EU Public Affairs Monitor - 30/12/08

Music copyright extension - strings attached: Sort yourselves out, warn Burnham and McCreevy 12th December 2008
Culture Minister Andy Burnham gave clear backing to extending the copyright term for sound recordings yesterday - but called on the music business to make sure it benefits musicians, not industry fatcats.

"We want the industry to come back with good, workable ideas as to how a proposal on copyright extension might be framed that directly and predominantly benefits performers – both session and featured musicians," Burnham said." [TheRegister]

UK ignores logic, backs 20-year music copyright extension December 12, 2008
"After a UK government-led commission said that the current 50-year term for musical copyrights was fine, and the government last year publicly agreed that there was no need to extend the term, culture minister Andy Burnham yesterday made the logical follow-up announcement that yes, the government would now push for a 20-year extension on copyright. Turns out, it's the moral thing to do.

Actually, by framing the issue as a "moral case," Burnham gets to sidestep the entire issue of logic. Critics have already begun to charge that he is ignoring actual evidence and the well-regarded conclusions of the Gowers Report, not to mention previous government policy. But when the issue becomes a moral one and the livelihood of aging performers is at stake, it's suddenly easier to avoid cost/benefit analysis. Doing the right thing isn't always logical or economical." [ArsTechnica]

Are Performers A Special Case? 23rd December
"While almost every serious commentator in the field of contemporary copyright law takes the view that no case has been established for the extension of copyright term in respect of sound recordings, the case for the extension of the protection term enjoyed by performers themselves has at least one doughty advocate.

IPKat reader and copyright specialist Professor Amanda J Harcourt writes:

"While Andrew Gowers' article (Copyright Extension is Out of Tune with Reality) makes a number of useful and pithy points, it does not fairly, in my view, state the case for the performer.

While the record companies in the 1990s indubitably "missed the boat" when attempting to debate and adjust their commercial practices to accommodate the developments of the internet - and now are suffering the consequences - there are moral arguments surrounding this new development. The songwriter and performer occupy the only moral high ground in the economic environment that is the music industry. This economic model of copyright has been taken to extreme by record companies. Guy Hands's early pronouncements about executive and administrative waste soon after his purchase of EMI were on point, but an understanding of the way artists are contracted by record companies demonstrates that those at the bottom of the royalty food chain - in this case the artist - have reasons for moral outrage." [IP Kitten]

Thomas on Copyright Reform:An Injudicious Threat to Consumers and Artists
"Recently, the Court in Capitol Records, Inc. v. Thomas vacated a $222,000 verdict awarded by a jury of the peers of Defendant Jammie Thomas.1 The Court held that it committed a “manifest error of law” by instructing the jury that U.S. law gives copyright owners the “making-available right” required by nine international agreements supposedly implemented by U.S. law. But Thomas did not confine itself to an analysis of whether U.S. law provides a making-available right.

After adjudicating the motion to vacate the jury verdict, the Court appended a gratuitous final section—Section K—that used Thomas as a platform to attack the wisdom of both the jury and Congress. Section K, by casting off judicial conventions, by opining on jury questions, and by mischaracterizing the conduct of a party to a pending case—tried to present the Defendant as a poster child for an ill-conceived advisory opinion on copyright reform. In Section K, looting thus became a nonprofit avocation and deterring deceit became “oppressive.” Worse yet, these characterizations supported “reforms” that would only encourage piracy, endanger consumers, and further undermine the vitality of copyrights." [PFF]

Triennial DMCA Review at US Copyright Office December 30th, 2008
"Has it been three years already? The US Copyright Office is again hearing arguments for exceptions for, as the December 29 Federal Register notice puts it, “certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works. The purpose of this rulemaking proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention.”

In other words, when is OK to ignore the Digital Millennium Copyright Act and hack DRM? (You’ll find information on how to participate in this democratic process at the end of this post.)" [CopyrightAlliance]

EU Public Affairs Monitor - 28/11/08

Monopoly of collecting societies' activities: infringement proceedings against the Czech Republic and Hungary
"The European Commission has decided to send reasoned opinions to the Czech Republic and Hungary on the grounds of obstacles to the freedom of establishment and to the freedom to provide services as a result of the monopolies granted to national rights management companies.

Czech and Hungarian laws provide that a single collecting society may be authorised to operate in their respective countries for each type of right and work. This monopoly granted to national companies bans collecting societies set up in other Member States from undertaking any form of activity and denies them the freedom of establishment and the freedom to provide services. The Commission has doubts as to the justification of those national measures in the light of their negative effects on two of the fundamental freedoms enshrined in the EC Treaty." [Europa]

The latest information on infringement proceedings concerning all Member States is available at:
http://ec.europa.eu/community_law/index_en.htm

EMI Music CEO Applauds Govt Action On ISPs
"EMI Music CEO Elio Leoni-Sceti has spoken of his support for the U.K. government's and others' attempts to get ISPs to tackle illegal file-sharing, while admitting the music industry failed to adapt to changes in consumer behavior. Leoni-Sceti appeared at U.K. media/telecoms regulator Ofcom's Next Generation Net Generation conference in London. Vivendi chief executive Jean-Bernard Levy was also among the business leaders at the conference.

The EMI Music CEO appeared on a panel, "Global Content Economy - Challenges for Business," alongside executives including Telefonica Europe CEO Ronan Dunne, Nikesh Arora, president EMEA (Europe, Middle East, Africa) operations, Google, and Roma Khanna, president, global networks & digital initiatives at NBC Universal. Pledging to transform EMI into a "consumer-focused music company," Leoni-Sceti commented: "The new EMI wants to be the most consumer-led, innovative music company in the world - that means listening to our consumers and putting the consumer experience at the heart of our business strategy."A consultation process was recently concluded by the U.K. government, following this summer's brokering of a Memorandum of Understanding between the music industry and ISPs. Part of the agreement includes a pledge by ISPs to write letters to customers who are involved in illegal peer-to-peer activity." [BillBoard] [CMUDaily]

Artists send video message to PM over copyright term
"More from the campaign to persuade Gordon Brown to increase the recorded music copyright term now - and this time the protests have been presented in video form. As much much previously reported, record labels and recording artists have been lobbying the government regarding extending the recording copyright from 50 to 95 years for ages now; the former because the legendary recordings of the rock n roll era are about to come out of copyright; the latter because there is a whole generation of session musicians who will soon start to lose the royalty payments that stem from recordings they worked on in the sixties, which for some are a bulk of their earnings. " [CMUDaily]

EURO LICENSING: THE HARD ROAD AHEAD
"There is no 'us' and 'them' any longer. With nearly 50% of all music consumed by Europeans classified as international repertoire and the rest considered to be essential local music preserving the cultural identities of each European Union (EU) nation, the troubled state of licensing digital publishing rights is not, as some said a few years back, 'a European problem.' After intervention by the European Commission (EC), the current structures for licensing these rights are seen by some to be as volatile as the financial markets. How everyone responds to the situation will inevitably impact the future of recorded music, music publishing, digital and mobile music services and broadcasting -- and everyone else in the creator-to-consumer chain of distribution. Considering the importance of intellectual property as a significant contributor to worldwide economies, figuring out solutions during this economic crisis, in the midst of the physical-to-digital music transition, becomes even more essential.

Music Confidential reached out to senior executives and lawyers throughout Europe to shed some light, and perhaps a bit of insight, on problems and possible solutions following the EC's mandate to restructure rights and operating procedures among the network of collecting societies. Despite an extraordinary amount of angst and concern among the interested parties, there are opportunities and some optimism to report." [MusicConfidential]

Conference calls on WIPO to Boost Support for Collective Management of Copyright and Related Rights
"A conference on the future evolution of collective management of copyright and related rights in Europe has called on WIPO to step up efforts to help stakeholders address the emerging challenges facing collective management. Participants urged WIPO to strengthen the copyright infrastructure so as to support creative industries and promote social, economic and cultural development.

The Conference on Collective Management of Copyright and Related Rights in Europe, held in Brussels from November 24 to 25, 2008, was organized by WIPO in association with the European Grouping of Societies of Authors and Composers (GESAC) and in cooperation with the Association of European Performers’ Organisations (AEPO-ARTIS), and the International Confederation of Societies of Authors and Composers (CISAC)." [WIPO]

The European IP market needs a revolution
"The European R&D and patenting world treat intellectual property as a legal right and nothing else. Most companies and investors want that attitude to change. If it does, a number of exciting possibilities can begin to emerge.What Europe needs most is intermediaries from outside the law
A recent EPO survey revealed that 60% of European companies do not care if the inventions and technologies they find and use are patented or not (which surely helps explain the modest levels of patent registrations in many EU countries!). At the same time, however, countless European surveys have revealed that technological innovation is the priority for the EU's institutions, as well as national and regional governments, industrial associations and others; and that European companies are very keen to improve technological innovation (including R&D outsourcing) as key weapon in the global competition race.
These conflicting findings tell us a few key things about the type of IP market Europe should adopt, given that improving its existing one is an official target, as set out by EU leaders in the Lisbon Agreement."

The complete article (and the accompanying charts) in .pdf format is saved on the shared file (in the Monitoring section). A text version can be read on:
http://66.102.9.132/search?q=cache:3BkUjCSMfg8J:www.wipo.int/sme/en/best_practices/pdf/european_ip_market.pdf+WIPO+European+IP+Market+needs+a+revolution&hl=nl&ct=clnk&cd=1&gl=be [WIPO]

EU Public Affairs Monitor - 11/08/08

80% of artists would get <€30/year from copyright extension September 08, 2008
The EU is considering a plan to extend musical copyrights for another 45 years, ostensibly to help out aging performers who are being cut off when the current 50-year terms expire. But those musicians (can someone introduce them to the concept of saving for retirement?) won't see much of the new cash, according to the UK's Open Rights Group. Most performers will make less than €30 a year, even as major labels and big stars take far more.

The Open Rights Group, a UK "grassroots technology advocacy organization," is responding to a request for comments from the UK's Intellectual Property Office. UKIPO wants to know how it should weigh in on the EU-wide proposal, and the Open Rights Group's response is clear: the proposal is a bad idea." [ArsTechnica]

Committee amends, approves "enormous gift" to Big Content September 11, 2008
"The Enforcement of Intellectual Property Rights Act of 2008, which was blasted by consumer groups and library associations this week as an "enormous gift" to the content industry, won the approval of the Senate Judiciary Committee this afternoon by a 14-4 vote. As first reported by Ars this morning, a series of amendments were added during committee mark-up, providing privacy safeguards for records seized under the law and stripping away several controversial provisions—though not the hotly contested section empowering the Justice Department to litigate civil infringement suits on behalf of IP owners.

Related Stories
One significant change to the proposed legislation addressed, at least in some small measure, a concern broached by Public Knowledge and other consumer groups in a letter to the Judiciary Committee yesterday. Though the amended bill still creates expanded provisions for civil forfeiture of property implicated in an IP infringement case—potentially including servers or storage devices containing the personal data of large numbers of innocent persons—lawmakers altered the bill's language to affirmatively require a court to issue a protective order "with respect to discovery and use of any records or information that has been impounded," establishing "procedures to ensure that confidential, private, proprietary, or privileged information contained in such records is not improperly disclosed or used." They did not, however, go so far as to immunize the data of "virtual bystanders" from seizure, as the letter had requested." [ArsTechnica]

Copyright bill blasted as "enormous gift" to Big Content September 11, 2008
"The United States Congress returned to work this week, and senators appear to have copyright on the brain: A broad intellectual property enforcement bill introduced in July is slated for markup by the Senate Judiciary Committee Thursday, and another aimed at cracking down on piracy overseas was introduced Wednesday.

As Ars reported in July, the Enforcement of Intellectual Property Rights Act of 2008, sponsored by Sen. Patrick Leahy (D-VT), enacts a potpourri of measures long sought by content industries. Most significant of these is a provision allowing for the Department of Justice to bring civil suits against IP infringers, with any damages won to be turned over to content owners. It would also expand civil forfeiture powers in IP cases, create a federal copyright czar to "harmonize" IP enforcement between state and federal agencies, and establish liaisons to foreign IP "hot spots" where piracy is rampant." [ArsTechnica]

US Public Affairs - 30/06/09

Music Performers In US Policy Fight For Payment From Broadcasters

"Performance-rights groups and broadcasters went head-to-head Wednesday as the two sides testified before the United States Congress as to whether conventional radio broadcasters should pay performance musicians if the broadcasters play their music.

US lawmakers have introduced The Performance Rights Act in both the House and the Senate in an effort to make sure performing artists are compensated when their sound recordings are played over the radio. Radio stations pay songwriters in the US for the right to broadcast, but not performers. Satellite radio and internet radio, as well as cable companies, do pay for the same right." [IPWatch]

EU Public Affairs Monitor - 24/06/08

Play it again ... 22 June 2008
"Via the IPKat's friend Miri Frankel comes this feature on Wired regarding the Recording Industry Association of America (RIAA) and its litigation against file sharers (so far more than 20,000 copyright infringement actions have apparently been launched). This story involves a New York family accused of copyright infringement.

The RIAA initially identified the mother, Joan Cassin, as being the operative copyright infringer, but later dropped its action at the point at which which the judge was pondering a motion to dismiss the case based on the "making available" theory (see here, here and here). Two weeks later, the RIAA re-filed more or less identical allegations in a fresh action that was sent to another judge because the RIAA did not "relate" the cases. Discovery was immediately sought in order to find out whose KazaA file share folder was being used -- a share folder on the same Verizon internet account as was used at the Cassin household. Curiously the second lawsuit was filed as a John Doe case, without naming a defendant." [IPKitten]

A Performance Right for Recording Artists: Sound Policy at Home and Abroad
"The recent introduction of H.R. 4789 and S. 2500, both titled the “Performance June 2008 Rights Act,”1 means that broadcasters, recording artists, and record labels may resume a recurring debate about whether copyrights in sound recordings should include a general public-performance right that would make their owners eligible to be paid when their songs are performed publicly on broadcast radio stations. History suggests that this debate may become heated and potentially protracted.

Nevertheless, from the perspective of copyright policy, this public-performance - right debate is simple. Denying a public-performance right in sound recordings is bad copyright policy and bad technology policy, and it undermines both the international and economic interests of the United States. Consequently, Congress should enact the Performance Rights Act: There is little to be lost and much to be gained." [PFF]

Did the Making-Available Debate End Before It Began 13 June 2008
Today, many courts are adjudicating copyright-infringement claims against consumers who used file-sharing programs like KaZaA to "share" copyrighted music and movies with thousands of strangers. These courts have been struggling with the question of whether the unauthorized "sharing" of a work infringes the rights of its copyright owner--in others words, whether U.S. law provides copyright owners with a so-called "making-available" right.

Recently, the Court hearing Capitol Records, Inc. v. Thomas posed a question about when appellate decisions are binding precedents for lower courts. The answer to this question appears to show that--at least in the federal district and circuit courts--the making-available debate ended seven years ago.

http://www.pff.org/issues-pubs/ps/2008/ps4.13thomasandtasini.pdf"

[PFF]

Stop Press Important Litigation Alert June 12, 2008

"The Electronic Frontier Foundation is crowing about a ruling they got that people who sell promo CDs--that the recipient is given with full knowledge that the recipient is not supposed to sell the disc--are permitted to sell their promos on eBay and presumably in bricks and mortar stores as well. Ah yes, a great victory for the EFFluviati. What does this mean exactly? It means that the EFFluviati once again have managed to screw artists and songwriters." [MusicTechPolicy]

Orphan Works: No Copyright Infringement Litigation Says the Google Budget Office June 24, 2008
"Orphan works legislation is no problem, says the Congressional Budget Office because "[a]ccording to Copyright officials, there have been very few lawsuits against copyright infringers in recent years and the value of the awards in those suits have not been large."" [MusicTechPolicy]