THE COPYKAT

Copyright - Where are we now? What is on the Horizon?

At the start of this year this CopyKat looks to bring together various pieces of news that demonstrate; the current challenges facing copyright, a look to how those challenges are being addressed and finally new challenges that could be on the horizon. Here goes!

Musician’s White Noise YouTube Video Hit With Copyright Complaints

When people upload original content to YouTube, there should be no problem with getting paid for that content, should it attract enough interest from the public.

Those who upload infringing content get a much less easy ride, with their uploads getting flagged for abuse, potentially putting their accounts at risk.

That’s what’s happened to Australia-based music technologist Sebastian Tomczak, who uploaded a completely non-infringing work to YouTube and now faces five separate copyright complaints.

Has Copyright Become a New Weapon Against Online Media?

Following on from the above, we can see further evidence here of how the video reporting tools within YouTube are being abused.

YouTube’s copyright rules are being abused by the Azerbaijan government in an attempt to censor content from the global video-sharing site according to one of the country’s few independent news services.

The Meydan TV network says four of its video reports, which highlighted allegations of official corruption, were removed on the grounds that they infringed YouTube’s copyright rules. And under the Google-owned giant’s terms, this brought the channel close to being taken off the site altogether.

YouTube is one of the few remaining mediums Meydan TV has for reaching audiences in Azerbaijan. The government blocked its website last year, and it has also jailed the network’s journalists.

Though both the RFE and Meydan TV videos have been restored, Milli is concerned that the threat to his network’s content remains. At the moment, he says YouTube is “failing badly” in policing its own rules.

IPO explains impact of EU portability regulation on copyright holders

The UK's Intellectual Property Office (IPO) has outlined the impact new EU rules affecting online content services could have on copyright holders in a new consultation paper published ahead of the new rules taking effect.

The IPO's explained (24-page / 4.72MB PDF) that rights holders will lose an element of control over how their material is accessed once they have entered licensing agreements with providers of online content services with paid subscribers.

Under the new rules, which come into force on 1 April this year, online content service providers must ensure that they make their service available to paid subscribers "in the same manner as in the member state of residence" when those subscribers are "present in a member state other than the member state of residence for a limited period of time".

U.S. Copyright Office requires electronic registration

By taking necessary steps, online service providers (OSP) can avoid legal litigation. The U.S. Copyright Office has instituted a new electronic registration system, where online service providers can protect themselves from copyright infringement lawsuits.

Companies that have an online presence can unknowingly be liable for intellectual properties, such as poetry, novels, songs and movies, that are posted on their websites by users or any third party. The Digital Millennium Copyright Act (DMCA) offers a “safe harbor” protection.

“The Digital Millennium Copyright Act provides OSPs an opportunity to remain innocent middlemen in a dispute between copyright holders and any user who posts infringing content, provided the OSP meets certain criteria,” said John Saint Amour, a supervisor at the U.S. Copyright Office.

Starting on January 1st, all OSPs are responsible for users’ posts, whether they post original content or copyright infringing content on their website, unless they electronically register with the U.S. Copyright Office.

No Level of Copyright Enforcement Will Ever Be Enough For Big Media

When swapping files over the Internet first began downloading of material wasn’t a particularly widespread activity. A reasonable amount of content was available, but it was relatively inaccessible. Then peer-to-peer came along and it sparked a revolution.

From the beginning, copyright holders felt that the law would answer their problems, whether that was by suing Napster, Kazaa, or even end users. Some industry players genuinely believed this strategy was just a few steps away from achieving its goals. Just a little bit more pressure and all would be under control.

Then, when the landmark MGM Studios v. Grokster decision was handed down in the studios’ favor during 2005, the excitement online was palpable. As copyright holders rejoiced in this body blow for the pirating masses, file-sharing communities literally shook under the weight of the ruling. For a day, maybe two: On an almost continual basis rightsholders are calling for tougher anti-piracy measures on top of more restrictive and punitive copyright law. It's undoubtedly a threat to current Internet freedoms as we know them. But really, is anyone truly surprised that entertainment companies still hate their content being shared for free? TorrentFreak has some strong opinions on this!

Copyrights from the 1920s will start expiring next year if Congress doesn’t act.

Admittedly this article does seem to directly contradict the above. However it demonstrates the entirely divided approach that seems to be prevalent when considering the future of copyright and how we manage our creative material.

On January 1, 2019,  books, films, and songs published in 1923 will fall out of copyright protection - something that hasn't happened in 40 years. At least, that's what will happen if Congress doesn't retrospectively change copyright law to prevent it - as Congress has done two previous times.

Until the 1970s, copyright terms only lasted for 56 years. But Congress retroactively extended the term of older works to 75 years in 1976. Then on October 27, 1998—just weeks before works from 1923 were scheduled to fall into the public domain—President Bill Clinton signed legislation retroactively extending the term of older works to 95 years, locking up works published in 1923 or later for another 20 years.

Will Congress do the same thing again this year? To our surprise, there seemed to be universal agreement that another copyright extension was unlikely to be on the agenda this year.

How AI and copyright would work

Though this has been an identified issue in the past, recent developments in this field are leading people to think again regarding our approach to copyright and AI.

Self-aware robots, androids or call-them-what-you-will have been part of science fiction almost from its beginnings. Recently in science reality, there’s been early, speculative discussion about “creative” works generated by these types of machines, and how copyright would apply.

It’s easy — and tempting! — to get wrapped around the axle when it comes to the prospects for artificial intelligence (AI) programs and their creation of original works. When works created by self-running software applications become more common, the result is both more possibilities and more challenges to existing copyright law. But let’s take a step back and consider what we know already, and then move on to what may soon be coming.

Kodak uses blockchain for photo copyright protection

Finally, where would any 2018 online blog post be without mentioning Blockchain at least once!

Former photo pioneer Kodak is turning to blockchain technology as part of an initiative to help photographers control their image rights.

The firm said the launch of ‘KODAKCoin’, in collaboration UK tech firm WENN Digital would help photographers receive payment for licensing their work immediately in cryptocurrency form.

KODAKCoin will use blockchain technology that settles transactions using computer algorithms, used by bitcoin and other virtual currencies.

Jan Denecke. WENN Digital chief executive , said: “It is critical photographers know their work and their income is handled securely and with trust, which is exactly what we did with KODAKCoin.

CopyKat Fights

To round this CopyKat off, below are three copyright disputes that have made recent headlines. Maybe not the most auspicious start to the year for these individuals….

Lana Del Rey sued by Radiohead over plagiarism claims - Lana Del Rey has confirmed that she is being sued by Radiohead over similarities between the final track on her current album ‘Lust For Life’ – which is called ‘Get Free’ – and the band’s 1992 hit ‘Creep’. There has been a recent update on this story which you can see here - is there actually a lawsuit?

BBC insists "no breach of copyright" over use of Brigadier's grandfather in Doctor Who special - Andy Frankham-Allen, creative director of Brigadier Lethbridge-Stewart creator Mervyn Haisman's estate, has now downplayed any row with the BBC,  and also explained how the Brigadier's daughter Kate Stewart (Jemma Redgrave) was approved for Doctor Who - and the Radio Times reports that any dispute over his grandson (Captain Archibald Hamish Lethbridge-Stewart, played by Mark Gatiss) who was in the recent Doctor Who Christmas special Twice Upon a Time had been settled with a "amicable, and non-financial, solution to the issue".

Ed Sheeran-Penned Song for Tim McGraw Is Target of Copyright Lawsuit - Two  Australians are asserting that Ed's "The Rest of Our Life" is the result of blatant copying and say it's hardly a coincidence that the musician who performed their own work is in a relationship with a Sony executive tasked with marketing the defendants' song. Gosh!!!!

This CopyKat by Matthew Lingard

Ps: As my time as an intern at 1709 comes to an end, I would like to thank the entire 1709 team for their insight and for giving me this opportunity. I would further like to wish the entire team and all of our readers a happy and prosperous 2018.

The CopyKat

Video-sharing website Vimeo LLC cannot be held liable for copyright infringement for unknowingly hosting older music uploaded by its users, a U.S. appeals court ruled, dealing a blow to record labels seeking broader protections. In a victory for internet service providers, the 2nd U.S. Circuit Court of Appeals in New York also held that the mere fact that Vimeo employees had viewed videos with copyrighted sound recordings was not enough to prove the company ignored red flags of infringement. The case, pursued by Capitol Records and Sony Corp units, was closely watched in Silicon Valley, with Vimeo's appeal drawing support from Facebook Inc, Twitter Inc, Alphabet Inc's Google, and other companies.

A new letter, signed by a host of recording stars including Lady Gaga, Sir Paul McCartney, Ryan Adams, Cher, Sir Elton John, Fall Out Boy, Yoko Ono Lennon, Bette Midler, Queens Of the Stone Age, Pink, Maroon 5, Mark Ronson, Elton John, Bon Jovi, Rod Stewart, Lionel Richie, Aerosmith's Steve Tyler (pictured) Pusha-T, Sade, Gwen Stefani, Sting and Beck has been sent to Congress asking lawmakers to "please protect" future artists and songwriters by enacting "sensible reform" of DMCA - adding that the current version of the YouTube-shielding ' safe harbor' law "simply doesn't work" and has allowed tech companies to generate “huge profits” while the earnings of artists and songwriters “has plummeted”

Pirate Bay co-founder Peter Sunde has been ordered by the Helsinki District Court to pay E350,000 ($395,000) to record labels including Sony, Universal, Warner and EMI, after their content was shared illegally via the platform and costs of around $62,000 (55,000 euros) - the payment has to me mad to the local branch of IFPI. Sunde also faces a fine of one million euros if the content continues to be shared via The Pirate Bay but - as he says he is now unconnected to the site - how he is supposed to do anything about that isn’t clear.

A building design firm is suing Lion Enterprises, Inc., Bastian Homes Ltd. and Eugene J. Bastian, citing alleged copyright infringement. Design Basics LLC filed a complaint on in the U.S. District Court for the Middle District of Pennsylvania against the defendants, alleging that they violated Copyright Act and the Architectural Works Copyright Protection Act by publishing, distributing, marketing, and advertising certain architectural designs for residential homes similar to the plaintiff's Plan No. 2316 – Franklin – and Plan No. 6715 – Sycamore. The defendants allegedly violated and continue to violate the plaintiff's exclusive rights in each of the copyrighted works. Design Basics is asking for a jury trial and and injunction prohibiting the defendants from further infringing on its copyrighted works, an order directing the U.S. Marshals Service to impound all copies of the copyrighted works in possession of defendants, and an award for all damages, costs and reasonable attorney’s fees and for such other relief as it may show itself to be entitled.  U.S. District Court for the Middle District of Pennsylvania Case number 1:16-cv-00922]

TechDirt reports on two more decisions from the US Courts that confirm "legal threats against alleged infringers, based on nothing more than IP addresses" will not succeed in the courts.  In the first case, New Jersey Judge Kevin McNulty disagreed with Malibu Media's request for default judgment, pointing out that the limited info it was working with could not rule out a successful defense being raised by the accused infringer. In the second case brought against defendant Thomas Gonzales, Oregon Magistrate Judge Stacie Beckerman said The only facts Plaintiff pleads in support of its allegation that Gonzales is the infringer  is that he is the subscriber of the IP address used to download or distribute the movie, and that he was sent notices of infringing activity to which he did not respond. That is not enough. Plaintiff has not alleged any specific facts tying Gonzales to the infringing conduct. While it is possible that the subscriber is also the person who downloaded the movie, it is also possible that a family member, a resident of the household, or an unknown person engaged in the infringing conduct."

And finally, the Walt Disney Company is taken legal action against three Chinese companies over the animated film “The Autobots” which Disney claims infringes the Disney copyright in the hit animated movie “Cars”. According to Reuters, the three defendants are the production firm Blue MTV, media firm Beijing G-Point and online content platform PPLive Inc. A notice on the Shanghai Pudong New Area People’s Court website states that Disney are suing for copyright infringement and unfair competition.

The CopyKat - Is Disney skating on thin Ice?

Back in  August last year the CopyKat noted that Disney could be heading to trial over copyright infringement claims involving it's blockbuster animated hit and $1.22 billion grossing "Frozen".  Now that seems to have come about. Back in August, Kelly Wilson, who created a short 2D computer-animated film called "The Snowman", survived the first round in a copyright lawsuit against the company, after a judge noted some key differences between the two films - such as "Frozen" being lighthearted and The "Snowman" not, but also found some similarities. Now Judge Vincent Chhabria has stated that he has a “fairly strong inclination” that a jury should decide whether the Disney official with creative responsibility for the trailer also had access to Wilson’s computer-animated film. Chhabria stated that he will issue an opinion on the two party’s summary judgment motions, but indicated the matter was headed for a jury trial.  Wilson claims that the marketing trailer for “Frozen” directly infringed on her copyrighted film. Wilson’s complaint states that she created "The Snowman" between 2008 and 2010 and that the short was screened at eight film festivals. One of those screenings was at the San Francisco International Film Festival in 2011, where she shared the stage with an employee of Disney’s Pixar Animation Studios, which was also screening a film in the same session. Wilson’s "Snowman" is the story of a snowman who has to race to save his carrot nose from a group of ravenously hungry rabbits after it falls off and slides to the middle of a frozen pond. Wilson claims the 2013 "Frozen" trailer featuring Olaf dashing to save his carrot nose in a race to the middle of a frozen pond with a reindeer is substantially similar to her film. “The storyboards tell an interesting story,” Judge Chhabria said: “I think it’s a story to be told to the jury.”  More here.

The U.S. Court of Appeals for the Ninth Circuit has revisited the issue of a copyright co-owner’s right to grant an exclusive right to a third party, clarified its prior ruling in Sybersound v. UAV, and explained that a copyright co-owner may unilaterally transfer any exclusive copyright interest he or she possesses.  The decision in in the 'Jersey Boys' case which has been covered by this blog here and here: Corbello v. DeVito, Case No. 12-16733 (9th Cir., Feb. 10, 2015) (O’Scannlain, J.) (Sack, J., sitting by designation, concurring in part). The interesing resource for U.S. clopyright decisions, JDSupra,  has the full picture.

UK copyright laws do not provide online content providers with freedom to retransmit TV programmes shown by UK public service broadcasters (PSBs) to fixed-line internet users who could otherwise watch the programmes on TV, the UK government has said. The Department for Culture, Media and Sport (DCMS) said that it is its view that rules contained under s73 of the Copyright, Designs and Patents Act 1988 (CDPA) do not "apply to content transmitted over the internet". The provisions were drawn up to "support the development of analogue cable infrastructure in the 1980s and 1990s" and are now "out-dated", it said. DCMS said that it intends to repeal s73 "at the earliest opportunity" but has opened a consultation on what the "potential implications" of that move would be as part of wider plans to remove existing regulations relating to public service broadcasting. From the ever excellent Out-law.com. The Court of Appeal has of course referred further questions to the Court of Justice of the European Union (“CJEU”) in ITV Broadcasting v TVCatchup (C-607/11) - the second time that the case has been before the CJEU. The Court of Appeal has sought clarification on whether s73 CDPA (the defence for regionalised retransmission of broadcasts by cable) is compatible with Article 9 of the InfoSoc Directive (2001/29/EC) and that it covers streaming of public service broadcasts via the Internet. If you can stomach any thing more on the CJEU on communicating with the 'new public', there's more from Professor Jan Rosen over on the IPKat http://ipkitten.blogspot.co.uk/2015/04/the-cjeu-new-public-criterion-national.html

The latest efforts by the American record industry to force terrestrial radio stations to pay royalties to labels have moved forwards with new proposed legislation in the Congress:  The Fair Play, Fair Pay Act  is backed by four members of the House Of Representatives: Democrats Jerrold Nadler, John Conyers Jr and Ted Deutch and Republican Marsha Blackburn. While AM/FM radio stations do not pay royalties to labels, online and satellite radio stations do, because the Digital Millennium Copyright Act applied a 'digital performing right' to the sound recording copyright. The New Act would  provide for a general public performance right for all sound recordings that are still within copyright in the USA, including per-1972 recordings which a number of digital operators (including SiriusXM) have argued are outside of federal law. More here.

And following on from that, the U.S. Second Cuircuit Court of Appeals will consider whether the owners of pre-1972 sound recordings have performance rights to their songs in an appeal brought by SiriusXM is seeking to appeal the ruling of New York federal judge Colleen McMahon's that denied its summary judgment motion in a lawsuit brought by Flo & Eddie of The Turtles. In her opinion, the judge addressed whether New York law protected public performance and wrote that "acquiescence by participants in the recording industry in a status quo where recording artists and producers were not paid royalties while songwriters were does not show that they lacked an enforceable right under the common law — only that they failed to act on it."  SiriusXM is presenting two questions to the 2nd Circuit. First, “Under New York law, do the holders of common law copyrights in pre-1972 sound recordings have, as part of the bundle of rights attendant to their copyright, the right to exclusive public performance?” And Second, “Does the Dormant Commerce Clause prohibit the State of New York from enforcing a property right that it recognizes at common law?” More on the Turtle's actions here.

HBO has blamed Periscope for facilitating mass copyright infringement after four episodes of the new series of Game of Thrones were leaked and widely shared using the service. According to The Hollywood Reporter, HBO has sent takedown notices to Periscope and it's also taken a dig at Periscope for what it implies is a hands-off attitude toward piracy. "In general, we feel developers should have tools which proactively prevent mass copyright infringement from occurring on their apps and not be solely reliant upon notifications". Periscope is owned by Twitter and the app  lets users broadcast whatever's around them. Game of Thrones was the most-pirated TV show globally during the last three years.

As the Australian courts ordered Australian internet service providers to reveal the identities of 4,726 internet users who had illegally downloaded ‘Dallas Buyers Club’, there was a massive rise in Google searches for ‘VPN’ : By using VPN services or BitTorrent proxies, user's sharing activities can no longer be linked to their ISP account.

The Fincial Post tells us that the Ontario Court of Appeal has certified a class action allowing the province’s 350 land surveyors to sue the managing corporation of Ontario’s electronic land registry system for copyright infringement. At the heart of the case is the surveyors’ claims that they retain copyright in the surveys they prepare and register. Teranet, who has managed the electronic land registry for the provincial government for 25 years, scans the surveys into digital format and adds the electronic information to its database. Teranet also provides electronic copies of the surveys to system users for a regulated fee but pays nothing to the surveyors. The surveyors claim this infringes their copyright.

And finally from the China IP Newsletter from the IPO, UKTI and British Embassy in Beijing, news that the Chinese State Administration of Press & Publications, Radio, Film & Television (SAPPRFT) has announced new regulatory measures - effective from April 1 - limiting foreign TV shows to a maximum of 30% of content on major streaming platforms. The content of foreign shows will also be subject to stricter supervision and must be pre-approved by SAPPRFT. Pre-launch censorship checks cause distribution in China to lag behind international release dates and have been blamed for increases in online piracy in the country. More here in Chinese.


CONGRATULATIONS to Keswick Football Club for their victory in the Westmorland Senior Cup on the 18th April 2015. Well done !!!!

Disney victorious in copycat battle

Disney has won it’s battle with UK independent production company Brightspark Productions after claiming it was misleading consumers with a series of budget family DVDs which appear to be copycat versions of Disney's own popular animated films. The action came as the Brighton-based firm, launched ‘Braver’, which Disney said was similar to it's blockbuster ‘Brave’ in more than just it’s title. Other titles from Brightspark included ‘Tangled Up’ (Disney have ‘Tangled’) ‘Tappy Feet’ (errr, something like ‘Happy Feet’?), Little Cars, a cartoon with animated cars for younger viewers (rather like ‘Cars’ perhaps?)  and ‘The Frog Princess’ (Disney have 'The Princess and The Frog’). With Braver, Disney had complained that the graphics and artwork, including a red-haired princess in a green dress on the cover of the 45-minute "cartoon fairytale" closely resembled its own packaging. 'Braver' was in fact a repackaged version of a DVD released in 2005, called 'A Fairy Tale Christmas'. The title credits of the film marketed as 'Tangled Up' revealed the film's original title to be 'Britannica's Fairy Tales from Around the World'.

Back in September this year Disney sent Brightspark a cease-and-desist letter demanding that Brightspark Productions withdraw the DVDs from the market, or face legal action saying "People place great trust in the quality and creativity of Disney, and when it appears that another company is causing confusion among Disney consumers we will act to protect ourselves and the consumer. Disney believes Brightspark has demonstrated a pattern of misleading consumers with numerous releases that confuse and undermine the trust those consumers have in Disney."

Brightspark replied with the following statement. "All we've tried to do is give parents something their children will hopefully find entertaining. We came up with our title around 18 months ago and if we thought consumers would mistake our film for Brave, we would have renamed it." At the time the Company  said they were trying to find a "mutually acceptable" solution to Disney's complaint.

OK, I may be stretching it a bit to include this item on the 1709 Copyright Blog, and despite some searches, it was impossible to find any real detail of what the actual action was based on. Anything our readers can provide by way of background would be much appreciated. But news broke yesterday that Brightspark has been ordered to destroy all copycat DVDs which had been on sale at supermarket chains including Tesco and Sainsbury, and online with Amazon, usually retailing at less than £3 and the company admitted it's titles were "cheap and cheerful". Brightspark say that they have already stopped production and have told distributor Sony to destroy remaining stocks. They must pay £5,000 towards Disney’s costs.

UPDATE: I am reliably informed that Arnold & Porter acted for Disney and the claims in the High Court were for copyright, trade mark infringement and passing off, all of which were addressed in Arnold J's final order. My thanks. 

More on the Guardian here and the Evening Standard here