The UK's Digital Economy Bill

The UK’s Digital Economy Bill received Royal Assent on April 8 and it is now an Act of Parliament. The UK Government managed to get it through Parliament prior to the May election. 

The Act covers a Ministerial power to order internet service providers (ISPs) to take technical measures against subscribers – the most obvious being suspension of online access – in order to tackle online copyright infringement. The Minister is also empowered to make regulations giving the courts the power to order blocking injunctions on specific websites. Maximum fines for copyright infringements are standardised and increased.

The Act gives ISPs the responsibility of notifying subscribers of any copyright infringement, initially identified by copyright owners.  ISPs will be obliged to react to copyright infringement reports from copyright owners  – containing evidence that a user has engaged in some form of copyright infringement  – by notifying the relevant users of these reports. 

ISPs are required to maintain anonymous user-specific records of their notifications, so as to assist copyright owners in identifying the serial offenders, against which the copyright owners can take further action (once they have obtained a court order for a particular user’s identity). 

Users will have the usual rights of appeal to a tribunal against both copyright infringement reports and any technical measures imposed upon them. Should an ISP fail to comply with a technical measure, it could be fined up to £250,000. ISPs are not happy about this, to say the least.

Blocking injunctions are a further possibility. These uncertain and significantly opposed provisions in the Act give the Minister powers to request a court to issue a blocking injunction, which would require ISPs to block access to websites used in connection with the infringement of copyright. 

Although any provision will require approval of Parliament and a 60 day review period before it comes into force, a full scrutiny of such provision (as is usually the case with primary legislation) will not be required. This appears a move away from traditional law making and again towards the use of executive powers.

Sabam versus Tiscali - Questions to the ECJ

Sabam (the Belgian Society of Authors, Composers and Publishers) sued Scarlet (formerly the Belgian subsidiary of Tiscali).  in 2004 over P2P file-sharing. In 2007 Scarlet was ordered to adopt a system called Audible Magic to filter illegal file-sharing. Audible Magic did not work and the order was overturned in 2008. Now a reference has been made to the ECJ in which the following questions are asked:

"1. Do Directives 2001/29 [copyright in the information society] and 2004/48 [the IP enforcement directive], read in conjunction with Directives 95/46 [on the processing of personal data], 2000/31 [the e-commerce directive] and 2002/58 [on privacy and electronic communications] and interpreted with regard to Articles 8 and 10 of the European Convention on Human Rights, allow Member States to authorize a national court, seized in a procedure on the merits and on solely on the basis of the legal provision which holds that “They [the national court] can equally impose a prohibitory injunction on intermediaries whose services are relied upon by a third party to infringe copyright or a neighbouring right”, to order an ISP to put into place, vis-a-vis all of its customers, in abstracto and as a preventive measure, at the expense of the ISP and without limitation in time, a system filtering all electronic communications, both incoming and outcoming, passing through its service, in particular by means of peer to peer software, with the aim to identify the circulation on its network of electronic files containing a musical, cinematographic or audiovisual work to which the claimant alleges to enjoy rights and to then block the transfer thereof, either at the request or at the time it is sent?

2. If question 1 is answered in the positive, do these directives require that the national court, seized to rule over a request for injunctive relief against an intermediary on whose services a third party relies to infringe a copyright, applies the principle of proportionality when it is asked to rule over the efficacy and the dissuasive effect of the requested measure?"

Here goes a simplified version:

1. Does Article 15 of the E-Commerce Directive prohibit an injunction compelling an ISP to filter P2P communications because it would be 'a general obligation to monitor'?

2. If not, should the Belgian court impose such an injunction on Scarlet?

Note that the ECJ has already provided courts with a guideline in Promusicae, according to which the Information Society Directive (including injunctions) should be interpreted in accord with fundamental rights (e.g. rights to property, private life and freedom of expression) and other general principles of Community law (e.g. proportionality).

Music Copyright Society Of China versus Baidu

Search engine Baidu has lost a lawsuit in the Beijing courts centred on the use of lyrics of songs that Baidu posts next to its MP3 search function. The Music Copyright Society Of China contended that Baidu did not have the appropriate licence to publish song lyrics owned by its members. The Beijing People's Court for the Haidian District agreed and fined Baidu, 50,000 yuan plus 10,000 yaun legal costs just over £5500.

Source: Digital music news

WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty

The Official Journal of the European Union has confirmed that the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty will enter into force, with respect to the European Union, on 14 March 2010.

Source: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:032:0001:0001:EN:PDF

ISPs not liable for copyright infringement

In a case brought by the AFACT (the Australian Federation Against Copyright Theft) against an ISP (iiNet) concerning illegal file-sharing acts carried out by the ISP's customers, Australia's Federal Court found that whilst iiNet had knowledge that its customers were committing copyright infringement, this did not mean that iiNet was "authorizing" the activities:

“While I find that iiNet had knowledge of infringements occurring, and did not act to stop them, such findings do not necessitate a finding of authorization. I find that iiNet did not authorize the infringements of copyright of the iiNet users”.

AFACT wanted iiNet to be forced to disconnect any customers it knew were illegally sharing music online.

The question is whether the the Australian government will now decide to follow the French three strikes policy.

Source: http://www.dmwmediacom

Copyright and Technology Conference, 17/06/2010

Program

8:00 – 8:30am Continental Breakfast

Plenary Session

8:30 – 9:15 am Opening Remarks

Bill Rosenblatt, President, GiantSteps Media Technology Strategies and Program Chair

9:15 – 9:45 am Keynote

Michael Fricklas, EVP and General Counsel, Viacom

9:45 – 10:15 am Networking break

10:15 – 11:15 am TBA

11:30 am – 12:30 pm Can User Generated Content Creators Get Paid?

12:30 – 1:45 pm Lunch

Afternoon Technology Track

1:45 – 2:45 pm The New Ecosystems for Video

Mitch Singer, CTO, Sony Pictures Entertainment and President, Digital Entertainment Content Ecosystem

Dave Habiger, CEO, Sonic Solutions

Arnaud Robert, VP Content Protection, Walt Disney Co.

3:00 – 4:00 pm Content Identification Technologies: Moving from Antipiracy to Monetization

Moderator: Rajan Samtani, Digital Media Consultant

4:00 – 4:30 pm Networking break

4:30 – 5:30 pm What Is the Future of DRM?

Moderator: Jude Umeh, Senior Consultant and Enterprise Architect, Cap Gemini

Afternoon Law & Policy Track

1:45 – 2:45 pm Progressive Response in the US? Likelihood and Ramifications

Moderator: Nic Garnett, Partner, HRO Grant Dawe

Sherwin Siy, Deputy Legal Director, Public Knowledge

Jim Burger, Dow Lohnes

3:00 – 4:00 pm News Publishing vs. Search Engines

Jim Kennedy, VP and Director, Strategic Planning, The Associated Press

4:00 – 4:30 pm Networking break

4:30 – 5:30 pm Policing Copyright: Whose Job Is It?

Link:

http://copyrightandtechnology.com/ct-2010-conference/

Artigo sobre o caso Baidu

Artigo interessante sobre o caso Baidu em:
http://arstechnica.com/tech-policy/news/2010/01/baidu-cleared-in-copyright-infringement-case-brought-by-ifpi.ars

P2P Provider Not Guilty

Alan Ellis, 26, was recently found not guilty of conspiracy to defraud. Ellis ran a P2P website called Oink, which did not host any content itself but indexed the files users had available on their computers for others to download. Between 2004 and 2007, Oink facilitated the download of 21 million music files.

According to the BBC, Ellis told the court that he had only set up the website to improve his employability skills, that he had not carried out the infringing acts himself and that he had not intended to defraud copyright holders.

Source: BBC

Sarkozy proposes ad tax on Google

According to the Financial Times, the French government is considering the possibilityt of taxing the advertising revenues of Google and other internet portals. Following complaints from the French media that Google and other sites are generating advertising income using their news and other content, President Nicolas Sarkozy instructed his finance ministry to examine the merits of such a tax and also called for an inquiry by French competition authorities into a possible “abuse of dominant position” in the advertising business of big internet sites. According to the FT, Google stated that introducing an additional tax on internet advertising was not the right way forward as it could slow down innovation.

Symposium in memory of G.Koumantos, Athens, Friday 7 May 2010

THE WORK 0F GEORGES KOUMANTOS  AND THE CURRENT ISSUES IN COPYRIGHT

Date: 7th of May 2010

Place: Athens, the University of Athens (Old building).

Fee: 50,00€, which includes lunch, two coffee brakes, closing dinner and a dossier with documentation.

Morning Session (9:00 - 13:30)

9:00 – 9:30 Registration

9:30 - 11 :00 Conference opening: The work of G. Koumantos

Speeches: Professor I. Karakostas and Professor Th. Fortsakis

 V. Nabhan, President of ALAI, The contribution of Pr. Koumantos to ALAI and to the international level

 Honored Professor M. Stathopoulos, His personality

 Professor D. Kallinikou, Contribution to the national level

11:00 - 11:30 Coffee Break

11:30 - 12: 30 International protection of copyright and international private law

Moderators M. Ficsor, President of Hungarian Group of ALAI and Professor M.-Th. Marinos

 V. Nabhan, President of ALAI, The international conventions of copyright

 Professor A. Lucas, International private law and copyright

12: 30-13:30 The moral right of authors

Moderators Professor G. Karnell and Professor A. Chiotellis

 Professor F. Gotzen, The moral right (general theory / rights / the future)

 Dr. P. Koriatopoulou/ Lector P. Nikolopoulos, The Greek aspect

 Ass. Professor Elsa Deliyanni, “Remix culture": mutations of the concept of "Author" in a networks' world.

13:30 - 14:30 Lunch

Afternoon Session (14:30 – 19:00)

14:30-15:30 Exclusive rights and Contracts

Moderators Professor A. Lucas and Honored Professor L. Kotsiris

 M. Fiscor, President of Hungarian Group of ALAI, Exclusive rights and equitable remuneration

 Lector A. Despotidou, The contracts of exploitation

15:30-16:30 Technical and judicial defence

Moderator President V. Nabhan and Professor I. Karakostas

 Professor G. Karnell/ Lector S. Stavridou, The technical protection of copyright

 Professor M-Th. Marinos ,Judicial protection

16:30-17:00 Coffee Break

17:00-18:00 Copyright in practice (Panel of Copyright Lawyers)

Moderator Professor D. Kallinikou

Th. Asprogerakas, G. Babetas, G. Kapellakou, S. Kokolinakis, N. Kyprouli, E. Liaskos, E. Roussou, D. Sarafianos, G. Zannos.

18:00-19 :00 Discussion and Conclusions

19:30 Closing Dinner























































Symposium à la Mémoire de Georges Koumantos





L’OEUVRE DE GEORGES KOUMANTOS



ET LES PROBLEMES ACTUELS DU DROIT D’AUTEUR





Date: le 7 mai 2010

Lieu: Athènes, l’Université d’Athènes (Ancien Bâtiment)



Session du matin (9:00 - 13:30)



9 :00 - 9 :30 Enregistrement des participants



9:30 - 11:00 Ouverture de la Conférence: L’œuvre de G. Koumantos

Allocutions Professeur I. Karakostas et Professeur Th. Fortsakis

 V. Nabhan, Président de l’ALAI, La contribution du Pr. Koumantos à l’ALAI et au niveau international

 Professeur émérite M. Stathopoulos, Sa personnalité

 Professeur D. Kallinikou, Contribution au niveau national



11 :00 - 11:30 Pause café



11:30 - 12:30 La protection internationale du droit d’auteur et le droit international privé

Modérateurs M. Ficsor. Présidant du Groupe Hongrois d’ALAI, et Professeur M.-Th. Marinos

 V. Nabhan, Président de l’ALAI, Les conventions internationales du droit d’auteur

 Professeur A. Lucas, Droit international prive et droit d’auteur



12:30 - 13: 30 Le droit moral des auteurs

Modérateurs Professeur G. Karnell et Professeur A. Chiotellis

 F. Gotzen, Le droit moral (théorie générale / attributs /l’avenir)

 Dr. P. Koriatopoulou/Lecteur P. Nikolopoulos, L’ aspect grec

 Professeur Ass. Elsa Deliyanni, "Remix culture" et les mutations du concept d'Auteur" dans l'univers des réseaux.



13:30 - 14:30 Déjeuner









Session de l’ après midi (14:30 – 19:00)



14:30 -15:30 Droits exclusifs

Modérateurs Professeur A. Lucas et Professeur émérite L. Kotsiris

 M. Fiscor, Présidant du Groupe Hongrois d’ALAI, Droits exclusifs et rémunération équitable

Lecteur A. Despotidou, Les contrats d’exploitation



15 :30-16 :30 Défense technique et juridique

Modérateurs Président V. Nabhan et Professeur I. Karakostas

 Professeur G. Karnell/Lecteur S. Stavridou, La protection technique du droit d’auteur

 Professeur M.-Th. Marinos, La protection juridique



16:30 - 17:00 Pause café



17:00-18:00 Le droit d’auteur en pratique (Panel de spécialistes au droit d’auteur)

Modérateur Professeur D. Kallinikou

Th. Asprogerakas, G. Babetas, G. Kapellakou, S. Kokolinakis, N. Kyprouli, E. Liaskos, E. Roussou, D. Sarafianos, G. Zannos.

18:00 - 19:00 Discussion et Conclusions

19:30 Dîner de clôture

WIPO Treaties

Recently, the Director General of the World Intellectual Property Organization (WIPO) "presented his compliments to the Minister for Foreign Affairs and ha[d] the honor to notify him of the deposit, on December 14, 2009, by the Government of the Republic of Malta of its instrument of accession to the WIPO Copyright Treaty, adopted at Geneva on December 20, 1996, as well as the deposit by the Council of the European Union and the Governments of the Republic of Austria, the Kingdom of Denmark, the Republic of Estonia, the Republic of Finland, the French Republic, the Federal Republic of Germany, the Hellenic Republic, Ireland, the Republic of Italy, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Portuguese Republic, the Kingdom of Spain, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland, of their instruments of ratification of the said Treaty".

The same selection of jurisdictions acceded or ratified the WIPO Performances and Phonograms Treaty too.

"The instruments of ratification of the Kingdom of Denmark, the Republic of Finland, the French Republic, the Federal Republic of Germany and the Kingdom of Sweden contained the following declarations, respectively:

- "in accordance with Article 3(3) of the WIPO Performances and Phonograms Treaty (WPPT), the Kingdom of Denmark declares that it avails itself of the faculty provided in Article 5(3) of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome Convention (1961)) in the sense that Denmark will not apply the criterion of publication in Article 5(1)(c) of the Rome Convention."

- "Pursuant to Article 3(3) of the Treaty the Republic of Finland avails itself of the possibilities provided in Article 17 of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome Convention) and refers to the notification made at the time of ratification by Finland of the Rome Convention, stating that it will apply, for the purposes of Article 5 of the said Convention, the criterion of fixation alone and, for the purposes of Article 16, paragraph 1(a)(iv), the criterion of fixation instead of the criterion of nationality."

- "The Government of the French Republic declares, in accordance with Article 3(3) of the WIPO Performances and Phonograms Treaty (WPPT), that it avails itself of the faculty provided in Article 5(3) of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention of October 26, 1961), and that instead of the criterion of first publication it

will apply the criterion of first fixation."

- "In accordance with Article 3(3) of the WIPO Performances and Phonograms Treaty (WPPT), the Federal Republic of Germany declares that it avails itself of the faculty provided in Article 5(3) of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome Convention (1961)) in the sense that it will not apply the criterion of fixation laid down in Article 5(1)(b) thereof."

- "The Kingdom of Sweden declares, in accordance with Article 3(3) of the WIPO Performances and Phonograms Treaty with reference to Article 5(3) of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, that Sweden will not apply the criterion of publication, with the exception of the reproduction right for phonogram producers."

Both treaties enter into force, with respect to the European Union and the relevant Member States, on 14 March 2010.

Source: WIPO

NMPA v LyricWiki

The USA’s National Music Publishers Association (NMPA) has settled its copyright infringement suit brought by members Peermusic, Warner Chappell and Bug Music against Motive Force and Sean Colombo, operators of the unlicensed LyricWiki database of song lyrics. Under the terms, Motive Force and Mr. Colombo will be permanently enjoined from further using unlicensed song lyrics on websites or applications, and will "turn over funds associated with the exploitation of the unauthorized content" saying that all unlicensed content had now moved to a licensed lyric website.

Source: http://www.dmwmedia.com/

Internet pirates are finding new safe havens to avoid prosecution for illegal file sharing

Internet pirates are moving away from safe havens such as Sweden to new territories that include China and Ukraine, as they try to avoid prosecution for illegal file sharing, according to experts.

For several years, piracy groups that run services allowing music, video and software to be illegally shared online have been using legal loopholes across a wide range of countries as a way of escaping prosecution for copyright infringement.

In the last year there has been a significant shift, say piracy experts, as the groups have worked to stay beyond the reach of western law enforcement.

The change is rooted in the evolution of "bulletproof hosting", or website provision by companies that make a virtue of being impervious to legal threats and blocks. Not all bulletproof services are linked to illegal activities, but they are popular among criminal groups, spammers and file-sharing services.

Late last year a Swedish court found four men guilty of breaking copyright law through their links to the Pirate Bay website, one of the internet's most notorious gateways for pirated films and television shows.

That decision prompted many piracy services to seek jurisdictions beyond the reach of western law. Pirate Bay moved its web servers to Ukraine, while another popular file-sharing service, Demonoid, which started in Serbia, also relocated.

"Before going completely dark in October [2009], Demonoid physically moved their servers to Ukraine, and remotely controlled them," said John Robinson, of BigChampagne, a media tracking service based in Los Angeles. "Ukrainian communications law, as they paraphrase it, says that providers are not responsible for what their customers do. Therefore, they feel no need to speak about or defend what they do."

Research published last year showed that most bulletproof hosts are located in China, where criminals are able to take advantage of low costs and legal loopholes to avoid prosecution.

Despite officials in Beijing talking in tough terms about computer crime – hacking potentially carries a death sentence in China – the authorities rarely co-operate with other countries to take action against hi-tech criminals. As a result, just a handful of firms in China are responsible for hosting thousands of criminal enterprises online.

But the long-term impact of offshore hosting is becoming more problematic as investigators worldwide try to cut the links between criminal groups and protected internet servers.

Some are hopeful that greater co-operation between international governments will help prevent the development of new piracy havens, but others suggest that it is unlikely that a complete block on such activities will ever be possible.

"There will always be a place to run to," said Rob Holmes, of IP Cybercrime. "Each time a law passes, or a new country creates some kind of stumbling block for them, they'll always find another place to do this. It goes back to the speakeasies in the 1920s – when one place got busted, they would just congregate in another place."

Source: http://www.guardian.co.uk/

Mian Mian v Google

A Beijing judge has told the Chinese novelist Mian Mian, who is suing Google over its plan to create an online library, to hold settlement talks. Mian Mian is seeking damages of 61,000 yuan ($8,950) and a public apology. The lawsuit was filed in October after Google scanned one of Mian Mian's books, Acid House, into its library. Google said it had removed the book as soon as it learned of the lawsuit, but had no further comment on the case.

The China Written Works Copyright Society is also looking for compensation for other Chinese authors whose work is included in the project.

In the US, Google agreed a $125m settlement with American authors and publishers - although this is still waiting for final court approval.

Source: BBC

Article by Bill Rosenblatt

"(…) FreeAllMusic.com will let users download a free and DRM-free MP3 music track for every ad they watch. Two of the four major music companies (we wont know which two until launch) are licensing their catalogs for this service.


Two years ago, I characterized the pay what you wish offer that the rock band Radiohead made with its album In Rainbows as a race to the bottom for the price consumers pay for music. I said that peoples perception of the value of music will go to zero along with the price. The next lap in the race to the bottom was led in early 2008 by Google, which began to give away Universal Music Group MP3 downloads in China in order to compete with Baidu.

Then MySpace began to offer free on-demand streaming in hopes of garnering ad revenue, an effort that is widely acknowledged to be a failure. The widely-hyped startup SpiralFrog tried offering DRM-protected music files in exchange for watching ads; it folded earlier this year.

When Google expanded its free-downloads program this past March, I asked: which online service provider will be the one that offers the record companies enough money to provide free downloads in the US and other markets — and when? Will it be Google, Yahoo, AOL, FaceBook, or some unknown but well-funded startup?

Now we know the answer: FreeAllMusic.com. Welcome to the next leg in the race to the bottom.

My original race to the bottom article drew some criticism, led by a TechDirt post by Tim Lee, whose flawed analysis betrayed both his biases and lack of knowledge. This post drew many comments, many (though not all) in favor of Lees opinion, which could be summarized as Competition happens; get over it. One commenter even accused my former site DRM Watch as supported but [sic] the recording industry trade association (not even remotely true).

Folks, it looks like I havent been clear enough, so let me try one more time: Music is not widgets, or even music players (which Tim Lee used as his comparision). It is culture. Economic analysis can and should be done about content in a business context, but the distinction must remain.

Anyone who insists on treating culture as widgets has no appreciation for culture. Music is made by musicians, and musicians should be able to make a living. This should be the case regardless of whether there are record companies (major or otherwise) involved.

When people no longer perceive music (or other content) as having value, then it ceases to have value as culture. This is the danger we face.

As for FreeAllMusic.com, here is what I predict will happen: the site will eventually attract a reasonable audience of people who can wait for 15-30 seconds while the ad plays (while looking at something else on their computer screens) in order to download songs legally, as opposed to downloading the same songs illegally without having to wait. The site will lose lots of money, just like MySpace Music and SpiralFrog. It will eventually cease operations and/or be acquired by one of the aforementioned big fish.

But by then, the public will have come to expect free and legal permanent music downloads. At that point, the race to the bottom will be over. There will be many losers; in the long term, I cant think of very many winners. Certainly not actual musicians."

Source: http://copyrightandtechnology.com/2009/12/30/freeallmusic-com-offers-mp3-downloads-for-watching-ads/

Hollywood victory agains file-sharing site

A Californian court recently granted summary judgment against isoHunt, one of the world’s biggest torrent-indexing sites. The court established that isoHunt has inducement liability for copyright infringement. Evidence of inducement includes box office hit movie lists, technical assistance for infringing users, technical features promoting infringement and a business model depending on infringement.

Source: http://latimesblogs.latimes.com/technology/2009/12/a-clear-but-limited-win-for-hollywood-over-isohunt.html

The Abode of Chaos and freedom of artistic expression

The Cassation Court’s criminal chamber presiding over a second appeal delivered an order dated 15 December 2009 for the destruction of the 3,123 works of art forming the corpus of the Demeure du Chaos created by the artist and sculptor thierry Ehrmann in 1999.

Founded by the conceptual act of thierry Ehrmann on 9 December 1999, the Abode of Chaos (per the NYT) is an œuvre au noir (nigredo) inspired by the alchemical chaos of the 21st Century, whose tragic and yet sumptuous embers were ignited on 11 September 2001.

Between February 2006 and June 2008, under its E.R.P. status (Etablissement Recevant du Public) status, the Abode of Chaos attracted 437,130 visitors of whom 21% came from outside France. The place also hosts a number of artists in residence.

Since 1999, the local authority of Saint-Romain-au-Mont-d’Or (where the Abode is located) has been pursuing a crusade of artistic negation against the Abode of Chaos and continues to call for “the restoration of the building to its original state”… which means effectively means the complete destruction of the Abode.

The case will now be submitted to the European Court of Human Rights in the framework of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The wording of the Cassation Court’s rejection of the appeal clearly reflects its concern to uphold French building regulations, and their application by the Grenoble Appeal Court, as being coherent with the freedoms of expression guaranteed in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Thierry Ehrmann considers that this decision violates his freedom of expression and that this freedom cannot be uniquely subjected to Building Regulations since artistic expression has been a national and universal right since the beginning of time.

From a copyright viewpoint, the issue is to what extent, if any, could the Abode of Chaos claim any sort of copyright protection and what, in commercial and moral rights terms, might be the outer limits of its protection.

Follow the news direct from the Abode of Chaos on:http://blog.ehrmann.org/ and http://www.demeureduchaos.org/ and http://www.abodeofchaos.org/

Martiniere Groupe v Google

In June 2006, a French publishing group sued Google for publishing book excerpts online without permission. La Martiniere accused Google of “counterfeiting and breach of intellectual property rights” by digitising about one hundred of its titles, claiming one hundred thousand euros for each book copied or one million euros. The French publishers union, Syndicat National de l’Edition (SNE), joined the Martiniere Groupe in its copyright suit against Google.

In 2004, Google announced the Google Book Print initiative, later renamed Google Book Search to better indicate the nature of the project. The idea was that Google Book Search would allow users to search the text of books online, like the Google Web Search allows users to search web pages.

Google Book Search operated differently, depending on whether the books were part of the Google Partner Program or the Google Library Project, and depending on whether they were in the public domain.

The Google Partner Program was based on agreements between Google and publishers under which Google got permission to add the contents of published books to a Google database, either by scanning the books or by using a digital file supplied by the publisher. 

Depending on the agreement with the Google Library Project partners, Google could be supplied with books out of copyright and under copyright.

If a book was in the public domain the entire scanned text was made available to the user. Where books were scanned into Google’s database further to the Google Partner Program, as much of the work is displayed as allowed by the copyright owner. If the book was still protected by copyright and was not part of the Google Partner Program, Google allowed the user to see up to three snippets, consisting of a few sentences of the search term in context .

There were two key issues in the French case: choice of law and infringement.

Choice of law: This point was significant, because European law does not provide Google with the potential fair use defence that may available under US law. La Martinière argued that for délits complexes (where the cause and the effect are in different countries) the court should apply the law of the country that has the most points of contact with the case. La Martinière said France was that country for several reasons including the fact that one of the defendants was Google France (based in France and having some responsibility for Google Book Search), the site has a French domain name and is written in French, the claimants are based in France and the books’ authors are French. They also questioned whether it was certain that the books had been scanned in the US and the servers were located in the US. 

Infringement: Google argued that scanning for Google Book Search was not ‘reproduction’ in French law as the scan was not for human consumption, only the extracts – Article L. 122-3 of the Code of Intellectual Property says ‘reproduction shall consist in the physical fixation of a work by any process permitting it to be communicated to the public in an indirect way’. The extracts, Google said, fell within the copyright exception for short quotations. La Martinière disagreed, adding that Google Book Search also returns complete book jackets.

The French court determined that Google had infringed the copyright of the La Martinière group of publishers by scanning their books and making ‘snippet’ sections of them available through Google Book Search. Google was fined €300,000 and given a month to remove the scans or face fines of €10,000 a day.

Advocate General’s Opinion on Gala-Salvador Dalí and Visual Entidad de Gestión de Artistas Plásticos

Advocate General Sharpston of the Court of Justice of the European Union recently gave her opinion in Case C-518/08 Fundació Gala-Salvador Dalí, Visual Entidad de Gestión de Artistas Plásticos v Société des Auteurs dans les arts graphiques et plastiques, Juan-Leonardo Bonet Domenech, Eulalia-María Bas Dalí, María Del Carmen Domenech Biosca, Antonio Domenech Biosca, Ana-María Busquets Bonet, Mónica Busquets Bonet, this being a reference for a preliminary ruling lodged in November of last year by the Tribunal de grande instance de Paris, France.

In 1983 Salvador Dalí set up a Foundation “to promote, foster, disseminate, celebrate, protect and defend in Spain and in any other State the artistic, cultural and intellectual oeuvre of the painter, his property and rights of whatever nature; his life experience, his thoughts, his projects and ideas and artistic, intellectual and cultural works; his memory and the universal recognition of the genius of his contribution to the Fine Arts, to culture and to contemporary thought”. He died a widower in 1989, leaving no children or descendants but, in his will, making the Spanish State “universal and unconditional heir to all his property, rights and artistic creations, fervently calling upon it to preserve, disseminate and protect his works of art.” The State accepted that legacy, giving the task of administering and exploiting the rights concerned to the Ministry of Culture, which passed it on to the Foundation.

In 1997 the Foundation gave the Spanish collecting society Visual Entidad de Gestión de Artistas Plásticos (VEGAP) the exclusive mandate to exercise its rights and collect dues in respect of Dalí”s works anywhere in the world. VEGAP, which has a reciprocal representation contract with its French sister society, Auteurs dans les Arts

Graphiques et Plastiques (ADAGP), asked ADAGP to manage the rights over Dalí”s works in France, with effect from 17 October 1997. Since then, ADAGP has collected and paid to VEGAP, on behalf of the Foundation, all amounts due in respect of exploitation of the artist”s works in France – with the exception of resale rights, which it, at least initially, collected on behalf of, and paid to, Dalí”s collateral heirs.

In December 2005 the Foundation and VEGAP brought proceedings against ADAGP before the Tribunal de grande instance in Paris, arguing that, under both French and Spanish choice of law rules, succession to Dalí”s movable estate is governed by Spanish law because, on his death, he was a Spanish national domiciled in Spain. The Foundation is therefore the sole beneficiary of all rights over Dalí”s works, in particular the resale right in respect of public sales.

ADAGP had not distributed any such royalties collected since the action was brought, but was prepared to pay them to whichever party or parties the French courts ruled to be properly entitled. Royalties already paid to the six collateral heirs whom it considered entitled in accordance with French law, it submitted, must be recovered if appropriate from those heirs. It therefore joined those heirs to the proceedings as third-party defendants, although none has entered an appearance.

The Tribunal de grande instance noted that France has maintained a resale right for the benefit of heirs at law alone, whereas the resale royalty right Directive specifies that it is to be payable to “those entitled under” the deceased artist. Wondering whether that was permitted by the Directive, it referred the following questions to the

Court of Justice of the European Union for a preliminary ruling:

1. Can France, subsequent to [Directive 2001/84 on the resale right for the benefit of the author of an original work of art], retain a resale right allowed only to the heirs to the exclusion of legatees or successors in title?

2. Do the transitional provisions of Article 8(2) and (3) of [Directive 2001/84/EC] of 27 September 2001 allow France to have a derogation?Today the Advocate General advised the court to rule as follows: “Directive 2001/84/EC of the European Parliament and of the Council on the resale right for the benefit of the author of an original work of art does not preclude a national rule under which, after the author”s death, entitlement to the resale right passes only to heirs at law, to the exclusion of legatees or successors in title.”

Regarding the first question, the Advocate General concluded that the Directive does not define “those entitled under” the artist after his or her death, but leaves that definition to national law and, by implication, to national succession law. Since differences between national legal systems which cannot be expected to affect the functioning of the internal market may be left intact, there is no uniform category of “those entitled”: Member States can therefore adopt or maintain any definition which cannot be expected to have such an effect. If this analysis is correct, the second question does not need an answer. In any event, (i) the derogations in Article 8 are expressly available to Member States which did not apply the resale right on 13 October 2001 and France, which did apply the resale right on that date, cannot benefit from them, and (ii) those derogations only allow Member States not to apply the resale right for the benefit of those entitled under the artist; they do not concern the question of application to only a restricted group of beneficiaries.

Source: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62008C0518:EN:NOT