Copyright for a Remix - Advice please....

Copyright matters affecting music and musicians.
typonaut
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Post by typonaut » Tue Feb 12, 2013 12:27 am

AndyJ wrote:
typonaut wrote:As far as I know posting links to material, distributed without authorisation, is not something that a UK court will take action over.
I think you are forgetting Newzbin and Newzbin2
It's one (or two) of those cases I've never read or taken much interest in. But, looking at the Wikipedia article for a quick overview it could be that the distinction here is that Newzbin was always taking money from subscribers in order to provide the links to the protected works.

Hilarious note in there about Newzbin's barrister being disbarred because he owned 100% of the issued stock in the company!?
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Post by RedRobin » Tue Feb 12, 2013 12:35 am

Hmm, I am concluding from all these aspects of copyright law and principles thereof, that:- [not in order of importance]

1) - I could be liable for a copyright infringement by any form of distribution of the said 'Remix'. And irrespective of a download option being provided.

2) - Giving full credits is of no account other than to possibly demonstrate that I am not claiming authorship dishonestly, but this is not likely to be mitigating.

3) - Even if complying with a Takedown Notice, damages could still be claimed against me.

4) - I may not be liable if I am only publishing an online link to where the Remix can be listened to elsewhere rather than publishing the Remix on my own web pages.

Therefore the sensible course of action would be to approach 'Another' and/or their small French record company for permission. Doing so, if no permission was granted, would risk the Remix dying an instant death other than being shared and enjoyed not online but very privately and without any form of distribution.

On the other hand, if permission was granted, there would be no risk of claims against me.

It is not uncommon for artists (musicians) to take the view that a respectful remix (non derogatory) is a welcome tribute.

The alternative is to take the risk and do what so many others do and simply go ahead and put the Remix online to be enjoyed.

I think I have to wait and see what the remixer has to say as she is the one who has created the work using both my song (with my permission) and Another's song, which she selected.

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Post by RedRobin » Tue Feb 12, 2013 12:50 am

typonaut wrote:
RedRobin wrote:In an ideal world, music would always be free and not subject to complex laws of copyrights etc etc etc!
Well, that's certainly one philosophical position to take. Unfortunately for you the philosophers have been debating that issue for a few hundred years and they have a different answer.

I'd personally question whether that really would be an ideal world - it would seem to preclude anyone ever making a living from the creation of music, and consequently have a negative effect on both the quality and quantity of music available to the public.

But I certainly would not wish to prevent anyone giving away music that they have composed and performed, if that's their choice.
....Yes, I agree - I realised that negative effect after I had posted.

I do not rely on creating music for a living and so I am inclined to give it away. However, when someone insists on stuffing a fiver in my hand or giving me something in return, I do not refuse! :lol:

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Post by typonaut » Tue Feb 12, 2013 12:58 am

RedRobin wrote:I think I have to wait and see what the remixer has to say as she is the one who has created the work using both my song (with my permission) and Another's song, which she selected.
I think you have the general understanding. If someone else is creating and distributing the infringing work, then you are not liable merely for giving them permission to use your track. If you distribute it (or make it available to the public) in any way, then you will be liable.

Making it available to the public would include emailing a copy to your friend, or simply playing it in a public place (includes a hired room in a pub, for a few friends, etc).
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Post by RedRobin » Tue Feb 12, 2013 10:33 am

typonaut wrote:If you distribute it (or make it available to the public) in any way, then you will be liable.

Making it available to the public would include emailing a copy to your friend, or simply playing it in a public place (includes a hired room in a pub, for a few friends, etc).
....So am I correct in thinking that even if I was to send a private email to a close and trusted friend who is a respected musician and producer, with a copy of the said Remix attached, with the express purpose of asking his opinion about the Remix's music, then I would still be liable to committing an infringement!?

I have to say that it's a sad day when if the law extends its tentacles that much!

This then begs the question whether it's 'legally safe' to play such music in the privacy of one's own home but hosting a party for invited guests only.

Doesn't a court take a defendant's intentions into account? Or is that only if it is a criminal and not a civil court?
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Post by AndyJ » Tue Feb 12, 2013 6:44 pm

RedRobin,
As you have probably gathered by now, I don't take such a draconian view as Typonaut on this issue.
I agree with him that you are not liable for any primary infringement of Another's song by merely consenting to the use of your song in the adaptation. Nor are you liable through your approval of the resulting remix, since that would not amount to authorising another to make an infringing copy (contrary to section 16 (2)).
There is little or no chance that owning a copy of the remix itself would land you in trouble as possessing a copy of an infringing work alone (provided you did not make it) is not an infringement of the author's rights. For there to be the offence of secondary infringement (section 23), possession needs to be in the course of a business.
As Typonaut says, passing a copy to a friend is dangerous on two grounds: it might be seen as issuing a copy to the public (s 18), and secondly it would involve you making a copy which would contravene s 17. However if your friend came round to your home and listened to the remix, that would not constitute a public performance, nor copying, nor issuing a copy to the public.
Clearly if the remixer, who is already liable for a s 17 infringement also compounds her sin by posting the remix on YouTube, and you then publish a link to it, on the current jurisprudence that would not be an infringing act on your part either.
While you may despair at the extent to which the law seeks to extend its tentacles, in many ways we ain't seen the half of it. For the last two says I have been at the Supreme Court where the appeal before their lordships has major ramifications for anyone surfing the internet. In essence, in an earlier case known as Meltwater both the High Court and the Court of Appeal held that when a representation of a website page, or image or other item obtained from a web request appears on the screen of your monitor, tablet or smart phone that is new and separate copy of the work, and unless you know that you have the copyright owner's permission to view the page etc, you will be infringing copyright just by browsing. There is a provision (s 28A) within the Act which appears to exempt browsing and the technical process which leads up to the creation of an image on your screen, but the UK courts have so far held this does not include the final stage of the process, namely the copy in the cache of the computer and the copy on screen. We will have to see how the Supreme Court decide. It is possible that they may make a referral to the European Court of Justice on some issues raised in the case, because at the heart of the matter is the correct interpretation of an EU Directive on the subject. You may think that website owners are implicitly giving their permission for you to view their content, so there's no problem. But as we know there are probably millions of websites which host content which has been lifted without permission, including some otherwise respectable sites like, ahem, YouTube. So if the Supreme Court reject this appeal, effectively most people in the UK browsing the internet will unwittingly become liable for making infringing copies on a regular basis.
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Post by AndyJ » Tue Feb 12, 2013 10:22 pm

typonaut wrote:
The problem with that theory is that it fails to take into account that copyright may not be granted/enforceable on the full scope of a work. Only the novel parts of any work are protected, those that are derived from expired works, or unprotectable elements (characters, plots, titles, television show formats...) never become subject to an enforceable right.
Typo,
I don't intend to defend the theory which isn't mine and was mentioned here only because of its somewhat altruistic proposal over the freedom of authors to adapt the works of others.
But in the interests of a wider discussion, characters, plots, and game show formats are not universally unprotectable, although I accept that is substantially the situation in the UK.
For an interesting discussion of the US jurisprudence concerning the protection of fictional characters and to a lesser degree, plots, this paper may interest you: "The Conflicting Interests in Copyrightability of Fictional Characters" Dr T Ahmad and D Mondal. 2011
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Post by RedRobin » Wed Feb 13, 2013 12:17 am

AndyJ wrote:RedRobin,
As you have probably gathered by now, I don't take such a draconian view as Typonaut on this issue.
....Hi Andy. Yes, I had noticed a difference in your general tone from Typonaut :). I think that our learned friend is making me aware of a worst case scenario and although it is somewhat daunting for me to hear, it is nevertheless important for me to understand the worst potential consequences. Your goodself on the other hand seems to be more sympathetic to what I would ideally wish to achieve - Namely the sharing of the Remix music for enjoyment in its own right and not for financial gain.

I am very grateful to both of you for your substantial and very detailed input.
AndyJ wrote:
I agree with him that you are not liable for any primary infringement of Another's song by merely consenting to the use of your song in the adaptation. Nor are you liable through your approval of the resulting remix, since that would not amount to authorising another to make an infringing copy (contrary to section 16 (2)).
There is little or no chance that owning a copy of the remix itself would land you in trouble as possessing a copy of an infringing work alone (provided you did not make it) is not an infringement of the author's rights. For there to be the offence of secondary infringement (section 23), possession needs to be in the course of a business.
^^^^ This is very concisely put and is a good summary of our discussions so far, and in a language which is easily understood by someone not in the legal profession (myself!).
AndyJ wrote:
As Typonaut says, passing a copy to a friend is dangerous on two grounds: it might be seen as issuing a copy to the public (s 18), and secondly it would involve you making a copy which would contravene s 17. However if your friend came round to your home and listened to the remix, that would not constitute a public performance, nor copying, nor issuing a copy to the public.

Clearly if the remixer, who is already liable for a s 17 infringement also compounds her sin by posting the remix on YouTube, and you then publish a link to it, on the current jurisprudence that would not be an infringing act on your part either.


....Then it appears that I am theoretically 'safe' to merely post a link to her remix wherever she chooses to post the said remix. That obviously suits me well because I can then 'share' it by referring to it rather than by distributing it. But I can see that there is perhaps only a subtle difference between sharing and distributing in the eyes of copyright law - Although in cyberspace the difference is more structurally defined.

Robin :)
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Post by RedRobin » Wed Feb 13, 2013 12:33 am

Now that the subject of the remix music itself has been so well covered, I am afraid that I have a further related question:

As a (retired) professional graphic designer it has been both natural and enjoyable for me to create an avatar/icon/symbol specifically for her (the remixer) to use and post with her remix.

The graphic work is entirely my creation and I assume that as such, I hold the copyright and her use of it (my permission being given) alongside the internet-posted remix does not make me jointly liable for any infringements deemed to have been committed by her.

Am I correct in this assumption, please?
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Post by RedRobin » Wed Feb 13, 2013 1:09 am

AndyJ wrote: While you may despair at the extent to which the law seeks to extend its tentacles, in many ways we ain't seen the half of it. For the last two says I have been at the Supreme Court where the appeal before their lordships has major ramifications for anyone surfing the internet. In essence, in an earlier case known as Meltwater both the High Court and the Court of Appeal held that when a representation of a website page, or image or other item obtained from a web request appears on the screen of your monitor, tablet or smart phone that is new and separate copy of the work, and unless you know that you have the copyright owner's permission to view the page etc, you will be infringing copyright just by browsing. There is a provision (s 28A) within the Act which appears to exempt browsing and the technical process which leads up to the creation of an image on your screen, but the UK courts have so far held this does not include the final stage of the process, namely the copy in the cache of the computer and the copy on screen. We will have to see how the Supreme Court decide. It is possible that they may make a referral to the European Court of Justice on some issues raised in the case, because at the heart of the matter is the correct interpretation of an EU Directive on the subject. You may think that website owners are implicitly giving their permission for you to view their content, so there's no problem. But as we know there are probably millions of websites which host content which has been lifted without permission, including some otherwise respectable sites like, ahem, YouTube. So if the Supreme Court reject this appeal, effectively most people in the UK browsing the internet will unwittingly become liable for making infringing copies on a regular basis.
....I find this both fascinating and horrifying! I say horrifying in that my initial reaction is to feel that such legislation would go way beyond what I would consider as fair and just applications of the law to protect the copyrights of originals from unjust use. I hope I am making sense!

To be in effect breaking copyright laws merely by looking at images on your own computer/tablet etc screen is truly draconian in my opinion. It's rather like making it illegal to merely privately think that someone is a so-and-so as opposed to hurling abuse by calling them a so-and-so out loud in public and thereby possibly offending others at the same time.

I'm not advocating total anarchy but internet users throughout the world are likely to unify and rebel in ways which may go beyond cyberspace.

The internet fundamentally is occupied by a world community (the world wide web) which greatly values its freedom from national authorities. Law and order is necessary but there needs to be an acceptable balance with freedom.
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Post by AndyJ » Wed Feb 13, 2013 10:05 am

RedRobin wrote:
The graphic work is entirely my creation and I assume that as such, I hold the copyright and her use of it (my permission being given) alongside the internet-posted remix does not make me jointly liable for any infringements deemed to have been committed by her.

Am I correct in this assumption, please?
Yes, you are correct on both counts. By designing the logo you will be entitled to the copyright in your artistsic work. Her use of the logo, with your permission, would not create any liability for you in connection with her acts, as it is hard to see how you could be seen to be joint tortfeasors (sorry about the legal jargon). It would much the same as saying that the Ford Motor Co was liable because one of their cars was used in a robbery of a bank!
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Post by RedRobin » Wed Feb 13, 2013 10:54 am

Thanks, Andy.

I was very amused by the term "tortfeasor" and first read it as "tartfeaster"!! :lol: Perhaps it's time for breakfast! So, "wrongdoer" would be a less legal term.

As someone who loves driving high performance cars, I can think of much better vehicles for a 'bank job' than a Ford :lol: But of course such analogies are more widely understood.

I have now sent her my logo for her use with her remix. I have only gone as far as advising her that downloads should strictly not be an option and that she should immediately adhere to any forthcoming notice to take it down - She is happy about that.
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Post by AndyJ » Wed Feb 13, 2013 11:16 am

RedRobin wrote:
....I find this both fascinating and horrifying! I say horrifying in that my initial reaction is to feel that such legislation would go way beyond what I would consider as fair and just applications of the law to protect the copyrights of originals from unjust use. I hope I am making sense!

To be in effect breaking copyright laws merely by looking at images on your own computer/tablet etc screen is truly draconian in my opinion. It's rather like making it illegal to merely privately think that someone is a so-and-so as opposed to hurling abuse by calling them a so-and-so out loud in public and thereby possibly offending others at the same time.

I'm not advocating total anarchy but internet users throughout the world are likely to unify and rebel in ways which may go beyond cyberspace.

The internet fundamentally is occupied by a world community (the world wide web) which greatly values its freedom from national authorities. Law and order is necessary but there needs to be an acceptable balance with freedom.
This is not a change to the law, merely that 2 courts have interpreted the existing law in the manner I have described. Since both those decisons would bind courts in the UK in future, unless the Supreme Court reverse the decision on appeal, then the outcome would be that ordinary browsers could be exposed to this additional liability.
The problem goes back to the wording of the EU Copyright Directive (2001/29/EC) which says in Article 5:
Temporary acts of reproduction referred to in Article 2, which are transient or incidental and an integral and essential part of a technological process and whose sole purpose is to enable:
(a) a transmission in a network between third parties by an intermediary, or
(b) a lawful use
of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2.
The whole issue came about because a copyright collection society, the Newspaper Licensing Agency, wanted to collect fees from businesses (the 'end-users') who viewed content from the websites of their members (the major UK national newspapers) after the end-users have been alerted to relevant content by a news aggregation service known as Meltwater. This is effectively the modern day version of a press cuttings agency. Since the terms of use for the newspapers' web sites (for instance see Term 6 and sub section (6) here on the Telegraph website) only permit browsing by private individuals for non-commercial purposes, businesses have to obtain a licence to do this. Hence it was important for the NLA to get the courts to agree that the material appearing on the screen of a browser's computer would amount to a separtate copy which was not exempt under Article 5. In other words the narrow financial interests of a specific group may have the effect of changing the law for all UK users on the internet. No other EU member state has sought to apply their law in a similar way to this, even though they too have to abide by Article 5.
Although there have been at least 3 previous decisions* from the Court of Justice of the European Union relating to Article 5, this specific aspect (ie whether the copy on the screen falls within or outside the Art. 5 exemption) has not been ruled on.

* The cases are known as:
Infopaq1
FAPL
Infopaq2
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Post by RedRobin » Wed Feb 13, 2013 12:44 pm

AndyJ wrote:Since the terms of use for the newspapers' web sites (for instance see Term 6 and sub section (6) here on the Telegraph website) only permit browsing by private individuals for non-commercial purposes, businesses have to obtain a licence to do this. Hence it was important for the NLA to get the courts to agree that the material appearing on the screen of a browser's computer would amount to a separtate copy which was not exempt under Article 5. In other words the narrow financial interests of a specific group may have the effect of changing the law for all UK users on the internet. No other EU member state has sought to apply their law in a similar way to this, even though they too have to abide by Article 5.
....Surely this is a case of the tail wagging the dog and clauses could be added such that what I have copied from your quote in bold has less of a draconian and blanket effect?

My understanding of such legal matters (as a non professional) is that a court arrives at judgements based and influenced by statutory law but those judgements themselves are not in fact statutory law. But in practice those judgements are referred to and used to decide further judgements and as a result they are how the law is applied in real life practice.

Is there no room in all of this for a degree of common sense to prevail? In other words, is there no scope for those sitting in final judgements to be influenced by a fair and just overview?

In relative ignorance I am trying to say that I can see no fair justice in deciding such that the law changes to benefit a small minority at the expense of the majority. Surely there should be a way of revisng or wording the law so that both minority and majority best interests are fairly served. It seems very simple to me but clearly isn't!

Due to such legal complexities I'm sorry to say that it's sometimes no wonder that some of the populus have such a bad attitude towards the law and its practices. I'm sad to say that a friend of mine is extremely prejudiced against the law in general and also towards the Police - He mixes up political views with law and seems to believe that the law is a weapon of some far reaching evil corporate conspiracy!
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Post by AndyJ » Wed Feb 13, 2013 1:57 pm

Due entirely to my earlier remarks, we are straying way off topic, so I won't make my reply too long.
Yes, you are right that the appellate courts in particular need to bear in mind public policy when interpreting the law, but in this case they are dealing with EU law and therefore it has to be the CJEU which ultimately determines the meaning. Part of the problem is that some of the documents and other materials (so-called traveaux preparatoires, and to a lesser extent, the recitals of the Directive itself) which should indicate the intent of the EU policy makers, allow for the narrower interpretation, ie that a copy on screen is a 'new' copy, but without appearing to take account of the consequence of this - what you refer to as the common sense view. It is what one might call an unintended consequence to the extent that there is no direct evidence to suggest that the EU wanted this to be the outcome, merely that they didn't think of it at the time.
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