1709 Blog: for all the copyright community

Wednesday, 27 August 2014

Comic Art, Creativity And The Law: a book notice

Apologies to readers of Art & Artifice for the cross-post (a somewhat longer version of this notice was posted there earlier today), but here's a book that is of interest to copyright lawyers and owners, as well as to those whose focus is primarily on art. The book in question is Comic Art, Creativity And The Law, by Marc H. Greenberg (Professor of Law, Golden Gate University School of Law, US).  This work has been recently published by Anglo-American publishing house Edward Elgar as part of its ever-increasing IP list, as part of its Law and Entrepreneurship series.

According to the publisher of this essentially United States-focused work:
The characters and stories found in comic art play a dominant role in contemporary popular culture throughout the world. In this first-of-its-kind work, Comic Art, Creativity and the Law examines how law and legal doctrine shapes the creative process as applied to comic art.

The book examines the impact of contract law, copyright law (including termination rights, parody and ownership of characters), tax law and obscenity law has on the creative process. It considers how these laws enhance and constrain the process of creating comic art by examining the effect their often inconsistent and incoherent application has had on the lives of creators, retailers and readers of comic art. It uniquely explains the disparate results in two key comic book parody cases, the Winter Brothers case and the Air Pirates case, offering an explanation for the seemingly inconsistent results in those cases. Finally, it offers a detailed discussion and analysis of the history and operation of the ‘work for hire’ doctrine in copyright law and its effect on comic art creators.

Designed for academics, practitioners, students and fans of comic art, the book offers proposals for changes in those laws that constrain the creative process, as well as a glimpse into the future of comic art and the law.
This is an enjoyable and thoughtful book, part legal analysis, part history, part speculation and part personal reflection. The impact of the law on the fruits of creation is easier to assess than its impact on those aspects of creativity which it may deter or stifle, and the use of comic art as a powerful form of parody, satire or social comment keeps returning it to the point at which freedom of expression meets countervailing rights and interests -- but this book is neither repetitive nor preachy, even though Marc Greenberg never leaves it to his readers to guess his thoughts and feelings.

Bibliographic data: hardback ISBN 978 1 78195 492 8; ebook ISBN 978 1 78195 493 5. Hardback price£70 (online from the publisher, £63). Web page here.

Tuesday, 26 August 2014

Portugal approves proposal to expand scope of private copying levy

Our friend Tito Rendas has emailed us with the following news from Portugal:
"The Portuguese Council of Ministers has recently approved a proposal to amend Portugal's Private Copying Law. The proposal updates the list of reproduction equipment, devices and media on which the levy is charged. The fee has been charged on CDs, DVDs and cassettes since 1998. If the Parliament passes the proposed amendment, MP3 players, external hard drives, memory cards and the like will be subject to the fee as well.

As you would expect, the proposal has been generating a great deal of controversy: on one side, the electronics sector threatens to pass the cost of the levy on to consumers; on the other side, the collecting societies claim that the proposed levy amounts are negligible.

Along with this amendment, the Portuguese Government approved a Strategic Plan to Fight the Infringement of Copyright and Related Rights. What is known so far is that the Government plans to launch awareness (brainwashing?) campaigns in schools and to create a special police unit for online copyright infringement. No plans to introduce a graduated response system have been announced, though".
Thanks so much Tito -- and thanks for sending us a link to the Portuguese government's official announcement of this proposal.

Monday, 25 August 2014

Copyright, technology and a contest!

[If you are also an IPKat reader, I apologise for the cross-posting ]

Copyright and Technology ...
On 1 October 2014 the beautiful London offices of Reed Smith LLP will host the 1-day Copyright and Technology conference, which promises to be very engaging. Incidentally, also I will be there as a moderator in the panel asking whether internet service providers should be copyright cops (this will also feature fellow blogger Asim, while John will be in the session on private copying). 

1709 Blog friend and organiser Bill Rosenblatt wishes to let our readers know that there is a special discount available for them. Those who wish to register have simply to select the relevant option in the registration form.

This is not the only good news, as I have a complimentary ticket (worth £239) to award to the winner of a new contest reserved to full time students/trainees/apprentices. The background idea is that these deserving copyright enthusiasts might often struggle to find a sponsor to attend these sorts of professional events.

... or
Copyright and Technology?
The competition requires aspiring entrants to create an artistic workeg a photograph or (if you find it easier) a work of architecture, that illustrates in the best/most humourous/saddest/etc (it all depends on your perspective!) the relationship between copyright and technology.

Once you are happy with your "own intellectual creation", email it to katcontest1@gmail.com, but do so by Monday 8 September 11 pm GMT.

The IPKat will publish the best entries, so do please also provide an irrevocable gratuitous and non-exclusive licence when submitting your work.

Good luck! 

Copyright law reform: China asks for public comments

[I didn't spot that Ben had posted on this item over the weekend. However, since its subject matter is quite important, I decided to leave this post up in the hope that more people will spot it and make their comments known ...] A note by US-based law firm Greenberg Traurig LLP in the National Law Review, descriptively titled "China Solicits Public Comments on Copyright Law (Draft Revision for Review)", explains that on 6 June the Legislative Affairs Office of China's State Council circulated a draft revision of the Copyright Law of the People’s Republic of China for public comments. The main changes are said to be the following:
"Private Agreement on Copyright Ownership. The modifications in the Draft Revision reflect that in certain cases, parties involved may privately agree on the copyright ownership of the work created. For example, copyright ownership in the work created by an employee in the course of his/her employment may be decided by the employer and employee.

Collective Administration of Copyright. The current Copyright Law only contains one general article (i.e., Article 8) which provides that (i) copyright owners and owners of related rights may authorize a copyright collective administration organization (the Administration Organization) to exercise their copyright or related rights; and (ii) the Administration Organization may, upon authorization, claim the rights for the copyright owner or owners of related rights in its own name, and act as a party in litigations or arbitrations involving the copyright or related rights. The Draft Revision includes a separate chapter to set forth in detail (among other things) the nature, rights and duties of the Administration Organization, as well as the competent authority regulating the activities of the Administration Organization.

Calculation of Damages Resulting from Infringement. The current Copyright Law provides that the infringer of a copyright should pay damages based on the actual loss of the right holder. The Draft Revision proposes to introduce the flexibility for the copyright owner to claim damages based on different measures at his/her option. Possible measures include actual losses, the illegal income gained by the infringer, or a specific amount below RMB 1 million".
If any reader has further information about this draft law and how to comment on it, can he or she please post it as a comment below?

Ben posted on prospective reforms in China back in April 2012, here while Iona wrote about the introduction of registration in China in August of the same year.

Thank you, Chris Torrero, for this link.

"Direct injection" question for CJEU: is it a "communication to the public"?

The UK's Intellectual Property Office (IPO) has circulated details of yet another copyright question which has been referred to the Court of Justice of the European Union for a preliminary ruling, Case C-325/14: SBS Belgium. According to the IPO:
We have received notification of a new case referred to the Court of Justice: C-325/14: SBS BELGIUM, a request for a preliminary ruling on the interpretation of the Information Society Directive 2001/29/EC as regards “direct injection”. The question referred to the European Court of Justice is: 
Does a broadcasting organisation which transmits its programmes exclusively via the technique of direct injection … make a communication to the public within the meaning of Article 3 of Directive 2001/29 … on the harmonisation of certain aspects of copyright and related rights in the information society?
This case and the questions referred to the court can also be viewed on our website at:

If you would like to comment on this case please e-mail policy@ipo.gov.uk by 4th September 2014 ...
This blogger understands that the term "direct injection" refers to the situation where a broadcasting company connects to the network of one or more cable companies directly. The programme in question is not first broadcast via ether or satellite and then retransmitted via cable, as is usually the case, but is broadcast for the first time via cable.

Saturday, 23 August 2014

The CopyKat - more on that black macaque

The Legislative Affairs Office of the State Council has circulated the "Copyright Law of the People’s Republic of China (Draft Revision for Review) (the Draft Revision)" for public comments. The proposed changes include (a) new provisions for private agreements for the ownership of copyrights - in particular between employer and employee (b) new provisions to govern the administration and regulation of  collection societies and (c) new provisions that would move China on from calculating damages based on the  actual loss suffered by the right holder to a more flexible system that would include 'account for profit' and/or fixed damages up to RMB 1 million. More here

Nintendo has pulled the plug (at least for now) on Claudia Ng who created a Pokémon-themed 'Bulbasaur' planter, originally for a friend. Ng also placed this design on Shapeways, a 3D printing platform - and this proved to be extremely popular: But Shapeways have now received a cease and desist from Pokémon International for infringement, and the planter has (currently) been removed. More here.

A very angry sounding BoingBoing says this : "Rightscorp, the extortion-based startup whose business-model is blackmailing Internet users over unproven accusations of infringement, made record revenues last quarter, thanks to cowardly ISPs who agreed to lock 75,000 users out of the Web until they sent Rightscorp $20-$500 in protection money. Now the company plans to expand the program to all the major ISPs in America (thanks to cable company fuckery, this is a very short list). They have deals to threaten people on behalf of BMG, "plus artists belonging to the Royalty Network such as Beyonce, Calvin Harris and Kanye West." They demand $20 per alleged (and unproven) offense, and say that they're closing cases everyday for $300, $400, $500."
The BoingBoing headline Copyright extortion startup wants to hijack your browser until you pay reminded me of an amusing app developed by "Frustrated-mother-turned-evil-genius" Sharon Standifird called Ignore No More, an Android app that gives parents the ability to lock their kid’s smartphone from afar if they refuse to take their calls or call Mum or Dad back - making it unwise to ignore calls as all the hapless teen can then do is make calls to 911, with the app's website explaining “When you lock your child’s phone with Ignore No More your child has only two options – he or she can call you back, or call for an emergency responder”

Kim Dotcom, the boss of MegaUpload, who is currently fighting extradition to the USA on criminal charges related to copyright infringement, will not now be getting his assets back. An appeals court has now overturned an earlier decision by New Zealand's High Court. Dotcom's assets were seized after MegaUpload was taken off line in January 2012. The orders granting the seizures, issued by a US court and approved vy the court in New Zealand, expired in April and an application to extend them was turned down by the High Court.

Rep. Robert Goodlatte has confimed that the current review of US copyright law by the House Judiciary Committe will continue Into 2015 and education and circumvention will be the next issues examined, More here http://www.bna.com/copyright-review-process-n17179894026/

This could be expensive: The BBC reports that one of Colombian pop star Shakira's big hits has been found to be indirectly copied from another songwriter's work. Judge Alvin Hellerstein  in New York has found that Shakira's 2010 Spanish-language version of Loca had infringed on a song by Dominican singer Ramon Arias Vazquez. The Spanish language version. Shakira's missive,  a collaboration with Dominican rapper Eduard Edwin Bello Pou, better known as El Cata - was widely released as a single around the world and borrowed from  Loca Con Su Tiguer - but that song was itself was based on the Arias Vazquez track of the same name.  Loca went on to sell more than five million copies and topped Billboard Magazine's Latin charts. Her English language version of Loca - which featured Dizzee Rascal - was "not offered into evidence" at the trial. In his ruling Judge Hellerstein said that while the hit single had been based on an earlier version of a song recorded by Bello [El Cata], this itself was a copy of Arias Vazquez's song saying "Accordingly, I find that, since Bello had copied Arias, whoever wrote Shakira's version of the song also indirectly copied Arias". Bello had denied outright the allegations made against him, claiming 'Loca Con Su Tiguera' was his song. Judge Hellerstein decided against his role as a writer, partly because of the existence of a cassette of the song in Arias's hands from 1998, and partly because of inconsistencies in Bello's story both inside and outside of court. The Shakira and Arias songs were sufficiently similar for there to be copyright infringement in a case brought by Mayimba Music who had acquired the rights in Arias' song, and it was that firm which sued various Shakira's record label,  Sony, and associated companies involved in the hit. Image (c) 2009 Glastonbury Festivals Ltd. 

Face without a face - Maya Hayuk
On a similar theme: a joke article and YouTube video by Chilean website Rata  comparing portions of Tame Impala's 2012 song 'Feels Like We Only Go Backwards' and Argentine songwriter Pablo Ruiz 1989 hit 'Océano' which wentn viral has prompted a claim by Ruiz that "Obviously there is plagiarism. Whether they have done it on purpose or not, there are seven bars that are equal to my song".

The artist Maya Hayuk is suing pop star Sara Bareilles, her record labels Epic Records and Sony Music and  the luxury brand Coach for using her 2014 Lower East Side mural Chem Trails NYC as the backdrop for advertisements and promotional materials without her permission, The lawsuit, filed in a Manhattan Federal Court, alleges that Bareille used photos and video shot in front of Hayuk’s colorful, geometric mural to promote her recent “Little Black Dress” concert tour and album The Blessed Unrest. It seems Coach used the public artwork as a backdrop for images used to sell its upmarket clothes and bags online without Hayuk’s permission. She is seeking $150,000 each from Coach and Bareilles.

The Royal Bank of Scotland Group Plc has reached a settlement with Complex Systems allowing it to continue using a key piece of software in its trade finance business. A U.S. court had perviously had prevented the bank from using the software after a claim for infringement was brought by Complex. 

And finally ...... back to that Black Macaque: The U.S. Copyright Office addresses the dispute in the latest draft of its Compendium Of U.S. Copyright Office Practices”, which was published on August 19th. The previous compendium stated that “Materials produced solely by nature, by plants, or by animals are not copyrightable.” The new 1,222-page report again makes their stance on animal artwork clear by referring specifically to photographs taken monkeys (and other species of course). “[T]he Office will refuse to register a claim if it determines that a human being did not create the work.” And the Report gives more clarity: Did you know (?) that the Office will not register
-  a work purportedly created by divine or supernatural beings.
-  a musical work created by solely by an animal such as a bird song or whale song. 
-  a musical composition created solely by a computer algorithm.
-  dances performed or intended to be performed by animals, machines, or other animate or inanimate objects
-  pantomimes performed by animals, robots, machines, or any other animate or inanimate object  [for more see chapter 300]. 

Do you disagree with the U.S. Copyrght Office?  You can have your own say - dont forget to vote in our side bar poll!

Friday, 22 August 2014

Assignment, rights in a recording and in an underlying work: a need for explanation

Peter Lawton, of London-based Cacophony Ltd write to ask for a bit of guidance. He says:
"I am a music publisher and have been trying to explain the difference between the copyright in the recording and the copyright in the underlying composition to a Polish company. They claim the law is different in Poland and when an artist signs a record contract they automatically assign the composition as well. They use the phrases "economic rights" and "derivative rights" (note: not defined and meaningless to me in this specific regard) to substantiate their claim.

I've been digging around to find something specific but reasonably intelligible to someone who's English is less than perfect (but an awful lot better than my Polish) which explains in either English or Polish -- with English translation so I can check it -- that the two rights are not the same and that EU legislation distinguishes between the two. I thought it would be easy to find but it seems not.

If anyone feels in the mood to give me bonus I also need to explain that covering a song does not mean the copyright in the composition is automatically acquired by the performer as well.
Responses, anyone?

Thursday, 21 August 2014

Compendious Compendium: a new edition is now in draft

Earlier this week the U.S. Copyright Office released its Public Draft of the new Compendium of Copyright Office Practices (third edition, to be precise, weighing in at 1,222 pages). Our good friend Magali Delhaye introduces it thus:
Whether on the beach, under a tree in the countryside or at the office, readers of the new Draft Compendium will find in its more than 1,200 pages a very comprehensive administrative manual of the Register of Copyrights concerning the mandate and statutory duties of the Copyright Office under Title 17 of the United States Code.

The new Draft´s aim is to provide instructions to agency staff regarding their statutory duties as well as to offer expert guidance to copyright applicants, practitioners, scholars, the courts, and members of the general public regarding institutional practices and related principles of law. The Draft Compendium addresses fundamental principles of copyright law such as standards of copyrightability, joint authorship, work for hire, and termination of transfers, as well as routine questions involving fees, records retrieval, litigation documents, and other procedural matters.

The new Compendium will remain in draft form for approximately 120 days, pending final review and implementation, taking effect on or around 15 December 2014. Members of the public may provide feedback on the Compendium at any time before or after the Third Edition goes into effect.
Thanks so much, Magali!