Honey to the Bee

Money

Honey

In the famous song "Money Honey", written and composed by Jesse Stone, Elvis Presley laments different kinds of money troubles, from demanding landlords to stingy girlfriends and heartless gold diggers, culminating in the demand "I want money, honey!" Elvis Presley Enterprises, LLC, which holds the economic rights in Elvis's estate, shares that sentiment and has been trying to get at the honeypots of Elvis Presley's German record company, Arista Music.

On 23 November, Landgericht München I (Regional Court of Munich I - yes, for whatever reason Munich has two of those, but copyright enthusiasts need not bother with the second one) handed down its judgment in the case. The claim was struck out, but apparently for different reasons than the ones I suspected in my previous post on the matter (see here). According to the suitably entertaining press release (as always, the written judgment will be some time coming), entitled "I want Money, Honey!" and available here, the claimant mainly relied on two arguments:

Additional Remuneration due to Extended Term of Protection

First, the German term of protection for sound recordings (protected under a neighbouring right, not copyright) was extended in 1990 from 25 to 50 years after first publication. Accordingly, the term during which money could be made (and presumably used to buy, among other things, honey...) suddenly doubled. The claimant argued that nobody had seen this development coming in 1973 and that in hindsight the remuneration Elvis received was therefore much too low. The claimant also pointed out that the new provisions explicitly introduced a right to additional remuneration because of the extension of the term of protection.

This claim refers to § 137f (4) UrhG, a transitional provision I admittedly overlooked in my previous post. The provision reads:

"If prior to 1 July 1995 an exploitation right concerning the subject matter of a neighbouring right that continues to be protected under this Act has been granted or assigned to another, in the event of doubt such grant or assignment shall be deemed to cover the period by which the term of protection has been extended. ²The application of sentence 1 shall be subject to payment of equitable remuneration.

It seems like rather a good idea to invoke § 137f (4) UrhG, but the court disagreed. It held that the 1973 buy-out contract between Elvis and the record company was valid. The wording of the contract explicitly covered any claims for additional payments arising out of any extensions of the duration of protection. The claim for additional remuneration that was introduced at the same time as the term extension did not lead to a different result. According to the court, the claim for additional remuneration is not mandatory and unwaivable. Contractual agreements that derogate from the provision are possible, and the contract between Elvis and his record company was such a contract.

Fairness Compensation

Secondly, the claimant argued that since 2002 there has been a legal obligation to pay additional "fairness compensation" if the consideration the artist received is strikingly disproportionate to the profits made from exploiting the work or performance, and that the requirements were met in the case at hand. That claim was based on §§ 32a, 79 (2) UrhG (also see previous posts here and here).

According to the view of the court, however, the provision governing the effects of term extension (§ 137f (4) UrhG) is lex specialis to the general duty of those who exploit the work to remunerate the artist adequately (§§ 32a, 79 (2) UrhG). In other words, §§ 32a, 79 (2) UrhG are not applicable.

Comment

The court's solution as apparent from the press release is certainly elegant, but I think there is a chance the OLG (court of appeal) or the BGH (Federal Supreme Court) might see things differently. I am not entirely sure that the right to equitable remuneration pursuant to § 137f (4) UrhG really could be waived in advance. In my opinion, there are good arguments for both sides, though, so I wouldn't bet any money (or honey) on claimant's chances.

However, I have difficulty seeing § 137f (4) UrhG as lex specialis to §§ 32a, 79 (2) UrhG. In any event, the claim should in my view still fail for he reasons given in my previous post. I would also be interested in some judicial insight as to whether the claimant actually had legal standing in the § 137f (4) UrhG claim - i.e. whether like the § 32a UrhG right the right to equitable remuneration pursuant to § 137f (4) UrhG is incapable of being waived or transferred in advance - because in that case Elvis's daughter would be the right holder, and not Elvis Presley Enterprises, LLC.

The good news is that we may actually receive answers to any or all of these questions because counsel for claimant have already announced that they will appeal the judgment and take the case all the way to the BGH if necessary.


Honey Money here
Honey and the Money here
Honey to the Bee here
Pooh's Hunny Hunt here

German concert promoters look to neighbouring rights

The German Association of Concert Promoters (bdv) has said that it has applied to the German Patent & Trade Mark Office to set up a new collection society to collect revenues it believes its members are due as a ‘neighbouring right’ under Section 81 of the German Copyright Act arising from recordings made at live events. Bdv President, lawyer Jens Michow says that the new Society,Verwertungsgsgesellschaft fur Wahrnehmung von Veranstalterrecheten, plans to negotiate with broadcasters, record labels and other users of live recordings to set tariffs to compensate event promoters.

In January 2011 IQ magazine published an article by Dr Johannes Ulbricht, a German lawyer in Hamburg at Michow and Partner, about the German ‘neighbouring rights of the concert promoter’ – identifying these an overlooked potential revenue source from Germany where it seems possible that those who stage events which are filmed or recorded (anywhere in the World) could collect a payment if the recording of that concert is then exploited in Germany. You can find a pdf of that article here on page 10.

http://issuu.com/gregiq/docs/iq_issue_33?mode=embed&layout=http%3A//skin.issuu.com/v/dark/layout.xml&showFlipBtn=true

Image (C) The Television Company (London) Ltd 2011

ALAI Germany: Conference on Orphan Works

Most aficionados of international and comparative copyright law will be familiar with ALAI (Association littéraire et artistique internationale), founded by Victor Hugo in 1878. During my time in London, I greatly enjoyed the meetings of the British branch of ALAI, BLACA (British Literary and Artistic Copyright Association) and would highly recommend them to anyone interested in copyright and conversation. Incidentally, the next meeting is scheduled for Monday (see BLACA homepage here).

Unfortunately, these days I would have to catch a plane instead of strolling down the Thames path in order to attend a BLACA meeting, so it gives me great pleasure to announce that its German sibling, ALAI Deutschland e.V., has organised a conference on orphan works in my current town of residence, Frankfurt am Main. The conference will take place on 30 November and is entitled "Verwaiste Werke im europäischen und deutschen Urheberrecht" (orphan works in European and German copyright law). As you can deduce from the title, it would probably be a good thing to possess some German language skills if you wish to attend.

The conference starts at 2 pm with a welcoming speech and introduction by Professor Reto Hilty (Max Planck Institute for Intellectual Property and Competition Law) and Professor Alexander Peukert (Goethe University Frankfurt). It will be followed by a number of statements on orphan works by representatives of the German book trade and film industry, the German National Library and the German Film Institute, collecting society VG Wort, and the Federal Ministry of Justice. Afterwards, there will be ample time for discussion (one and a half hours, to be precise) before the conference ends at 6 pm.

Participation is free for members of ALAI Deutschland e.V. and members of Goethe University Frankfurt; the fee for anyone else is EUR 50. The venue is Room 1.802 in the Casino on the beautiful Campus Westend of Goethe University Frankfurt (see photographs here and map of the campus here).

Needless to say, I would be delighted to see you there!

RSVP:
Prof. Dr. Alexander Peukert, Senckenberganlage 31, 60325 Frankfurt am Main, Germany
Fax: +49-69-798-22763
E-Mail: hofmann(at)jur.uni-frankfurt.de

Collecting Societies Again

The press office of the Bundesgerichtshof (BGH) informs us that the copyright senate of the BGH has issued a judgment on the calculation of collecting society tariffs (BGH, 27 October 2011 - I ZR 25/10, press release available here).

In respect of indoor events, it is the established practice of German music collecting society GEMA to calculate the royalties it collects based on the size of the room where the music is played. To GEMA at least, it seemed logical enough to apply the same to outdoor events such as street fairs and Christmas markets. Accordingly, it took the size of the entire venue as reference point, from the first to the last stall or from the first to the last wall enclosing the space where the event took place (it's Friday, time to rhyme...).

As such things go, the organisers of a number of such outdoor events disagreed with GEMA's calculation methods. In their view, only the space where the sound from the stage can actually be heard should be taken into account. From that space, one should deduct the areas where visitors could not go, i.e. the stalls, the areas where they could not stay for more than a fleeting amount of time, i.e. public transport areas, and the areas where the music from the stage was overlaid with other music, i.e. music played at individual stalls.

Both the court at first instance and the court of appeal decided that the GEMA was entitled to determine royalties according to the size of the entire venue. The BGH confirmed these decisions. It pointed out that it is typical for outdoor events such as street fairs and Christmas markets that the audience in front of or in good listening distance to the stage constantly changes and new listeners replace the old. Consequently, the overall number of people listening to the music is substantially larger than the number of people the space where the music can be heard clearly could hold at any one time. The court added that the music played on stage usually characterises the entire event and that it would be unreasonable to ask GEMA to attend every single outdoor event in the country and measure the space where the music from the stage is clearly audible, and the space within that range where the audience cannot or must not stay or where other music overlays the music emanating from the stage. For reasons of practicality, then, GEMA's method of calculation was deemed appropriate.

I can't help remarking that a constantly changing audience - whether on a market or in a club - means that many people listen to little bit of music, whereas a constant audience - whether at an indoor or an open air concert - means that fewer people listen to more music. If 1,000 people listen to 10% of the music, isn't the end result the same as if 100 people listened to 100% of the music?

Also, I'm not exactly a science whiz, but shouldn't the laws of physics enable you to calculate the area where the music is audible if the organiser lets you know how loud he's going to play it? Throw in a plan of the site - which must exist because German authorities would not allow the organisers to put up stalls willy-nilly - and you can calculate the area covered by stalls as well as any areas where visitors cannot or must not go. Which leaves the musical overlay issue. While personally I find involuntarily listening to random mash-ups of songs that weren't so great in the first place deeply annoying, it appears to be something the organisers of such events seem to encourage for some reason. Otherwise surely they could just play music on the big stage and make putting up a stall conditional upon not playing your own music. So in my view, there is no good reason for deducting the areas of overlay.

We shall all have to wait for the written judgment to be released in order to find out why the BGH thinks the solution I just came up with is less than brilliant. In the meantime, I look forward to any comments or alternative approaches.

Preview Pictures II (Google Thumbnails)

In a judgment handed down yesterday, the Bundesgerichtshof (BGH) confirmed and expanded its position on Google thumbnails. In last year's 'Vorschaubilder' (preview pictures) decision (BGH I ZR 69/08, see Birgit's IPKat post here), the BGH held that Google's image search service does not infringe copyright in the pictures shown as 'thumbnails' in the search results. Since the copyright owner in that case put the pictures on the web and failed to take any steps to prevent them from appearing in Google's image search (which I understand is easy to do), she was deemed to have granted an implied licence for the pictures to be made available to the public by appearing in Google's image search results.

Now the court went a step further. The factual scenario was as follows: The copyright owner, a photographer, gave permission to someone else to make one of his photographs available on the Internet, presumably without requiring to take technical steps to prevent the photograph from appearing in Google's image search results (the written judgment is not available yet, and the press release is not entirely clear on this). Third parties then copied the photograph and made it available on their own websites. Google image search results then showed the photograph linking to the third parties' websites. The copyright owner complained and later sued Google, but to no avail.

The BGH considered that a search engine cannot distinguish pictures made available with the copyright owner's permission from those made available without the copyright owner's permission. It concluded that since the copyright owner gave someone permission to make his work available on the Internet, he is deemed to have given Google an implied licence to use the work in its image search service no matter what, even if the source of the preview picture is a website whose operator is in breach of copyright for making the work in question available.

Very kindly, though, the BGH pointed out that the copyright owner is free to sue those for copyright infringement who unlawfully made the images available on the Internet. Times were when one might have thought that would go without saying...

I agree that Google did not infringe copyright, but I confess to being confused nonetheless. If the third parties made the photograph available on their websites without permission and are thus infringing copyright, why is Google upon notification of the copyright owner not required under the principles of 'Störerhaftung' (secondary liability for contributing to someone else's breach of rights) to remove the photograph from its image search service as far as those websites are concerned? Surely it must be possible to exclude the third parties' websites from the image search while keeping the thumbnail from the website of the legitimate licensee?

Any comments by our dear readers would be very welcome.

Metall auf Metall II – The Curious Case of Free Use and Sampling



Kraftwerk album 'Trans Europa Express'

Sabrina Setlur single 'Nur Mir'

I have only now got around to reading and reporting on ‘Metall auf Metall II’ – a case on free use and sampling decided by the Higher Regional Court of Hamburg (OLG Hamburg) on 17 August (case reference 5 U 48/05). The facts of the case are as follows:

The claimants are members of famous German band ‘Kraftwerk’. In 1977, they released a record that included the title ‘Metall auf Metall’ (‘metal on metal’), which they also produced.

Twenty years later, German rapper Sabrina Setlur had a hit with her title ‘Nur Mir’ (which in context translates as ‘to me only’). The defendants are the producer and the composers of ‘Nur Mir’. They sampled a sequence of two seconds from ‘Metall auf Metall’, put it on a loop and used it as the continuous rhythmic layer for Ms Setlur to rap over on ‘Nur Mir’.

According to the claimants, this constitutes an infringement of their neighbouring rights as producers of the sound recording ‘Metall auf Metall’ (§ 85 (1) (1) UrhG; German law provides no author’s right protection for sound recordings).

The case has already been all the way to the Federal Supreme Court (BGH), was reversed and remanded, and now the OLG Hamburg has granted leave to appeal on legal grounds again because the judges don’t seem too sure they have reached the right conclusion this time round.

In a nutshell, the conclusion they did reach was that ‘Nur Mir’ constitutes an infringement because it would not have been unreasonably cumbersome to produce a ‘sound-alike’ rhythm sequence.

In the decision that reversed and remanded the earlier judgment by the OLG, the BGH held that § 24 UrhG on free use applies mutatis mutandis to neighbouring rights. § 24 UrhG reads:

 

(1)   An independent work created by free use of the work of another person may be published and exploited without the consent of the author of the used work.

(2)   Paragraph (1) shall not apply to the use of a musical work where a melody has been recognisably borrowed from the work and used as a basis for a new work.

According to the BGH, § 24 (1) BGH does not apply if it is possible to produce the sampled sound sequence independently, or if the sampled sequence is protected as a melody under § 24 (2) UrhG.

Independent Work

In order to be an independent work created by free use for the purposes of § 24 (1) UrhG, the new work must keep sufficient distance to the borrowed original traits of the used work, to the extent that the original traits of the elder work fade into the background in view of the originality of the new work (established BGH case law). Quite when that is the case is a bit of a mystery, though. Especially in cases on parody, courts and commentators do rather a lot of squirming and modify the requirement of ‘fading to the background’. It is said to suffice if the new work keeps a great ‘inner distance’ to the work from which it borrows, especially if an ‘artistic engagement’ (‘künstlerische Auseinandersetzung’) with the borrowed work takes place, but also if the ‘inner distance’ is realised by some other means in the view of an independent observer who knows the elder work but also possesses the intellectual understanding required for the new work. In principle, though, the standard is a strict one. Are you confused yet?

In any case, the OLG found that ‘Nur Mir’ possessed an entirely different character from ‘Metall auf Metall’, even though the rhythm sequence was clearly audible throughout the track. Making allowances for the hip hop genre, the judges stated that it would be asking too much if one were to demand a rhythmic figure in a hip hop track to fade to the background in such a way as to be barely recognisable. The additional elements were deemed enough to turn ‘Nur Mir’ into an independent work according to § 24 (1) UrhG.

Rhythm vs Melody

Fans of Stomp or will be disappointed to learn that a rhythm section does not qualify as a melody for the purposes of § 24 (1) UrhG. Unequivocally rejecting musicologist definitions as too vague and nondescript, the OLG judges reiterated the case law definition of melody as a ‘self-contained and ordered sequence of notes’ (‘in sich geschlossene und geordnete Tonfolge’). § 24 (2) UrhG does not preclude the borrowing of harmonies, rhythms, original instrumentations or special sound effects because such features do not constitute a melody. They held that the short sequence from ‘Metall auf Metall’ was a ‘rhythm surface’ (‘Rhythmusfläche’) comprised of overlapping ‘shreds of notes’ (‘Notenfetzen’). The result may be original and attract copyright protection as a musical work, but it is not a melody. The court also mentioned that § 24 (2) UrhG is a very controversial piece of legislation anyway and as such should be interpreted narrowly.

Possibility of Producing a Sound-Alike

So far so good for the defendants, but their case dies here. The BGH did not provide any guidance as to the criteria that should be met to find for a possibility of producing a sound-alike, so the OLG came up with its own definition. Given that ‘Nur Mir’ was produced professionally and for commercial purposes, the skills and technological possibilities open to a music producer with average equipment are decisive; the reference point is the time when sampling took place (1997 in the case at hand).

According to the OLG, it is not necessary that the sound be identical, but that it would be regarded as equivalent by prospective consumers that are familiar with and possess a certain amount of sensitivity for musical issues without being extraordinarily exacting. Expert witnesses managed to produce an equivalent sound-alike to the ‘Metall auf Metall’ sequence in less than two days. The court held that this was a reasonable amount of time to ask before permitting someone to encroach upon another’s rights without having to seek permission and free of charge. The judges were not entirely certain whether they got these criteria right, though, which is why they granted leave to appeal on legal grounds to the BGH once more.

Conclusion

It strikes me as a bit odd that it constitutes an infringement of neighbouring rights if something that may easily be replicated is sampled, but if something very elaborate that is difficult or impossible to replicate (and probably more original) is sampled, that’s OK. What do you think, dear readers?

Of Glasshouses, Stones and Copyright Infringement

German media reports on alleged copyright infringement by a senior conservative politician (see for example this article in the Handelsblatt). Siegfried Kauder (CDU) recently proposed that copyright infringers should be disconnected from the Internet for three weeks – without a trial, based only on repeat complaints by copyright owners to the relevant internet service provider. He saw this as a milder alternative to criminal prosecution or costly warning letters (costly for the infringer who must pay the right holder’s attorney’s fees).

While that suggestion is constitutionally problematic and was not really taken seriously by anyone even within his own party, it seems to have prompted someone to investigate whether Kauder himself abides by copyright law at all times. Well, apparently not. It is alleged that at least two photographs on his website, showing castles in his constituency, were put there without a licence. The author is not credited either, which would make for an additional infringement of moral rights.

A quick Google Images search reveals the identity of the apparent authors, but as yet neither of them has given a public statement. The pictures have been taken down from Mr Kauder’s website but can still be accessed via archiving sites.

His political rivals and most of the media are understandably delighted by this (minor) scandal. He who sits in the glasshouse should not throw stones or suggest disabling other people's Internet access and all that. However, some people have pointed out that Mr Kauder will hardly have created the website himself. According to the information provided there, it was indeed designed by someone else, but of course that does not answer the question who selected or provided the photographs.

Assuming the person who designed the website also chose the photos and Mr Kauder was unaware that no licence had been given, he would probably not be deemed a direct infringer. He would be liable as a “Störer”, though. The German law concept of “Störerhaftung” does not translate easily – “disturbance liability” would be the literal translation, but liability for breach of a duty of care is probably more accurate in this context. That means that he should have checked that permission to use the pictures had been granted and that he must now make sure that the photos are not used again on his website, but he will not be liable to pay damages.

Not such a big deal then, perhaps, but I guess the public embarrassment hits him harder than a few hundred or thousand euros in damages would. What do you think: poetic justice, preposterous witch-hunt, or politics as usual?

How fair is fair?

A couple of days ago, Birgit Clark from the IPKat team posted a piece on proceedings brought by Marcus Off, a German actor who dubbed Johnny Depp's Jack Sparrow character in the first three "Pirates of the Caribbean" films. Mr Off claims additional compensation for his performance under §§ 32a, 79 (2) (2) UrhG (German Copyright Act). You can read Birgit's post here. § 32a proceedings seem to be all the rage – in February, the OLG München (Higher Regional Court of Munich) had to decide a case concerning the title sequence of Germany's longest-running and most popular TV crime series "Tatort" (see Birgit's IPKat post here), and later this year the Bundesgerichtshof (Federal Court of Justice, BGH) is going to pass judgment on claims for additional compensation brought by the cameraman of famous German submarine thriller "Das Boot" (you can read Jeremy’s IPKat report on the early stages of the proceedings at first instance here).

So I think it is time to have a closer look at the provision in the German Copyright Act that is responsible for all those cases. § 32a UrhG is rather dryly entitled "Weitere Beteiligung des Urhebers" ("Further participation of the author"), but it is usually more emotionally referred to as the "fairness clause". What the fairness clause purports to do is the following: If an author has licensed his work (no such thing as a complete transfer of copyright under German law, remember) and his work turns out to be so successful that the consideration he received for granting the licence appears strikingly disproportionate in light of the profits generated from it, he receives a further equitable share of those profits.

Fairness v Bestseller

What is important to note is that the fairness clause was only implemented in 2002 and is a rather weird mix of retroactivitiy and prospectivity. On the one hand, it applies retroactively even to contracts concluded before 1 January 1966 (the entry into force of the UrhG). On the other hand, it applies only to circumstances that have arisen after 28 March 2002. So where does that leave us?

In each case where compensation for uses before 1 April 2002 is claimed, ex-§ 36 UrhG is applicable, the so called "bestseller clause". It is similar to § 32a UrhG, but requires that the agreed consideration be "grossly disproportionate" to the profits generated from the use of the work, a higher threshold than under § 32a UrhG. In addition, ex-§ 36 UrhG is understood to apply only if the parties did/could not foresee the success of the work, something that is expressly declared to be immaterial in § 32a (1) (2) UrhG.

Only in respect of compensation claimed for exploitations of the work from 1 April 2002 onwards does the more lenient § 32a UrhG come into play. However, the legislative materials on § 32a UrhG make it clear that particularly when it comes to films or other multimedia works, contributions that are of secondary importance for the work as a whole shall not usually be the subject of further compensation (the same was established case law in respect of ex-§ 36 UrhG). While the contribution need not be the cause of the work’s success, the legislator envisaged that it should primarily be substantial contributions that would lead to successful claims for fairness compensation. This is why the “Tatort” case failed. The court argued that the title sequence had a function similar to a logo or a trade mark or the cover of a book, but was of only minor importance for the films as such. Things might have been different if the sequence were extensively used elsewhere, but while there were instances of isolated exploitation of the title sequence, no striking disproportionality between the income generated and the consideration received could be established.

Das Boot

Let’s take a look at the chances of “Das Boot” lead cameraman Jost Vacano. “Das Boot” dates from 1981, so the first 21 years of exploitation are governed by ex-§ 36 UrhG and only the last 9 by § 32a UrhG. That does not sound promising. The film is still frequently shown on television and numerous DVD editions are readily available as well. Indeed, an anniversary edition priced at 30.99 EUR is going to hit the stores on 15 September. That means the film is still being steadily exploited after 30 years. That does sound promising. The cameraman’s contribution was also considerable, that again works in his favour. I would guess it is quite probable that the BGH will affirm the judgments in favour of Mr Vacano that were handed down at first instance and on appeal. The not so good news is that he had to raise a claim for information first because the other side were not telling how much income they made from the film. So assuming he wins, his lawyers must then try to figure out how much further compensation would actually be fair and start suing all over again. Nightmare (for those fluent in German, you might also want to read this interesting article by Patrick Jacobshagen, available here).

Pirates of the Caribbean

Now, the first "Pirates of the Caribbean" film hit the cinemas in 2003, so there's a clean-cut § 32a UrhG case for you. At first instance, the Kammergericht Berlin dismissed Marcus Off's claims, though. As Birgit stated in her post, "that the court's assessment of the content of the film as consisting of mostly special effects (and rather little acting) might surprise some of the viewers" - it is important to stress, however, that we are talking about Mr Off's acting here. From what I remember of the films, Johnny Depp does an impressive bit of swaying, swaggering, smouldering and swashbuckling; but he does not do quite so much in the way of talking. In other words, there was not as much to do for Mr Off as there might have been. Also, his job was basically to speak the text given to him in a voice imitating Johnny Depp's way of portraying the Jack Sparrow character. He did that really well, no doubt about that, but I share the view that it probably is not enough in this special case, especially given that he spent only 12 days in total dubbing the three films.

Another point worth adding is that the court held that in respect of the first film, claims for further compensation were time-barred. Mr Off must have become aware of the extraordinary financial success of the first film in 2004, so he would have had to raise such claims by 31 December 2007.

Closing Remarks

§ 32a UrhG and ex-§ 36 UrhG were drafted with the main contributors to successful works in mind - the author of a book or a film script, the director, the lead actors, etc. What they were not supposed to achieve was that everyone involved in a successful work - extras, session musicians, composers of TV series theme tunes - should be able to turn up and demand an additional piece of the cake. Even where there is a valid claim inasmuch as significant contribution is concerned, though, it will be difficult to determine whether the consideration received was "strikingly disproportionate" to the profits generated, and equally difficult to calculate the further compensation the author or performer should receive.

German Model Law on Intellectual Property

Being from the civil law world, I am of course very fond of codes (not as in Da Vinci Code, more as in Civil Code, Criminal Code, etc). And since I am even fonder of intellectual property law, I don't mind telling you that this piece of news makes me almost as giddy as a school girl: Later this year, a model law on intellectual property ("Modellgesetz für geistiges Eigentum") is going to be published, proposing the creation of a comprehensive German intellectual property code. The model law is authored by Professor Hans-Jürgen Ahrens (left) and Dr Mary-Rose McGuire (right), both of University of Osnabrück, and the publishers are sellier.european law publishers in cooperation with GRUR (German Association for the Protection of Intellectual Property).

There are currently seven different intellectual property acts in Germany (the usual suspects: copyright, trade marks, designs, patents, utilitiy models; and the slightly more exotic ones I sometimes forget about: plant varieties and semi-conductors), all of which have developed separately and been amended at different times and under different circumstances. As a result, the implementation of the Enforcement Directive (Directive 2004/48/EC) was quite a cumbersome affair that led both to further fragmentation and the insertion of virtually identical provisions seven times over. Drawing inspiritation rather than frustration from this state of affairs, the authors decided to form a research team in order to come up with a solution that avoids unnecessary divergences as well as needless repetition.

According to its introduction, which has already been made available by the publishers here, the model law consists of ten books. Book 1 contains a general part with material provisions that are common to all intellectual property rights. Book 2 does the same for procedural issues. Books 3 to 9 are largely made up of the material law as it stands today, minus the provisions that have become part of Books 1 or 2. Book 10A contains the law on employee inventions, and Book 10B proposes an alternative possible transformation of that law into a new general law on employee creations.

Book 1 is particularly interesting, given that it tries to stake out a common ground for the sometimes radically different IP rights. One rather ambitious aim pursued with Book 1 is to come up with general requirements for and limitations of protection. Another aim is to close existing loopholes, for instance in respect of supplementary protection of IP and protection for secret know-how under unfair competition law, the economic exploitation of personality rights, and the protection of organisers of major sporting and cultural events against the making of unauthorised recordings. General provisions on civil remedies and criminal sanctions including customs seizures are also included, as well as general rules on the legal transfer of rights and the granting of licences.

The text of the model law is going to be on sale from September 2011, the commented version (at nine times the price of the text-only version, I'm afraid to say) from December 2011 (see the publishers' announcement here and here).

German hackers get jail

More of the same from me following on from my last post, but this time from an IFPI press release that says that two computer hackers who targeted pop stars and record companies in a bid to secure personal information and distribute pre-release tracks online have been handed down prison sentences by a court in Duisberg, Germany.

The two men hacked computers containing material belonging to international stars such as Lady Gaga and Dr. Dre, accessing email accounts, banking details and other private data. One of the hackers, Deniz A (known as DJ Stolen), was given a prison sentence of 18 months. The other, Christian M (known as CEE), received a suspended 18-month sentence. Both were found guilty of copyright theft and computer intrusion. Deniz A was also found guilty of extortion.

Jeremy Banks, anti-piracy director at IFPI, which provided key assistance in the case, commented: “These are deterrent sentences for serious crimes which cause huge damage to artists and record companies. Hacking into people’s email accounts to obtain and then distribute private information or property is a very serious offence which takes considerable resources to investigate. This case shows the sheer scale and scope of measures taken to identify the offenders and bring them to justice.”

The judgments are the culmination of a two-year investigation involving law enforcement in the US and in Germany, with evidence provided by IFPI, the organisation representing the recording industry worldwide. The case came to light when IFPI investigators noticed a growing number of pre-release tracks being leaked much earlier than would normally be expected in the pre-release cycle. An intensive investigation involving artist camps, management and labels identified those who had access to the tracks concerned and the identity of those posting the pre-release music online.

The hackers were found to be using phishing emails and sending Trojan programmes disguised as music files to obtain the log-in details of their target’s private email accounts . These details were then used to access the accounts and obtain pre-release music which the hackers distributed online. IFPI’s anti-piracy teams in the UK and Germany, working with German and US law enforcement agencies, identified the suspects in Germany as the source of the online leaks. It sent evidence to local police who mounted a criminal investigation.

The convicted hackers were accused of financially damaging artists and record companies by distributing pre-release tracks online where they could be downloaded without permission or payment. They also profited from hacking by selling songs for up to US$1000 to fans.

IFPI has produced a guide for record labels, artist managers and others to advise on how best to protect themselves from this type of online hacking.

www.ifpi.org

Much Ado About Kindergarten - Part 2

Apologies for the delay in posting the promised rundown of the proposed changes to the German Copyright Act – sometimes life really gets in the way of one’s plans... Well, here it is now:

The aim of the draft bill submitted to the Bundestag by “the left party” (“DIE LINKE”) is to extend certain copyright exceptions and limitations to nursery schools (BT Drucksache 17/4876, http://dip.bundestag.de/btd/17/048/1704876.pdf).


Public communication of a published work

Currently, s. 52 subs. 1 sent. 1 German Copyright provides that the public communication of a published work shall be permissible at events that cumulatively meet the following requirements:
- they serve no gainful purpose on the part of the organiser,
- spectators are admitted free of charge, and
- the performers, if any, do not receive special remuneration.

According to s. 52 subs. 1 sent. 2, this is usually subject to payment of an equitable remuneration, but s. 52 subs. 1 sent. 3 contains a number of exceptions. Events by the Welfare Services and school events are exempt from the obligation to pay equitable remuneration, on condition that in accordance with their social or educational purpose they can only be accessed by a specifically limited circle of persons. Not all categories of works are covered, though. S. 52 subs. 3 provides that public stage performances and broadcasts of a work and public presentations of cinematographic works always require the consent of the copyright owner. The draft bill extends the above exception to events by child day-care centres and centres for the after-school care of pupils.

At first glance, such events appear to be similar to school events, which would militate in favour of the proposed amendment. However, things are a bit more complicated. School attendance is both compulsory (at least for nine or ten years) and – more crucially – free of charge. Nursery school attendance is not compulsory, but neither is it free. Even most state-run nursery schools charge fees, e.g. €150 per month per child. While I’m aware that this is probably not enough to recoup costs, let alone make a profit, I still wonder if in respect of events at such nursery schools, spectators (i.e. the children) can be deemed to be admitted free of charge for the purposes of s. 52 subs. 1 sent. 1, and if the public communication might serve a gainful purpose on the part of the organiser (i.e. the nursery school). Does anyone have any thoughts on this?


Reproductions of small parts of printed works or of newspaper articles

The second change proposed by the draft bill concerns s. 53 subs. 3 sent. 1, according to which it shall be permissible to make or cause to be made copies of small parts of a printed work or of individual contributions published in newspapers of periodicals for personal use
- in teaching, in non-commercial institutions of education and further education or in institutions of vocational education in the quantity required for one school class; or
- for examinations in the above institutions as well as for State examinations and examinations in schools and universities in the required quantity. The draft bill extends this exception to education in child day-care centres and in centres for the after-school care of pupils.

I have no objections to this. It should be pointed out, however, that this exception only concerns the making of copies of small parts of a printed work or of newspaper articles. S. 53 subs. 3 sent. 2 (and the proposed sent. 3) expressly stipulates that the reproduction of a work that is intended for teaching purposes at schools (or purposes of education in nursery schools) shall only be permissible with the consent of the copyright owner. Consequently, copying a whole work or substantial parts of a work is still subject to a licence and nursery schools may not, for instance, make free copies of sound recordings either.


Reproduction of graphic recordings of musical works and inclusion in private copying levy

Arguably the most controversial amendment proposed by the draft bill relates to the reproduction of graphic recordings of musical works. At the moment, s. 53 subs. 4 lit. a) provides that reproduction of such works shall only be permissible without the consent of the copyright owner
- if carried out by manual copying;
- for the inclusion in a personal archive, if and to the extent that reproduction is necessary for this purpose and if a personal copy of the work is used as the model for reproduction; or
- for personal use if the work has been out of print for at least two years.

The draft bill adds a second sentence to this that reads as follows: “In the cases of subsection 3, number 3 [i.e. education in child day-care centres and in centres for the after-school care of pupils], by way of derogation from sentence 1 lit. a), the reproduction [of graphic recordings of musical works] shall be permissible without the consent of the copyright owner.”

So there we have it: a special exception just for nursery schools! Schools, universities, music schools, private music teachers, the Welfare Services, choirs, the YMCA, you, me – everybody has to obtain a licence, only nursery schools get a free ride. I find that very peculiar, to say the least.

Finally, to make up for this new exception to a certain extent, the draft bill proposes to amend s. 54 and 54a to include graphic recordings of musical works in the private copying levy. In other words, copyright owners are supposed to receive equitable remuneration for the nursery school copies from the producers and importers of reprographic appliances such as photocopiers and scanners.

To my mind, this is all quite messy. The reason why the current exceptions do not include graphic recordings of musical works anymore – they did until 1985 – is that there was a dramatic rise in the number of copies due to the advances in reprographic technology. Choirs and other groups would not buy a copy of the work for each member, but only buy or even borrow a single copy and then make the required number of photocopies. Since the production of sheet music is expensive, the legislature deemed this unacceptably detrimental to authors and other copyright owners and prohibited the reproduction of graphic recordings of musical works except in the abovementioned cases (BT Drucksache 10/387, http://dipbt.bundestag.de/dip21/btd/10/008/1000837.pdf).

Cynics might say that in practice probably nothing much changed and choirs (and kindergarten teachers...) continued their copying frenzies regardless or even in ignorance of the law (one has to admit that, being an exception from an exception that again has exceptions, it is rather complicated). Prosecution would be both impracticable and unpopular. Perhaps, then, it would be better to create a proper private copy exception for sheet music and give composers and lyricists a fair share in the private copying levy. After all, nowadays it is possibly even easier to copy a sound recording than to copy sheet music, but there is no exception from the exception for sound recordings. On the other hand, that would be one more stone paving the way to a "culture flat rate", and I'm not sure that I should like that.

I'll keep an eye on the fate of the draft bill while I continue to make up my mind...

The translations of the relevant provisions from the German Copyright Act are a combination of the WIPO translations (http://www.wipo.int/wipolex/en/text.jsp?file_id=126254#JD_DE080_S53) and my own.

Germany set to abandon nuclear power for good - Yahoo! News

The transition was supposed to happen slowly over the next 25 years, but is now being accelerated in the wake of Japan's Fukushima Dai-ichi nuclear plant disaster, which Chancellor Angela Merkel has called a "catastrophe of apocalyptic dimensions."

"If we had the winds of Texas or the sun of California, the task here would be even easier," said Felix Matthes of Germany's renowned Institute for Applied Ecology. "Given the great potential in the U.S., it would be feasible there in the long run too, even though it would necessitate huge infrastructure investments."

Germany currently gets 23 percent of its energy from nuclear power — about as much as the U.S. Its ambitious plan to shut down its reactors will require at least euro150 billion ($210 billion) investment in alternative energy sources, which experts say will likely lead to higher electricity prices.

Many decades-old reactors are highly profitable as their initial cost has been written off, but they now face higher costs as regulators push for safety upgrades in the wake of the Fukushima disaster. One of the most pressing — and costly — requirements is likely to be a mandatory upgrade to reinforce all nuclear power plants' outer shell to withstand a crash of a commercial airliner.

Pirate Party General Assembly Announced

Readers interested in all aspects and all sides of copyright may find a frolic to Germany an amusing way to spend the pre-Ides of March weekend. The Pirate Party International has announced that its General Assembly will be taking place in Friedrichshafen in a few months.

The General Assembly meeting’s main events include:

• Electing a new board, apply here
• Discussions of amendments to the PPI statutes, submit proposals here
• Decisions on new members

There will also be an Open Space workshop: 

“Open Space Technology is a powerful tool that allows [sic] to handle the most complex matters with the ease of a coffee break, and will allow us to take a glance at the future of the PPI.

We'll open a space where you'll work with other pirates to identify and address the most important issues in your work, your organization and your community. Come prepared with your own burning questions and pressing needs... and be ready to address them in a dynamic, high-learning environment.”

Non-members are welcome to attend as guests and each member can register up to six official delegates.  If think it would be much more interesting to have a six-way split personality than just be yourself, you can apply for membership here.

If any 1709 readers attend the conference, we would love to hear from you after the event.

Details

Location: Messehalle Friedrichshafen, Friedrichshafen, Deutschland [As this is in the very southern part of Germany, attendees might have some trouble pulling their boats into town.]

Dates: 11 – 13 March 2011 (Friday, Saturday and Sunday)

Cost: Early Reg: 35 Euros, after 13th February 50 Euros

Timetable: http://int.piratenpartei.de/PPI_Conference_2011/timetable

More info: visit http://int.piratenpartei.de/PPI_Conference_2011 or contact board@pp-international.net

High Yield Germany Stocks

Of all the countries in the European Union, Germany appears to be one of the strongest if not the strongest. After all, it is the world's largest exporter of goods and has the largest economy in Europe. In terms of alternative energy, Germany is the largest exporter of wind turbines and has the largest capacity of wind power and solar power. If you are interested in investing in this EU leader, there are several German stocks which, in addition to providing growth potential, also provide income through dividends. WallStreetNewsNetwork.com has just published a brand new list called High Yield Germany Stocks, which shows almost ten German stocks that pay dividends, ranging from 1.2% to 7.6%.

E.ON AG (EONGY.PK) is a German-based electric and gas utility which pays a yield of 6.6%. It provides power to central Europe and the United Kingdom, along with the Midwest in the United States. The stock has a P/E of 5.4. The company just reported earnings on Wednesday, showing a revenue increase of 11% for the latest nine months, year over year, and a 9% increase in adjusted earnings before interest and taxes.

The large chemical and plastics manufacturer BASF AG (BASFY.PK) has a payout rate of 3.0%. The stock sports a price to earnings ratio of 13 and forward PE ratio of 10. Earnings for the latest quarter were up an incredible 425.3% on a revenue increase of 23.3%.

The huge electronics conglomerate, Siemens (SI) yields 2.1%. The stock trades at 23 times trailing earnings and 14 time forward earnings. The company just posted a loss for the latest quarter primarily due to writedowns for the acquisitions in the laboratory diagnostics business; however, new orders increased by 25% with an 8% rise in sales. The company also announced a 69% dividend increase.

To access a free list of dividend paying German stocks, that can be downloaded, updated, and sorted, go to WallStreetNewsNetwork.com.

Disclosure: Author did not own any of the above at the time the article was written.

By Stockerblog.com

Smoothstone’s Converged IP Cloud Expanding To Europe

Smoothstone IP Communications, an innovator in the new field of cloud-based unified communications, is expanding its service portfolio to include European locations. Could this be the start of a cloud that covers the Earth?

You bet it is. Thanks to international MPLS connectivity, it is now feasible to port any IP service to anywhere on Earth. That’s the beauty of MPLS networks. They take whatever you’ve got and transport it anywhere users can connect to the network.

Well, it’s not quite that simple. There’s a matter of scaling involved. Servers that easily handle the load for a limited universe of users in a regional area can become quickly overloaded when a tsunami of new users joins the network from a global footprint. Likewise, the core network has to have the bandwidth needed to handle the increased traffic without degrading latency, jitter and packet loss characteristics.

Smoothstone has addressed these issues, partially by expanding their cloud-based applications platform into several European data centers. That removes a potential bottleneck that could form if all packets needed to be processed through a single U.S. data center. It also makes call termination to off-net European phones easier and less costly.

One of the advantages that Smoothstone touts for moving enterprise voice services to their IP cloud is that internal phone calls stay on the network even when those calls are transatlantic to the UK, France, Germany or Switzerland. It’s only when calls need to be terminated to the PSTN (Public Switched Telephone Network) that connection costs are incurred. The more local the call termination, the cheaper it is. That argues for geographically diverse data centers and central office equipment to support telephony in the cloud.

What is also significant is that Smoothstone is not merely another VoIP service provider. The heart of their competitive portfolio is unified IP communications services. That means converged voice and data services to gain the cost advantages that come from deploying one network among business locations rather that separate telephone and data networks. Convergence can be a tricky proposition for time sensitive applications like network voice. If not done properly, VoIP calls can degrade into clipped and garbled conversations. Calls can even be dropped in extreme cases.

MPLS networking is especially suited to supporting converged voice and data. Not only are multiple protocols supported, but these privately owned and operated networks are carefully managed to ensure Quality of Service (QoS) at all times. For companies that want to unify their communications among multiple locations, it’s hard to argue against a solid MPLS core network. Now smoothstone is taking a leadership position to expand the very same converged services to include European cities. By the end of 2010, they expect to be providing applications and services across Europe.

Is your company still suffering from last century’s networking solutions? Have you been stymied by the process of creating unified communications that delivers the quality of service you require? What you need is the right provider with assets and resources to deliver the right solution for your size of operation and be able to seamlessly scale up as your business level increases. See how Smoothstone and other cloud networking services can provide the connectivity you need at a cost that makes sense.

Don’t forget the magic word . . .

A German court has ordered a museum to take down photographs of a Joseph Beuys performance work, The Silence of Marcel Duchamp is Overrated, originally staged on live TV in 1964. The court held that the performance piece is protected under copyright law and that the photographs were infringements – as unauthorized adaptation or transformation (Article 23 of Germany’s copyright law). The museum is appealing on the basis that the photos are not artistic transformations or adaptations of the original work but are documentary in nature. The claimant, Beuys’s widow, says the exhibition misrepresented her husband’s work.

The Cardozo Art Law Society blog wonders how else performance art should be documented. With permission, perhaps?

German industrial expansion: blame it on copyright?

"The Real Reason for Germany's Industrial Expansion?" by Frank Thadeusz, published on Spiegel Online here, has already been the subject of this post on the IPKat by Mark Schweizer which has already attracted a fair degree of serious comment. The author's byline, "Did Germany experience rapid industrial expansion in the 19th century due to an absence of copyright law? A German historian argues that the massive proliferation of books, and thus knowledge, laid the foundation for the country's industrial might", tells you why it's so interesting. Enjoy!

It's official...

This copyright law enthusiast is officially pleased to be one of the new members of the fabulous 1709 Blog team. In future, I shall endeavour to bring news of the latest developments in German copyright law to an English-speaking audience. Why? Because I believe Lord Goff of Chieveley was clearly on to something when he suggested we “sufficiently dispel our ignorance of German law and so by comparison illuminate our understanding of our own.” (White v Jones [1995] 2 AC 207)

So here we go, diving straight in:

In an interesting recent case, the Regional Court of Cologne (LG Köln) had to decide what constitutes a so-called official work (LG Köln, Urteil vom 07.07.2010 – 28 O 721/09).

It is important to note that English and German copyright law treat public documents quite differently. English court decisions and other public documents are subject to Crown Copyright pursuant to section 163 CDPA 1988, and administered by the Office of Public Sector Information (charmingly abbreviated OPSI). While most Crown Copyright material may be reproduced free of charge, this is subject to certain conditions. For instance, the source of the material must be identified and the copyright status acknowledged. German copyright law, on the other hand, takes the rather more radical approach of completely excluding official works from copyright protection. According to section 5(1) German Copyright Act (UrhG), laws, ordinances, official decrees and notices, as well as decisions and official head notes of decisions shall not enjoy copyright protection.

That certainly seems clear enough, but the case at hand shows that there may be difficulties involved: Claimant was an attorney; defendant operated a website with reports on legal disputes. Claimant, acting for one of his clients, sought a preliminary injunction (PI) against defendant from a court in Berlin. The court granted the PI, stating:

“The preliminary injunction had to be granted for the reasons set out in the attached motion for the preliminary injunction including the appendices thereto.”

Subsequently, defendant published claimant’s brief on his website, as part of an article about his objection proceedings against the PI. Claimant sued for copyright infringement, so the LG Köln had to decide whether in this context the attorney’s brief was part of an official work for the purposes of section 5(1) UrhG.

The court dismissed the claim. It held that an attorney’s brief generally enjoys copyright protection if it achieves a sufficient level of creativity (Schöpfungshöhe), referencing the Bundesgerichtshof’s classic “Attorney’s Brief” decision (BGH GRUR 1986, 739 – Anwaltsschriftsatz). However, if a court refrains from setting out its own grounds to a decision and refers to the contents of an attorney’s brief instead, it thereby appropriates the reasoning contained therein. Consequently, the attorney’s brief becomes part of the decision and thus part of an official work pursuant to section 5(1) UrhG.

The LG Köln appeared to draw additional support for this argument from the fact that claimant’s motion for the PI had actually been physically attached to the decision. It was quick to point out, though, that copyright protected works that become incorporated into official works in the manner described above do not lose their copyright protection outright. They may rather only be used freely to the extent that they are utilised in their capacity as a part of the official work in question.

I believe the court struck a fair balance of interests, given that the publication of the PI would be quite pointless if it were not permitted to publish the motion for the PI as well. Also, I like my PIs super fast and do not think judges should be made to paraphrase the arguments submitted in an attorney’s brief if they happen to agree with them. Do readers feel the same way, or do you think that’s just promoting laziness?

Add International Calling To Your Cell Phone

The reality of telephone conversations today is that at least one of the phones is a mobile. Yet, many US cell phone plans limit you to domestic USA calls. Those that let you call out of the country can make you sorry you did when the bill arrives. Doesn’t anyone offer a way to call Mexico, Europe, China or even Canada at a decent rate?

There is such a deal and you’ll love it. What you need is a special add-on plan to the service you have now. There is no need and, frankly, no advantage to switching carriers mid-plan. Instead, you keep your current US calling plan and add an international calling service to it. It’s fast, it’s easy and, best of all, it’s cheap.

The service I’m talking about is TEL3Advantage
. What kind of rates are we talking about? Right now, TEL3Advantage is offering discounted international rates that include calls to China for 1 cent per minute, Berlin Germany for 1.4 cents per minute and calls to Canada for 0.9 cents per minute. You saw that right. You can call numbers in Canada for less than a penny a minute. I’ll bet you can’t do that on your landline!

Actually, now you can. The same TEL3Advantage account that works on your cell phone also works on your home phone or your office phone. You can use it on any private touch-tone phone.

OK, now back to those incredibly low rates. They’re for real as part of a special 30 day discount. After that they go up to the regular rates that aren’t much higher. China, for instance, is 1.32 cents per minute instead of an even 1 cent. Calls to Canada cost 1.6 cents per minute. Calls to Berlin Germany are 2 cents per minute for the regular rate. Bet you still can’t beat these rates on your regular landline service. Calls to other locations worldwide are also available at eye-popping low rates.

So how does this work? You sign up for TEL3Advantage with a valid credit card or PayPal account. You order a package of minutes for $10, $25, $50 or $100. What you are doing is pre-paying for your international calls. There’s an extra bonus involved. You get extra free minutes with all but the $10 package. How about 900 free minutes to China on sign-up with the $100 plan. Astounding, but true.

Now you are ready to place your call. Simply dial the local access number for the TEL3Advantage service on any phone you have registered. When the service answers, you dial the international number you want to call. Your call goes through just like on any other phone and you enjoy a nice long conversation. At these rates, it can really be a long conversation. When you run low on minutes, the system will recharge you so won’t be left hanging without service like happens on those prepaid calling cards.

Do you have a smartphone? Your life gets even easier when you download a TEL3 app. It is smart enough to know all the local access numbers, so you can just place your international call with no fuss whatsoever.

Thousands of satisfied customers love this service, and why wouldn’t they? There are no monthly fees or taxes, no contracts, no expiration and no obligation. Just fast and easy access combined with extraordinarily low calling rates. Does this sound like a service that will work for you? If so, learn more, take advantage of the introductory specials, note the 30 day satisfaction guarantee and order your TEL3Advantage service now.