1709 Blog: for all the copyright community

Friday, 24 October 2014

Donaldson v Becket(t): revising the revisionists?

H. Tomás Gómez-Arostegui (Kay Kitagawa & Andy Johnson-Laird IP Faculty Scholar and Associate Professor of Law, Lewis & Clark Law School, Portland, Oregon) has recently sent me a copy of an article that he thought might be of interest: "Copyright at Common Law in 1774", 47 Conn. L. Rev. 1 (2014). This article takes a look at one of the seminal pieces of English litigation on common law copyright: Donaldson v Becket(t). According to the abstract:
As we approach Congress’s upcoming re-examination of copyright law, participants are amassing ammunition for the battle to come over the proper scope of copyright. One item that both sides have turned to is the original purpose of copyright, as reflected in a pair of cases decided in Great Britain in the late 18th century—the birthplace of Anglo-American copyright. The salient issue is whether copyright was a natural or customary right, protected at common law, or a privilege created solely by statute. These differing viewpoints set the default basis of the right. Whereas the former suggests the principal purpose was to protect authors, the latter indicates that copyright should principally benefit the public.

The orthodox reading of these two cases is that copyright existed as a common-law right inherent in authors. In recent years, however, revisionist work has challenged that reading. Relying in part on the discrepancies of 18th-century law reporting, scholars have argued that the natural-rights and customary views were rejected. The modified account has made great strides and has nearly displaced the traditional interpretation. Using a unique body of historical research, this article constitutes the first critical examination of the revision. Ultimately, it concludes that the revision is incorrect and that we must return to the orthodox view.
The article also contains information regarding, more generally, appellate procedure in the House of Lords and the publication of appeals, particularly in newspapers and periodicals. Tomás also includes an appendix that traces the numerous newspapers and periodicals that published material on Donaldson v. Beckett.

I welcome this approach, having sometimes been faced with revisionist propositions that seemed to me to be so far from my recollection of old cases that I have had to return to the original sources in order to reassure myself that my memory was not at fault.

You can read this article in full here, or download it here.

There's also a spot of further background reading in a very much shorter piece which I wrote several lifetimes ago, noted in "Past historic 5: common law copyright in England".

Thursday, 23 October 2014

More copyright creation opportunities for women? Not if they are film directors in Europe

The European Audiovisual Observatory has been at it again.  This time it has published Female directors in European films, which it describes as a "first-of-its-kind pan-European analysis of films by female directors".

This slender (61 page) report reveals that only 16.3% of the European films produced between 2003 and 2012 were shot by female directors -- a percentage which is even lower when it comes to the share of admissions, with European films by women directors accounting for 8.9% of the total admissions in Europe during the same period ["admissions" in this context is not a synonym for "confessions", but rather a reference to the number of viewers admitted to cinemas to watch the films].

The report is available in English with an executive summary in French and German -- something that might make French and German women directors feel even more discriminated against.

You can check out the further particulars of this work and even order it by clicking here [it's a good old-fashioned 484-character URL, so we're not reproducing it in full ...].

How to heal a Broken-Heart … under the Enforcement Directive

Dorothea Thompson
For a select few, the recent damages assessment in Henderson v All Around The World Recordings may provide an excuse to reminisce about the ‘glory’ of late-noughties Bassline music. For everyone else, it provides the first guidance on the interpretation of the Enforcement Directive and implementing UK Regulations, with particular regard to the notion of ‘unfair profits’ and ‘moral prejudice, as 1709 Blog friend and music loving trainee solicitor Dorothea Thompson (Bray & Krais) explains in her guest contribution.

According to Dorothea, “this case confirmed that inquiry as to damages and account of profits remain available as alternatives only, and ‘additional damages’ for infringement of performance rights under the Copyright, Designs and Patents Act 1988 (CDPA) are now effectively redundant.

Here’s what Dorothea writes in more detail:


The song Heartbroken was recorded by Jodie Henderson (aka Jodie Aysha) and Tafazwa Tawonezvi (aka T2) in 2005. In 2007 Mr Tawonezvi re-mixed the track to produce a Bassline version and signed a record deal with 2NV Records Ltd (2NV). 2NV then signed a deal with All Around the World Recordings Ltd (AATW) to release Heartbroken (for those readers with an enquiring/nostalgic mind, the song in its released version can be found here). 2NV offered Ms Henderson £1,500 for her performance, but she refused. She then entered into a publishing contract with Sony ATV.
In November 2007 AATW released Heartbroken. It was a big hit, reaching No.2 in the singles charts, staying there for 5 weeks, and remaining in the Top 40 for 46 weeks.
To date Ms Henderson had received no performance royalties for AATW's release, nor been paid for her participation in the video or the use of her name.
Breach of performance rights

Back in February 2013, in the Patents County Court (as it then was) HH Judge Birss QC found that Ms Henderson had consented to the recording of her vocal, but not any future exploitation. Objectively, there were no grounds for AATW to infer consent, as they knew Ms Henderson had not signed with 2NV. 2NV had not obtained consent which could be passed on to AATW, and Ms Henderson had no contractual right to royalties.

AATW had "gone ahead at risk" in the knowledge that Ms Henderson had not signed a contract. AATW had thereby infringed the singer's rights by making copies of her performance and issuing those copies to the public without her consent, contrary to sections 182A and 182B CDPA.

Fair enough, but:
can you at least claim damages?
Assessment of damages

Ms Henderson elected for an inquiry as to damages. Aside from loss of royalties, assessed under the standard ‘user-principle’ (royalties that would have been paid had there been a licence negotiated between willing licensor and willing licensee), Ms Henderson sought damages under the Enforcement Directive and additional damages under the CDPA.

Enforcement Directive

It was not disputed that Ms Henderson was entitled to rely on reg. 3 of the 2006 Regulations, implementing art. 13(1) of the Directive, which applies where the infringer knowingly, or with reasonable grounds to know, engages in infringing activity. However, Ms Henderson argued that reg. 3 allowed a claim for both damages and defendant's profits, and required the court to consider both and make an award in relation to both as appropriate.

Judge Hacon reiterated that as a matter of English law, inquiry as to damages and account of profits are only available as alternatives. In intellectual property proceedings a claimant is free to choose between them but may not have the benefit of both.

Under art. 13(2) in respect of unknowing infringement, it is clear that there is a choice between inquiry as to damages or account of profits. Where knowledge is proved, art.13(1)(a) requires the court to take into account relevant aspects of the actual prejudice suffered, including both lost profits and unfair profits. However, the overall task is to order damages appropriate to the actual prejudice suffered, and this is usually profit lost (possibly plus expenses). Recital 26 of the Directive confirms the aim is not to impose punitive damages but to achieve objectively assessed compensation.

‘Unfair profits’

Judge Hacon considered that art. 13(1) did not mean that the court must always take into account profit made by the defendant from his knowing infringement. Instead, if the claimant would not receive adequate compensation for actual prejudice suffered where damages were assessed as lost profits, moral prejudice and expenses, or account of profits, there was flexibility to award an additional sum related to profit that the defendant has generated through the knowing infringement.

He referred to the example of a defendant making no direct financial profit from the infringement, but his business expanded in volume and/or in reputation on the back of loss-leader infringements.

What about 'moral prejudice'?
‘Moral prejudice’

Damage for 'moral prejudice' is rooted in continental civil law, but there is little guidance to a single meaning according to EU law. Judge Hacon held that art.13(1)(a) entitles recovery for three of the categories of non-economic loss on which Ms Henderson relied: mental distress, injury to feelings and humiliation.

He considered that the moral prejudice contemplated by this provision was confined to prejudice arising in limited circumstances, particularly where a claimant had suffered little or no financial loss and would otherwise either be left with no compensation, or the compensation would not be proportionate to the overall damage suffered.

For example, if a defendant were to infringe the copyright in photographs disclosing private grief by publishing them on the internet (which, unfortunately, seems like an entirely plausible situation these days), that might generate no profit for the defendant and no financial loss for the copyright owner, but the emotional stress caused might be acute. In such circumstances, the court could award compensation for moral prejudice, previously unavailable in England to copyright owners.

Additional damages under the CDPA

Section 191J(2) CDPA provides that in an claim for infringement of performer’s rights, the court may award additional damages, having regard in particular to the flagrancy of the infringement.
Judge Hacon held that art. 13 (with reg. 3(3)) now provides a lower hurdle - of knowing infringement.  Consequently, s. 191J(2) has effectively become redundant.

In conclusion, Ms Henderson was awarded damages according to the 'user principle' of £30,000 and a further £5,000 pursuant to art.13(1)(a) of the Enforcement Directive, making a total of £35,000. This might not seem like an enormous result for her, some 7 years after the infringement, but the case has provided welcome clarification on the assessment of damages post-Enforcement Directive.”

United Arab Emirates sign up for more copyright treaties

The United Arab Emirates have been busily upgrading their copyright commitments. Only a couple of months ago we reported that the UAE had renewed its Berne Convention relaxations (here). But now the Emirates have opted to sign up for WIPO's two most recent international copyright treaties.

First, by Beijing Notification No. 6 we are informed that the UAE has deposited its instrument of accession to the Beijing Treaty on Audiovisual Performances (the date of entry into force of this Treaty remains unknown but will be notified when the required number of ratifications or accessions is reached in accordance with Article 26 of that Treaty). Further, by Marrakesh Notification No. 3 we learn that a similar commitment has been made with regard to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled -- the commencement date for which is also uncertain, depending on receipt of the required number of ratifications or accessions under with Article 18 of that Treaty.

Wednesday, 22 October 2014

French Ruling on Internet Re-transmission of TV Channels

On October 9th, the Paris High Court issued an interesting ruling in a case involving the internet simultaneous, full re-transmission of various channels broadcast by French public broadcaster France Télévisions (FTV).

Playmedia laucnhed a web-based service called playtv giving users free access to various television channels, including those offered by FTV.  It did so without any contractual agreement with FTV as it was relying on the must carry regime applicable to FTV channels.

After having failed to convince the Conseil Supérieur de l'Audiovisuel (regulatory body overseeing television in France) of the merits of its argument that the must carry regime allowed (or rather required) it to carry the FTV channels, the matter was brought to the Court.

The CSA rejected Playmedia's claim in July 2013 pointing out that the the must carry provisions of the Communications Act of 1986 referred to distributors who have "susbscribers" and given that this was not the case  for playtv, it could not rely thereon.

Before the Court, FTV justified its refusal to allow the re-transmission of its channels by arguing that its agreements with its own content providers (producers) expressly prohibited open internet re-transmission such as that being proposed by playtv and that black outs (of the affected programming) was not possible as the result (a partial re-transmission) would be inconsistent with FTV's public mission.

Playmedia attempted to argue against this by contending that the provisions of the 1986 Communications Act (regarding must carry) constituted an exception to the provisions of the Intellectual Property Code.  In other words, Playmedia was argiung that, assuming that the must carry rules applied, they could not be avoided by the broadcaster due to intellectual property concerns (i.e., lack of rights clearance).  The Court rejected this argument, pointing out that the list of exceptions to copyright set out in the 2001 InfoSoc Directive is exhaustive and that no mention of any such exception is made.

As regards the applicability of the must carry rules, the Court addressed this issue on the basis of the revamped playtv service which offered short excerpts of the channels to non-subscribers but required a subscription for full access (thereby dealing with the CSA's objection, at least in Playmedia's view).  The Court was not however convinced that this procedure was genuine inasmuch as the subscription form did not require a verified identity and address.  For this reason (and others), the Court held that Playmedia could not rely on the must carry rules.

In light of these findings, the Court found that Playmedia was infringing FTV's neighbouring rights in its signal, copyright in certain programming and the producer's neighbouring right in certain videograms (video recordings) as well as infring its trademarks and ordered it to pay €1 M in damages (for the copyright and neighbouring right infringements) and €25,000 in damages for trademark infringement.

The ruling is online (in French):  here

Academic outrage at appeals court fair use ruling

Georgia State University
There have been some grumbling in US academia after a federal appeals court overturned a decision in the District Court which a number of academics had found clear and understandable - and of course somewhat favourable to their own, their students' and their institutions' benefit!  As one commentator put it "The U.S. Court of Appeals for the 11th Circuit revoked the quantitative benchmarks previously used in determining what constitutes “fair use” of copyright material  — a decision which could have implications down the road for colleges and universities and their use of electronic resources."

The District Court's decision had recognised that colleges and universities can legally create digital reserves of books in their collections.  Judge Orinda Evans had ruled that de minimis use of copyrighted texts (such as when a faculty member posts a work but no student ever accesses it) is not a violation of copyright, and that in most cases, using one chapter or 10 percent of a book would meet the fair use test.  The appellate court for  Georgia, Florida and Alabama was not so generous,  deciding in favour of a more individual case-by-case evaluation of what is considered fair use, "potentially making it more difficult for instructors to ascertain how much material they are permitted to scan and distribute through online course sites to students."

Academics and librarians said that provisions for fair use were created to allow academics to share and expand upon each other’s publications without paying restrictive fees. But in a unanimous decision, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit  in Cambridge v. Patton rejected a broad ruling on how to determine fair use. One academic website noted "The decision guarantees the case has a long and litigious road ahead of it by reversing the district court’s opinion and sending the case back for further deliberations" and "Rather than strike a decisive blow against fair use, the legal concept that places some limits on the rights of copyright holders, the appeals court instead issued a stern warning against quick-fix, one-size-fits-all solutions to legal disputes - specifically, the idea that copying less than a chapter or 10 percent of a book automatically protects an institution from a lawsuit" - a so called 'bright line' guideline. 

Academic librarians and their lawyers have described the case as a "nightmare scenario. Barbara Fister, a librarian at Gustavus Adolphus College, suggested that the plaintiffs had lost sight of their missions, which include furthering education and scholarship. Having posted an article on his institutions's website in 2011 before either decision,  Kevin Smith, the director of scholarly communications at Duke University said that a broad holding in the plaintiffs' favour would have "catastrophic consequences" either limiting the information that students can read or greatly increasing the cost of higher education.

The case revolves around a challenge by several publishers against Georgia State University’s electronic reserve systems, where faculty members and librarians would scan in excerpts of books for students to access digitally, "a technological improvement over the traditional practice of leaving a copy or two on reserve at the library circulation desk". The publishers claimed mass copyright infringement and claimed that Georgia State University engaged in "systematic, widespread and unauthorized copying and distribution of a vast amount of copyrighted works" through its e-reserves system while Georgia State cited the fair use provisions of Section 107 of the Copyright Law.  The court said “Like many recent issues in copyright law, this is a case in which technological advances have created a new, more efficient means of delivery for copyrighted works, causing copyright owners and consumers to struggle to define the appropriate boundaries of copyright protection in the new digital marketplace”. 

Its undoubtedly an important case, and reports say similar cases are afoot in Canada (against York University), in India (against University of Delhi in the Delhi High Court) and in New Zealand in a Copyright Tribunal case brought by Copyright Licensing New Zealand against all eight of the nation's universities.

The costs of the litigation were funded in large part by the Copyright Clearance Center, a licensing company which funded 50% of the costs along with the Association of American Publishers (AAP).

Cambridge University Press et al. v. Patton et al. (also captioned v. Becker), 1:2008cv01425

More on TechDirt here and Inside Higher Ed here and here and the University of Virginia's Cavalier Daily here

Tuesday, 21 October 2014

When VoD gets a legislative nod ...

Video on Demand and the Promotion of European Works is the latest work to emanate from the European Audiovisual Observatory which impinges on the interests of 1709 Blog readers. As the publishers explain:
The rise in the on-demand content market has meant that, potentially, a new channel for promoting European films and TV programmes now exists via the various on-demand services. But how has Europe incorporated these on-demand services and their potential into its legislation? 
This volume, at 106 pages being a little chubbier than some of its fellows, offers "current legislation of the VoD market in Europe regarding its potential for promoting European films and TV programmes".  Further information is available here.

If you are counting your pennies, you may like to know that you can order now and get your print copy for just €78,80 (instead of €98.50), or you can opt for a PDF version for €100.40 (instead of €125.50). The best deal of all appears to be print plus PDF, which you can get for €103.60 (down from €129.50) -- though this blogger is a bit puzzled by these options and wonders why anyone would want to pay more for  PDF file than for something that has been published in print. He wonders if he is missing something  ...

Monday, 20 October 2014

Copy-me and an animated debate

"Copy-me Ep. 3 is now complete!" is the first line of an excited message from Alex Lungu, who writes to let us know that Episode 3 of Early Copyright History is now available to view (you can access this seven-minute episode via its web page here). As Alex explains:
It features censorship, hangings, dissent and criticism, a whole bunch of state and church control, angry queens, sad Stationers, and, of course, our terrible culprit: the printing press.

Copy-me is the world’s first ever animated web series about copyright, copying and open culture. The webseries is about originality, public domain, digital copies, artists and how they can make money, and lots more. We hope our episodes will bring some light to these issues and maybe start a much needed constructive debate.
From the name Copy-me and some of the text that appears on the Episode 3 page,
"We should always remember that early copyright history is an important aspect of the copyright debate. On the one hand, history shows us that copyright was designed for control more than anything else and that the state got away with this for over two centuries. On the other hand, businesses always feared new technology and lobbied for state protection, with arguments about authors’ safety. These two sides have always lurked in copyright’s underbelly and, over the course of three more centuries, managed to erode all the public good that copyright was primarily designed to promote",
one might take a reasonable stab at guessing the position taken by the clip's producers with regard to copyright.  That said, it's good to know that the ancient debate between pro- and anti-groups continues apace and this website provides both provocation and some "know your enemy" source materials for those who assume that copyright in all its forms is somehow above criticism.