Free to Sing - 'Happy Birthday to You' In Public Domain After Settlement

The recent saga dealing with the song 'Happy Birthday to You' has been discussed at length by many intellectual property commentators, including in this very blog here and here. The ownership of the copyright in the song, and the licencing practices surrounding it handled by Warner/Chappell, have been a big point of contention, with a recent ruling by the District Court of Central California declaring the copyright in the works to not reside with Warner/Chappell due to a lack of proper transfer of the rights to the ultimate entity. Warner/Chappell undoubtedly would have appealed the earlier decision, but the matter has since come to an abrupt end after a settlement between the relevant parties.

Per the Settlement Agreement, accessible here on Scribd, there are some terms of interest that must be mentioned.

The Settlement was a bitter-sweet end for Lisa

Section 2.1 of the Agreement mandates the establishment of a Settlement Fund, aimed at remunerating those who have paid licencing fees for the use of the song 'Happy Birthday to You'. The maximum amount allocated to the fund, if needed, would be $14 million, clearly demonstrating the understanding that there will be a considerable amount of entities with the relevant Settlement Class (considering that each licence is roughly $1500). This would include all persons who have paid such licencing fees since the 3rd of September 1949 (including, among others, to collecting societies or direct licences to Warner/Chappell). Even so, the realistic periods and sums of payment are set for two specific groups: payments made on or after the 13th of June 2009, or payments made before that date. The former group is entitled to all of their payments, but the latter only a share of 15% of what they have paid out. The difference, according to the claimant's lawyers, is due to the Statute of Limitations, enabling them to recoup some of their costs even in the absence of a proper claim due to the limitation period.

Additionally, section 2.2 sets out an express relinquishment of all claims of ownership over the song, and a requirement to no longer pursue any fee payments over the use of the song. Furthermore, the parties agree that the song is (under all likelihood, outside of any third-party claims in rights) in the public domain after the 8th of February 2016. However, Warner/Chappell did expressly defend their position in the settlement, and retained their position as the holders of the rights in the song. This seems to be mainly a point of principle, as the settlement does dictate that the song is in the public domain.

The Agreement also stipulates certain actions that need to be taken, such as the creation of a website and other administrative duties involved with the settlement and the payment of the settlement fees.

Arguably, the settlement is not much to write home about, but is an important illustration of the importance of challenging even the oldest, most well-known rights, when needed. The first instance decision set the tone for the settlement, and it shows in the one-sidedness of the Agreement, especially in the financial side of things. Nevertheless, the Happy Birthday saga has been an interesting one, and this writer, although underwhelmed by a settlement rather than a prolonged legal battle, is happy that we can all once again sing the song where ever and when ever we want.

Source: Ars Technica

Google v Viacom Legal Marathon Ends

Seven years is a long time, both for canines and in litigation, and one such marathon has just come to a close as Google and Viacom have agreed to settle their prolonged clash. Having started in 2007 the legal struggle has shown just how valuable copyrighted content and its use for other purposes is for both parties involved.

The initial proceedings were brought on by Viacom over the use of its content, which was uploaded onto the video sharing website YouTube; one which has been owned by Google since 2006. Viacom sought over 1 billion dollars worth of damages, pertaining to over 100,000 different clips on the website. Google argued that per the safe harbor provisions (more in-depth discussion on this particular area can be found here) in the Digital Millennium Copyright Act the search engine giant could not be liable for the infringement of its users who upload said content onto their website.

Rover was puzzled by the process entirely

Three years later the District Court of New York ruled in its summary judgment that Google was protected by the safe harbor provisions, much to the chagrin of Viacom. The decision was subsequently appealed, and took another two years for the matter to face its second decision by the Court of Appeal's revival of Viacom's appeal. The matter was yet again brought to the District Court the following year, where Justice Stanton upheld his previous decision three years earlier.

This is where the situation has stood, and as said the parties have agreed to finally put the matter to rest and settle. The terms of the agreement were not released, however it has been noted by ReCode that no money has been exchanged. Arguably this is a sensible approach by both parties, and brings one of the more gargantuan claims in copyright's modern history to an end. As has been speculated the settlement could also relate to newer sharing models by Google and content owners, where part of the revenue made through their videos, uploaded legally or not, and thus gives Viacom the monetary incentive they want for their content.

The parties released a joint statement declaring that "[t]his settlement reflects the growing collaborative dialogue between our two companies on important opportunities, and we look forward to working more closely together", clearly showing a more amicable ending to the saga. This further strengthens the relevance of the DMCA safe harbor provisions in relation to video streaming websites, and clears the potential hazard that a ruling against Google would have caused for the Internet.

Source: BBC

Chinese Intellectual Property Law (Part 1) - Copyright

With China having become a huge economic power in the last few decades, I thought it'd be about time to write a short overview of the different aspects of intellectual property law in China. These posts will be split into three parts, each discussing a different area. We'll kick things off with copyright law. Often the more disputed topic in the area, when close to a third of all counterfeit imports to Europe were from China in 2009.

The Chinese copyright legislation has been an issue for most of the 1990s and early 2000s, as other nations saw their laws as inadequate and their enforcement of the provisions lax at best. The first iteration of their copyright law was enacted in 1990; the Copyright Law of the People's Republic of China (English translation can be found here, Chinese here). 

The aim of the legislation is simple: 

"This Law is enacted, in accordance with the Constitution, for the purpose of protecting the copyright of authors in their literary, artistic and scientific works and the rights and interests related to copyright, encouraging the creation and dissemination of works conducive to the building of a socialist society that is advanced ethically and materially, and promoting the progress and flourishing of socialist culture and sciences". 

One key difference has to be noted; the Chinese law actively encourages the dissemination of works. Often omitted in especially common law nations, the notion of dissemination of works is more often than not left on the back burner, as a hand-down in the form of "fair dealing" or "fair use". While still being a part of the given legislation, it seems it's not as intrinsically embedded in the laws as it seems to be in the Chinese equivalent, at least on the face of it.

The law provides protection for the typical assortment of subject matters that most legislatures seem to have offered, such as written, oral, photographic and graphic works. The protection is also offered to foreign nationals who are subject to treaties to which China and their nation are signatories to, such as the Berne Convention and TRIPS. The legislation is heavily modeled after the Berne Convention and thus all aspects of the law need not be expanded upon further, as they mirror most national legislations in common law countries, and possibly civil law countries as well.

Copying taken to an extreme

Terms for copyright are, again, very similar to ones found in, for example Australia and the UK, where protection is offered for life and 50 years after death, aside from cinematographic works which are given 50 years of protection from its first publication. The latter differs from Australia for example, where the duration is 25 years after initial publication.

Some issues are presented in the Chinese "fair dealing" provisions or situations where works may be used without permission or payment to the creator of the work. Several of the categories, such as the permission to rebroadcasting or publishing of speeches or content published by other newspapers or news outlets, are opt-out provisions. By default there is an assumed ability to reuse your content, even by competitors. Secondly, there is a provision allowing the live performances of works for free. This provision allows for a very wide and open-ended ability to utilize content at any events which don't charge an entrance fee, such as conventions or festivals. Not really the biggest of issues, but does leave a gaping hole when it comes to the protection of a performer's right to their content. Most of the "fair dealing" provisions in the legislation are standard ones found in most common law countries, either in express categories or through the common law.

Overall the legislation follows Berne very closely, and should sound familiar to those who've dealt with it before. Not being entirely familiar with the starting point of the Chinese legislation it is hard to say just how far they have come in the last few decades, but surely the standard of protection has gotten better as the country has become more and more "capitalist".

There has been contention over the legislation since its inception. China has been dispute settlement through the instigation of other countries at the WTO 30 times since 2002, after it became a member of the organisation in 2001. There have been noted issues in especially the enforcement of the protection of intellectual property rights, where China has been lacking for years.

Even with its shaky emergence into the wider intellectual property regime, China has made strides towards a more universally accepted standard of protection given to intellectual property rights. The National Copyright Administration of China released its Draft Proposal only a few months ago, which would bring about much needed amendments to the current legislation. The aim of the amendments is to extend the scope of copyright, to encourage its registration, include resale royalties and to amend restrictions applying to certain types of copyright. When and how the law is finally amended remains to be seen, but it should bring China closer to a more international standard.

(Part 2 discussing Trademarks can be found here, Part 3 discussing Patents here)