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Performers’ Rights and the Performance Right: A Constitutionally Confusing Conflation of Constructs

halpern_env-page-001The bizarre saga known as Garcia v. Google has finally come to end with an eleven judge en banc decision of the United States Court of Appeals for the Ninth Circuit (Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015)). That holding came in response to a remarkable, if not astonishing holding by a two to one majority of a Ninth Circuit panel. The en banc hearing, and its result, overturning the panel majority, was not at all surprising. The issue, however, was disturbing enough to have generated  the filing of thirteen different amici curiae briefs on behalf of more than forty different purported amici.

While the end result was fully anticipated the case itself raises significant issues a [...]

Private Copying, an Institution Shaped by the Courts

Pablo HernandezThe progressive breakdown of the legal system regulating compensatory remuneration for private copying has given rise to some unusual cases.  We consider this to be true of a Spanish Supreme Court judgment of 6 March 2015 which had to rule on whether mobile telephones and memory cards were subject to compensatory remuneration payment, the amount of that payment and the application of the Padawan doctrine.  The legislation on which the court was to base its findings was shaky and limited to the general principle governing devices suitable for making recordings.  In view of this, the court had to decide on the royalty payable and the Padawan effect on such devices where the damages exceeded [...]

UK Private Copying Exception ruled illegal

Savvides_TheoIn October 2014 the government introduced a series of changes to the UK’s copyright regime. One change, key to the objective of making copyright law better suited to the digital age, was the introduction of a private copying exception. That exception is now in jeopardy following a successful challenge by the music industry. For the exception to survive ,the government will either have to introduce some form of compensation scheme, or produce evidence which supports its initial conclusion that private copying will cause no more than de minimis harm to copyright owners.

Background

On 1 October 2014, a number of changes were made to the UK copyright regime in the form of new exceptions to c [...]

Third Time Unlucky – the Polish Constitutional Tribunal Axes the Triple Licence Fee

For quite a long time nothing special has been happening in Polish copyright law. Some court decisions here and there (in all fairness unlikely to be called ground-breaking) and some new legislative initiatives (that will be worthy of presenting if eventually passed). However, yesterday (June 23, 2015) the Polish Constitutional Tribunal issued a decision on the art. 79.1 (3 a) of the Polish Copyright Act, declaring the provision unconstitutional. Several facets of the case deserve wider attention and may be relevant in the context of the general discussion on the enforcement of copyright and the desired level of sanctions available in copyright law.

Polish law is very friendly towards copyr [...]

Report by the US Copyright Office on Orphan Works and Mass Digitization

J AxhamnOn June 4th, the US Copyright Office published a report on Orphan Works and Mass Digitization. The report addresses two situations where the current US copyright system may not fulfill its aim to “promote the Progress of Science”: orphan works and mass-digitization. As regards orphan works, the Office notes that a user’s ability to seek permission or to negotiate licensing terms is compromised by the fact that, despite his or her diligent efforts, the user cannot identify or locate the copyright owner. As regards mass digitization – which involves making reproductions of many works, as well as possible efforts to make the works publicly accessible – the Office observes that obtaini [...]

Italy: Riccardo Pagani v. Leo Burnett Company S.r.l., Ordinary Court of Turin, 32855/2014, 31 March 2015

The Court of Turin held that the main idea for a finished work (a TV commercial for the FIAT 500) had been developed in an initial project carried out by the claimant and that this project was the basis for the subsequent authors’ work.  Consequently, the commercial was evidentially a development of his original idea.  His work was therefore entitled to copyright protection in line with Article 1 of the Italian Copyright Law which protects works ‘whatever their mode or form of expression’ and he was entitled to be named as a co-author of the advertisement.

A full summary of this case has been published on Kluwer IP Law

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UK: 1967 Ltd v. British Sky Broadcasting Ltd., High Court of England and Wales, Chancery Division, Case No.: HC14C02952, 23 October 2014

This case concerned blocking orders pursuant to s97A of the Copyright Designs and Patents Act 1988 (CDPA). The Court found that there was copyright infringement by both UK users and operators of file-sharing websites, insofar as there was communication of copyright works, the communication was to the public, and the act of communication took place in the UK.  This was the case not only for the websites that allowed users to upload torrent files but also for those that only aggregated links to torrent files on other websites.  Further, the operators of the websites were also held to authorise the infringing acts of their UK users and to be jointly liable for infringements by the users. [...]

UK: Twentieth Century Fox Film Corp v. Sky UK Ltd, High Court of England and Wales, Chancery Division, [2015] EWHC 1082 (Ch), 28 April 2015

The claimants, all members of the Motion Picture Association of America holding copyright in a large number of films and TV programmes, were granted a blocking order preventing the use of Popcorn Time, an open source streaming application which used the BitTorrent protocol to download the claimants’ copyright content.

A full summary of this case has been published on Kluwer IP Law and this case is discussed on the Kluwer Copyright Blog here.

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Ireland: Playboy v. EMN, High Court of Ireland, 2014 207 P, 19 February 2015

The plaintiff alleged infringement under the Copyright and Related Rights Act 2000 (CRRA 2000), breach of trademark, breach of contract, breach of moral rights, breach of confidence and interference with economic relations. The court held that under the statutory claim (s37 and S40 of the CRRA 2000) it is incumbent on the plaintiff to sufficiently mirror the language of the act.  The defendant is entitled to know under what part of the act the claim arises and whether any of the forms of making available under s40 have occurred. The plaintiff was ordered to submit the exclusive licence that it claimed in the works concerned and to reframe their submission using the language of the CRRA 20 [...]

The Netherlands: NSE v. Stichting BREIN, Court of Appeal of Amsterdam, ECLI:NL:GHAMS:2014:3435, 19 August 2014

The Court of Appeals held that a European Usenet Service Provider (‘USP’), ‘NSE’, was excluded from liability for infringement of copyright and neighbouring rights, pursuant to the provisions for mere conduit service providers and hosting service providers in Articles 12 to 15 of Directive 2000/31/EC (The E-Commerce Directive) as implemented into Dutch law. In the context of an Usenet service, an efficient Notice-and-Take-Down procedure is sufficient to establish an expeditious act to remove or disable access to the information in the situation where the USP obtains knowledge or awareness of copyright infringing material. Although NSE was excluded from liability, other measures c [...]

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