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Google v Oracle: Copyright Infringement or Fair Use
By Ivan Blomqvist. Junior Lawyer.
After a decade from its beginning, the Google vs. Oracle has ended with Google on the winning side. However, the decision has garnered much controversy due to how it might impact the future of code. One side rooting for Google believing that companies would be forced to implement deliberately incompatible standards (restricting services’ abilities to communicate with one another) to protect themselves from the risk of complex litigation. The other side rooting for Oracle while cautioning that a judgment favoring Google’s position would weaken protection for copyright for software code developers, allowing competitors with better resources to develop improved products from smaller firms, and reduce the motive for innovation within the industry.
On August 13, 2010, Oracle sued Google for copyright and patent infringement, citing that Google was aware that they had developed Android without a Java license and copied its APIs. Oracle also mentioned that Google had no excuse to be unaware of infringing patents, given that they had hired developers that had originally worked on Java. Oracle sought both monetary damages and an injunction to stop Google from using the allegedly infringing materials.
The first phase of the case, which lasted 5 years, was split into three phases, copyright, patent, and damages. The court ruled in favor of Oracle by successfully establishing that APIs are copyrightable, but their claims of patent infringement were rejected.The second phase began in 2016 on whether Google’s actions were fair use given the prior ruling that the APIs were copyrightable. The courts ruled in favor of Google, which Oracle appealed a managed to get reversed in the Court of Appeals.Google appealed before the Supreme Court of the United States in January 2019 seeking to challenge the rulings made by the appeals court in Oracle’s favor. The Court issued its decision on April 5, 2021, letting Google off the hook by overturning the lower court’s decision.
Justice Stephen Breyer, who wrote the majority opinion said that “to allow enforcement of Oracle’s copyright here would risk harm to the public”. So many programmers used and had a deep knowledge of Oracle’s building blocks that such a move would turn computer code into “a lock limiting the future creation of new programs”. “Oracle alone would hold the key,” he warned.
In a dissenting opinion, Justice Clarence Thomas commented that allowing fair use simply because it allows new products to be created effectively redefines the idea. “That new definition eviscerates copyright,” he warned. He also lamented that the majority had decided not to rule on whether code was copyrightable, instead of saving the question for another day and relying on fair use instead.
Source: https://www.bbc.com/news/technology-56639088
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Open Source Software
By Ivan Blomqvist. Junior Lawyer.
A common misconception regarding Open Source software is that it is equivalent to public domain software. However, this couldn’t be more wrong.
What is Open Source Software, and why does it matter?
A public domain software is that which the author has willingly surrendered the proprietary rights to it, all copyrights included, and therefore no license is required to use it. However, Open Source software can come with some undesired consequences, which would make its use riskier than traditional commercial software, like the lack of indemnification for third-party infringement claims.
Open source has undergone an image change in 2021 turning into a secure, low-cost strategy, even leading some investors to refuse to back a company that isn’t at least considering open sourcing their work due to it being an efficient use of capital. While it might seem contrarian to freely share your creation, some consider it as being better, because in cases where the software has a large community, it stands to reason that it will be more secure, stable, and even provide more features due to the large number of developers working on it, not to mention cheaply.
The evolution of intellectual property strategy in innovation ecosystems
It is important to note that an IP Strategy and an Open Source Strategy are not exclusive. Open source is simply another form of IP Strategy, these are still creations that can be patented.
That said Open Source is not without its risks. Since it is not done with the usual controls present in commercial software, a programmer that downloads an Open Source program that contains infringing code added by a previous developer is exposed to injunctions or legal damages. Another thing to take into consideration is when Open Source software uses copyleft licenses, which entails that all derivative work or modification must be distributed under the Open Source license, which could lead a company to lose the rights to their proprietary or underlying code or even force them to disclose trade secrets. This is why it is so important that companies that make use of Open Source software do their due diligence and keep extensive track records.
Source: https://www.wiprpatentslive.com/agenda/session/473391
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Copyright Doesn’t Wear Prada
By Maria Sol Porro. Trademarks Lawyer and University Professor.
Conflict “G-Star” against “Cofemel”
After determining last year that the taste (of cheese) is not susceptible (for now) to be protected by copyright, the Court of Justice of the European Union (CJEU) resolves again in another conflicting case related to this right, this time about the textile design.
The conflict in question began with the demand of G-Star Raw CV (“G-Star”) against Cofemel- Sociedades de Vestuario S.A. (“Cofemel”) -both companies dedicated to the design, production and marketing of clothing- for the infringement of the ¨copyright¨ of its design models related to the marketing of its jeans, sweatshirts and t-shirts. Specifically, G-Star highlighted that its clothing items were original creations and should be classified as works that are subject to copyright protection.
Before this claim, submitted by the Superior Court of Portugal, the CJEU conducted an analysis of the degree of originality required of the designs to be susceptible to copyright protection and, in particular, whether the circumstance of generating a ¨ visual effect of its own and considerable from the aesthetic point of view¨ constitutes a fundamental element to grant copyright protection.
Intelectual human creation
In this context, the Court of Justice of the European Union recalls in its opinion that, in principle, it is the ¨works¨ which are the result of intellectual human creations that are protected by copyright. Then, it establishes that, although in certain cases the drawings and models can be considered as works, it must be demonstrated “with sufficient precision and objectivity” that these are the result of an intellectual human creation, which reflects the freedom of choice and the personality of his actor. Therefore, the Court clarifies that no clothing design is protected by copyright only for its ¨aesthetic effect¨, since this is the result of a subjective feeling of beauty, and can only benefit from this right when it is an original work.
In this way, the CJEU resolves once again against the expansion of ¨copyright protection¨ to other human creations by highlighting the limits that this intellectual property right requires in order to be claimed.
Source: aladda.es
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Copyright Protection Will Remain for 50 Years
By Maria Sol Porro. Trademarks Lawyer and University Professor.
“Copyright and Related Rights Law No. 9,739”
The Uruguayan Senate refused to treat as “seriously and urgently” the bill of the Senator of the Independent Party, Pablo Mieres, to increase the term of protection of the economic rights of Uruguayan artists.
The rejected initiative proposed to modify the “Copyright and Related Rights Law No. 9,739” of December 17, 1937, which establishes the moral and patrimonial protection of the works for their authors. This same law was modified by Law Nº 17.616, of January 10, 2003, establishing in its Article 8 the current term of 50 years, which Senator Mieres sought to extend to 70 years with his new proposal.
While Senator Mieres and the traditional parties, that supported his proposal, based this extension on the need to align Uruguay with the world on this issue and make national industries more attractive as the that foreign industries, since the 70-year term is used in the European Union and almost throughout Latin America, the ¨Frente Amplio¨ and different groups of artists and people linked to culture repudiated this proposal, claiming that it would harm the access to cultural heritage and the right of access to culture.
In this context, the topic is going to be analyzed by the Committee on Education and Culture, which will have until 2020 to approve it.
Source: ladiaria.com.uy
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Copyright Strikes Back
By Maria Sol Porro, Trademarks Lawyer, and University Professor
VidAngel Case
On Monday, June 17, a U.S. District Court in Los Angeles ruled against VidAngel and fined the video filtering service $62.4 million which it must pay in reparation for damages to the plaintiffs, The Walt Disney Company, Warner Brothers, 20th Century Fox, and Lucasfilm.
Copyrighted material infringed
VidAngel, launched in 2013, is an entertainment platform that was created to help families filter out language, nudity, violence, and other content from movies and TV series. The independent company made international news in 2016 when Walt Disney Co., Lucasfilms, 20th Century Fox, and Warner Bros. all filed a lawsuit against it, claiming the video streaming service was infringing on their copyrighted material. During the trial, the Provo-based startup had previously filed for bankruptcy in 2017 and are currently still going through those proceedings.
In this context, the U.S. District Court in Los Angeles has reported that the platform streamed at least 800 titles from the studios meaning they will end up having to pay $150,000 per title in the ruling. The company’s defense was that VidAngel committed innocent infringement and should, therefore, be required to pay much less. Facing this disadvantageous ruling, VidAngel CEO Neal Harmon promised to fight back with an appeal.
Copyrgiht industry
Faced with this kind of meaningful decisions which are more protectionist every time, it does not seem risky to conjecture that the copyright industry has an increasing weight in the US economy, which makes it a much stronger industry. A similar phenomenon is also happening in the UE with the New Copyright Directive related to internet and platforms. Therefore, it seems that the balance between the freedom of the internet and the author rights is difficult to find.
Source: techcrunch.com
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European Union Approves Copyright Directive
By Maria Sol Porro, Trademark Lawyer
Last March the plenary of the European Parliament approved the New Copyright Directive, with 348 votes in favor, 274 against and 36 abstentions, after two years of increasingly heated arguments and moods, not just between companies and content producers but also with the same citizens.
The controversial text has received the support of authors of different works and the rejection of different activists and organizations. For the former, the approval of the Copyright directive means the acquisition of more efficient tools for the protection of their rights on the internet and simpler ways to obtain redress of their rights when they are violated. On the other hand, those who opposed mainly the approval of the new directive, warned that this situation will affect the freedom of expression, replaced by the reign of censorship.
Our intellectual property protection team will help you if you have any question or you need help.
Main novelties of the new Copyright directive
For a better understanding of the opposing positions, list below what, in our opinion, are the main novelties that the Copyright directive deals with:
Main affected
The average user is not the objective of this regulation, according to the European Parliament itself. In this way, the legislative institution assured that the proposal for a directive would not be aimed at private users, but, on the contrary, will mainly affect large internet platforms and news aggregators – companies such as YouTube, Google News or Facebook – forcing them to remunerate artists and journalists correctly, for the use of their works in a virtual way.
Right of the editor
An “additional right of publisher” is added to the copyright in order to manage the use of total or partial reproductions of news articles. The goal is to obtain that platforms such as Google News or Facebook better remunerate the media for the articles they use. The media will negotiate with these platforms how and at what prices their articles can be used, which will be protected for two years. On the other hand, hyperlinks shared by Internet users or “isolated words” to describe their content will be exempt from any obligation regarding copyright. Moreover ¨Snippets¨, short excerpts from newspaper articles would also be outside the scope of the aforementioned rule, although the directive does not define the number of words.
Responsibility of platforms
The level of responsibility of platforms in the information society has raised as the legal regime changes. Currently, platforms such as Facebook or YouTube are not responsible when their users upload illegal content that infringes copyright and only respond if they have knowledge of the infringement, after notification by means. In this sense, when the new regulations come into force, the platform in question “will have to activate early control mechanisms so that what its users upload complies with the author’s licenses”.
Exceptions in the new Copyright Directive
One of the articles that has most aroused controversy in relation to the New Directive is the famous “Article 13” -translated to point 17-. This article requires that commercial platforms such as YouTube or Twitter, based on user content, need a prior license from the creators of these works, so the fear that this regulation established a ban or censorship to derivative works -made on the basis of others- like gifs, memes or parodies was latent. For this reason, the aforementioned text establishes exceptions (to the obligation to obtain a license) for non-profit online encyclopedias, platforms such as Tinder or Dropbox, parodies, cartoons, quotes, reviews or criticism, which would seem to also protect ¨memes and GIFs¨. Likewise, a legal guardianship has been established for startups: for companies that have less than three years of activity and enter less than 10 million per year, the level of responsibility is reduced. Finally, it also includes complaints mechanisms for Internet users.
Against this background, the support of the European Parliament is the penultimate step for the reform to be confirmed, in the absence of formal approval by the twenty-eight members in decision of the Council of the Union. Once validated by all the parties, the member states will have two years to transfer the reform to their national legislations. From then on, it will be the time that determines which of the two sides was right, although if there is something in both of them, it is that we are facing a new age on the Internet.
Source: elpais.com
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When Trading Cars Infringe Copyright
Company Capri Internacional S.A. was sanctioned in the first instance with a fine of $140,000 USD by the Copyright Commission (CDA) of Indecopi (Trademark Office of Peru), for infringing the rules on copyright and related rights due to the commercialization of the album “World Cup Russia 2018” (with the denomination “3 Kings”) and the mobile application “Virtual Stickers” in Peru.
Initially, through the sanctioning administrative process initiated on its own initiative, the CDA concluded that the mentioned company had infringed the patrimonial rights of reproduction and distribution over the photographs and stickers included in the album ‘World Cup Russia 2018’, because it did not have the authorization of the owners of said works to exploit them commercially. Notwithstanding this, the Commission extended the previous infringement of the rights of reproduction and public communication over motion picture recordings – which, although they are not considered works, are protected by related rights – to which people could access through a mobile application called ‘Virtual Stickers’.
In relation to this case, it is important to note that the sanction of the CDA to Capri International S.A. it was developed later to another fine that the Commission of Control of the Unfair Competition (CCD) of Indecopi imposed in September to the company to market the aforementioned album in the Peruvian market.
In contrast to those explained above, it remains to be expected if the company Capri Internacional will exercise its defense through the corresponding appeal that is recognized, within the relevant legal time frame.
Source: https://gestion.pe
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First Prison sentence in Colombia for copyright fraud
The Criminal Court of the Zipaquirá Circuit has issued the first punishable sentence in Colombia for Defrauding Author Rights and Related Rights. The businessman Jairo Ramón Jurado Mesa received a sentence of 48 months in prison and a fine of 26.66 current minimum wages, equivalent to more than USD 7,000.
According to the information provided by the Society of Authors and Composers (SAYCO), in February 2013, the businessman Jurado Mesa held a concert called “Live the Barranquilla Festival” in a commercial establishment in the municipality of Chía, Cundinamarca. It was during this concert where the group El Gran Combo de Puerto Rico interpreted 12 songs represented in Colombian territory by SAYCO, for which said collective management society should receive the sum of twenty three million pesos (USD 8,050).
The 12 songs interpreted in this concert are represented by SAYCO in Colombian territory in execution of agreements signed with foreign collective management societies, of which ASCAP (USA) manages 7 works, SGAE (SPAIN) 2, BMI (USA) 1, SBACEM (BRAZIL) 1 and SAYCO (COLOMBIA) 1.
According to the statement made by Dr. Ricardo Gómez Durán, Legal Director of SAYCO, the condemnatory sentence to Jurado Mesa is a wake-up call for business executives and organizers of concerts. It shows in Colombia for them to fulfill their duty to work with SAYCO, which is the collective management society that represents approximately 98% of the musical works that are performed in the country, as well as the one responsible for carrying out the collection on behalf of more than 110 sister societies around the world.
From his side, the manager of SAYCO, César Ahumada, expressed his satisfaction with the ruling and indicated that the conviction of Jurado Mesa “set an important precedent” in Colombia in terms of copyright.
SOURCE: https://www.elheraldo.co/colombia/
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Copyright vs. Taxi Drivers
The Director of transport of Sayco and Acinpro (Colombian management entity of communication rights, musical works and audiovisual productions), announced in the National Congress of Taxi Drivers that they will begin to charge to taxi drivers rates between $ 7,000 (2.15 USD) and $ 19,000 (5.84 USD) for the copyrights of the music that is heard on the vehicles. According to the management company, this announcement has been taking place since 2016.
In relation to the aforementioned announcement, Sayco assures that this charge is different from the one they make to radio stations, since they pay to play music, while taxi drivers (and also intermunicipal service drivers) will be charged for lending an additional service in their vehicles.
Before this news, the Association of Owners and Drivers of Taxi (Asoproctax) asked Sayco’s manager to clarify the circumstances in which the union should pay royalties for the use of copyright. Also, Asoproctax warned that if the new payment was executed, the item would be paid by the users of the transport service through new rates since the taxi drivers would not be willing to pay, since they consider that they do not use the music radio for profit.
Regarding this conflict, it is important to highlight that it is not new, due to the fact that since 2016 the National Directorate of Copyright (DNDA) and the Ministry of Transport created a working table and issued a joint circular that guided on the compliance with these regulations based on Law 23 of 1982 and Andean Decision 351 of 1993, referring to the rights of authors of public communication in Colombia. The aforementioned laws establish that “the use of audiovisual or musical works necessarily requires a license or authorization” so if they do not have them, royalties must be paid to the holders of the corresponding rights.
In conclusion, based on the positions adopted by both parties in relation to the new regulation, it is reasonable to understand that the conflict will be extended for a longer time until an agreement is reached.
SOURCE: https://www.elespectador.com/
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Colombia Upgrades it’s Copyright Law
After arduous debates in the legislature and the public sphere, Law 1915 was enacted in Colombia in July. This also means Law 23 of 1982 is modified and new provisions are established in the area of copyright and related rights.
The law had a very controversial debate process, taking six years of discussions with working groups from organizations that defend digital rights, rights of people with visual disabilities, library advocates and journalists.
This project, in principle, responded to the need of Colombia to comply with some commitments acquired by the country in the framework of the Free Trade Agreement with the United States, in force since May 15, 2012.
According to the National Directorate of Colombian Law, the main changes that Law 1915 establishes include
- Specifies the scope of some author and related patrimonial rights with respect to the digital rights.
- Extends the term of protection when the rights are headed by legal persons.
- Expands the range of limitations and exceptions to copyright and related rights, reaffirming Colombia as the owner of one of the broadest ranges in these issues.
- Regulates the use of orphan works, placing Colombia as the pioneer in this type of regulation.
- Establishes provisions with respect to technological protection measures.
- Updates observance of rights regarding provisions.
However, the new law did not incorporate certain current issues, for example, the exceptions to the responsibility of internet service providers for infractions of copyright or related rights (CHECK – a point that is part of both FTA signed with the United States and agreement signed with the European Union).
These absences do not obscure the fact that this reform is an important novelty for copyright in Colombia since it is a fundamental reform of the aforementioned right, and not a formal amendment. The focus is to modernize different aspects rrelated toColombian authors and creative industries and their correlative relationship with foreign colleagues.
Source: https://www.zapatarios.com/
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