Sunday, 12 November 2017

Icepops event is coming to Liverpool and is looking for attendees and ... speakers

The enthusiastic copyright duo Chris Morrison and Jane Secker, aka the UK Copyright Literacy team, is organising what looks like an exciting, fun and informative event at the University of Liverpool on 3 April 2018 to promote international copyright literacy: Icepops: International Copyright-Literacy Event with Playful Opportunities for Practitioners and Scholars.

According to the information available on the Icepops website, this 1-day event will be the first satellite event run as part of the LILAC conference, and is the result of a collaboration between the UK Copyright Literacy and CILIP Information Literacy Group.

The day will include keynote speakers, a world café, an opportunity to play copyright games including the Publishing Trap and a playful copyright hackathon. 

The topics addressed by the various speakers will include copyright education, games and play, creativity and the relationship of copyright literacy to information literacy and scholarly communication.

Registration and fees 

Registrations will open on 1 December 2017, and the fees will be:
  • £100 (inc VAT) for the day including all refreshments, lunch and an evening social
  • £80 for people attending LILAC and/or presenting 
  • £50 for LIS students (£50)

Call for speakers

Besides already confirmed speakers, the conference is looking to recruit additional speakers. As explained by the organisers:

"In the true spirit of creativity we are looking for a range of speakers with ideas, games, techniques or topics they’d like to discuss to get involved in shaping the day. Some ideas we have included involve: a games hack, a world cafe to showcase ideas and approaches, lightning talks or maybe something different such as a song or dance routine? Leave your inhibitions behind and come along prepared to experience something different to regular copyright events!
If you’d like to be part of Icepops 2018 then please complete the Contributor’s Form  before Monday 4th December and we will aim to get back to you by the 18th December 2017. Speakers will qualify for the reduced (£80) rate and be entered into the competition to qualify as the best idea, most creative approach to copyright education or copyright specialist of the year. Prizes will be awarded on the day!”

Further details are available here.

Does the Commercial Exploitation of France’s National Domain Violate the Constitution?

Article L. 621-42  of the French Code du patrimoine (heritage Code) authorizes using the image of a building belonging to France’s national domain for commercial purposes, in any medium, if such use has been authorized by the manager of the building, by unilateral act or contract, free of charge or with financial compensation. No authorization is, however, required, if “the image is used in the exercise of public service missions or for cultural, artistic, educational, teaching, research and information purposes and illustration of the news.”

This is a recent law, as this article was introduced by the July 7, 2016 law, no. 2016-925 about freedom to create, architecture and heritage) in order to provide buildings belonging to the national domain, such as the Louvre, Chambord, or Fontainebleau, an opportunity to financially gain from the commercial use of their image.

This law was enacted after the castle of Chambord unsuccessfully tried to prevent the commercial use of its image for advertising a beer. The image of the castle had also been used on a special edition of beer bottles.

Visiting castles can make you thirsty 


NGOs La Quadrature du Net and Wikimedia recently joined forces to challenge the constitutionality of the decree implementing article L. 621-42, which created article R.621-99 of the Code du patrimoine. This article gives power to the authority in charge of the national domain to negotiate the financial conditions for the commercial use of its image. From plaintiffs’ point of view, the buildings in France’s national domain are in the public domain, and thus free to be used, even for commercial purpose.

They argued that the access to culture is a human right, protected by article 14 of the European Convention on Human Rights, article 10 and 11 of the French Declaration of Human Rights,  and by the Preamble to the French Constitution, which guarantee equal access to culture for all, and that therefore article R.621-99 violated the Constitution.

They also argued that the public domain is protected by article 1 of Directive 2006/116/EC on the term of protection of copyright and certain related rights, which states that a literary or artistic work revert to the public domain 70 years after the death of the author, irrespective of the date when the work is lawfully made available to the public. As article 2 of the Berne Convention includes architecture in its definition of literary and artistic works, they concluded that works of architecture in France’s national domain are in the public domain, and that the lawmakers cannot “artificially revive exploitation rights.”

The Ministry of Culture argued in defense, rather surprisingly, that “[i]t has never been the intention of the lawmaker to establish a regime guaranteeing free exploitation of a work after the extinction of the economic rights of its owner.” Unless this refers to moral rights, which are perpetual and may sometimes impinge the commercial exploitation of a work, this argument denies a basic concept of French copyright.

On October 25, the French Council of State, France’s highest administrative court, agreed to their request to ask the Constitutional Council whether article R.621-99 violated the Constitution. The Constitutional Council will now decide within 3 months whether the commercial exploitation of buildings in the public domain, but belonging to France’s national domain, violates French Constitution. We’ll keep you informed.

Tuesday, 7 November 2017

Two big decisions examine web blocking in the USA

In the space of under a week there have been two big cases in the JUSA looking at web blocking - and with differing results. 

First off, a federal judge in California has issued a preliminary injunction preventing Canada’s Supreme Court from forcing Google to de-list websites for Datalink on its American search engine. The Canadian Supreme Court (Google Inc v Equustek Solutions Inc, 2017 SCC 34) affirmed the decision from the Supreme Court in British Columbia and ordered Google to delist a tech company’s website(s) worldwide. The music industry trade body Music Canada welcomed the judgement saying it was “a crucial development given that the internet has largely dissolved boundaries between countries and allowed virtual wrongdoers to move from jurisdiction to jurisdiction in search of the weakest enforcement setting”.

The web giant responded by saying the ruling conflics with the right to a freedom of expression  contained within the First Amendment of the US Constitution, and that the Canadian Supreme Court had no right meddling with the American Constitution. Google’s argued “This is about whether a trial court in a foreign country can implement a law that is violative of the core values of this country … imagine if we got an order from North Korea that said we could not publish anything critical of Dear Leader. Imagine if Russia doesn’t like what people are saying about Putin. It would be very dangerous to deny relief in this instance”.

There were no representatives of either Equustek or the Canadian Supreme Court in attendance, and Judge Edward Davila agreed with Google’s request for a preliminary injunction in the United States District Court for the Northern District of California. He agreed that “by forcing intermediaries to remove links to third-party material, the Canadian order undermines the policy goals [of Section 230 of the Communications Decency Act] and threatens free speech on the global internet” adding that “Section 230 of the Communications Decency Act states that third-party internet hosts, such as Google, cannot be held liable for offensive or illegal material generated by other parties”.

Digital rights group the Electronic Frontier Foundation welcomed the ruling, but said more needs to be done to stop other courts from issuing wide-ranging internet injunctions, like that issued by the Canadian Supreme Court in June saying “The California ruling is a ray of hope on the horizon after years of litigation, but it is far from a satisfying outcome. While we’re glad to see the court in California recognise the rights afforded by Section 230 of the Communications Decency Act, most companies will not have the resources to mount this kind of international fight”.

So with Equustek, the music industry won in Canada but ultimately lost in the USA. But web-blocking remains a preferred anti-piracy tool for the film and music sectors and both will take heart from a ruling in a separate copyright dispute which involed Sci-Hub, the website sometimes dubbed the "Pirate Bay of science" which was sued by ther American Chemical Society for distributing academic papers it had published without permission. 

Last month, magistrate judge John Anderson in the District Court for the Eastern District of Virginia recommended that a default judgement shoud award ACS $5 million in statutory damages and that "internet search engines, web hosting and internet service providers" should be ordered to "cease facilitating" access to Sci-Hub.

After Anderson's decision the Computer And Communications Industry Association submitted a paper to the court which stated that: "[The] plaintiff is seeking - and the magistrate judge has recommended - a permanent injunction that would sweep in various neutral service providers, despite their having violated no laws and having no connection to this case" which went against the wishes of Congress. : "
Now Judge Leonie Brinkema has followed Anderson and issued the injuction, meaning US based registrars can't offer their services, and server farms can't host Sci-Hub. The order goes further, ordering “any person … including any Internet search engines, web hosting and Internet service providers, domain name registrars, and domain name registries, cease facilitating access to any or all domain names and websites through which Defendant Sci-Hub engages in unlawful access to, use, reproduction and distribution of the ACS [trade] marks or ACS's copyrighted works”.

The judge also ordered Sci-Hub's domains be placed on registryHold/serverHold to render their names/sites non-resolving. The decison imposed the maximum US$4.8 million to be paid to ACS as statutory damages.

Friday, 3 November 2017


Safe as houses?
A new children’s book “Silent Days, Silent Dreams,” is billed as a fictional biography about James Castle, a self-taught artist whose works can be found in museums, art galleries and private collections all over the world. Written for children, the book contains about 150 illustrations by award-winning writer and illustrator Allen Say - but are those illustrations going to cause problems? They might do as the James Castle Collection and Archive (which has the largest privately held collection of Castle’s works) is suing Say and his publisher for copyright infringement in Boise federal court, alleging that many of Say’s illustrations “are intended to evoke and imitate the artistic style of James Castle but some two dozen of the illustrations “are far more than a tribute” and are “similar if not virtually identical copies” of Castle’s work (see left). An injunction is being sought

What a difference a decade makes! China's "core network copyright industry" has seen rapid growth over the past ten years, according to a recent industry report. In 2016, the scale of the industry exceeded 500 billion yuan (about $76.5 billion U.S. dollars), maintaining a growth rate of over 30 percent a year, according to a report by the country's Network Copyright Industry Research Centre. In 2006, the volume of the industry was just 16 billion yuan, the report said. The report focuses on China's "network industry," described as network gaming and online content, including video and music. Researcher Tian Xiaojun said "With the continuous increase of copyright protection in China and the upgrade of domestic consumption, China's network copyright industry will have huge market potential and is expected to contribute more to the country's economy growth".

Mike Palmedo and Sean Flynn have released the initial results of research based on  the Program on Information Justice and Intellectual Property of the American University Washington College of Law's Copyright User Rights Database. This research tool maps changes to copyright limitations and exceptions and other “user rights” from 1970 through 2016 in 21 countries of different development levels around the World. Palmedo and Flynn intend to continue adding data from additional countries, but feel that the current data allows us to begin demonstrating how differences in copyright user rights are associated with certain outcomes for innovative firms and researchers. The first results are based on tests of copyright limitation openness and although all countries are trending toward more open user rights, there is a clear gap between wealthy and developing countries. The research shows that developing countries in the sample are now at the level of openness that existed in the wealthy countries 30 years ago. Few countries, and almost no developing countries, have sufficient user rights most needed to support the digital economy, including for transformative use or text and datamining. The authors say "To date, there has been very little empirical work exploring how the structure of copyright limitations and other user rights shape outcomes in industries that rely upon them. One reason for this lack of empirical research on the impact of copyright user rights has been the absence of a tool to measure the key independent variable – changes in copyright user rights over time among a broad set of countries. We hope other researchers will find the Copyright User Rights database to be a useful tool for further empirical research on copyright user rights". More here. 

Last week, Motherboard discovered that one of Google's machine learning algorithms was biased against certain racial and religious groups, as well as LGBT people. The Cloud Natural Language API analyzes paragraphs of text and then determines whether they have a positive or negative "sentiment." The algorithm rated statements like "I'm a homosexual," and "I'm a gay black woman," as negative. After the story ran, Google apologised. Now Motherboard are posing the conundrum: "Copyright Law Makes Artificial Intelligence Bias Worse - But it could be used to help fix the problem too" adding "Copyright law has historically exacerbated bias in artificially intelligent algorithms, but it also has the capability to vastly improve them. If companies knew they were protected legally, they would also be more likely to release the data their products were trained on, allowing academics and journalists to do their jobs."

Broadcaster ESPN have been forced to face a trial that alleges copyright infringement after a Mississippi federal judge denied the sports giant's motion for summary judgment. The dispute centers on two documentaries about the life of college football player Chucky Mullins, who was paralyzed during a 1989 game between University of Mississippi and Vanderbilt University while tackling Brad Gaines. Mullins died as a result of complications from his injuries in 1991. Charles Smith Jr. and his production company 38 Films us now suing ESPN and others for breach of contract, fraudulent misrepresentation and copyright infringement, among other claims. They say the 2014 ESPN documentary "It's Time: The Story of Brad Gaines and Chucky Mullins" used his footage without paying an orally agreed upon license fee or giving appropriate credit. Smith claims he understood the ESPN documentary to be about Gaines and he agreed in an oral contract to license footage from his film at a rate of $3,000 per minute used and Ginn gave Yamano their entire archive of digital files. Meanwhile, the defendants say their film is about Gaines, not Mullins, and that they didn't use any footage actually featured in Undefeated or owned by 38 Films.

And news of developments in the legal battle going between photographer Jon Tannen and the giant online media company CBS. After being sued by the photographer for infringing his photo copyrights, CBS has responded by filing its own copyright infringement lawsuit against the photographer… for sharing 59-year-old TV show still frames on social media. More here.  This is the second time the photographer has accused CBS Interactive's 247 Sports senior writer Alex Gleitman of misusing photos in his articles, initially tweeting "To Alex Gleitman. You're violating copyright law. Photo Jon Tannen" and "@Alex Gleitman You've used my photos illegally again. REMOVE THEM NOW. Never asked by permission. Your own logo.Are you stupid? @jtanne". Glietman responded by saying that he has been give the images by the player featured, and had subsequently added a credit. 

And talking of all things American Football and copyright, Eleonora Rosati has posed the question "Can a tweet containing an unlicensed photograph amount to a copyright infringement by the person who embeds such tweet on their own site?" on the IPKat. European readers will of course be familiar with the less than clear judgments in BestWater and subsequent case law, notably GS Media - and in Europelinking can fall within the scope of the right of communication to the public within Article 3(1) of the InfoSoc Directive, although different considerations must be undertaken depending on the case at issue, including whether the link provider is aware of the unlicensed character of the content linked to and/or pursues a profit.  This very question is now being asked in the US, where a photographer working with Getty Images has raised issues of linking and copyright under US law: Justin Goldman, has sued a number of publishers over the unauthorised embedding, by their relevant publications, of a tweet containing an unlicensed image of American football quarterback Tom Brady that he had taken. Images from

Google is fighting on in the Equustek case, now in the US. Readers will remember that the Canadian Supreme Court in Google Inc v Equustek Solutions Inc, 2017 SCC 34 affirmed a decision from the Supreme Court in British Columbia and ordered Google to delist a tech company’s entire website worldwide. The web giant has now told a Californian court that that the ruling conflics with the freedom of expression rights contained within the First Amendment, and that the Canadian Supreme Court had no right meddling with the American constitution.  Google’s lawyer Margaret Caruso said “This is about whether a trial court in a foreign country can implement a law that is violative of the core values of this country … imagine if we got an order from North Korea that said we could not publish anything critical of Dear Leader. Imagine if Russia doesn’t like what people are saying about Putin. It would be very dangerous to deny relief in this instance”. Courthouse News says "Underscoring the bizarre nature of the proceedings, no attorneys for Equustek Solutions or the Canadian court system showed up, allowing Caruso to state her case to U.S. District Judge Edward Davila unopposed."

And finally, CMU Daily reports that "According to law firm RPC, the three leading claimants in the [UK's] High Court in the year up to 31 Mar 2017 were all in the business of copyright. And two of them music copyright." Leading the way with 106 cases to court was the UK's recorded music collecting society PPL, while its counterpart in music publishing, PRS, came in third with 27 cases. The Football Association is in second place having filed 39 cases, mainly seeking to protect its intellectual property rights against those illegally accessing or airing footage of football matches.

Wednesday, 1 November 2017

What future for UK copyright after Brexit? A report on IPKat-BLACA panel discussion

Posted by Eleonora Rosati to the IPKat 

On 19 October last IPKat and the British Literary and Artistic Copyright Association (BLACA) partnered once again and organised a panel discussion on the implications that the departure of the UK from the EU (aka 'Brexit) will have on UK copyright law.

Moderated by myself, the panel featured Sir Richard Arnold (High Court Judge, Chancery Division), Nicholas Saunders (Barrister, Brick Court Chambers), Ros Lynch (Copyright and IP Enforcement Director, IPO), Ian Moss (Director Public Affairs, BPI), Tom Ohta (Senior IP lawyer, BT), and Estelle Derclaye (Professor of IP Law, University of Nottingham). 

Asked what EU development has had the biggest impact - for better or worse - on UK copyright, Sir Richard highlighted at the outset how a number of developments would have occurred independently from UK membership of the EU. These include the changes mandated by the WIPO Copyright Treaties, TRIPS, the Marrakesh Treaty and the Beijing Treaty. However, there have been also legislative interventions prompted by EU membership, including the introduction into UK law of the resale royalty right (droit de suite). 

In all this, however, the learned judge noted that what has had a systemic impact has been in particular the jurisprudence of the Court of Justice of the European Union (CJEU), which has touched upon basic concepts such as originality (which Prof Derclaye said to require more than just sufficient skill, labour or effort, as per the traditional UK approach) and has resulted in UK courts embedding - as is apparent from the SAS case - the idea/expression dichotomy into UK law. Also Mr Saunders stressed the relevance of CJEU jurisprudence, and discussed the case of the right of communication to the public, which so far has been subject to nearly 20 references for a preliminary ruling.

I asked Sir Richard whether he thought that CJEU case law also mandates an open-ended approach to copyright subject-matter. Sir Richard and the other panellists noted that it is not sure that EU law - or rather CJEU interpretation of it - requires to adopt this approach and possibly (but not necessarily) further clarity might be provided when the CJEU decides Levola Hengelo, C-310/17, ie the cheese case [see here].

The discussion then moved to the policy initiatives that UK Government might need to take in the copyright area. Ms Lynch highlighted how, compared to other areas of IP, copyright is not particularly problematic. However, some adjustments would be required, eg with regard to the database right, and the country of origin principle.

When asked about the perspective of UK creative industries, Mr Moss noted how there are some pressing issues to address, including with regard to live performances. Uncertainties over immigration rules post-Brexit, as well as potential visa requirements for UK musicians and performers travelling abroad and EU nationals coming to the UK, should be addressed as soon as possible in order to avoid having to cancel shows that - for 2019 - have already started being arranged and booked. With regard to copyright rules, Mr Moss noted that certain aspects of the proposal for a directive on copyright in the Digital Single Market should be transposed into UK law, even in a scenario of hard Brexit.

Turning to the issue of enforcement, Mr Ohta noted that UK courts have developed a solid jurisprudence on jurisdiction over intermediary injunctions. The discussion then moved to the issue of responsibility for implementation costs of injunctions granted against intermediaries. It will be crucial to see what the UK Supreme Court decides in Cartier next year.

The audience engaged with questions and comments, and was particularly interested in the relevance of CJEU case law post-Brexit. According to s6 of the European Union (Withdrawal) Bill [see here for the progress of the Bill], "[a] court or tribunal— (a) [shall not be] bound by any principles laid down, or any decisions made, on or after exit day by the European Court, and (b) cannot refer any matter to the European Court on or after exit day." However, "A court or tribunal need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate to do so." What that will mean remains unclear.

As a final wrap-up question, I asked the panellists to indicate one area of copyright that they would like to see changed after Brexit, should the UK have the power to do so. Sir Richard noted that, although he was not indicating any specific preference, the UK might have a discussion around the re-introduction of s52 of the Copyright, Designs and Patents Act (CDPA) [which the UK repealed as a consequence of the CJEU Flos decision]. Prof Derclaye, Mr Ohta and Mr Saunders indicated case law on communication to the public as being in need of some rethinking, with Mr Saunders also adding the introduction of a new private copying exception [s28B CDPA was repealed shortly after it was introduced, on grounds that Government had failed to provide appropriate evidence as to why there was no need of a fair compensation requirement]. Mr Moss said there is no particular need to reform UK copyright law, although greater cooperation from intermediaries would be good. Considering how busy the UK IPO is already with other IP rights, Ms Lynch concluded by saying that she wishes that no immediate changes are necessary. 

Not every pattern is protected by copyright, even if creating it involved many choices

The Review Board of the U.S. Copyright Office (the Board) recently reviewed a second request by T.W.N. Industries (TWN) for reconsideration of the Registration Program’s previous denial to register two of its patterns. On October 25, 2017, the Board again denied registration to one of the patterns, Gold Wood, but granted registration to the Staggered Carbon Pattern.

TWN’s patterns are designed to be used by applying them to an object, such as an airplane interior for example.

The Board described the two patterns as such:

Staggered Carbon is a geometric pattern consisting of repeating rectangular bands of different sizes, shapes, and textures, arranged in a woven pattern. The bands are two distinct gray-colored patterns. One band is dark gray with vertical lines, and the other band is light gray with darker gray lines.

Gold Wood is a two-dimensional graphic design consisting of a repeating pattern of striated gold and cream vertical lines, made to resemble a light wood grain. “

The U.S. Copyright Office had originally denied in September 2016 copyright registration to both patterns, informing TWN that they lacked the minimum amount of creative pictorial, graphic or sculptural authorship necessary for a work of visual arts to be protected by copyright. 

Deemed Worthy of Copyright Protection 

TMW then asked the Copyright Office to reconsider its refusal, and  explained the creative process used for both patterns, which both necessitates the use of up to three layers within Photoshop, and were hand-drawn using different brushes and strokes.

The Copyright Office again denied registration, as “the elongated rectangular bands” which made up the Staggered Carbon pattern “are a common and familiar shape” and the lines making up the Gold Wood pattern were also “a common and familiar shape” and thus could not be protected by copyright. The Copyright Office also found that the Gold Wood's features were not "combined in any way that differentiates them from their basic shape and design components," and were a "simple configuration" not protectable by copyright as "the work as a whole consists of vertical lines in shades of gold and cream.”

TMW asked the Copyright Office to reconsider its refusals for a second time, as allowed by 37 C.F.R. § 202.5 (c), claiming that both works were original enough to be protected by copyright, which bears the question: what is originality under U.S. copyright law?

What is originality under U.S. copyright law?

Under 17 U.S.C. § 102(a), U.S. copyright protects only "original works of authorship." The threshold for a work to be original is, however, quite low. As explained by the Supreme Court in Feist Publications, Inc. v. Rural Telephone Service Co., Inc. , “[t]he sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. … Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.”

Thus two cumulative conditions are necessary for a work to be protected by copyright:

-          It must have been independently created by the author and

-          It must possess at least some minimal degree of creativity

A combination of unoriginal elements can be original enough to be protected by copyright

The Board noted that [s]ome combinations of common or standard design elements may contain sufficient creativity with respect to how they are juxtaposed or arranged to support a copyright… [but that] not every combination or arrangement will be sufficient to meet this test.”

It quoted the 2003 Satawa v. Lowry 9th Circuit case, where the court explained that, while

a combination of unprotectable elements may qualify for copyright protection… not … any combination of unprotectable elements automatically qualifies for copyright protection. Our case law suggests, and we hold today, that a combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.”

The Board also quoted § 906.1 of the Compendium of U.S. Copyright Office Practices on Common Geometric Shapes, which explains that “the U.S. Copyright Office will not register a work that merely consists of common geometric shapes unless the author’s use of those shapes results in a work that, as a whole, is sufficiently creative.”

Staggered Carbon is original enough to be protected by copyright

The Board found that “the combination of elements in Staggered Carbon - namely the different textures on the bands, as well as their arrangements - exhibits copyrightable authorship,” and was original enough to be protected, quoting Feist, where the Supreme Court held that only a ‘modicum’ of creativity is necessary for a work to be original.

However, only the “specific combination of textures” created by TWN are protected by copyright, not the “standard designs and other unoriginal elements.”

Gold Wood is not original enough to be protected by copyright

But even though the Board recognized that Gold Wood had been independently created, it was not creative enough to be protected by copyright, as “it consists of simple, minor variations on common shapes arranged in an obvious and uniform manner.” The Board explained further that Gold Wood “is made up of only a very few elements (monochromatic lines in a few shades of gold” arranged in an unoriginal manner (densely and with only minor and repeating variations throughout the pattern).” As explained in § 313.4(J) of the Compendium of U.S. Copyright Office Practices, “a work consisting of a simple combination of a few familiar symbols or designs with minor linear or spatial variations, either in two-dimensional or three-dimensional

form, cannot be registered.”

TWN argued that it had to make “specific choices from endless alternatives of shapes” to create Gold Wood. But the Board explained that “it is not the possibility of choices that determines copyrightability, but whether the resulting expression contains copyrightable authorship.”