Monday, 11 December 2017

Artificial Intelligence and copyright: a happy (or even possible) relationship?

After years spent discussing the IP implications of 3D printing [which the the European Parliament - JURI Committee has also tackled in this recent working paper] it seems that now the new 'hot' topic is Artificial Intelligence (AI) and its potential.

Aside from issues of citizenship, in the realm of IP one of the questions that have been asked with increasing frequency is whether and to what extent AI has the potential to replace humans, including in the creative fields.

As AI machines become increasingly autonomous, can they be regarded as 'authors' in a copyright sense and, if so, can the works they create be eligible for copyright protection? If the answer was again in the affirmative, who would own the copyright in such works?

Recent developments stand as a demonstration that answering these questions may not be something for an indefinite future.

For instance, readers with an interest in music might have had the opportunity to listen to the recently released single Hello Shadow, which is the first song extracted from the the first multi-artist music album composed with AI. 

This album was curated by Benoit Carré, head of SKYGGE, who collaborated with several musicians and performers, including - in the case of Hello Shadow - Stromae and Kiesza.

The SKYGGE project started as a research project (the Flow-Machines project, conducted at Sony Computer Science Laboratories and University Paris 6) in which scientists were looking for algorithms to capture and reproduce musical “style” [an example being Daddy’s cara song in the style of the Beatles]However, the novelty and huge potential of the approach triggered the attention of musicians who joined the team. 

It is clear that SKYGGE produces music thanks to AI, but there is a substantial human input. But as things have the potential to develop in the sense that AI will be able to create music entirely on its own, without any human input, will the resulting songs be protected by copyright?

The notion of 'authorship'

As I discuss more at length in this recent short article for the Journal of Intellectual Property Law & Practice here, at the international level there is no definition of who is to be regarded as an 'author' in a copyright sense. However, legal scholarship seems oriented in the sense of concluding that, from its text and historical context, under the Berne Convention only natural persons who created the work can be regarded as authors. 

In any case, although generally speaking it seems possible “to agree that an author is a human being who exercises subjective judgment in composing the work and who controls its execution”, this does not mean that at the national level there are not situations in which also works created by non-human authors can qualify for protection, or courts have not addressed issues of non-human authorship. 

New potential Monkey Selfie case
In the UK context [for the US, it is interesting to look at the text of the Monkey Selfie first instance decision], for instance, examples of the former include the fictions of authorship in section 9(2) of the UK Copyright, Designs and Patents Act 1988 and, even more evidently, the provision in section 9(3) therein, according to which – in the case of a literary, dramatic, musical or artistic work which is computer-generated – the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.

At the EU level – with the exception of cinematographic and audiovisual works, computer programs and databases – copyright directives do not really address the issue whether only human beings can be regarded as authors. This said, however, the Term Directive (Recital) 14 refers the calculation of the term of protection of copyright to the life of authors as “physical persons”.

The question that arises under EU law is, therefore, whether – with the exclusion of cinematographic and audiovisual works, computer programs and databases – Member States can protect works created by non-human authors.

The answer may be in the negative, if we consider how the other requirement for copyright protection, ie originality, has been intended by the Court of Justice of the European Union (CJEU).

Originality under EU law

Harmonization of the standard of originality at the EU level has been limited. Only the Software Directive (Article 1(3)), the Database Directive (Article 3(1)) and the Term Directive (Article 6) provide that, respectively, for computer programs, databases and photographs copyright protection shall be only available if they are their “author’s own intellectual creation”.

Until the landmark 2009 decision in Infopaq, it was believed that for works other than those for which harmonization of the originality standard had explicitly occurred EU Member States remained free to define the conditions of copyright protection under their own legal regimes. In that judgment the CJEU took the (rather radical) view that this would not be the case, and that also for works protected under the InfoSoc Directive the same standard of originality as in the Software, Database and Term Directives should apply.

The reason, according to the CJEU, is that the Berne Convention (notably Article 2(5) and (8)) presupposes that protection is available to works that are intellectual creations, and this is the standard also envisaged under the Software, Database and Term Directive. According to the court, the InfoSoc Directive is based on the principle that a work is protected if it is its author’s own intellectual creation. This is evidenced by Recitals 4, 9 to 11 and 20 in the preamble thereto. Hence, also under the InfoSoc Directive the standard of originality is that of ‘author’ own intellectual creation’.

The CJEU elaborated on the notion of ‘author’s own intellectual creation’ in subsequent case law. When discussing copyright protection in graphic user interfaces (C-393/09), the court held that the standard of originality requires that the author expresses “his creativity in an original manner”. In Football Association Premier LeagueC-403/08 and C-429/08 the court clarified that originality as author’s own intellectual creation requires exerting “creative freedom”, ie something that football matches – being subject to the rules of the game – do not possess. 

The CJEU refined further its construction of the standard of protection in its subsequent decision in Painer, C-145/10. In discussing originality for photographs and, in particular, portrait photographs, the court held that what is required is for the author “to express his creative abilities in the production of the work by making free and creative choices”, so that he “can stamp the work created with his ‘personal touch’”. 

It is therefore apparent that the EU standard of originality, as also acknowledged by Advocate General Mengozzi in his Opinion in Football Dataco, C-604/10 entails a “‘creative’ aspect, and it is not sufficient that the creation of [the work] required labour and skill.”

Can an AI machine's creation fulfill the requirement of originality as intended by the CJEU?

arguably one of the first AI machines children

In addition

Another argument against the proposition that also non-human authors can be regarded as potentially eligible for copyright protection in their works is that, at the EU level, the general rule is that concepts used in different directives must in principle have the same meaning. So, in Football Association Premier League, C-403/08 and C-429/08, the CJEU clarified that if a directive in based on rules and principles already laid down in other directives, “given the requirements of unity of the European Union legal order and its coherence, the concepts used by that body of directives must have the same meaning, unless the European Union legislature has, in a specific legislative context, expressed a different intention.”

In the case of the InfoSoc Directive (as well as the Term Directive, with specific regard to photographs) this might mean that, similarly to what is instead expressly stated Software Directive, the concept of author implies that this is a human being. This is because, as the CJEU clarified in Infopaq, C-5/08, the InfoSoc Directive, as well as the Term Directive, is based – inter alia – on the same principles and rules laid down in the Software Directive.

A further argument in favour of the conclusion that under EU copyright directive only human beings can be recognized as authors descends from the reading of its various provisions. In particular, the InfoSoc Directive vests authors with the right to authorize third parties to make acts of reproduction (Article 2a), communication to the public (Article 3(1)), and distribution (Article 4(1)) of their works. 

One may wonder how a non-human author can exercise such rights. The question becomes even more complex, if not impossible to solve, if one considers that the CJEU has clarified that the language of that directive imposes that authors are considered as the exclusive first owners of economic rights [Reprobel; Soulier].


From the discussion above it emerges that, with limited exceptions, legislation is generally silent regarding the question whether copyright can vest in works authored by non-humans. However, a broader reading of legislative texts – including at the international, regional and national levels – suggests that the notion of authorship for the sake of copyright protection is generally reserved to human beings.

For years, literature and cinema have raised the question of what a human is: from the wooden puppet who wishes to become a child in Pinocchio to the robot-butler in The Bicentennial Man, from the male prostitute Mecha in A.I. Artificial Intelligence to the outrageous and recreational drugs-loving teddy bear in Ted, the public has been exposed – more or less lightheartedly – to questions surrounding the meaning of ‘human’. 

Now such issues might re-surface with increasing frequency and relevance also in the area of copyright and, in doing so, test the scope of protection. This will require revisiting concepts that traditionally have been considered basic. 

However, similarly to the case of originality, it has become clear that what ‘basic’ refers to may not be entirely straightforward.

Saturday, 2 December 2017

Having the X Factor: TV formats can be protected by copyright if they have clearly identified features distinguishing them from similar types of shows

Paul Musa
A few weeks ago the High Court of England and Wales issued an important decision [discussed on IPKat here] which, after a long time of uncertainty, has confirmed that TV formats are in principle eligible for copyright protection under UK law.

1709 Blog friend Paul Musa (University of Southampton) analyzes the decision.

Here’s what Paul writes:

“In Banner Universal Motion Pictures Snowden J confirmed that copyright protection is available to TV formats, provided that they achieve a minimum standard. This standard is that they must have: (i) 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. However, Minute Winner could not meet this standard because it was unclear and lacking in specificity.

To give readers a bit more context, this was a case management conference that was brought before the High Court. One of the main issues that the court discussed was whether copyright protection could subsist in a TV format, within the meaning of sections 1(1)(a) and 3(1) of the Copyright Designs and Patents Act 1988 (CDPA).


An action was brought by Banner Universal Motion Pictures (BUMP) which had been assigned the rights to “Minute Winner”. This was a format developed in 2003 by a Danish citizen called Derek Banner.

On 11 November 2005, Mr Banner met with the two principals from Friday TV in Stockholm. He alleged that he gave them non-disclosure agreements (NDAs) to sign regarding Minute Winner and several other TV formats. As well as that, he mentioned the catchphrase “you have a minute to win it”. This was disputed by the two principals of Friday TV. They argued that other proposed TV formats, that did not include Minute Winner, were instead discussed at this meeting. It is important to note that the two principals refused to sign the NDAs and Mr Banner accepted this.

Ten days after the meeting Mr Banner emailed one of them and attached ten more of their formats.

In 2009, Friday TV’s holding company was acquired by Shine Limited. Later that year, Friday TV sold the idea for a new game show to Realand Productions LLC, a part of NBC Universal Group.

The show was going to be one in which a contestant could win $5 million by completing ten games in a row in a studio. In 2008, the name for that show was Take the Money and Run. This changed to Perfect 10 then to Don’t Blow It and then finally to Minute to Win it in December 2009. This show first aired in the US in 2010 and was subsequently broadcasted in the UK in 2011. Mr Banner became aware of this in September 2011 and commenced an action against Friday TV in the Stockholm District Court for infringing section 6 of the Swedish Trade Secrets Act.

His claim failed and resulted in BUMP then bringing a claim in England. In relation to the copyright claim, they argued that copyright subsists in the Minute Winner Document as an original dramatic work, within the meaning of sections 1(1)(a) and 3(1) of the CDPA.

The allegedly infringing TV gameshow
What the High Court said

To begin with, Snowden J stated that, for a TV format to be granted copyright protection, it must be an original dramatic work. In regards to originality, the work must be the author’s own intellectual creation (Infopaq; SAS). However, this does not mean that every aspect of the work must be original. The work must be taken as a whole and it can include aspects that are neither novel nor ingenious.

Due to the CDPA not defining what a dramatic work is, Snowden J applied Nourse LJ’s definition of a dramatic work (Norowzian v Arks Limited (No 2) [2000] EMLR 67 at 73). Nourse LJ defined it as "a work of action, with or without words or music, which is capable of being performed before an audience”. Snowden J’s conclusion was based on Nourse LJ’s definition: each recorded episode of a TV format can qualify for copyright protection, as copyright would be infringed if another party re-enacted it. However, he stressed that this case instead concerns whether a format is separately capable of copyright protection.

Snowden J analysed the reasoning of the judges in a seminal Privy Council decision on TV formats, that was outside of this jurisdiction (Green v Broadcasting Corporation of New Zealand [1989] RPC 700). This case is relevant to the UK because New Zealand has a similar closed-list system to the UK. Therefore, the reasoning of the majority can be seen to be reflective of the UK’s reluctance to grant protection in TV formats. Somers J, who was part of the majority, held that such scripts as existed could not be a dramatic work because they could not be acted or performed, being "no more than a general scheme for a proposed entertainment".

Snowden J reformulated Gallen J’s dissenting judgment in Green. He stated that copyright protection will not subsist unless, as a minimum: (i) there is 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.

However, in applying such criteria to this case Snowden J held that there was no realistic prospect of the Minute Winner document qualifying for protection. Snowden J highlighted that the performance of a task against the clock to win a prize was a common feature of games shows. As well as that the Minute Winner document did not specify key information such as the type of one minute tasks, who the contestants should be or the length of the programme.

Snowden J also highlighted that even if BUMP could establish copyright in its Minute Winner document, the format described in the Minute Winner document and that used in Minute to Win It were "different in every material respect". Thus meaning, that there was no similarity beyond the fact that they both involved games played against the clock for one minute.

Green, or the Opportunity Knocks case
Implications of the ruling

This case is of great significance to the media industry and highlights the dangers of sharing ideas in a commercial environment, without copyright or contractual protection. It is imperative that television producers and those with rights to TV formats, ensure that they have robust non-disclosure agreements and that third parties sign them. This is likely to be an easier route to enforcing one’s own rights, as opposed to bringing a claim for copyright infringement and needing to satisfy the requirements stated by Snowden J.

In order to increase the chances of their TV format being afforded protection by copyright, TV producers and broadcasters ought to include information such as where the action is to take place, who the contestants should be, the selection process, the length of the programme, when the show should be aired, the source of the prizes and catchphrases. It is vital that TV producers and rights holders keep a constant and regularly updated account of this information. In doing so they will have a better chance than Mr Banner and BUMP, in meeting the minimum criteria set out in Snowden J's judgment.

However, the decision is dangerous for how UK copyright is defined. This is because TV formats as copyright subject-matter are dangerously on the verge of the idea side of the idea/expression dichotomy. A difficulty in deciding these cases is distinguishing between whether what has been copied is the expression of ideas, rather than pure ideas themselves. It appears that TV format producers like the claimant, bring these claims to protect the latter from being copied. However, these claims are outside the remit of copyright protection.

Whilst Snowden J correctly decided against granting copyright in Minute Winner, because a party cannot claim a monopoly on games being played against the clock for one minute, it cannot be said that other judges in the future will correctly do so as well. Copyright does not grant monopoly rights and therefore, there is certainly potential for things to get out of control if judges begin to grant monopoly rights in TV formats. These practical concerns are a contributing factor as to why the UK has been hesitant, to freely grant copyright protection to less conventional works, like TV formats.”

The beginning-of-winter Copykat!

The Electronic Frontier Foundation is not really happy at this moment

The Electronic Frontier Foundation published recently an article about the problem of the CASE Act of 2017. We will summarize it, but you can find the entire article here !

The CASE Act of 2017 has been criticised for many reasons, but the EFF here is quite clear: they don’t want it. For them, the CASE Act will have several unwanted consequences, and the first of them is the fact that the Copyright Office will become a Copyright Court. This is the worst that could happen for them, because “the Copyright Office it not known for its neutrality on copyright issues”. According to the EFF, this will magnify the problem of copyright’s unpredictable civil penalties.

Indeed, the CASE Act of 2017 would set up a “Copyright Claims Board” within the Copyright Office, staffed by three judges empowered to hear copyright complaints from all over the country. The proceedings will be voluntary, but if a respondent fails to opt-out, the proceedings become binding and the outcome can be enforced in federal court. According to the CASE Act, the board car issue damages award up to $15 000 per work infringed, or €30 000 per proceeding. And of course, if the parties consent, it can issue “agreements to cease infringing activities” … that become binding injunctions.

For the EFF, the opt-in method “would have greater incentive to design proceedings that safeguard the respondent’s interests, and clear standards that everyone can understand. Equally importantly, an opt-in approach would help ensure that both participants affirmatively choose to litigate their dispute in this new court, and help prevent copyright holders from abusing the system to obtain inexpensive default judgments that will be hard to appeal”.

And you, what do you think?

EU Parliament voted for a copyright reform aimed at making more TV shows and films available online across borders

Commercial TV broadcasters, football leagues and film producers scored a win on Tuesday when European Union lawmakers watered down a copyright reform aimed at making more TV shows and films available online across borders.

The EU Parliament

EU Parliament voted to restrict the scope of the copyright proposal to news and current affairs, excluding TV shows and films. It means that broadcasters will be able to show their news content online across the EU, but only after clearing the rights in their home country!

The original proposal was contested by the media industry. According to them, voting this kind of proposal would have lead to “pan-European licensing, diluting the value of exclusive rights and squeezing out smaller broadcasters that would be unable to afford pan-EU rights”. Indeed, films and TV shows are often broadcast when selling exclusive distribution rights on a country-by-country basis.

However, the vote is not final and dissenters still have hope as the EU Parliament will have to find compromise with member states in the coming months. 

Call collect?

A couple of snippets of news from the world of collection societies: First off, The US Copyright Royalty Board is to raises some of the music streaming royalty rates instigating a change based on a cost of living adjustment for the rates paid to copyright holders by online webcasters. The rates increased to $0.0018 for commercial ad-supported non-interactive music streaming services, and $0.0023 per performance for paid services. That's up slightly from $0.0017 and $0.0022, respectively. Additional rate announcements from the CRB are expected in the coming days.  And the collecting societies representing song rights saw the monies they collect worldwide rise by 6.8% to €8 billion last year – a jump in part fuelled by a 52% increase in digital income – according to new figures published by CISAC. Across all its member societies, digital income was up 51.4% at just under €1 billion. CISAC notes that the boost mainly came from premium streaming services

Except this? Except that?

The World Intellectual Property Organisation is going to take a long hard look at the issue of limitations and exceptions to copyright, and provide a draft action plans, one each for libraries, archives, museums, educational research institutions, and persons with other disabilities than sight impairment. The plans, being discussed in this week’s committee meeting, include brainstorming sessions, studies, and regional seminars, and conferences to advance understanding and issues related to copyright for those particular actors. The WIPO secretariat has circulated a document [pdf] providing draft action plans for different strands of the discussions for the 2018-2019 biennium.  

Web-blocking in Switzerland and South-Africa?

You may no know what web-blocking is… This is the anti-piracy tactic where rights owners can get injunctions forcing internet service providers to block their customers from accessing piracy websites. For right owners, this is the perfect anti-piracy tool, and they surely hope that this tool would soon be available in more and more countries.

A new Cybercrimes and Cybersecurity Bill is currently on trail in South Africa, and the local entertainment industry asked for web-blocking. The local entertainment industry took the example of some European countries, in which there is already this web-blocking tool, and asked the ISPs to consider adopting this method. Just like in some European countries, such as France with its “Hadopi”, they also asked for the ISPs to send warning letters to suspected online infringers, and maybe even monitor infringement on their networks.

Unfortunately, none of that is going to be included in the Cybercrimes and Cybersecurity Bill. Ministers opposed them that their proposals were not within the remit of the Bill. However, another Bill is coming, based on seeking to amend the country’s copyright law, and these proposals would be better put forward for that legislation.

In Switzerland, we’re focusing on a copyright review. A lot of critics have been going on for some time on the fact that the copyright regime is ill-equipped to deal with infringement. Indeed, in Switzerland, casual downloading and streaming of unlicensed content is covered by the pesky private exception.

Various new anti-piracy measures have been proposed during the current copyright review and an update on which proposals will go forward was published last week. A possible takedown-and-stay-down requirement has been proposed… Is something great coming?

According to Torrentfreak, Swiss lawmakers have already knocked back proposals that web-blocking be introduced there. However, as people will still be able to “pirate” copyrighted material (as long as that content is consumed privately), it does not include videogames and software. And here is something new: any supposed losses will be compensated via a compulsory tax of 13 Swiss francs, levied on media playback devices including phones and tablets.

You may also note that uploading is explicitly ruled out. Rights-holders will be able to capture IP addresses of suspected infringers in order to file a criminal complaint with authorities! That being said, there will be no system of warning notices.

As you see, the news is coming, and it sounds better than before!

This Copykat from Lolita Huber-Froment

Friday, 1 December 2017

Judge Hacon’s 10 (+ 1) commandments on joint authorship under UK copyright law

From Mathilde Pavis writing  on the IPKat

Richard Hacon 
In the Florence Foster Jenkins decision, as discussed here, Hacon J gave a useful summary of UK copyright law on the issue of joint authorship. The summary, as set out in para. 54 of the judgment, almost reads as Hacon’s ‘10 commandments’ on joint authorship under UK copyright law:

“(1) A party will be joint owner of the copyright in a work only if he or she (or in the case of a company, its employees) collaborated in the creation of the work. The collaboration must be by way of a common design, i.e. co-operative acts by the authors, at the time the copyright work in issue was created, which led to its creation.

(2) The contribution of each author must not be distinct from that of the other author or authors.

(3) Contributions by a putative joint author (including those done by way of collaboration) which formed no part of the creation of the work are to be disregarded in the assessment of joint authorship.

(4) No distinction is to be drawn between types of contribution that did form part of the creation of the work. In particular, there is no distinction which depends on the kind of skill involved in making the contribution.

(5) The contribution, assuming it is relevant to the assessment of joint authorship, must be sufficient. This depends on whether the contribution constitutes a substantial part of the whole of the work in issue.

(6) That will be the case if the contribution would be protected by copyright in the work. Thus, if the contribution alone were copied by an unlicensed third party and such copying would result in an infringement of the copyright, the contribution constitutes a substantial part of the whole.

(7) The test of substantiality in the context of joint authorship of copyright, as in the context of infringement, involves a qualitative as well as quantitative assessment. 
Criticism and suggestions
do not amount to joint authorship

(8) Suggestions from a putative joint author as to how the main author should exercise his or her skill – for instance by way of criticism or editing of a literary work – will not lead to joint authorship where the main author has the final decision as to the form and content of the work.

(9) It is thus relevant, but not decisive, whether an author is the ultimate arbiter as to the content of the work.

(10) If joint authorship is established, the court may apportion ownership of the copyright.”

An 11th commandment can be found a little later in the decision, in relation to contradictory evidence about ‘who did what’ during the creative process. In para. 61, Hacon J advises the following:  

[11] “place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations and instead … base factual findings on inferencedrawn from the documentary evidence and known or probable facts seems to me appropriate to the present case.

The relevant case law for commandments 1 to 10 seems to be:
And for the eleventh:

Isn’t  it nice when copyright feels easy?