Earlier today, a number of international and foreign associations and copyright scholars filed an Amicus brief in the Supreme Court of the United States in the ABC, Inc. et al v. Aereo, Inc case. The brief brings to the attention of the SCOTUS a number of international treaties and trade agreements respecting copyright that impose obligations on the United States to provide copyright holders with a broad technologically neutral communication to the public right that would cover all aspects of Aereo’s service and make its service infringing.
Posts Tagged ‘communication to the public’
The England High Court recently made an order requiring ISPs to block two linking websites located at www.solarmovie.so (“SolarMovie”) and www.tubeplus.me (“TubePlus”). In doing so, the court in Paramount Home Entertainment International Ltd & Ors v British Sky Broadcasting Ltd & Ors  EWHC 3479 (Ch) (13 November 2013) ruled that the sites, which did not themselves host any content, were nevertheless liable for infringement because they facilitated streaming of content to users by hosting and organizing hyperlinks to the content without consent of copyright owners.
The nature of the sites in issue (the “Websites”) were describe by Justice Arnold as follows:
The European Court of Justice ruled yesterday that retransmitting broadcasts over the internet infringes the communication to the public right, if done without authorization. The case involved TV Catchup Limited which operated an internet based live streaming service of broadcast television programmes.
The UK High Court in ITV Broadcasting Ltd & Ors v TV Catchup Ltd  EWHC 1874 (Pat) (18 July 2011) referred the case to the EU Court of Justice (the CJEU). The case involved answering two questions. First, whether grabbing the over the air broadcasts and retransmitting them over the Internet was a communication. Secondly, whether the transmissions were “to the public”. The court in Case C‑607/11 found both requirmeents were met.
In the ESA v. SOCAN, 2012 SCC 34 case, the Supreme Court decided by a 5 to 4 majority that the transmission of a copy of a musical work to members of the public is not a communication to the public within the meaning of Section 3(1)(f) of the Copyright Act. When the Copyright Modernization Act was enacted the communication to the public right was expanded to expressly confer on copyright holders making available rights required by the WIPO Treaties. This was accomplished, inter alia, by the inclusion of Section 2.4(1.1) which provides that:
Earlier today, the Supreme Court released reasons in the five copyright appeals heard back to back on December 6 and 7, 2011 in the following cases:[i]
- Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34 (ESA v SOCAN)
- Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35 (Rogers v SOCAN)
- Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36 (SOCAN v Bell)
- Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 (Access Copyright)
- Re:Sound v. Motion Picture Theatre Associations of Canada, 2012 SCC 38 (RE:Sound)
Here is a copy of the article with the above title published in the January 20, 2012 edition of The Lawyers Weekly.
In early December, copyright lawyers from across the country descended on the Supreme Court to participate in a cluster of cases that may redefine the scope of copyright in the digital era.
The influential US Court of Appeals for the Second Circuit ruled in ASCAP v RealNetworks that a download of a musical work is not a public performance under the US Copyright Act. According to the Court downloads of musical works are not musical performances that are contemporaneously perceived by the listener.
“They are simply transfers of electronic files containing digital copies from an on-line server to a local hard drive. The downloaded songs are not performed in any perceptible manner during the transfers; the user must take some further action to play the songs after they are downloaded. Because the electronic download itself involves no recitation, rendering, or playing of the musical work encoded in the digital transmission, we hold that such a download is not a performance of that work, as defined by § 101.”
Is a work published worldwide for copyright purposes when it is posted on a publically available internet web site? That issue was just canvassed by a US District Court in Kernal Records Oy v. Mosley 2011 WL 2223422 (S.D.Fla. Jun. 7, 2011). The Court ruled that making a music file available on a website in Australia was an act tantamount to global and simultaneous publication of the work which brought the work within the definition of a “United States work” under § 101(1)(C) of the US Copyright Act. The effect of the holding was that the copyright infringement suit brought in the US was dismissed for failure to meet that legislation’s registration requirement for a “United States work”.
The Federal Court of Appeal released its decision today in several JRs in the tariff 22 case. The main holding in the decision is that a download of a music file from a online music service to a single user is a communication of the musical work to the public under the Copyright Act.
In making this ruling the Court reached the same conclusion as did a previous panel which decided the Tariff 24 Ringtones case, albeit for different reasons.
In giving reasons the Court also expressed the view that a a user of a peer to peer file sharing network can be liable under the communication to the public right.