Boxed Up - Sharing of Software Add-ons Online is Copyright Infringement in Canada

The enforcement of copyright is never easy, particularly in today's world where access to infringing files, streaming websites and other means is almost as easy as simply searching for today's news. As infringers and suppliers of infringing materials become more and more sophisticated and clever, rightsholders have to pursue a wide array of cases of infringement. While direct infringement is often very easily determined, the facilitation of infringement by third-parties is always a tricky question (discussed more on this blog here and here). The Canadian Court of Appeal had to recently discuss this point in a very interesting decision.

The case of Bell Canada v Adam Lackman concerned the sharing of software add-ons on the website "TVAddons", operated by Mr Lackman. The KODI media player is an open source piece of software that enables the play of various types of multimedia. Various types of infringing content can be accessed using the media player when certain add-ons are added to it, which allow it to access and stream content hosted on the Internet; many of which were shared on the TVAddons website. Another piece of software was shared on the site called "FreeTelly", a modified version of KODI that allows a user to access infringing materials, and instructions on the installation and use of add-ons. Bell Canada objected to the potentially infringing materials shared on the website shared on the website and sued Mr Lackman for copyright infringement.

The case concerned an Anton Pillar order (discussed in more depth here), and whether the judge at first instance erred in their judgment on the order's standards' application to the facts at hand. The appellant argued that the court had mischaracterised their activities as infringing (when only a small number of add-ons were infringing), and therefore misapplied section 2.4 of the Canadian Copyright Act that deals with communication to the public.

The Court agreed that the judge at first instance had mischaracterised the activities of Mr Lackman (and TVAddons), and that they misunderstood the nature of their activities. Only 16 of 22 'Features' add-ons were tested, which doesn't even scratch the surface when over 1,500 add-ons are provided on the site. Similarly, the appellant's website, calling it a 'mini Google', when the provision of add-ons simply facilitated a quicker, more direct form of infringement by avoiding adds and providing easy access to links.

Having misunderstood the above, the judge had therefore also misapplied the law in relation to communication to the public. The Court considered that Mr Lackman, contrary to the decision at first instance, had communicated the works to the public, as "…the respondent’s website is not content neutral as it targets copyrighted content" by providing access to add-ons that are designed to provide unauthorized access to motion pictures and on-demand and/or live television programming. Having these add-ons, according to the Court, is akin to "…providing embedded links or automatically precipitating a path to copyrighted content". The same applies to programs that either aid in the installation of add-ons, or have pre-installed add-ons already to do the same.

In the light of the above the Court determined that the operation of the site clearly would not fall under the mere conduit exemption, but facilitates access to infringing materials. The site's branding also clearly encourages and highlights the site's purpose for the infringement of copyright through the add-ons, which additionally demonstrates clear knowledge by Mr Lackman of the hosted material.

The Court drew a parallel to the sale of pre-loaded set-top boxes in Bell Canada v iTVBox.net that allowed the user to access, for free, copyright protected content online. What is interested is that the ultimate source for the add-ons for the set-top boxes was TVAddons. As with the set-top boxes, the site would not be acting as a mere conduit, but a facilitator for the infringement of Bell Canada's rights.

Ultimately the Court did conclude that the judge at first instance erred in their decision and that Bell Canada would have a strong prima facie case for copyright infringement. Following the determination of likely copyright infringement, the Court also issued an injunction against TVAddons.

While the case's main focus was not the legal argumentation around copyright infringement, it still sets an interesting, a continuing precedent, where the Canadian courts are very likely to prevent the sharing of content online that facilitates infringement. This clearly now includes both hardware and software.

Source: Barry Sookman

Eyes Wide Shut - Sharing of TV Clips Online by TVEyes not Fair Use, Says US Court of Appeals

Fair use is a tricky issue, and often a thorn on the side of copyright owners. Overall one can appreciate the opportunities it creates, but also the headaches faced by those wishing to pursue someone hiding behind that particular shield. Rightsholders have been holding out for a life-line to narrow down the reach of fair use, and might've just been rewarded a win in the wider balancing act of fair use versus infringement. The matter was faced by the Court of Appeals recently, who issued their decision on the appeal in late February.

The case of Fox News Network LLC v TVEyes Inc. concerned the sharing of segments from TV programming by TVEyes. This is done through the continuous recording of TV shows, and compiling them into a searchable database. Users of TVEyes could then search for clips from various programmes, and watch up to 10 minutes of the content that interests them (and has been used by journalists and TV producers for some time). Clips can also be archived onto TVEyes' servers, or downloaded onto the user's computer. Fox ultimately took TVEyes to court for copyright infringement through the redistribution of their audiovisual content.

The case turned on whether the use by TVEyes could be classed as 'fair use' under 17 USC section 107. This looks at the usual four factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The factors are assessed weighted together in the light of the purpose of copyright.

Under the first factors, the Court focussed on the precedent set by the Google Books case (discussed more here). In the matter, Google's book search service added something new to the rights attached to the written works, and therefore "…communicated something new and different from the original". Similarly to TVEyes' offering, the showing of snippets from each book "…added important value to the basic transformative search function" by allowing for the user to verify the information as being what was looked for.

Some TV clips are simply captivating

The Court concluded that, in the light of the first factor, TVEyes' service "…is similarly transformative insofar as it enables users to isolate, from an ocean of programming, material that is responsive to their interests and needs, and to access that material with targeted precision". The service saves on costs and time spent looking for materials should they be done without a quick search function. Even though the service was for commercial gain, it still was not enough to counter its transformative nature entirely. Ultimately this means that the first factor slightly weighs in favor of fair use.

In terms of the second factor, the Court swiftly concluded that it is inconsequential to this case, even if the subject matter of the works is reporting on factual events.

They then moved onto the third factor, which looks at the amount of the work copied, and whether it was substantial. The Court quickly concluded that, due to the sheer volume of material copied by TVEyes, which amounted to virtually the entirety of Fox's TV programming. When compared to Google Books, TVEyes often created copies of entire segments of programming that might cover all of the relevant material being sought, whereas Google actively blacklisted certain parts of text within search results to prevent this. This amounted to copying all that is important from the protected works, and weighed against fair use.

Finally, the Court looked at the service's effect on the potential market for or value of the works, particularly whether it competes with the original service. Due to the popularity of the service, there clearly was a marketplace for such services that was exploitable by Fox. This would have impacted any hypothetical monies made by Fox should they have offered the service, particularly in the light of unauthorized, unlicensed copying by TVEyes. This means that "…by selling access to Fox's audiovisual content without a license, TVEyes deprives Fox of revenues to which Fox is entitled as the copyright holder", which meant that the fourth factor also favored Fox.

Having considered the above, the Court had to determine whether, all factors considered, the use was fair use or not. The conclusion of this was that TVEyes' service was not justifiable under fair use, due to the sheer amount of works copied and the usurping of a function for which Fox was entitled to demand compensation for, even though the service was slightly transformative.

TVEyes was deemed to be liable for direct infringement of Fox's rights, and the Court imposed a permanent injunction on their services on allowing the viewing, downloading and sharing of clips from the site. The search function, however, was allowed to continue.

The case is a very interesting one, and sets clear boundaries for services similar to the one offered by TVEyes. Should the clips have been restricted to much shorter segments, and not allowed to be downloaded or shared, the company might have escaped liability. Other video service providers will undoubtedly heed this as a warning against any significant sharing of content.

Source: JDSupra

Cast Aside - Recording of TV Through the Cloud Infringes Copyright, Says CJEU

Many foreign nationals who have immigrated abroad yearn for a piece of home, either through food, music or TV and movies. Often this is done using online or on-demand services, and this interest can create opportunists who wish to capitalise on the home-sickness of ex-pats. Quite a few websites offer both legitimate and illegitimate means of doing so. In that vein, would the recording of TV shows for users, without copying it into your own servers, infringe copyright?

The case of VCAST Limited v RTI SpA concerns this question, where VCAST offered a service to users enabling them to record Italian television on-demand to an external storage provider of their choice. The user would select which show on which channel they would want to record, which VCAST then recorded for them onto their storage provider's servers. VCAST was subsequently sued by RTI, an Italian TV channel, for copyright infringement, ending up all the way at the CJEU.

The CJEU was posed two questions in the proceedings, which it subsequently merged into one, as they asked two sides of the same coin. The question was whether "…[the InfoSoc Directive], in particular Article 5(2)(b) thereof, precludes national legislation which permits a commercial undertaking to provide private individuals with a cloud service for the remote recording of private copies of works protected by copyright, by means of a computer system, by actively involving itself in the recording, without the rightholder’s consent". In other words, is it possible for national legislation to prevent the private copying of copyright protected works using a cloud recording service.

As set out by the Court: "…Article 5(2)(b) of Directive 2001/29, Member States may provide for exceptions or limitations to the reproduction right in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial". So long this use doesn't conflict with the works' normal exploitation or prejudice the legitimate interests in the works, exceptions and/or limitations are allowed.

According to case law, the CJEU considered that copying by natural persons acting in a private capacity would be likely to cause harm to the rightsholders concerned if prior authorisation from them isn't sought. This position was developed further in ACI Adam where the Court allowed for rightsholders objecting to infringements that might accompany the making of private copies, even though the exception prohibits them from objecting to private copying. Finally, third-parties can be involved in the making of private copies, provided they are a precondition to it.

The distinction between a mere third-party copying content and VCAST is VCAST's provision of the programs themselves, which the user then selects from. They therefore both copy and make available the copyright protected works to the consumer.



The Cloud can makes emotions run high

Even though rightsholders are prohibited from preventing the private copying of copyright works, as discussed above, they are not prohibited from preventing access to the works that are desired to be privately copied. This allowed the Court to move onto the matter of communication to the public, which third-parties cannot do. The distinction between simply copying, where the entity does not make the content available in a wider scale, and making works available and then copying them on request, is important and requires the court to address this point.

When assessing 'communication to the public' Courts have to consider two cumulative criteria; an 'act of communication' that is done to a 'public'. The former is a transmission of protected works, irrespective of technical means, and the latter an undetermined amount, although impliedly large, of people as possible recipients.

Through their service VCAST records broadcasts of TV shows and makes them available for its users. The amount of users is clearly enough to constitute a 'public', while the original transmission through VCAST's service is transmitted to that public. The service therefore infringes the right to communication to the public, and would require the authorisation of RTI (and other relevant parties not involved in the litigation).

The CJEU concluded that VCAST's service does not fall under the scope of Article 5(2)(b). In different words, answering the question posed: "…Directive 2001/29, in particular Article 5(2)(b) thereof, precludes national legislation which permits a commercial undertaking to provide private individuals with a cloud service for the remote recording of private copies of works protected by copyright, by means of a computer system, by actively involving itself in the recording, without the rightholder’s consent".

The case is quite surprising, since the matter didn't involve communication to the public at the face of it, only private copying. Even so, the connection made between the two makes sense, and is a relevant consideration in the wider issue. Third-parties making copies for users is still very much allowed; however, the stumbling block will be the making available of that content to users as done by VCAST.

Needs Formatting - TV Show Formats Potentially Protected by Copyright

As companies like Netflix and Hulu are entering the fray of traditional TV production, creating their original content and licensing others, the value of more typical TV competition for eyeballs on particular timeslots has become negligible. Grabbing the attention of viewers are a fixed time, competing with other networks for the same slot, used to be a competition of outsmart and 'outcreate', giving TV formats incredible value if done right. Even if the specific production of 'prime time' TV has diminished due to the shift towards on-demand, TV formats still have value under IP laws. The matter rarely sees the light of day in a court room, but a recent UK High Court decision discussed whether a TV format can be protected under copyright.

The case of Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd & Anor concerned a TV gameshow called "Minute Winner", which was created by Derek Banner, the owner of Banner Universal Motion Pictures. Allegedly Mr Banner had disclosed a document detailing the format of the show to Friday TV (the second defendant in the matter), a Swedish TV production company at a meeting in 2005. Mr Banner also claimed that the defendants had misused confidential information to create and broadcast a show called "A Minute to Win It" in 2011, infringing on BUMP's rights in the format, breaching confidence in the same and passing off. The defendants contested the rights in the format document, that a breach of confidence claim was estopped due to a decision earlier by the Swedish courts and the passing off claim.

The Court first addressed the issue of whether the format document was a copyright protected work, specifically as a dramatic work under section 1 of the Copyright, Designs and Patents Act 1988.

As discussed, for example in SAS Institute Inc. v World Programming Ltd, a work has to be 'original', i.e. "…the work must be an expression of the author's own intellectual creation". This is assessed by looking at the whole of the work, not just its constituent parts, including both novel and non-novel parts. A dramatic work itself is defined as "…a work of action, with or without words or music, which is capable of being performed before an audience".

There has been some degree of case law on TV formats; however, only in the far-away land of New Zealand. The leading authority is Green v Broadcasting Corporation of New Zealand, where the New Zealand Court of Appeal considered that merely the idea of a TV format is not sufficient to be a dramatic work protected by copyright. This was in that "…because [the format] could not be acted or performed, being no more than a general scheme for a proposed entertainment", and "…in what way the underlying idea has been distilled out and translated into an expression thereof in a material form sufficiently identifiable to be copied". Due to this lack of tangible expression, bar an idea, leaves the subject matter unclear and therefore not protectable.

Brad was truly captivated by the TV format

Justice Snowden disagreed with the New Zealand authorities, and set out that TV show formats could arguably be protected by copyright under certain criteria. These would be, as a minimum: "…(i) there are a number of clearly identified features which, taken together, distinguish the show in question from others of a similar type; and (ii) that those distinguishing features are connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form". Under the criteria, Justice Snowden concluded that BUMP had a low likelihood of success to meet them for an arguable case of infringement, due to a lack of "…a coherent framework or structure which could be relied upon to reproduce a distinctive game show in recognisable form". All of the features of the show were commonplace and indistinguishable from other similar shows (including its name). Even if there were copyright in the work, the show that was produced differed from the BUMP work in many ways, and there would be no infringement.

The second matter was of breach of confidence. Having considered the principles of estoppel and res judicata, Justice Snowden determined that the action would fail due to Mr Banner being estopped from pursuing the claim as it is res judicata or an abuse of process. The legislation in the UK and Sweden is sufficiently similar so as to not require further determination.

Finally, the Court considered the matter of passing off. As discussed in Starbucks (HK), to establish a claim under passing off the claimant has to "…establish that it has actual goodwill in this jurisdiction, and that such goodwill involves the presence of clients or customers in the jurisdiction for the products or services in question". Even without a physical presence in the country it is possible to have goodwill. Justice Snowden swiftly dismissed this argument, as Mr Banner never had any customers in the UK who purchased the rights to the TV show. He did have a website displaying his formats, but the TV show in question was only one of several on that site, and it was nonetheless one of many sent to ITV by email after the meeting in 2005. No goodwill was therefore established in the UK, and the passing off claim failed.

The case has opened the door for claims on TV show formats, but clearly sets a high threshold to establish actual rights in that format. As no UK authorities have dealt with this subject matter, the case is a welcome one, even though the matter is a very niche one. A good TV show format is still very valuable, and protection should be offered, but not willy-nilly.

Source: IPKat

Supreme Goodwill - UK Supreme Court Addresses Jurisdictional Goodwill

In today's business world reputation is everything when selling your goods or services to the masses at large. Goodwill, the inherent reputation of your goods or services, can easily overreach beyond the mere confides of countries, continents, or even the solar system. With this in mind, how far a business' goodwill can, and does, reach is hugely important, especially when it comes to someone passing off their goods or services as a famous brands' equivalents. What makes things even more complex is the nature of the online world we are all a part of, which has a wholly borderless reach (excluding geo-blocking), and in which anyone can pass themselves off as someone or something else without much difficulty. This begs the question: how far does your goodwill extend, even if you have no or very little presence in a given territory, due to your goodwill online? The Supreme Court of the United Kingdom endeavored to answer this question only a little over a month ago.

The case in question was Starbucks (HK) Limited and another v British Sky Broadcasting Group PLC and others, which concerned the use of IPTV, or in more simplistic terms, the streaming of TV via the Internet using dedicated hardware to do so, very much like cable TV but in an online environment. Starbucks (HK) and PCCW Media Ltd, two corporate members of a larger group (referred to as "PCCM" in the judgment as a whole), which operated an IPTV service called "NOW BROADBAND TV", subsequently renamed to "NOW TV", in Hong Kong, being the largest entity in its respective IPTV business in the country. Most of the channels offered through the NOW TV service are in Chinese, and are not accessible in the United Kingdom, although some people in the UK had been identified as being aware of the service. PCCM had since considered expanding internationally, and did so by launching a mobile app called NOW aimed at the Chinese-speaking population in the UK. Prior to the launching of the app in the same year Sky announced its "NOW TV" on-demand service, which went into its beta phase roughly at the same time as the launching of PCCM's mobile app. PCCM subsequently sued Sky under the tort of passing off (more on which can be found here), with the case ending up all the way in the Supreme Court.

Passing off, as has been noted in the article above, hinges on three factors that need to be established in order to prove the tort of passing off: (i) goodwill or reputation in the goods or services provided in the minds of the purchasing public; (ii) a misrepresentation by the defendant to the public that leads or is likely to lead, the public to think the goods or services are provided by the plaintiff; and (iii) the plaintiff suffers, or is likely to suffer, damage as a result of this misrepresentation. PCCM established the latter two requirements at first instances, and therefore the Supreme Court had to decide on whether Sky's service fulfilled the first requirement, amounting to passing off.

The main question therefore to the Supreme Court was whether PCCM had goodwill in the jurisdiction in question, in other words a customer base, meaning the UK. As the court stated, reiterating Lord Justice Oliver in Anheuser-Buch v Budejovicky Budvar NP, that goodwill is very much "localized" and that "...reputation which may, no doubt, and frequently does, exist without any supporting local business… does not by itself constitute a property which the law protects". In other words, even if goods or services have a certain, even strong reputation to them, does not mean it inherently commands it everywhere, irrespective of actual use or not. This line of thinking very much confirms precedent from decades prior, where similar conclusions have been made as to the localized nature of goodwill.

Territorial issues can be dealt with amicably at times

After a presentation as to the law from both sides the Court finally discussed its decision on whether passing off, or goodwill, has a territorial nature to it. As Lord Neuberger remarked: "...I consider that we should reaffirm that the law is that a claimant in a passing off claim must establish that it has actual goodwill in this jurisdiction, and that such goodwill involves the presence of clients or customers in the jurisdiction for the products or services in question. And, where the claimant's business is abroad, people who are in the jurisdiction, but who are not customers of the claimant in the jurisdiction, will not do, even if they are customers of the claimant when they go abroad". To put Lord Neuberger's argument in different words, goodwill can only exist in a jurisdiction if its goods or services are used by actual customers in that jurisdiction, irrespective of foreign users who have emigrated or visit that jurisdiction (although, one would imagine, given a sufficient amount of immigrants this would be acceptable). As said, this is fully in line with older precedent, and also foreign authorities within the common law, as was put forth by Sky in its argument. PCCM had very little presence in the UK, although it did establish some user base did exist.

Finally, Lord Neuberger aimed to settle two questions that remained: "(i) clarification as to what constitutes sufficient business to give rise to goodwill as a matter of principle, and (ii) resolution of the judicial disagreement as to the jurisdictional division of goodwill".

In answering the first question Lord Neuberger quickly settled the matter by largely stating what has already been settled above: "The claimant must show that it has a significant goodwill, in the form of customers, in the jurisdiction, but it is not necessary that the claimant actually has an establishment or office in this country. In order to establish goodwill, the claimant must have customers within the jurisdiction, as opposed to people in the jurisdiction who happen to be customers elsewhere. Thus, where the claimant's business is carried on abroad, it is not enough for a claimant to show that there are people in this jurisdiction who happen to be its customers when they are abroad. However, it could be enough if the claimant could show that there were people in this jurisdiction who, by booking with, or purchasing from, an entity in this country, obtained the right to receive the claimant's service abroad.". Lord Neuberger's answer to the first question further establishes that a business has to have some form of customer base in a jurisdiction it wishes to protect its intellectual property in that jurisdiction, and that business would have to be, mostly at least, permanent in that jurisdiction, rather than just transient.

The answer to the second question leads to a much wider discussion than can be settled in this blog post, and merits reading in its own rights by those who might be interested. What needs to be said, however, is that Lord Diplock's comments in Star Industrial Co Ltd v Yap Kwee Kor further support Lord Neuberger's conclusions and highlight the distinction between goodwill in different jurisdictions through the existence of separation of judiciaries; i.e. not one court can decide an issue of a foreign court.  Allowing for territorial overlap would let businesses simply claim a right in a name in another jurisdiction with a minimal presence, thus restricting business and trade for legitimate entities in that jurisdiction.

Ultimately the Supreme Court dismissed PCCM's appeal, and concluded that their claim in "NOW TV" had no basis in the UK, as they did not have the requisite consuming public in the UK for their service to merit protection under passing off.

This case is an interesting one, and although one could say the decision is very much a common sense approach, it still does answer some question relating to goodwill, especially in a digital age where the Internet permeates nearly every part of the globe. Businesses have to have a legitimate business presence in a given country in the form of a customer base, even in this digital age.

Source: KWM Legal Insights

Links Galore - Hyperlinking Faces Its Third Challenge

After the Svensson and BestWater decisions hyperlinking seemed to already be a matter, which has been dealt with extensively and thoroughly. Even so, a third decision loomed in the horizon, hopefully shedding the final bit of light needed into the question of hyperlinking and copyright infringement. After the Svensson decision the questions posed to the Court were reduced to all but one, leaving more significance to that final question and its potential impact on the issue.

The case in question was C More Entertainment AB v Linus Sandberg, which dealt with the broadcasting of ice hockey games, which were supplied by C More for a nominal fee for those wishing to view the games live online as opposed to on TV. Linus Sandberg created links on a website to allow access to two ice hockey games without having to pay C More for the pleasure of doing so, allowing for users to watch paid-for content beyond their paywall protection; however C More quickly put a stop to this, and Mr. Sandberg only was able to post links to two games. He was also taken to court in Sweden over copyright infringement.

As said above only one question was referred to the ECJ: "May the Member States give wider protection to the exclusive right of authors by enabling “communication to the public” to cover a greater range of acts than provided for in Article 3(2) of [Directive 2001/29]?" The question, prima facie at least, clearly requires guidance on whether Member States can extend the coverage of what constitutes a 'communication to the public' beyond what is expressly provided in the Directive, namely the posting on hyperlinks to paid-for content such as hockey games.

In light of the Directive (namely Article 3) and its Preamble, the Court swiftly determined that Member States' rights in extending coverage could potentially cover the posting of hyperlinks to live, paid-for content. This, however, only applies to on-demand services, which the above service is not, as live broadcasts are not watched by individuals at a time that is convenient to them, but rather, at a strict prescribed time. The Court dismissed its applicability to the current situation, at least in light of Article 3, deeming Mr. Sandberg's actions not an infringement of the right of communication to the public via his hyperlinks.

Hyperlinks can be enticing...

With this in mind, the Court did not oust the possibility that Member States could extend the coverage of the provision beyond what has been expressly set out in the Directive. The aim of the Directive is to harmonize copyright within the EU, but does not, as was seen by the Court, "...prevent or remove any differences between the national legislations as regards the extent of the protection which the Member States may grant to the holders of the rights referred to in Article 3[] with regard to certain acts, such as those at issue in the main proceedings, which are not expressly referred to in that provision".

Following their argument the Court saw that under Directive 2006/115 Member States had the ability to give more far-reaching protection in relation to copyright when it comes to broadcasts and communication to the public. Article 8 even includes content, which is restricted by payment, as well as wireless communication of such content, for example via the Internet.

The Court then summarized its judgment on the matter: "It follows that Article 3(2) of Directive 2001/29 must be interpreted as not affecting the option open to the Member States, set out in Article 8(3) of Directive 2006/115, read in conjunction with recital 16 to that directive to grant broadcasting organisations the exclusive right to authorise or prohibit acts of communication to the public of their transmissions provided that such protection does not undermine that of copyright... Having regard to all the foregoing considerations, the answer to the question referred is that Article 3(2) of Directive 2001/29 must be interpreted as not precluding national legislation extending the exclusive right of the broadcasting organisations referred to in Article 3(2)(d) as regards acts of communication to the public which broadcasts of sporting fixtures made live on internet, such as those at issue in the main proceedings, may constitute, provided that such an extension does not undermine the protection of copyright".

While the decision is by no means as influential, at least in this writer's opinion, as Svensson or BestWater, to an extent, it still sets a potentially influential precedent should Member States wish to enact more wider coverage in relation to the communication to the public right. It does still leave the question of hyperlinking in more doubt, as links to newspaper articles have been deemed to infringe copyright, when links to live broadcasts would not. What happens now after the myriad of hyperlinking decisions in Member States remains to be seen; however the law is begging for more correction in terms of national application.

Source: IPKat

Streaming TV Does Not Violate Copyright

In a time when services like Netflix and Hulu are showing the cable companies what's what through convenience, choice and pricing, one would imagine there would be no need for people to stream content outside of a wide array of services enabling you to watch almost what ever you want, when ever you want. This however, is a reality, and access to content is still tough for some either due to monetary or because of regional restrictions.

A website, Aereo, operates by receiving TV signals and then converting them into a different format, allowing subscribers to watch TV shows on-demand through their service via the Internet for a subscription fee. In this manner, the service is much alike Netflix; however allowing you to watch recently aired shows as opposed to entire seasons once on offer via Netflix. Aereo does allow you to watch live TV as well as programs which have been recorded once they have aired. Two media companies, Hearst Stations and WCVB-TV, objected to this and sued Aereo for copyright infringement.

In a recent ruling, the District Court of Massachusetts had to decide whether Aereo's activities would indeed infringe copyright under section 106; more specifically the ability to perform (i.e. transmit) the copyrighted content publicly. The Court in its assessment had to determine whether the service would be a remote recording service, much akin to a DVR in a home, drawing from the case of Cartoon Network v CSC Holdings (Cablevision), where a remote DVR service was seen to not infringe copyright as the recorded programs was not deemed a 'public performance'.

Some love streaming TV a 'bit' too much

Clearly one can draw also from the US view of fair use, more specifically time shifting, where a viewer can record a show to view on a later date and that act would not infringe copyright. Much like the case of Sony Corporation of America v Universal City Studios, the user selects which programs it would like to record on Aereo, therefore arguably time shifting the content they wish to view. The case at hand however did not touch upon this fact. Hearst was also unable to show irreparable harm resulting from Aereo's service, only citing the possibility of harm through the possible loss of cable subscribers and their bargaining position when dealing with cable companies; an argument which was rejected by Justice Gordon, stating that it would "...take several years to materialize".

The Court did consider other factors, but these remain the most relevant. In concluding the Court saw that Aereo did not infringe copyright through their service, although different courts in the US have seen this to be different. The plaintiffs have since sought the right of appeal from the US Supreme Court, attempting to have them finally decide this issue, due to other services like Aereo having been shut down in New York and California. The Supreme Court, should they choose to take the case on, would have to decide "...whether the performance of their copyrighted programming via Aereo is "public" and therefore prohibited by the copyright law, or if Aereo is engaged in tens of thousands of "private" performances to paying strangers".

Source: Gigaom

Tattoos and Copyright

Tattoos have been a part of culture and expression since as far as 5200 years ago, showcasing the importance of self-expression through various markings and its transcendence through cultures and time. Tattoos vary from simple pictures, such as small birds or flowers, to hugely intricate large tattoos covering most, if not all, of a person's visible skin. Although arguably having become more of a diluted vehicle of expression in modern times, tattoos are still seen as an important way to express one's heritage or culture for people's such as the Maori - but could tattoos infringe copyright?

The pinnacle of tattoo originality

Currently there is no concrete precedent as to tattoos and copyright; however there are instances which might argue that tattoos could potentially fall under copyright. Cases relating to Mike Tyson's (in)famous face tattoo depicted in the Hangover 2 and a lawsuit over Ricky Williams' tattoos which were depicted on the cover of an NFL game in 2004, have all been settled prior to litigation, showcasing a clear reluctance for taking the matter to court. These two cases are by no means the only ones of their kind, but clearly indicate there is value in protecting tattoos. In a recent turn of events the NFL Player's Association has brought up the possibility that players' tattoos could bring copyright infringement lawsuits, further highlighting this potential issue.

Most countries in the common law, such as Australia, the UK and Canada do allow for 'artistic works' to fall under copyright, often encompassing drawings which potentially could contain tattoos within them. With the NFLPA and others raising possible issues relating to tattoos, one can easily argue that a case over tattoos and copyright could carry merit and would be worth consideration by the judiciary. Clearly the power is in the hands of the tattoo artists and their discretion as to whether to sue for copyright infringement in the event that their work is displayed in television, movies or even video games.

Some countries do prescribe provisions which offer protection from copyright infringement in incidental inclusion in television and movies. Australia and the UK for example have such provisions, clearly avoiding copyright infringement should any tattoos be displayed in a television show or a movie purely through their incidental inclusion. This is not to say it offers full indemnity, as in the case of the Hangover 2 the inclusion of the tattoo design was clearly intentional and a vocal point of the plot, possibly not falling under such protection provisions. In addition to this the provisions do not mention the possibility of incidental inclusion in video games, opening up any claims for instances in that particular medium.

Is this original anymore?

What has to also be said are possible hurdles relating to tattoos and originality when claiming for copyright infringement. Cases relating to arguably generic designs, a good example of which is case which dealt with an anchor design on Kate Moss' hand in an advertisement, raise questions whether these designs could actually be protected by copyright. If a design shows no clear ingenuity or inventive spark, one could argue that these designs would not be protected; however more intricate, individual designs could be protected.

Tattoos do present an interesting dilemma when it comes to copyright, and are a subject matter which has not been considered by either the legislature or the judiciary specifically. Whether these issues will ever be taken to court is a long-shot, as the cost of settling is clearly less than litigation, and materials such as tattoos can easily be edited out of pictures, videos and other content which might contain them, therefore avoiding any infringement claims. This writer personally would love to see the matter argued at court, but this seems like an unlikely event at best.

Source: Bloomberg Businessweek

Retrospective - Betamax and Copyright Infringement

When copyright is concerned there has always been a struggle between two competing interests; copyright owners who wish to benefit from the fruits of their labor, and the consumers who want to utilize copyrighted material, sometimes to the potential detriment of the former party. As new methods have emerged in the consumption of copyrighted works, so have the wishes of the owners to protect their material gotten louder. At the end of that path to equilibrium lies a simple albeit still complex question: do people have the right to use copyrighted material in manners which the owner's object to?

One of the most influential cases of the past few decades, Sony Corporation of America v Universal City Studios, endeavored to tackle that issue in relation to a wholly new piece of technology; Betamax tapes. For those born after the 70s (this writer included), Betamax tapes were akin to VHS cassettes which were used to both view and record movies and TV shows, much like DVDs today. This technology enable the recording and re-watching of content on TV at a later date outside of the broadcast times or releases of commercial copies of those programs. Universal Studios and Disney objected to this new technology as it clashed with their interest in re-releasing content to be sold to consumers, which they clearly would not buy should they have recorded the programs once they were broadcast on TV. Subsequently Universal Studios took Sony to court, eventually ending up in the US Supreme Court.

"What is this 'video cassette' you speak of..?"

What the court had to assess was whether the users of Betamax, who recorded content broadcast on TV, were infringing copyright and whether Sony could be held responsible for that infringement. In essence what was being decided was whether Sony was making the infringement of copyright possible by providing the users with this capability through their Betamax recorders, thus being liable for their infringement. What makes this argument is that at the time no such express provision existed in copyright, however Universal argued that Sony was liable for contributory infringement, a principle relating to patents and not copyright. The court put forth that this would come down to assessing whether "...the product is widely used for legitimate, unobjectionable purposes". What this means is just looking at whether the recorder would be used for recording TV programs for a legitimate, unobjectionable purpose, such as for later viewing for the sake of convenience, and not for example used for commercial copying of content. Clearly one could argue that domestic copying of content in that fashion is a non-objectionable use and wholly legitimate, and at the time was one of the primary uses for the device. There always has to be a balance between the legitimate interests of users and the protection afforded to copyright owners.

For Sony to be deemed to be liable under contributory infringement, the court had to decide whether Betamax recorders are capable of commercially significant non-infringing uses. This could be seen as whether the non-infringing uses would impact Universal Studios, or others, commercially through those uses. The court stated that it would be a matter of exploring all possible uses for the machines and determining whether those uses would be infringing or not, and what amount of uses would be commercially significant. The court did decide that Betamax recorders could be capable of commercially significant non-infringing uses, but for Sony to be liable there still remained the factor of whether those uses would be infringing ones.

How teenagers view older generations and themselves

The court drew its attention to the US fair use provision in deciding whether domestic time-shifting would be an infringing act. The court accepted the District Court's findings and saw that domestic time-shifting of content would fall under fair use. This was due to Sony's evidence as to the licensing of content for broadcasting on free TV, and content providers not objecting to its recording for viewing at a later time, and Universal could not show any actual damage caused due to time-shifting.

The decision swayed 5-4 in favor of Sony, but the dissenting opinion given by Justice Blackmun could've shaped copyright in a wholly different manner should it have been the majority opinion. The dissenting view was one which emphasized the exclusive rights given to copyright owners, noting that in their opinion expanding fair use would take away control for the copyright owners and deprive them of their incentive to create. Justice Blackmun also noted that fair use should apply mainly to 'productive' uses of works, such as for criticism and review, and prohibit their uses for 'unproductive' purposes such as time-shifting. Arguably Justice Blackmun's views come from a wrong approach, one which protects the copyright holder's rights but completely ignores the evolving needs and uses by ordinary consumers, thus creating an imbalance. Justice Blackmun also criticized the majority's approach in deciding contributory infringement through the capability of commercially significant non-infringing uses in stating that "[s]uch a definition essentially eviscerates the concept of contributory infringement. Only the most unimaginative manufacturer would be unable to demonstrate that a image-duplicating product is "capable" of substantial noninfringing uses. Surely Congress desired to prevent the sale of products that are used almost exclusively to infringe copyrights; the fact that noninfringing uses exist presumably would have little bearing on that desire".

All-in-all Sony v Universal Studios made an important mark on copyright and fair use, and has helped in formulating current principles in both. Should Sony have been found liable for contributory infringement, how we record or enjoy media today could be totally different. Manufacturers would have to either pay hefty licensing fees for any recording devices, the cost of which would have been undoubtedly transferred onto the end-consumer, or the manufacturers would have refrained from producing such devices completely. As someone who grew up using VHS recorders to watch content, I can't imagine a World without such a capability.