1709 Blog: for all the copyright community

Friday, 22 May 2015

Is Peggy Guggenheim’s Collection a Work of Art Protected by French Copyright?

Daily newspaper Le Monde reported recently about an intriguing case unfolding in the Paris Court of Appeals. The Guardian reported about the case here. The Paris court will have to decide whether the art collection Peggy Guggenheim spent years building should be considered a « œuvre de l’esprit » and, as such, be protected by the French droit d’auteur.

Peggy Guggenheim was an American heiress who spent all her life acquiring and building a contemporary art collection. She donated it, along with her Venetian palace, the Palazzo Venier dei Leoni, to the Solomon R. Guggenheim Foundation, which was created in 1937 by her uncle. Peggy Guggenheim’s collection is now shown at the Palazzo Venier dei Leoni, where Ms. Guggenheim’s ashes are buried. In her autobiography, Peggy Guggenheim expressed her desire to see her collection remain intact in Venice, and that nothing should be touched.

Her heirs filed a suit against the Foundation in France, where they live, claiming that the way it is now presenting the collection distorts the way Peggy Guggenheim meant to have it seen. They argue that the collection is not shown in its totality, that the garden has been modified, and that the Palace now boasts a cafeteria, which makes the Foundation a mere extension of the Guggenheim museum. They also consider that organizing parties in the garden where Peggy Guggenheim is buried is akin to violating her tomb.

The Paris Court of the first instance, the Tribunal de Grande Instance, rejected their claim in July 2014 because of res judicata. Indeed, the heirs had already filed suit against the Foundation under the same claim in the 90’s. The heirs had lost, but both parties found an agreement outside the courtroom. The heirs now claim that this agreement has not been respected and again filed suit against the Foundation.

Can an Art Collection be Protected by Intellectual Property?

It remains to be seen if the Court of Paris will debate this issue, as the judges may very well consider that the case has already been judged. If they do consider the case, could French law protect an art collection as a work of the mind?

Article L. 111-1 of the French Intellectual Property Code gives the author of a “œuvre de l’esprit”, a “work of the mind,” exclusive rights over the work. Bernard Edelman, a renowned intellectual property attorney, is representing Peggy Guggenheim’s heirs, and he argued this week that a collection may be considered a work of the mind.

Indeed, the Paris Court of appeals held in 1997 that the “Musée du Cinéma Henri Langlois,” dedicated to the history of cinema, is indeed a work of the mind under French law. It had been entirely the idea of Henri Langlois who had been in sole charge of its design. The Paris Court of Appeals noted in 1997 that:  

Henri Langlois ha[d] not only selected the objects and movie projections that form this exhibit but also imagined the presentation following an order and an original scenography; in particular, as reported in several excerpts of articles and publications related to the "Musée du Cinéma," Henri Langlois conceived the exhibition as a journey back in time in film history, which he staged in a cinematographic way; it is not a simple and methodical presentation of items relating to the history of cinema, but a resolutely personal creation, expressing both the imagination of Henri Langlois and his own conceptions of history of cinema, and reflecting thus his personality.”

Bernard Edelman had published an article in 1998 about this case, where he noted that the Henri Langlois Museum was particularly original as it was not only a collection of works of arts, but also a collection of objects, such as movie artifacts, and that the collection “invites to a kind of journey, a physical ambulation.” Does the Peggy Guggenheim collection invite visitors to such a journey?

Not in the opinion of Pierre-Louis Dauzier, the attorney representing the Guggenheim Foundation, who is quoted in Le Monde as arguing that "it is undeniable that the collector makes choices, he chooses to buy. Peggy Guggenheim was a muse of the art world, she bought a lot to support artists." But he added that the way she showcased the collection was"very didactic, unoriginal, nothing more than a compilation.” Peggy Guggenheim had "not given an aesthetic sense in which the collection should be presented," an argument which Bernard Edelman disagreed with, as he produced a plan made by Peggy Guggenheim on how the collection should be presented.

The case will be decided in September. 

Image is courtesy of Flickr user John Keogh under a CC BY-NC 2.0 license.

The Age of EU Copyright Reform? An event reminder

On Tuesday 26 May I am organising an event at the London offices of RPC, devoted to discussing everything EU copyright law and policy.

There are a couple of places still available to attend in person this event, which is also possible to follow via YouTube live streaming/video.

If you wish to register, just click here!

And here's the programme as it was originally advertised:

What future awaits EU copyright? What are the reform plans (if any) of the EU Commission? What is in the pipeline for the Court of Justice of the European Union (CJEU) in the area of copyright?

These and (many) other questions will be addressed during this 3-hour event that will take place on 26 May 2015 at the London offices of RPC!
On 6 May the EU Commission is due to unveil its own Digital Single Market Strategy, which includes plans to reform EU copyright. A draft version of this document has been already leaked. From this it would appear that areas for legislative intervention in the area of copyright are likely to encompass geo-blocking, exceptions and limitations, civil enforcement, and the role of internet service providers. Meanwhile numerous amendments have been presented to the draft Report on the implementation of the InfoSoc Directive, prepared by MEP Julia Reda. Following a vote in the Legal Committee of the European Parliament, her report will be subject to a final vote in plenary in early July.

Whilst the future of EU copyright policy, including possible legislative intervention, is (slowly) unfolding in Brussels, things are as busy as ever in Luxembourg, where the CJEU has been tackling (and will continue to do so) thorny issues such as digital exhaustion, hyperlinking, exceptions and limitations, and e-lending.
This event will review developments at both policy and judicial levels.
Places are limited (with some tickets available for full time students), so to provide everybody with the opportunity to discuss fully the present and future of EU copyright.

For those who cannot attend in person, it will be also possible to follow the event in either live streaming or at a later time via YouTube.

CDP points are also available!

New Approach to Conflicts between Pre-existing Works and Derivative Works under French Law?

The balance to be struck between the rights of the author of a pre-existing work and those of the author of a work derived therefrom is a recurring and vexing issue in French copyright law.

In theory, there is no balance; rather, the author of the pre-existing work is all powerful.  Section L.113-4 of the Intellectual Property Code provides that the derivative work is the property of its author, subject to the rights of the author of the pre-exsiting work.

It has been held that this means that the author of the derivative work needs the consent of the author of the pre-existing work both at the stage of creation of the derivative work as well as with respect to the various forms of exploitation thereof.  Naturally, such consent is ususally given in exchange for a share of the revenue generated by the derivative work.

Applying the principles to a recent case involving a painter's unauthorized incorporation of photographs into his work, the Court of Appeals had held that the resultant painting constituted an infringing work and ordered its author to pay €50,000 by way of damages to the photographer.

Surprisingly, on May 15th, the French Supreme Court, citing Article 10 (2) of the European Convention on Human Rights (freedom of expression), reversed this ruling, opining that : "in so holding, without explaining in a concrete fashion how the search for a just balance between the competing rights required the order it made, the court of appeals deprived its decision of a legal basis".

It is striking that the Supreme Court explicitly refers to a "just balance" of the competing rights. This new approach, if followed by the lower courts, would limit the power of the author of a pre-existing work.  A finding of infringement and damages would only be awarded after careful consideration of such a balance between his rights and those of the author of the derivative work. 

Link to ruling here

Wednesday, 20 May 2015

Spotify leak puts streaming royalties in focus

The Verge has published details of the hitherto unknown terms of the January 2011 deal between streaming service Spotify and Sony Music, one of the two big record labels. And it makes for fascinating reading. Perhaps what isn't surprising (given the then near start up nature of Spotify in 2011) is a contract laced with 'Most Favoured Nations' provisions for Sony. The basic deal consists of annual advances paid by Spotify and a 70:30 split of advertising revenues in favour of Sony: On gross revenues the detail shows the actual split of revenue varies from rights owner to rights owner, but labels are usually getting somewhere between 55-60% and publishers 10-15%. The Sony contact unsurprisingly puts the world's second biggest record company at the top end of the range, on a 60% split. 

There are some odd quirks - Spotify seems to have a 15% buffer zone in ad sales which it doesn't have to account to Sony (and therefor cannot be shared by Sony's artistes) to cover out-of-pocket costs paid to unaffiliated third parties for ad sales commissions (subject to a maximum overall deduction of 15 percent "off the top" of such advertising revenues). Sony seems to have its own ad spots it can sell to a value of $9 million annually. How Sony accounts on for the profits from this (and how it pays over any share of advances - if it does at all) to artistes is unknown. These label advances are controversial:  Some artists and managers say they are concerned that the label's demands on digital start-ups have prevented some new services from ever getting to market, which results in a market dominated by one or two main payers - Like Spotify in which both both Universal and Sony are believed to hold equity. But of more concern for artists is what happens to unallocated advance payments and whether larger advances (which labels generally benefit from) push down ongoing royalties - where artistes do share.

The other big question is how much Sony Music gets paid per stream, and well, it’s complicated! Section 10 of the leaked contract shows how Sony Music separated it's label fees into three distinct tiers — the ad-supported free tier, online day passes (which no longer exist), and Spotify’s premium service - and a somewhat complex formula governing payments to Sony. Spotify must pay $0.00225 per minimum stream, but this rises to $0.0025 per stream if growth targets are missed.  But as the Verge says "Even with this contract, it’s still difficult to tell how much artists are getting paid by Spotify. Sony Music is likely getting considerable payouts from Spotify each year, but what it does when it gets that money — and how much of those payments actually make it down to the artists — is still unknown. Some artists have clauses in their contracts to get a larger share of the streaming revenue, and some artists are still operating under CD-era contracts that only give them 15–20 percent of their streaming revenues." But a share of which revenues?

In a related theme - and noting the above splits in gross revenues with labels collecting up to five times as much as music publishers from streaming service revenues - PRS for Music chief executive Robert Ashcroft has delivered a speech at the PRO's 2015 AGM outlining a number of issues which he says have prevented publishers and songwriters getting "fair value" for their work. Among the obstacles highlighted by Ashcroft were the continued battle against piracy, unhelpful safe harbour legislation which has been used by the likes of YouTube to protect their business models (noting "This legislation was not intended to protect those that host, curate and distribute copyright material while claiming to have no knowledge of it on the grounds that their users, and not they themselves, have the knowledge and are responsible for clearing copyright."), and the shift from downloads to streaming, which Ashcroft said is not yet paying enough to songwriters. Music Week have published the whole speech

Monday, 18 May 2015

Not Laughing all the Way to the Banc?

Back in last December, Ben told us about the US Ninth Circuit's en banc hearing of the Garcia v Google appeal. Cindy Garcia is the American actress who seems to have been tricked into playing a role in the controversial film entitled Innocence of Muslims, and she appeared for around 5 seconds in a trailer for the film which was posted on Youtube. Her appearance in the trailer earned her a number of death threats, and she took Google (the owners of Youtube) to court to force them to take down the clip, claiming that she owned the copyright in her performance. She lost at first instance, but won on appeal, with Judge Alex Kozinski giving the lead judgment in that first appeal. 

Cindy Garcia in a scene from the trailer
This decision was widely criticised, not only for its idiosyncratic interpretation of the law, but because of the implications of it for movie making in general. If the decision of the Appeal Court was allowed to stand, any actor in a feature film could theoretically hold the producers to ransom by withholding permission to use their specific performance. Unsurprisingly the case was appealed to the full eleven strong panel ('en banc') of judges of the Ninth Circuit, and their decision was handed down today.

The latest appeal court opinion reverses the earlier decision and denies Miss Garcia any copyright in her performance. What's more the court was fairly critical of Judge Kozinski's decision. In particular they were critical of Kozinski's readiness to grant an injunction against Google, despite the fact that this action appears to have constituted prior restraint contrary to the First Amendment. Kozinski, who was also one of the eleven en banc panel of judges, did not take this criticism with a shrug of the shoulders, but instead launched into a robustly worded dissent, in defence of his earlier decision. At times his argument borders on the bizarre: he considers (page 35) that since the majority en banc decision says that an individual actor does not have a copyright stake in a scene in which he or she appears, therefore there is no copyright in the scene whatsoever. He then extends this argument to say that anyone (a 'dastard') who then obtains the footage of the scene before the final film is edited, could then publish it with impunity because at the rushes stage, no copyright exists. He then implies that the en banc decision is based more on the economic interest of Google than on the law "In its haste to take internet service providers off the hook for infringement, the court today robs performers and other creative talent of rights Congress gave them. I won't be a party to it."

But Judge Kozinski does not have a monopoly in dubious reasoning. The lead en banc decision, written by Judge Margaret McKeown, contains the statement "Garcia's copyright claim faces yet another statutory barrier: she never fixed her acting performance in a tangible medium ...". Most UK law students will be aware of a seminal English copyright case from 1900 known as Walter v Lane, in which the House of Lords ruled that the author of an idea does not necessarily need to be the person who actually records the idea in order for copyright to exist in the work. In that particular case, Lord Roseberry, a politician of the time, was making an ex tempore speech, but because a journalist from the Times newspaper was present and recorded the speech in shorthand, copyright therefore subsisted in the speech. It seems that US jurisprudence, at least in the Ninth Circuit, has yet to establish this particular piece of precedence. Clearly Miss Garcia's performance was fixed (how else can it have appeared on Youtube?) and it seems bizarre to think no copyright exists in the video itself. That is an entirely separate matter from whether Miss Garcia has standing to bring a claim of infringment.

But for all these quirks, the en banc decision does appear to be well grounded in law, and also in common sense. Let's see if the US Supreme Court is asked to look at the case!

More on the story from Techdirt here
and the Ninth Circuit's judgment here.

WIPO Magazine takes a look at copyright

The current issue of the World Intellectual Property Organization's WIPO Magazine is unusually heavily loaded with current copyright issues.  This magazine is not a serious professional read but provides generally short and cheerfully uncomplicated views or overviews of topics that can be of substantial professional or political importance. The contents of the WIPO Magazine don't necessarily endorse any official WIPO view of copyright, or any other IP right, but nor do they generally reflect views that are inimical to the range of positions taken by that organisation.

The first four features in this issue (officially dated April but released in May) go as follows:
  • Streaming and Copyright: a Recording Industry Perspective (here)
  • Safeguarding the Income of Musicians (here)
  • Music and the Movies: an Interview with Randall Poster (here)
  • Beastie Boys Verdict Underscores the Importance of Clearing IP Rights (here)
There could have been a fifth, but 3-D Printing is Here to Stay! (here) didn't mention copyright at all: instead, it focused on the first live concert played by musicians using instruments created by 3-D printing (a sample of which can be seen on the right)..

So no full harmonisation plans after all?

Modern does not mean ...
A few days ago the EU Commission unveiled its Digital Single Market Strategy (DSMS), a document detailing possible initiatives "towards a connected digital single market".

Despite earlier statements by EU Commissioners (see right), as far as copyright is concerned the DSMS has pretty narrow a focus and ambition. 

Proposed areas of intervention are only: cross-border access to "lawfully acquired[so what about free streaming?] content and its portability; text and data mining for non-commercial and commercial purposes alike; and civil enforcement and the role of internet service providers (ISPs).

Writing on IPKat, I expressed the view that the DSMS is fairly vague as regards the form of any proposed legislative interventions [a new directive? a regulation? or not even law, but rather soft law instrument instead?], and overall contains fairly significant omissions.

An example is whether copyright should be harmonised further, possibly till the point that an EU copyright title is adopted.

As 1709 Blog readers may remember, further/full harmonisation has been an ongoing debate at least since the 2009 Reflection Document, in which for the first time in an official document the possibility of harmonising copyright fully at the EU level was mentioned and looked at favourably:

"A Community copyright title would have instant Community-wide effect, thereby creating a single market for copyrights and related rights. It would overcome the issue that each national copyright law, though harmonised as to its substantive scope, applies only in one particular national territory. A Community copyright would enhance legal security and transparency, for right owners and users alike, and greatly reduce transaction and licensing costs. Unification of EU copyright by regulation [pursuant to Article 118 of the Treaty on the Functioning of the European Union] could also restore the balance between rights and exceptions – a balance that is currently skewed by the fact that the harmonisation directives mandate basic economic rights, but merely permit certain exceptions and limitations. A regulation could provide that rights and exceptions are afforded the same degree of harmonisation."

Is full harmonisation something that current Commission is considering, also following the recommendations included in the draft Report by MEP Julia Reda?

Apparently not. 

Whilst in Cannes yesterday, Commissioner Gunther Oettinger tweeted the following:

... fully harmonised

It would thus appear that adopting an EU-wide copyright is currently off the Commission's radar.

In any case, if you wish to discuss further what EU copyright reform debate entails, you may be interested in attending - in person or even remotely - the event I am holding next week (26 May) at the London offices of RPC, entitled The Age of EU Copyright Reform?.

This event will review both policy debate/initiatives in the area of EU copyright and recent decisions of the Court of Justice of the European Union in this area of the law.

You can find further details and register here.

Friday, 15 May 2015

Please Sir, can I have some more?

A couple of weeks ago we published a piece outlining the first six months progress with the IPO's orphan works licensing scheme. And we promised to take a second look at the subject by examining the experience from the user's point of view. The majority of applications so far have come from institutions such as museums and archives. This is to be expected, firstly since they were the bodies which principally lobbied for the right to licence orphans, and also because up to now, the wider public is probably not that aware that the licensing scheme exists.

As a result, we intend to look at the experience of two such institutions: the Leeds Museums and Galleries (LMG), and the Museum of the Order of St John as they underwent the licence application process.

But before getting into the detail of their respective applications, why did they choose to use the IPO licensing system, as opposed to the EU Directive Permitted Uses regime? Well the simple answer is that both institutions wanted to licence the use of images, and the EU Directive doesn't apply to artistic works, unless they are incorporated within a written work such as a book, journal or newspaper, or they form part of a film or audiovisual work. Although the photographs the Museum of St John wished to use were contained in a personal scrapbook, the museum staff felt that this fell outside the strict provisions of the EU Directive since the photographs could be seen as stand-alone items.

Case One
The LMG have among their extensive collection of fine art, a painting by the artist Charles Ginner, which they wished to digitise for inclusion in their online database. Ginner is known to have died in 1952 and so his work is still in copyright, but Leeds Museums have been unable to locate an heir to his estate. Thus the licensing scheme was an ideal solution to their problem. Alison Glew, the Copyright Project Officer at LMG, says the process of applying for a licence was straightforward and that they will be using it again as they have over 100 other orphan works they wish to include in their Collections Online project. She advises other users to carefully study the IPO's guidelines to see how the system operates and the costs involved, before submitting an application. She suggests that applicants allow plenty of time to complete the diligent search procedure, and if you are taking advantage of the facility to apply for up to 30 individual works on one application, make sure you organise all your data before starting to complete the online application form.

Case Two
Veronica Nisbet
As part of its World War One commemorations, the Museum of the Order of St John obtained a grant from the Heritage Lottery Fund to stage an exhibition telling the story of Veronica Nisbet, a nurse who was one of the 45,000 volunteers who served in the Voluntary Aid Detachment during the First War. Veronica worked in the St John Ambulance Brigade Hospital at Étaples in France. The centrepiece of the museum's display will be a scrapbook owned by Veronica at the time she was working in the hospital in Étaples, which includes some photographs taken by her, and others by unknown photographers, as well as sketches and press cuttings. Although the museum had obtained permission from her estate to use Veronica's scrapbook, the authors of many of the other photographs were unknown. It so happened that during the diligent search process the identity of some of the authors was unearthed, but there was some doubt about the remainder, and whether some of the more professional photographs had been previously published or not. Erring on the side of caution and best practice, the museum decided to obtain licences for any images where doubt remainded. Peter Eaves, who works at the museum and handled most of the application work, says he found the IPO staff helpful, but the online process itself was anything but straightforward. Given the large volume of images they had to process (175), the museum initially found the process of uploading the required data to be confusing and convoluted. The problem lay in the fact that the application had to be completed in two stages, an initial basic entry, followed up by the addition of further details and a copy of the image itself. Since the image did not form part of the initial data to be entered, there was room for subsequent information to be entered for the wrong image. Peter felt it would have been better if the initial basic entry had included the image, as this was the unique item in each application, whereas many other details might be common to several images. He reiterated the point made by Alison Glew, that meticulous organisation of your data is essential prior to beginning an application, especially if there are multiple works to be included. Indeed Peter went so far as to advocate the creation of a spreadsheet to keep track of all the data, together with check boxes to mark off when each stage in the process has been completed. The final entry is then the actual licence number, and the whole document becomes an important record of the search and application process.

During the debates in the House of Lords on the orphan works clause in the Enterprise and Regulatory Reform Bill, much was made of the potential cost to institutions of having to carry out the search process and pay licence fees. The Museum of the Order of St John have kindly supplied details of the total cost of all their applications, which was £491, inclusive of the actual licence fees. Given the total grant from the Lottery Fund for this project, this outlay seems modest. The Veronica Nisbet exhibition will be unveiled on 7th September at the Museum's St John Ambulance Gallery in the City of London and will also be available in interactive format online at the same time.

We asked the IPO for their comments on how the first six months have gone, but to date they have not responded  and their comments now appear below. If the orphan works licensing system is to be the success that most museums and archives anticipated, we hope the IPO will address the concerns raised about the order in which data is required to be entered into the online forms. It is appreciated that the website is still in beta format and we trust that minor structural changes are still possible without endangering the viability of the project overall.

For more on the experience of the Leeds Museums and Galleries: see here
For more about the Veronica Nisbet project: see here (pdf) and about her diary: here

Addendum: The following response has been received from the IPO:
"As you know, the first six months of the orphan works licensing scheme has produced applications for a wide variety of orphan works, including novels, fine art, photographs, musical notation, music recordings and newspaper articles, and we are really pleased with how it is going. Some applications have been particularly interesting, including the licence granted for the reading of an orphan poem at the Gallipoli commemorations on 25 April at the Cenotaph.  We hope that more people will make applications as they become aware of the scheme and its benefits.

During these early months, we have been working with applicants to ensure that their applications are robust, which is why many applications show that we await further information from the applicant.  We intend to review the scheme after 12 months, and will look at the type of applications made, licences granted, withdrawn or refused, as well as gathering comments on the system.

Our diligent search guidance has been well-received, and we are aware that some applicants have found right holders in works after using the guidance.  We also inform organisations about the EU Directive on orphan works and suggest that they use it, if appropriate.  However, we are open to suggestions about improving the guidance and will keep it under review.  The scheme itself is currently in beta, which means that users are encouraged to provide feedback and suggestions for improvement.  We have already made a number of improvements through this feedback and have more planned."