SAA urges restoration of the Register of Copyrights

Is law and fact all you need to persuade a jury in a copyright case? Not quite. You also need emotion. Touch the heart to influence the mind. You might respond: “copyright doesn’t generate emotion; it only protects personal property.” Think again. In any case evidence matters. But the non-payment underlying every copyright infringement case evokes emotion among a number of types of jurors. Here are two. 𝗧𝗵𝗲 𝗖𝗿𝗲𝗮𝘁𝗼𝗿𝘀 Copyrighted works that excite, entertain or motivate take time, skill and sacrifice to create. Sometimes the time is measured in days; but in other cases in months or years. Jurors who create recognize another's sweat of the brow. These jurors will relate to and respect the skill and creativity of the copyright holder. When the copyright owner testifies to the emotional pain of infringement, that angst will resonate with jurors who create. That connection often prompts creators to side with plaintiff. The jurors reason (at least to themselves) that, if their works were infringed, they would want to be similarly treated. 𝗧𝗵𝗲 𝗦𝘁𝗿𝗮𝗶𝗴𝗵𝘁 𝗦𝗵𝗼𝗼𝘁𝗲𝗿𝘀 We like to think we have high moral and ethical standards; but some have higher standards than others. A bad actor's exploitation of a copyrighted work without payment will create in jurors with high standards a strong sense of injustice Injustice triggers anger. It may motivate this type of juror to unfavorably view any defense to infringement. 𝗜𝗺𝗽𝗮𝗰𝘁 𝗼𝗳 𝗘𝗺𝗼𝘁𝗶𝗼𝗻 𝗼𝗻 𝗗𝗮𝗺𝗮𝗴𝗲𝘀 Emotion not only shapes the outcome of a copyright case but can result in substantial statutory damages. Those damages will be available if the works involved are timely registered (before infringement or within three months of publication). Courts don't permit jurors in a copyright case to punish a defendant by awarding punitive damages. But jurors can do the next best thing. First a jury decides whether defendant willfully infringed, meaning whether defendant knew its conduct was infringing or acted with reckless disregard of plaintiff’s copyright. If the jury finds willfulness, the court will instruct the jury to consider a number of factors in assessing the amount of statutory damages, including whether to deter defendant and others from engaging in similar conduct. The jury can give whatever weight they wish to each factor. Here’s where emotion matters. If the jury is convinced that defendant’s wrongful conduct warrants deterrence, they can increase statutory damages to the willful maximum of $150,000 for each work infringed. Jurors have broad discretion so long as their award is within the statutory limits. Once they reach their verdict they don’t have to explain it. So if you overlook emotion in copyright litigation you may miss the opportunity to obtain the enhanced statutory damages Congress mandated. Other than creators and straight shooters who else would you like to have on your jury ? #emotion #copyrightlitigation #juries

The arts sector seeks governmental legal protection The situation is that artificial intelligence is the latest rage and money-spinner, with Australian artists stating legal steps must be taken to protect them from copyright infringement. That's over this nation's desire to economically benefit from closer ties with IT companies. This is a prickly time for artists, creators and the media who don't want to see their work go unpaid. Now, they face an Attorney-General Michelle Rowland who has not come out and said there will be no text and data mining exemption. So, the granting of free copyright access to IT giants may proceed. When the Albanese Labor government's principal review and economic advisory body has made this proposal to the government; namely to prop up budgetary finances. So the Productivity Commission in August put forward this exemption in its data and IT interim report, to constructively feed the idea that artificial intelligence companies are to receive access to creators’ work for free. That proposal means that AI training can be carried out on copyrighted works without receiving permission first from the copyright artist. Accelerated IT productivity is bound to occur and the Productivity Commission is obviously linking major economic interests locally and worldwide to this plan. But it leaves creators in a financially deceived position. Things in any area will turn ugly when money is an issue. As is the case when legal standards or regulatory guidance must be judged on what is considered fair. As IT companies and artists will be trying to protect their livelihood so licencing laws that support both parties: will require a lot of yelling before any negotiation can take place. It is to be acknowledged under "copyright basics" on the Attorney-General's Department website it states: "Copyright gives its owners (often the creators of the material) exclusive economic rights to do certain acts with that material. "These include the right to copy, publish, communicate and publicly perform the copyright material... "Copyright also gives authors and performers non-economic rights, known as moral rights. Moral rights recognised in Australia are the right of integrity, the right of attribution and the right against false attribution." Under this explanation from Ms Rowland's own department, her need for further engagement in this area shows she has deep concerns surrounding copyright and artists. Is it not clear 'copyright' is about rights and its holders can stand by that? The Arts Law Centre of Australia says it "assists thousands of Australian artists and organisations annually." The centre offers free or low cost representation as a community legal centre. Is Ms Rowland forgetting that Australian artists also make up the 'migrants, young people and women' that swung the Labor vote in the last election. The IT giants in turn wait for a clear direction from this government. Herald Sun: Picture of PM and Michelle Rowland

Hollywood Demands Copyright Guardrails from Sora 2 - While Users Complain That's Less Fun: Enthusiasm for Sora 2 "wasn't shared in Hollywood," reports the Los Angeles Times, "where the new AI tools have created a swift backlash" that "appears to be only just the beginning of a bruising legal fight that could shape the future of AI use in the entertainment business." [OpenAI] executives went on a charm offensive last year. They reached out to key players in the entertainment industry — including Walt Disney Co. — about potential areas for collaboration and trying to assuage concerns about its technology. This year, the San Francisco-based AI startup took a more assertive approach. Before unveiling Sora 2 to the general public, OpenAI executives had conversations with some studios and talent agencies, putting them on notice that they need to explicitly declare which pieces of intellectual property — including licensed characters — were being opted-out of having their likeness depicted on the AI platform, according to two sources familiar with the matter who were not authorized to comment. Actors would be included in Sora 2 unless they opted out, the people said. OpenAI disputes the claim and says that it was always the company's intent to give actors and other public figures control over how their likeness is used. The response was immediate.... [Big talent agencies objected, along with performers' unions and major studios.] "Decades of enforceable copyright law establishes that content owners do not need to 'opt out' to prevent infringing uses of their protected IP," Warner Bros. Discovery said in a statement... The strong pushback from the creative community could be a strategy to force OpenAI into entering licensing agreements for the content they need, legal experts said... One challenge is figuring out a way that fairly compensates talent and rights holders. Several people who work within the entertainment industry ecosystem said they don't believe a flat fee works. Meanwhile, "the complete copyright-free-for-all approach that OpenAI took to its new AI video generation model, Sora 2, lasted all of one week," writes Gizmodo. But that means the service has "now pissed off its users." As 404 Media pointed out, social channels like Twitter and Reddit are now flooded with Sora users who are angry they can't make 10-second clips featuring their favorite characters anymore. One user in the OpenAI subreddit said that being able to play with copyrighted material was "the only reason this app was so fun." Futurism published more reactions, including ""It's official, Sora 2 is completely boring and useless with these copyright restrictions." Others accused OpenAI of abusing copyright to hype up its new app. "This is just classic OpenAI at this point," another user wrote. "They do this s*** all the time. Let people have fun for a day or two and then just start censoring like crazy." The app now has a measly 2.9-star rating

How easy is it to bypass copyright protection on the internet? That's the central question in the Anne Frank case (C-788/24), in which I pleaded last Monday before the Court of Justice of the European Union The copyrights in Anne Frank’s diaries are held by the Anne Frank Foundation. After being denied permission to publish in the Netherlands, two Dutch entities made the complete works of Anne Frank available online on a Dutch-language website hosted in ..... Belgium 🇧🇪 (claiming that copyright protection there had expired) Access from the Netherlands was IP-geoblocked. Yet the same entities actively promoted the site in the Dutch media. With 1.5 million Dutch citizens using VPNs, the geoblock was easily circumvented. In fact, bypassing that barrier is simpler than walking to a bookstore .. IP measures on the 'internet highway' used to be roadblocks, but today they’re merely speed bumps. This is common knowledge and there are people who are taking advantage of that (increasingly so). The case raises two key legal questions: 👉 Does subjective intent matter? Specifically, does it matter whether a website is “directed” (or aimed/targeted) at a jurisdiction in order to establish copyright infringement? We say: No, what matters is whether the work is accessible to the public in that jurisdiction. 👉 Are geoblocks always sufficient? Again: No, a geoblock must be effective in practice, and courts must assess its effectiveness in light of the concrete circumstances — including whether the site is promoted locally and whether circumvention tools are widely available. In addition, national authorities should be able to impose stricter measures such as username/password access. And in this case they should. This case, and especially this second question, is crucial for the future of online copyright enforcement. Without meaningful standards, anyone could claim to “host abroad” in a supposed safe haven (sometimes euphemistically called “public domain countries” f.e. 'life+50'countries) while effectively making protected works freely available in jurisdictions where they remain under copyright. The Advocate General will deliver his Opinion on 15 January 2026. (with Thijs van Aerde, Kamiel Koelman, Julie Visser, Fabienne Brison ) #copyright #copyrightenforcement #digitalcopyright

🎵 She's a Model and She's Looking [not so] Good 🎵 Big development on the genAI and copyright front, as a Munich court appears likely to hold OpenAI liable for copyright infringement for its handling of protected song lyrics ⚖️ The case was brought by German music rights collecting society GEMA, who are not out for damages but seeking leverage for licensing negotiations. An injunction is potentially on the cards, which OpenAI would only be able to comply with by completely halting its services in Germany. That is strong leverage for GEMA and other rights holders to bring OpenAI and other genAI companies to the table. Assuming the court sticks to its guns, it will be a good day in the office for GEMA and its members, and rightsholders more generally 🙏 In the absence of anything equivalent to US Fair Use doctrine, generative AI companies operating in the EU have looked towards two main defences to copyright infringement: 1. Training takes place outside the EU 🌍 2. Text and Data Mining (TDM) exception applies under Art 4 CDSM 👌 The interesting thing about this case is that it renders both defences moot, because the model's reproduction of protected song lyrics, and its ability to do so, involve acts that do take place in Germany and which are not covered by the TDM exception. As a reminder, the TDM exception specifically covers the exclusive right of reproduction for the purpose of automated analysis, but does not cover it for other purposes, nor other exclusive rights e.g. the right of communication to the public 🙅 Slapping down the lengthy arguments of OpenAI's many lawyers, Judge Dr. Elke Schwager stated that the facts were “not complicated” given that the use of the copyrighted works in training was not disputed, and was dismissive of OpenAI’s arguments that users are responsible for copyright-infringing outputs. The final decision will be issued on 11 November 👀. For more details see ip fray's report in the comments 👇

"The (Munich) #court #rejects OpenAI’s #suggestion that #users #provoke #copyright #violations through their #prompts. GEMA showed the court various prompts that resulted in a #reproduction of #copyright-#protected #text #material. The court clarified that there could be future cases in which different prompts are on the table, but in this particular case, OpenAI cannot defend itself by shifting #liability to #users." Thanks for sharing Ben Maling #Copyrights #AI #GenAI #IPRights #RightOlders #ContentCreation #AIPrompts #AILiability

You probably remember the 2015 banger “Weka Weka” by the pop group P-Unit , a song that clocked over 600,000 YouTube views. But in 2019, that same hit track became the subject of a courtroom battle when P-Unit discovered a KCB M-Pesa commercial titled “Weka Weka na KCB M-Pesa” running on TV, radio, and social media. The group claimed the ad sampled their lyrics and melody without permission. KCB and its advertising agency, Scanad Kenya Ltd, countered averring that “weka weka” was simply a common Kiswahili phrase, not a copyrightable expression. Analysis of the Law 🔷️Ownership of Copyright The Court reaffirmed that copyright arises automatically upon creation and fixation of a work in material form, registration is not mandatory. Citing Simon Otieno Omondi v Safaricom (K) Ltd [2020] KEHC 10062 (KLR) and section 22(5) of the Copyright Act, the Court held that P-Unit were the undisputed authors of “Weka Weka.” 🔷️Similarity Between the Song and the Advert The Defendants demonstrated that the only similarity was the phrase “weka weka” , a Swahili expression used in day to day. Moreover, the beats, melodies, chord progressions, and arrangements were entirely distinct. P-Unit’s producer admitted that parts of their beat were sampled from existing loops, which weakened the originality claim.The Court found no similarity between the two works both musically or in the lyrics. 🔷️Copyright Infringement Since infringement requires proof of copying of original, protectable elements, and the Court found none, it held that no infringement occurred. The Defendants did not therefore infringe the Plaintiffs’ copyright. Key Takeaways 🔆Common words and phrases are not copyrightable unless they form part of an original, protectable expression. Registration of copyright is not mandatory. 🔆Prior use of a phrase or slogan can defeat later claims of originality. Musical similarity requires overlap in protectable elements such as beat, melody and structure. 🔆Proof of loss or profit is essential in copyright infringement suits seeking damages. There was no proof to demonstrate the financial loss the Plaintiffs were claiming or that the Defendants profited from their song. Enclosed is a copy of the judgment

Huge AI copyright news as Munich Court holds OpenAI accountable. Ben Maling discusses how song writer lyrics could be the line in the sand for those on the side of the creatives

TL;DR: German court is about to say what many lawyers (myself included) thought - OpenAI has used copyrighted work in an infringing manner. The interesting part is what follows from that - I hope AI companies start taking people's rights way more seriously when creating or updating their products. 🚀Understanding how to implement AI governance and ethics is key for that, as it can help entrepreneurs build high-quality products by innovating to benefit and protect consumers and society.

The summation of the decision reads in part as follows "We affirm the denial of Dr. Thaler’s copyright application. The Creativity Machine cannot be the recognized author of a copyrighted work because the Copyright Act of 1976 requires all  eligible work to be authored in the first instance by a human being. Given that holding, we need not address the Copyright Office’s argument that the Constitution itself requires human authorship of all copyrighted material.  Nor do we reach Dr. Thaler’s argument that he is the work’s author by virtue of making and  using the  Creativity  Machine  because that argument was waived before the agency. "We affirm the denial of Dr. Thaler’s copyright application. The Creativity Machine cannot be the recognized author of a copyrighted work because the Copyright Act of 1976 requires all  eligible work to be authored in the first instance by a human being. Given that holding, we need not address the Copyright Office’s argument that the Constitution itself requires human authorship of all copyrighted material.  Nor do we reach Dr. Thaler’s argument that he is the work’s author by virtue of making and  using the  Creativity  Machine  because that argument was waived before the agency" So, not only does the court decision not apply to the general question of the existence of copyrights when AI is used as an art tool, it specifically calls that question out as something the court is not addressing. The scope of Thaler v. The US Copyright office only addresses registering a machine's name as the copyright holder. That's it. Any other claims about the decision simply aren't true.