Tag Archives: EU

Google AdWords fight in Germany moves to EU court

According to this article, Germany’s Federal Court of Justice has “sent” a case to the European Court of Justice to seek clarification [query: Is this like a federal court certifying a question to a state supreme court in the U.S.?] of whether the purchase of a competitor’s trademark as a Google AdWord constitutes “use” of a trademark under “EU trademark rules.”

Google's AdWords program is under fire in Europe

Google's AdWords program is under fire in Europe

This issue has been hotly contested in the United States, because if the purchase of another’s trademark as a Google AdWord is not a “use in commerce,” (at least as long as the competitor’s trademark did not appear in the text of the Google ad), then that effectively forecloses trademark liability for the action.  Cases can be dismissed early on in the proceedings.  Google’s revenue stream is left intact.  One circuit court has bought that argument.  In the Second Circuit (which includes New York) courts have found that the mere purchase of the competitor’s trademark as a Google AdWord does not constitute a “use in commerce.” Courts in the rest of the country, however, have not been so gracious, and at least allow the cases to continue.  For example at least one federal district court in Minnesota (pdf) indicated that, based upon all of the circumstances, purchase of a competitor’s trademark as an AdWord could be an infringing use.

Google, perhaps to avoid personal liability, as implemented a DMCA-like “notice and takedown” procedure. Its US, UK, Ireland, and Canada policy states that if the competitor’s trademark appears in the header or body text of a competitor’s ad, the competitor may contact Google and the trademark term will be removed from the ad.  This policy tracks with a decision by a Court in the Eastern District of Virginia that determined that trademark “use in commerce” could exist if a competitor used a trademark in body text or headers of advertisements seen by consumers, but that “use in commerce” could not exist if the trademark merely triggered the ad to be shown.  In Europe, if a trademark owner discovers that a competitor has purchased Google AdWords containing the trademark, Google will disable those keywords.  Perhaps this suit tests whether Google can implement a US-style takedown.

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If only Wagner played rhythm guitar?

Europeans are considering the extension of their copyright term for recordings, which is set at 50 years, with a consequence that the “session musicians,” those who merely perform on a recording virtually anonymously, get a bigger cut.

In this fantastic article from the British New Statesman, Tim Blanning looks at the debate from a historical perspective, noting that piracy and misappropriation was even more common in 17th and 18 Century Europe than it is today.  He also makes the argument that stricter copyright laws do not necessarily guarantee better music:

If modern copyright protection had been in place in Germany in the middle of the 19th century, Richard Wagner would have been a rich man. As his biographer Ernest Newman pointed out, it was the system that made him a beggar – and then condemned him for being a debtor.

One of the reasons why Wagner – and every other composer – was so keen to make a name in Paris was that legislation introduced during the French Revolution had given France the best intellectual property rights in Europe, and consequently the continent’s most vibrant musical culture. The result was that Auber, Meyerbeer and Halévy became very rich. That these three succeeded where Berlioz and Wagner failed ought to be sufficient warning that secure access to the market is not a guarantee of superior quality. When copyright protection came to Italy in the late 19th century, it marginalised the im presarios and prompted the now dominant music publishers to cosset their star composers. Whether the music produced under these new conditions by, say, Puccini is superior to that of Rossini, Bellini, Donizetti or the younger Verdi is a different matter.

Richard Wagner-- A guy who needed better lobbyists

Richard Wagner-- A guy who needed better lobbyists

I would disagree slightly that the purpose of copyright is to secure the best quality of expression possible.  Indeed, the purpose is to encourage creative folks to produce.  Musical ingenues would likely still follow their calling, even if they have to be insurance salesmen on the side. Copyright ensures quantity, people who might not want to produce but for the financial incentive  they could receive from royalties. Like the session musicians the EU seems to be so concerned about.

Blanning also examines the relationship between the composer and the public, noting that once the patronage system was abandoned for the “anonymous public” paying for performances, a tension was created:

The public knew what it liked – and that was easy listening in the shape of plenty of variety, good tunes, regular rhythms, and pieces that were not too long or difficult. Haydn’s symphonies fitted the bill, but Beethoven, especially in his later years, was altogether too demanding.

[..]

Composers have responded in all kinds of ways to the emergence of the philistine public as the major source of patronage, from “giving the punters what they want” to “doing my own thing regardless”.

Sounds pretty familiar, eh? And you thought that it was Clear Channel that brought about the “dumbing down” of music.

But it wasn’t until musicians could make money as performers that the music industry got going:

When the subsequent explosive growth of the public sphere across Europe created a new Eldorado, it was the composer-performers who did best, since it was they who could achieve a direct relationship with their audiences. Paganini and then Liszt dem onstrated just what riches and honours were now available to the charismatic musician. When Liszt left Berlin after a series of recitals in 1842, he did so in a carriage pulled by six white horses, accompanied by a procession of 30 other coaches and an honour-guard of students, as King Frederick William IV and his queen waved goodbye from the royal palace. As the music critic Ludwig Rellstab put it, he left “not like a king, but as a king”.

Recordings have greatly increased the wealth that can be produced by a performer, but, as Blanning noted “[e]ver since musicians emerged from the servile but cosy world of aristocratic patronage into the harsh daylight of the public sphere, the musical profession has been a pyramid with a broad base and a sharp top. The new opportunities brought by every major technological shift have also left many casualties among musicians unable or unwilling to adapt.”

This guy is worth 20 years

This guy is worth 20 years

Does this mean that Europeans should extend the copyright term? Or is 50 years’ worth of payments for an “anonymous” musician sufficient?  We in the United States have repeatedly answered this question with a strong “yes”– extending copyrights any time any work believed to be “valuable” nears its expiration term.  Sonny Bono’s singular enduring legacy as a U.S. Congressperson is the Sonny Bono Copyright Extension Act, a/k/a the Mickey Mouse Protection Act, signed into law in 1998, and extended the copyright term to life of the author plus 70 years, or 120 years after creation or 95 years after publication for works of corporate authorship.* It was lobbied for strongly by Disney, whose copyright in “Steamboat Willie” was then about to expire.**

Even assuming that the performance rights about to expire in Europe comprise some very “important” session work, perhaps governments have to realize that “important” may not mean “deserving of continued financial support”.  It’s unfortunate, however, that copyright extension seems to come ex post facto when “important” works are about to expire.  Because whether copyright exists to encourage “superior” work or exists just to encourage creative productivity, that incentive no longer exists after the work has been out and about in the world for 50 years.

But whether the US or the EU is beginning to structure its laws to encourage a future Wagner to be an anonymous rhythm guitar player instead of a composer, Blanning’s article is certainly worth a read.

Courtesy of techdirt.com.

* By the time the Act was passed in the US, the copyright term for authors in Europe was already life plus 70 years; performance rights last for fifty years, however.

** Recent evidence has suggested that, notwithstanding the Act, Steamboat Willie has faled into the public domain due to a failure of the authors to provide proper copyright notice

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