Sunday, 6 May 2018

Academic boycott of new journal over open access

Many months ago, this blogger wrote about ‘Open Science and Open Culture’. I’d like to continue this line of discourse if I may, (having recently emerged from a writing malaise borne out of a seemingly unending job search) with a discussion on academic publishing and open access. Of particular interest is the boycotting of a brand new academic journal entitled “Nature Machine Intelligence”, which is to be launched in January 2019 by publishing giant, Springer Nature.

The era of machine learning is upon us.

Nature Machine Intelligence will be an “online-only journal for research and perspectives from the fast-moving fields of artificial intelligence, machine learning and robotics” (quote source here). The fledgling commercial subscription journal has, however, been met with a certain amount of hostility by the academic community. Indeed, 2,816 individuals (at time of writing) have refused to “submit to, review, or edit for this new journal” in a Statement on Nature Machine Intelligence. This move is a signifier of a larger cultural shift that has been growing since the inception of the internet, which seeks to move away from ‘paid-for’ access to research knowledge to an open access model. The objective of this open access model is that anyone with an internet connection might furnish themselves with the latest scientific and academic knowledge and insights.

The traditional system of academic publishing

In order to have a piece of work published by a respected publisher (a must for many academics – ‘publish or die’), academics must usually assign the copyright in their work to the publisher. The publisher then locks the work behind paywalls, charging money to gain access to the research output via subscription payments. This maximalist use of copyright – to limit access to academic knowledge to only those who pay the toll – is what proponents of openness argue hinders development in society. Subscriptions to academic journals will usually only ever be paid by universities and other large institutions or companies and even at that, these large organisations face problems in being able to afford publisher subscription charges: see this famous memo from Harvard, one of the worlds richest and most prestigious universities, for an example of the budget strain that besets many institutions as a result of prohibitive publishing charges. Probably the most galling aspect of the situation is that – despite academic research being funded mostly from the public purse – large swathes of the general public will never be able to access research output and are therefore unable to gain any of the benefits brought about from these tax payer funded investments.

The push for openness

The driving rationale behind the push for openness is to create a counterpoint to an ‘all rights reserved’ culture.  Bestowing property rights in intellectual creations is intended to “promote the progress of science and the useful arts” (Article I, § 8.01.8 of the U.S. Constitution), yet there is a growing pushback within society which posits that the propertisation of all intellectual creations actually hinders the development of science and the arts. Innovation is always built upon that which came before it – everyone is always somehow “standing on the shoulder of giants” after all. However, if standing on the shoulders of giants entails insurmountable difficulties – such as exorbitant licence fees, expensive copyright infringement lawsuits or even a complete inability to gain access to knowledge and research – innovation will likely be stilted. Academic publishing is something that many openness advocates would describe as the archetypal example of innovation being hindered because intellectual creations have been commodified and propertised. For publishers to use copyright as a tool to generate profit from research output that was funded largely by the tax payer presents legitimacy issues for the existence of copyright, as well as the publishing industry.

The internet has been the fundamental driver behind open values. Various international legal instruments have been crafted to push forward the openness agenda, with the objective of making academic research available to anyone with an internet connection. These include the Budapest Open Access Initiative, the Montreal Declaration, the Bethesda Statement, the Berlin Declaration, the Durham Statement of Open Access to Legal Scholarship. The opening of the Berlin Declaration is particularly powerful:

“The Internet has fundamentally changed the practical and economic realities of distributing scientific knowledge and cultural heritage. For the first time ever, the Internet now offers the chance to constitute a global and interactive representation of human knowledge, including cultural heritage and the guarantee of worldwide access.”

This paragraph emphasises the key importance that the sharing of knowledge has to our species and how the internet has made the sharing of knowledge easier than it has ever been. Indeed, the dramatically decreased costs of sharing academic outputs that has been engendered by the internet makes spiralling publisher subscription costs somewhat confounding. Making knowledge available to everyone opens up possibilities of collaboration and follow-on innovation; it helps us develop our understanding of the world, as well as our understanding of ourselves.

Statement on Nature Machine Intelligence – the boycott of Nature Machine Intelligence

Many of the major academic journals that cover machine learning (which covers the plethora of science relating to artificial intelligence) are already open source. These include the Journal of Machine Learning Research, NIPS, ICML and others. Importantly, these journals do not charge for access, nor do they charge authors for publication, which is in direct contrast to the subscription based Nature Machine Intelligence. The Statement on Nature Machine Intelligence explaining the boycott emphatically declares that signatories

“see no role for closed access or author-fee publication in the future of machine learning and believe the adoption of this new journal as an outlet of record for the machine learning community would be a retrodgrade step. In contrast, we would welcome new zero-cost open access journals and conferences in artificial and machine learning.”

The boycott of this new subscription journal by nearly 3,000 experts within its specific scientific field signals that the academic community are pushing back against the closed-access model employed by the majority of academic publishers. Open access is moving into the mainstream culture within academia. With it comes new and exciting opportunities of follow-on innovation, collaboration and new possibilities for the advancement of human knowledge.

Wednesday, 2 May 2018

The COPYKAT celebrates World IP Day

Following the celebrations of World Book and Copyright Day and World IP Day we are bringing you the latest news from the copyright world.

Monkeys Lack Standing to Sue for Copyright Infringement – 9th Circuit Rules on ‘Monkey Selfie’ Case

On April 23rd the long dispute over the infamous ‘monkey selfie’ (covered here, here and here), which was taken by a Macaque monkey, named Naruto, has finally been decided. Following PETA’s complaint in 2015 where the organisation had requested to have any profits that will be gained from the photo taken by Naruto should go to the monkey and preserve its habitat, last year in July the Ninth Court has heard the parties’ arguments. Subsequently, two months later the parties have reached the settlement and filed a motion to dismiss the case but the motion was denied by the court.

The Ninth Circuit Court of Appeals held that the monkey, which was named as the plaintiff, lacked statutory standing to bring an action for copyright action under the Copyright Act. Neither it was possible for PETA to validly assert ‘next friend’ status that would allow it to represent the monkey “both (1) because PETA has failed to allege any facts to establish the required significant relationship between a next friend and a real party in interest and (2) because an animal cannot be represented, under our laws, by a ‘next friend’”.

Bulgaria was one of the four countries which have failed to pass the laws that will fully implement EU Collective Rights Management Directive (Directive 2014/26/EC). On 7th December 2017 the European Commission said it will refer Bulgaria to the Court of Justice of the EU and request a fine of €19,121.60 per day for failure to transpose the Directive which the country was supposed to enact by April 2016. The main aim of the Directive is to improve the operation of collective management organisations and set common standards for the multi-territorial licensing of rights for musical works that are distributed online.

In light of the Directive, Bulgaria has recently passed several amendments to is Copyrights and Neighbouring Rights Act. The new provisions will now allow non-profit organisations and other commercial legal entities (independent companies) to conduct the collective management of copyrights. In order to do so, independent companies will have to enter into a separate agreement for copyright management with the rightholders and register in the Rights Management Organisations Register at the Ministry of Culture. Furthermore, amendments introduced to the Copyrights Act regulate the responsibilities of the parties in the event of live performances, shift the control of copyright compliance to municipalities and provide the Minister of Culture with a power to oversee the collective management of rights.

Several major Hollywood studios, including Disney, Paramount Pictures and Warner Bros, together with Netflix and Amazon, have formed a new (another?!) anti-piracy partnership, Alliance for Creativity and Entertainment (ACE), and have brought an action against Set Broadcast LLC, seller of the popular IPTV service SET TV. Following their actions against Tickbox and Dragonbox devices, members of ACE have filed a complaint against Set Broadcast accusing it of facilitating mass copyright infringement. In the view of the Plaintiffs, the software offered by Set Broadcast allows its buyers to stream copyright infringing content. As stated in the complaint, “Defendants market and sell subscriptions to “Setvnow,” a software application that Defendants urge their customers to use as a tool for the mass infringement of Plaintiffs’” copyrighted works. Additionally, Defendant invites its customers to download and install the software on their portable devices and computers. Apart from the software the company also offers preloaded boxes which enable their users to watch ‘on demand’ content and live streams of TV Channels. Plaintiffs claim that “[f[or its on-demand options, Setvnow relies on third-party sources that illicitly reproduce copyrighted works and then provide streams of popular content”. Therefore, ACE members are claiming in their action statutory damages and seeking an injunction to close the service and seize all the devices that are in Defendant’s possession. ACE spokesperson said that piracy software such as ‘Setvnow’ impair films and TV shows market, and cause harm “to a vibrant creative economy that supports millions of workers around the world”. Therefore, ACE is committed to “protecting creators and reducing online piracy through dedicated actions against illegal enterprises”.

Earlier this year in February, director Christian Charles has filed a complaint in the Southern District of New York alleging comedian Jerry Seinfeld, together with companies involved in the production of the Comedians in Cars Getting Coffee web series. Charles claims that he has come up with the concept of the series and although he created the pilot episode, he is now out of the production, and royalties, as well as profits in violation of his copyright. In response to the lawsuit, (as reported by IPWatchdog), on April 4th Seinfeld filed a memorandum to support the motion to dismiss the case. He asserts that the copyright claim should be dismissed for being time-barred given the claims were filed after the expiration of the statute of limitations. In the situation, where the Court finds the claims cannot be dismissed on the time limit basis, Plaintiff’s claims should be dismissed on the basis that they fail to provide a protectable copyright interest. In the view of Seinfeld and others, the concept of comedians in cars that has been followed by similar concepts such as Carpool Karaoke and Cougars in Cars Getting Cosmos, which “consists of nothing but ‘common stock ideas’ and unoriginal scènes à faire that do not rise to the level of original protectable expression”. Additionally, the Defendants claim that Charles has fraudulently obtained his copyright by registering similar title “designed to mislead the Copyright Office into accepting a copyright application that directly conflicted with the one filed by Mr. Seinfeld.”

In the previous CopyKat [look here] we have looked at the dispute between Solid Oak Sketches and Take-Two over copyright infringement of tattoo designs. During the last week, a new lawsuit has been filed which addresses the issue of tattoo’s copyright protection. In her action against WWE and 2K Gamers, tattooist, Catherine Alexander who inked WWE wrestler Randy Orton argues that her designs were used in a commercial manner without her consent. Similarly to the NBA2K game, here video games from WWK2K series prominently feature Orton’s multiple tattoos in digital designs. According to Alexander, the games display Orton’s tattoos in a manner that is same or substantially similar to her copyrighted works. The question that the Court will have to answer, as indicated by Forbes, will be whether WWE and 2K Games have actually copied the work and whether there is a similarity between Alexander’s protectable designs and works in the video games. In the view of Alexander, “there is no doubt that her designs have been ripped off and reproduced in an effort to make them seem as close to real-life as possible”. 

In 2017 China’s Internet Copyright Industry Grew by Over 27%

In a recently released report, The National Copyright Administration of China reveals that its internet copyright industry grew by over 27% last year and has reached over  636 billion yuan, (US$100 billion). The biggest contributors are online news portals and online games which account for 73% of the total market value. In 2017 online news and information market grew by 40%, whereas online gaming increased by 32% and reached 235.5 billion yuan. Live streaming and short videos over the past two years have seen the most rapid growth, achieving a number of 422 million live streaming users. Mr Zhang Qinkun, Secretary-General of the Internet Copyright Industry Research Center, in observing prospects in the industry for the coming years said that businesses should concentrate on improving the quality of their content in order to attract users.

At the same time, the National Office for the Fight Against Pornography and Illegal Publications revealed in its report that China has dealt with over 460 cases in the first three months of the year that involved copyright infringement. According to the National Office, in connection with the cases more than 1.5 million illegal publications, such as e-books, videos and games were confiscated.

The Swedish Patent and Registration Office (PRV) has created national aggregator called (‘stream legally’), which aims to promote legal streaming among Swedish citizens. The platforms allow for searching of copyrighted works, such as films, TV shows, music, and sports events providing a single access point to find legal digital content. is part of agorateka, portal of the European Intellectual Property Office (EUIPO) that intends to raise awareness and allow the search for legal content through national-level portals. Through the creation of its portal, Sweden joins 14 other EU countries that already have aggregator websites as part of agorateka programme.

For more information click here and here, and watch the video here.

This update by Mateusz Rachubka

Wednesday, 25 April 2018

AG Campos provides reasonable interpretation of the right of communication to the public in his Opinion in Renckhoff

The work at the centre of this litigation
Does the inclusion of a work [the photograph on the right hand side] — which is freely accessible to all internet users on a third-party website with the consent of the copyright holder — on a person’s own publicly accessible website constitute an act of communication to the public within Article 3(1) of the InfoSoc Directive if the work is first copied onto a server and is uploaded from there to that person’s own website?

This is the question that the Court of Justice of the European Union (CJEU) has been asked to address in Land Nordrhein-Westfalen v Renckhoff, C-161/17.

This morning Advocate General (AG) Campos Sánchez-Bordona delivered his Opinion [not yet available in English], and answered in the negative.

Let’s see what happened.


Well, the background is quite ... ridiculous (in the sense that it is ridiculous that litigation is brought in the first place in instances like the present one), and also the AG seemed to agree.

At the very outset, in fact, he observed that not long time ago, school research and work on posters used to be accompanied by photographs, prints and drawings published on books and journals/magazines and hanged on the walls of schools (so to allow parents to view them), “without the authors of those images seeking compensation for their use” [NOTE: all direct quotes are my own translations from the Italian version of the Opinion]. Things have changed and, nowadays, the images used are digital and the resulting school work/research is uploaded on freely accessible websites.

This is indeed what happened in this case to a schoolgirl, who found an image of the city of Cordoba online and used it for an assignment for her Spanish class, providing acknowledgment of the website from which she had downloaded the photograph (though not of the photographer, because the website where the photograph appeared did not provide any). Upon finishing her work, she and her teacher uploaded it online … but the photographer [in my view it might be even questionable that the work is protected by copyright in the first place; although the parties to the national litigation agreed that the photograph is protected, the AG also had his doubts: see further below] came forward claiming infringement of his copyright in the photograph, and that he had just granted a licence to use to the image to the website from which the pupil had downloaded it.

Litigation has ensued all the way up the German Federal Court of Justice [!!], which has decided to stay the proceedings and refer the question above to the CJEU.

The AG Opinion

Preliminary remarks

Before even starting his own substantial analysis, the AG noted that the notion of communication to the public has been “already subject to several decisions of the Court”. Yet, “the current reference shows that the interpretative questions of national courts have not been fully solved yet” [this is indeed true … in terms of numbers, the CJEU is fast approaching its 20th decision on Article 3(1) of the InfoSoc Directive].

Then, the AG noted that the way the referring court has phrased the question requires the CJEU to only consider the construction of the right of communication to the public, not also the issue of reproduction [of course, by downloading the photograph and re-uploading it, the schoolgirl made acts of reproduction].

As mentioned, the AG did not find it straightforward to say that a photograph like the one at issue would be protected by copyright. Nonetheless, pursuant to the freedom left to Member Sates [but not all took advantage of this possibility, an example being the UK] by Article 6 of the Term Directive to protect ‘simple photographs’, it would appear that – at least under German law – such photograph would be protected.

Notion of communication to the public: an ‘act of communication’

The AG then turned to the construction of Article 3(1) of the InfoSoc Directive.

In relation to the need for an ‘act of communication’, the AG noted that one should consider “the indispensable role played by the user and the deliberate nature of its intervention” [here the AG directly referred to GS Media, on which see here]. Such criterion requires to consider both subjective elements relating to the behaviour of the user [the AG referred to GS Media to highlight how the Court has been taking into account also such elements] and objective circumstances, as the user’s act must give access to or facilitate access [this is a very important point relating to Article 3(1), which the CJEU has particularly elaborated in its judgments in Filmspeler – a case in which the AG was once again Campos; see my take here – and Ziggo, on which see here] to a work.

Whilst it is true that both the schoolgirl and her teacher were aware of the consequences of their behaviour when they posted the photo online, ie granting access to a work, it would be wrong not to consider: (1) the accessory character of the photograph as an element of a broader work; (2) the fact that the photograph was already freely accessible and had been published with the author’s consent; and (3) the educational context in which the act of communication occurred, ie without any customers or profit-making intention.

The AG observed that in a case like the one at issue, unlike GS Media, one should not consider whether the pupil and her teacher knew that the original photograph had been published or not with the consent of the author, but rather whether they should know that, to reproduce a third-party photograph, they needed the author’s consent. The AG answered in the negative, holding that one should bear in mind that: A) those who act without a profit-making intention do not usually act with full knowledge of the consequences of their behaviour; and B) the work communicated by the user was already lawfully and freely accessible on another website.

If the factors to which the arguments above refer to subsist, then “there is no communication to the public”. However, this is NOT the case when the the righholders notifies the user that the work to which it gives access is unlawfully available online or when the access granted by the suer circumvents protection measures.

All this considered, the AG found that:

·       There was no mention of who the author of the photograph was on the website from which the pupil had downloaded the photograph;
·       The photograph was easy to obtain, as there were no restrictions (whether technical or related to the terms of use) on such website.

These elements might have led the pupil and her teacher to believe that the photograph was free to use by the public.

This conclusion is not the same as thinking that there are no rights on such photograph. However, in cases like the one at issue, the user “may presume that the author does not object to the limited use of such images, for educational purposes” [para 78 – this is correct both in light of CJEU case law and, more banally but not necessarily a given, in terms of common sense]

The AG continued, holding that any different conclusion would lead to “limiting the use of most information available online. Such limitation could affect freedom of expression and information as per Article 11 of the EU Charter. Furthermore, in the present case such limitation would affect the right to education as per Article 14(1) of the Charter.” [para 79]

AG Campos Sánchez-Bordona
The AG also held the view that lack of a profit-making intention is more relevant than what the referring court appears to think. Here the AG recalled the GS Media presumption as applied to for-profit link providers to hold that – in case there were any doubts – for users without a profit-making intention it is necessary to demonstrate their knowledge of the unlicensed character of the work linked to. And the lack of any warning should be read, according to the AG, as reinforcing the idea that neither the pupil nor her teacher had full knowledge of the protected character of the work and the need to seek the author’s authorization.

Notion of communication to the public: same technical means and a new public

The AG then turned to consideration of whether in the present case the work has been made available to a ‘new public’, in that the technical means used for the original and the allegedly infringing communication was the same.

The AG ruled out that there would be a new public in this case: “As the photograph is easily and lawfully (ie with the consent of the rightholder) available to all internet users, it is unclear how the intervention of a pupil and her teacher may be decisive so that a greater number of persons access” the work [para 100].

The AG also rejected the idea – advanced by some commentators – that the ‘new public’ criterion would amount to an undue exhaustion of the right of communication to the public, which would be as such contrary to Article 3(3) of the InfoSoc Directive: “It is, instead, the logical consequence of the way in which the holder of the rights to the photograph has consented to its use, knowing or having to know that lack of any protection against the reproduction of the image could lead internet users to believe that it was freely available to the public” [para 104].

It is not too much to ask a professional, when he/she publishes a work online, personally or through third parties, to adopt the appropriate measures, also of a technical nature, in order to clarify his/her copyright and the will to control the circulation of his/her own work” [para 105]. This does not reduce the high level of protection that authors are entitled to.

In any case, one can always seek the removal of one’s own work if he/she believes that its use is prejudicial [para 107 - here the AG does not elaborate further, but it seems that this is an argument to strengthen the conclusion that the online publication of a work does not amount to a weakened copyright protection, or even the ‘exhaustion’ of one’s own rights].

Also applicable to copyright protection ...
possibly one of the main points
of the AG Opinion
The role of exceptions

The AG then recalled that, in any case, educational exceptions might be available. If Germany has transposed Article 5(3)(a) into its own law, then account should be given of the fact that the EU Charter recognizes the right to education as a fundamental right. This should guide the correct application of the relevant exception, including ensuring that this fundamental right is not unduly compressed. In any case, in the case at issue, also compliance with the three-step test appears ensured.


This looks like a reasonable Opinion in the context of a fairly unreasonable claim, as well as a good interpretation of CJEU case law on the right of communication to the public. 

Two particular points are worth making.

The first one is that the AG Opinion is a helpful reminder that copyright protection should be balanced against other fundamental rights, including the right to education.

The second point relates to the construction of the right of communication to the public, and in particular the 'new public' criterion. It will be important to see if the Court, like the AG, addresses the criticism that the 'new public' criterion has resulted in an exhaustion of the right of communication to the public. The interpretation provided by AG Campos appears sensible, and suggests that - similarly to the case of other IP rights (eg trade marks and the steps to be taken against 'genericide') also copyright protection comes with certain 'responsibilities' on the side of rightholders. 

Let’s see if the Court agrees …