t add to Google or Facebook's market power by allowing them to negotiate an exclusive exemption from the link tax, while smaller competitors are saddled with license fees. As part of the current negotiations, the text must be clarified to establish a clear definition of "noncommercial, personal linking," clarifying whether making links in a personal capacity from a for-profit blogging or social media platform requires a license, and establishing that (for example) a personal blog with ads or affiliate links to recoup hosting costs is "noncommercial." In closing, we would like to reiterate that the flaws enumerated above are merely those elements of Articles 11 and 13 that are incoherent or not fit for purpose. At root, however, Articles 11 and 13 are bad ideas that have no place in the Directive. Instead of effecting some piecemeal fixes to the most glaring problems in these Articles, the Trilogue take a simpler approach, and cut them from the Directive altogether. Thank you, Cory Doctorow Special Consultant to the Electronic Frontier Foundation https://www.eff.org/deeplinks/2018/10/whats-next-europes-internet-censorship-plan-0 Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single MarketCOM(2016)593 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52016PC0593