The US Supreme Court has agreed to consider the constitutionality of a law that restores copyright protection in certain works that had entered the public domain. There will likely be two questions at hand, the first being whether Congress can restore copyright to a work once it has expired, and the second, whether section 104A of the US Copyright Code [which incorporates Section 514 of the Uruguay Round Agreements Act (URAA)] violates the First Amendment right to free speech by restricting the ability of the public to access and distribute the affected material.

Section 514 does not apply to all works in the public domain: it only restores copyright to foreign works that have entered the public domain due to noncompliance with copyright law requirements (for example, lack of eligibility under the national law). It restores the term of copyright protection “for the remainder of the term of copyright that the work would have otherwise been granted in the United States if the work never entered the public domain…”[1]. The provision comes about as a result of the US’s ratification of the Berne Convention, and the Berne Convention Implementation Act of 1988, which recognises the duration of copyright protection under foreign laws for works that originate outside of the US.

Opponents argue that this restoration of copyright protection will take away the ability for people to use for free works that were previously available as such, and that those who continue to use the affected works without proper clearance may risk litigation. The provision has restored the copyright in works by many foreign artists, writers and composers, including Pablo Picasso, Igor Stravinsky and Virginia Woolf, which had been out of copyright for a period of years.

This issue has been before lower courts for a number of years, with a group of stakeholder plaintiffs suing the government to test the validity of the law. The most recent decision on the matter was the appeal decision in Golan v. Holder [2], handed down in June 2010 by the US Tenth Circuit Court of Appeals. The plaintiffs consisted of orchestra conductors, educators, performers, publishers, film archivists and motion picture distributors whose income derives from the availability of works in the public domain. The plaintiffs argued that Section 514 of the URAA (and Section 104A of the Copyright Code) was unconstitutional in that it restricted the operation of the First Amendment.

The Tenth Circuit Appeal Court concluded that “In sum, Congress acted within its authority under the Copyright Clause in enacting Section 514…Further, Section 514 does not violate plaintiffs’ freedom of speech under the First Amendment because it advances an important governmental interest, and it is not substantially broader than necessary to advance that interest” [4] After this decision, stakeholders petitioned the US Supreme Court, which on 7th March, agreed to consider this issue. All parties now await the beginning of proceedings in what could be a very important case for US copyright law.

[1] Section 104A of the U.S. Copyright Code

[2] Golan v. Holder 609 F. 3d 1076 - Court of Appeals, 10th Circuit 2010

[3] Golan v. Holder 609 F. 3d 1076 - Court of Appeals, 10th Circuit 20

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On 22 February this year, a U.S. District Court ruled against the new internet service ivi TV, granting the plaintiffs a preliminary injunction that prevents ivi streaming “over mobile telephone systems and/or the Internet” any of the broadcast programming in which the plaintiffs own copyright [1].

The case was brought by several primary broadcasters including ABC, NBC, CBS and FOX, who argued that ivi was breaching their copyright by receiving and transmitting their primary broadcasts over the internet. Ivi claimed it fell within the scope of a statutory license for “cable systems” and was therefore entitled to the same rights as cable TV operators.

Judge Naomi Reice Buchwald said that ivi had not persuaded the court that it was a “cable system”, per the requirements in Section 111 of the U.S Copyright Act [2]. She also made the following reference to the previously expressed opinions of the U.S. Copyright Office: “The Copyright Office has spoken clearly that it would be inappropriate for Congress to expand existing law and provide compulsory licenses for services such as ivi. This is the federal agency charged with enforcing the copyright laws and tasked with acting in the public interest. We have no reason to doubt its considered judgement, and we decline to do so” [3].

The Judge also agreed with the plaintiffs’ argument that under ivi’s interpretation of the law, anyone with a computer, an internet connection and TV antenna could become a cable system for the purposes of the legislation. She stated that, “It cannot be seriously argued that this is what congress intended” [4].

To read the full case, see:

http://www.scribd.com/doc/49358625/ivi-Ruling-02-22-2011

To read our previous story, see:

http://www.copyright.org.au/news-and-policy/details/id/1869/

[1] WPIX, Inc. et al. v. ivi, Inc. & Todd Weaver, Case No. 10-Civ-7415 (NRB), p.59

[2] Case No. 10-Civ-7415 (NRB), p.45

[3] Case No. 10-Civ-7415 (NRB), p.57

[4] Case No. 10-Civ-7415 (NRB), p.45

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The film companies suing ISP iiNet for copyright infringement are set to take the battle a step further – they have announced their intention to seek leave to appeal to the High Court to overturn a recent Full Federal Court appeal decision in favor of iiNet.

The Executive Director of AFACT, Neil Gane, stated that the film companies will make the case that iiNet did have sufficient knowledge of users’ infringing activity. Gane said: "The Full Federal Court unanimously found that iiNet had the power to prevent the infringements of its users from occurring and that there were reasonable steps it could have taken, including issuing warnings…However two judges of the Full Court went on to find that iiNet had not authorised the infringements of its users…We say they did not apply the legal test for authorisation correctly."

The Chief Executive of iiNet, Michael Malone, responded with the statement that continuing legal action between rights holders and ISPs was not the solution to the problem and that even a High Court win by the film companies would not curb unauthorised distribution of material. According to Malone: "It's time for the film industry and copyright holders to work with the industry to make their content legitimately available".

Malone also referred to a recent iiNet proposal to prevent repeat infringement. "We believe that an independent umpire is the only way we can ensure natural justice and protect customer privacy, while allowing copyright owners their rights to pursue alleged infringers".

All parties now await the High Court’s decision on whether leave to appeal will be granted.

See AFACT’s press release at: http://afact.org.au/pressreleases/2011/24-3-2011.html

See iiNet’s press release at: http://www.iinet.net.au/press/releases/110324-court-challenge-wont-stop-illegal-downloads.html

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The verdict is finally out – Judge Denny Chin yesterday released his decision rejecting the Amended Settlement Agreement (ASA) which was filed back in November 2009, involving Google Inc. and the various author groups that took action against Google for the scanning and display of “snippets” of their copyright works. Judge Denny Chin concluded that the settlement is not “fair, adequate, and reasonable” [1].

In particular the judgement says that, “the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case” [2].

The decision still leaves open the possibility of a revised settlement. In the judgement, Judge Denny Chin encourages the parties to consider a revision, saying, “Many of the concerns raised in the objections would be ameliorated if the ASA were converted from an “opt-out” settlement to an “opt-in" settlement.” [3]

To read the full decision, see:

http://www.nysd.uscourts.gov/cases/show.php?db=special&id=115

[1] The Authors Guild et al v. Google, Inc, U.S. District Court, Southern District of New York, No. 05-08136. Page 1.

[2] The Authors Guild et al v. Google, Inc, Page 2.

[3] The Authors Guild et al v. Google, Inc, Page 46.

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The Internet Industry Association (IIA) has announced its intention to immediately begin developing an industry code of practice for internet intermediaries.

The announcement to fastrack the development of a code comes after the recent Full Federal Court appeal decision in Roadshow Films Pty Limited v iiNet Limited which found in favour of ISP iiNet, but left the door open on the question of ISP responsibility.

An IIA press release quotes chief executive Peter Coroneos stating that “The iiNet case has provided us with welcome guidance on where responsibilities should begin and end, but falls short in defining reasonable steps intermediaries should take in responding to allegations of infringement by their users. The Code will address this gap."

The IIA has stated that it also intends to pursue reform to the Copyright Act that will expand the current application of the safe harbour provisions beyond ISPs to include a wider range of other intermediaries such as search providers, social media platforms, hosting companies and universities.

To read the IIA press release see:

http://www.iia.net.au/

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The “HOPE” image of Barrack Obama used during the 2008 US presidential election campaign became a popular culture icon. It appeared on all manner of items, such as posters, shirts, badges, caps and even a cake design. As well as stirring up voters, the image sparked debate on what constitutes fair use when it become the centre of a high profile copyright dispute involving three parties: photographer Mannie Garcia, artist Shepard Fairey, and the Associated Press (AP), which claimed the rights for the photograph.

Now that the dust has settled on the dispute, it’s a good opportunity to look at what exactly happened.

The original photograph of the then Senator Barrack Obama was taken by freelance photojournalist Mannie Garcia, at a National Press Club event in 2006. In 2008, street artist Shepard Fairey found the image through Google and proceeded to manipulate it in the style of mid-20th Century propaganda posters. Once posted on his website, the image went viral and was adopted as an unofficial poster for Obama’s presidential campaign.

In January 2009, AP demanded payment for Fairey’s unlicensed use of the photograph. Fairey filed for a declaratory judgment that he did not infringe copyright, arguing that because his use of the image was transformative, it qualified as a ‘fair use’ under US copyright law. AP counter-sued in March 2009, asserting that Fairey copied all of the original creative expression on the photograph with no crediting or compensation, and that Fairey’s treatment fell outside the scope of fair use.

Interestingly, July 2009 saw Garcia file court papers claiming copyright ownership of the photograph on the basis that he had not been an ‘employee’ of AP, that in fact his role had been more akin to that of a freelance contractor. AP disagreed and Garcia eventually withdrew from the case, confirming that AP owned the rights.

The case took another interesting turn in October 2009, with Fairey’s admission that he had falsified evidence about which AP photo he had used to create the “HOPE” image. The identity of the actual photograph used by Fairey had been under dispute during the proceedings: Fairey had claimed it was one image and AP had claimed it was another. Fairey then made the following statement on his website: “The AP is correct about which photo I used… and that I was mistaken. While I initially believed that the photo I referred to was a different one, I discovered early on in the case that I was wrong. In an attempt to conceal my mistake I submitted false images and deleted others”. [1]

Fairey maintained that the fair use argument still applied despite his “mistake”, and that falsification of evidence should not affect the case in any substantial way. AP replied that this was “simply not credible”, that Fariey was confused over which photo he had used, and that he had “sued the AP under false pretences by lying about which AP photo he used” [2]. The falsification led to the withdrawal of Fairey’s lawyers, who were replaced with Jones Day in November 2009.

An out-of-court settlement between the parties was announced on 12 January 2011. Under the settlement terms, it was agreed that Fairey and the AP would share all profits and rights linked to the image and that Fairey would not use any AP photos in the future without an agreement. Additionally, future collaboration between Fairey and the AP was flagged as an option. Details of a further financial settlement remain confidential.

The “HOPE” image case sparked much debate on what exactly constitutes fair use and sheds light on how the internet can propel an obscure online image into the mainstream. With the settlement being reached out of court, the fair use debate is likely to continue.

[1] Statement by Shepard Fairey (16/20/2009):

http://obeygiant.com/headlines/associated-press-fair-use-case

[2] AP Press Statement (16/10/2009):

http://www.ap.org/pages/about/pressreleases/pr_101609a.html

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