1709 Blog: for all the copyright community

Thursday, 31 March 2011

Ref’s Net penalty decider

This week the recently retired Lord Justice Jacob referred an important question to the ECJ in Football Dataco v Sportradar [2011] EWCA Civ 330. It’s about whether someone who uploads infringing content on the internet is liable in the country where he is – or where the content is viewed – or both.

Football Dataco compile Football Live, a database of UK football statistics updated during matches (goals, goal scorers, yellow and red cards, substitutions). Sportradar provides a competing service, Sport Live Data, with servers in Germany and Austria, accessible in the UK via betting sites. Football Dataco claim that Sportradar are copying data from Football Live, constituting infringement of UK copyright and database right.

Last November, Floyd J, determining whether the English courts had jurisdiction, held in [2010] EWHC 2911 (Ch):

  1. There was a good arguable case that Football Dataco’s content was protected by copyright, that Sportradar had copied a part of it and had authorized/was jointly liable for copyright infringements by punters in the UK who had reproduced the data on their computer screens.
  2. There was a good arguable case that Sportradar would be jointly liable with punters for database infringement by extraction and with the UK betting site for re-utilization.
  3. Sportradar had not itself re-utilized Football Live in the UK. ‘Re-utilization’ is defined as ‘making available’, which Floyd J concluded would be committed where Sportradar’s servers are, not in the UK.

All points were appealed and on Tuesday the Court of Appeal held:

  1. Football Live might be protected by copyright but there was no copyright infringement if Sportradar had copied data from it. ‘Its recording may sometimes involve some skill (who scored in a goalmouth scramble) but it is not creative skill.’ It followed that Sportradar could not be authorizing or jointly liable for punters’ copyright infringement.
  2. There was a plausible case of Sportradar being jointly liable for database infringements by the UK betting site and punters.
  3. The question of whether ‘making available’ occurs where a site is hosted and/or where it is viewed required a reference to the ECJ.

It was only in December that Jacob LJ referred to the ECJ the question: ‘Does “author’s own intellectual creation” require more than significant labour and skill from the author, if so what?’ He appears to now know at least part of the answer (creative skill).

The jurisdictional question now being sent to the ECJ concerns the database right not copyright, and the copyright and database ‘making available’ rights are not identical. However a parallel question exists in relation to copyright and it would seem likely that whatever the ECJ decide for the database right would also apply to copyright. The legislative history and case law of copyright’s making available right therefore come into consideration.

Sportradar make the policy argument that if making available on the internet happens everywhere that a site can be seen, then websites have the impossible task of making themselves compliant with all the different national laws in the world. A counter policy argument would be: if liability were only wherever servers are located, then infringement is avoided by using servers in countries with lax or no relevant laws.

While the ECJ nuts this out, the proceedings concerning joint-tortfeasorship will continue. This too could make foreign websites liable under the law of the country where they are viewed, through joint liability with end users’ infringements.

The Web is big and it is sticky.

Much Ado About Kindergarten

I have been following for some time now - and with growing bemusement - a heated debate in Germany over the use of sheet music in nursery schools. The apple of discord is a letter from German collecting society GEMA, sent on behalf of another German collecting society (VG Musikedition, which represents composers, lyricists and publisher of sheet music) to some 36,000 German nursery schools. In said letter, GEMA reminds the nursery schools that under German copyright law you need a licence to copy sheet music and proposes the conclusion of a respective licence agreememt.

So far, so normal, one may think, but to most of the German press, this simple occurrence was a complete outrage. Emotions running high, most headlines read something along the lines of "Nursery Schools to Pay for Singing!" and "GEMA Rip-off in Kindergarten!" Inevitably, politicians jumped on the bandwagon: Sibylle Laurischk (of liberal democratic FDP) said that "singing in nursery schools is a basic part of education" and that, therefore, GEMA should exempt nursery schools from paying licences (http://www.bild.de/politik/2010/fuer-kinderlieder-15226246.bild.html). Heiko Maas (of social democratic SPD) echoed the "rip-off in kindergarten" view and said singing in nursery schools was an expression of an untroubled childhood (http://www.focus.de/finanzen/news/gema-kritik-an-kinderlieder-gebuehr_aid_585392.html). They and most other critics conveniently ignored that the letter did not actually concern the singing of any songs whatsoever. Unless nursery school children perform at a public event, they may sing whatever they like free of charge.

What the letter does concern is the copying of sheet music. German law only contains a very limited private copy exception for sheet music. According to s. 53 subs. 4 lit. a) German Copyright Act, one may only make a copy of a graphic recording of a musical work (1) by means of manual copying, (2) for the inclusion in a personal archive if and to the extent the reproduction is necessary for that purpose and a PERSONAL copy of the work is used to make the reproduction, or (3) if the copy is for personal use AND the work has been out of print for at least two years. All other uses require a licence from the right holder. GEMA (as instructed by VG Musikedition) now offers such licences to nursery schools for €56 per annum for up to 500 copies, € 112 for up to 1,000 copies and so on. So that's roughly €0.11 per copy (if you get a licence for up to 2,500 copies or more, the rate decreases slightly).

That is, if you actually make copies. I don't know about the esteemed readers of this blog, but when I was at nursery school, I learned songs by repeating from and singing along with my teachers. Most children aged three to six can arguably neither read lyrics nor musical notation, so the number of copies needed (if any) should in most cases be accordingly minor. Also, one may, of course, copy public domain works to one's heart's content. Concerning the arrangement of such public domain works, s. 3 sent. 2 German Copyright provides that "insignificant adaptations of a non-protected musical work shall not enjoy protection as independent works."

One good thing that has come out of this at times rather ludicrous debate is a collection of just such public domain songs suitable for children (which make me feel about four years old and can be downloaded here: http://data.musikpiraten-ev.de/public/kinder-wollen-singen.pdf). The initiators, Frankfurt-based "Musikpiraten e.V." have pledged to print some 50,000 copies of the booklet and donate them to nursery schools throughout Germany; the campaign is funded by charitable contributions from a range of companies and individuals who raised about €40,000 in less than two months (http://musik.klarmachen-zum-aendern.de/kinderlieder) - quite an achievement!

One maybe or maybe not so good thing is a draft bill for an amendment of the German Copyright Act submitted to the Bundestag by the parliamentary group of socialist party DIE LINKE ("The Left"). I shall mercilessly dissect it in a separate blog post tomorrow, so watch this space.

Tuesday, 29 March 2011

Bits and pieces

Further to John's post yesterday ("Liability in Italy -- Yahoo! held responsible", here), the text of the decision is now available, naturally in Italian, on Interlex.it, here.  Apparently the initial reports of this decision were somewhat overstated and the end of the world has not yet arrived for ISPs: the ruling is a 'procedimento cautelare', a sort of preliminary or summary judgment and not a full decision. No further reasoning will therefore be produced. The judge ordered Yahoo! to remove the links to infringing websites since the company had knowledge of the infringement because it received notices sent by the plaintiff (PFA Film srl) but had failed to activate the take-down procedure, became liable. Google Italia and Microsoft (who were also parties) were not found responsible since they did not administer their engines directly; they were held entitled to receive compensation of the costs of the judgment from PFA (thanks, Gaetano Dimita, for the link and the explanation).


This one seemed
quite nice, but
it has apparently
been taken ...
Having stuck with the portrait of Queen Anne (she of the Act of Anne) since April 2009, the 1709 Blog has decided to dispense with her services and get itself a real logo.  If you fancy your talents as a logo designer, please send your entry to Jeremy here with the subject line "1709 logo", and remember to let the blog have an irrevocable non-exclusive licence to use it on the blog and for its promotions. A prize, in the form of a copy of International Copyright by Paul Goldstein and Bernt Hugenholtz, will go to the best effort received by midnight on Sunday 3 April.


... or do they?
"Do bad things happen to works when they fall into the public domain?"  Further to Professor Paul J. Heald's thoroughly entertaining and instructive seminar last week (noted here), the 1709 Blog can report that Paul's PowerPoints are now available here.

Monday, 28 March 2011

Where it hurts most – right in the copyright bundle

Last week the New York Court of Appeals gave an intriguing answer to a jurisdictional question from the Second Circuit Court of Appeals. The case is Penguin v American Buddha (previous post here). The question and its answer are:
‘In copyright infringement cases involving the uploading of a copyrighted printed literary work onto the Internet, is the situs of injury for purposes of determining long-arm jurisdiction under N.Y. C.P.L.R. § 302 (a) (3) (ii) the location of the infringing action or the residence or location of the principal place of business of the copyright holder? In answer to this reformulated question and under the circumstances of this case, we conclude it is the location of the copyright holder.’
The New York Civil Practice Law and Rules give NY courts jurisdiction over non-domiciliaries who commit torts in NY and those who commit torts outside NY that cause injury to person or property in NY (the Big Apple’s equivalent of Shevill v Presse Alliance in the EU). Penguin alleges that copyright infringements were committed by the defendant in Arizona or Oregon, by uploading their books on servers there. The question is whether these out-of-state infringements caused injury in NY, where Penguin USA is based. The New York Court of Appeals explained their reasoning as follows:
‘Although it may make sense in traditional commercial tort cases to equate a plaintiff's injury with the place where its business is lost or threatened, it is illogical to extend that concept to online copyright infringement cases where the place of uploading is inconsequential and it is difficult, if not impossible, to correlate lost sales to a particular geographic area. In short, the out-of-state location of the infringing conduct carries less weight in the jurisdictional inquiry in circumstances alleging digital piracy and is therefore not dispositive. The second critical factor that tips the balance in favor of identifying New York as the situs of injury derives from the unique bundle of rights granted to copyright owners.… Based on the multifaceted nature of these rights, a New York copyright holder whose copyright is infringed suffers something more than the indirect financial loss we deemed inadequate in Fantis Foods. For instance, one of the harms arising from copyright infringement is the loss or diminishment of the incentive to publish or write…’
Basically what this appears to mean is since (a) the loss-of-sales injury caused by copyright infringements on the internet could be anywhere, it’s hopeless trying to pin that down but (b) the plaintiff’s rights themselves are injured (devalued) by the copyright infringement, it makes sense to say the injury happened where the plaintiff is located. This has a certain elegance, tidying up the ubiquitousness of internet copyright infringement. On the other hand, the idea that copyrights are located in the offices of a plaintiff’s business and are themselves injured is not only somewhat bizarre but may prove less than straightforward. What if the plaintiff is a licensee or there are several joint copyright owners in different locations?

Kazakhstan takes Steppes to prevent MS misappropriation

Kazakh Steppe (small extract)
News travels fast from the US and other hi-tech instant message jurisdictions, but it reaches the 1709 Blog in a more stately fashion when it comes from the Kazakh Steppe. Still, better late than never!  On 14 October of last year the Kazakhstan Ministry of Justice issued Order No. 279 regulating the protection of unpublished works, specifically the delivery, acceptance and storage of unpublished manuscripts.  A news item from Petosevic reports that
According to paragraph 3 of the Order, the Order entered into force ten calendar days after its first publication, which was on 12 January 2011 in the national newspaper Kazakhstanskaya Pravda. 
The new regulations were drafted in accordance with the Kazakhstan Law on Copyright and Related Rights and aim to prevent misuse and misappropriation of unpublished works. 
The Justice Ministry has appointed the Committee for Intellectual Property Rights as the authority responsible for protection of unpublished works.
How refreshing, when everyone else seems to be worrying out file-sharing and pursuing the Golden Grail of a copyright-proof business model for the digital age, that here at least is an issue that depends more on matters of principle than in trends of technology.  But what might have prompted this legislation at this particular time? A severe outbreak of manuscript-rustling?

Source: Kazakhstan PTO, via "Kazakhstan New Regulations on Protection of Unpublished Works", Petosevic

Liability in Italy - Yahoo! held responsible


We are grateful to one of our Italian friends for sharing with us the following information about a surprising decision of the Italian courts:

Yahoo! is responsible for all the copyright infringements in relation to unauthorized links: the caching providers’ responsibility PFA Films, an Italian production and distribution company, legitimate owner of all of the exploitation rights of the film “About Elly”, has summoned Yahoo! Italia S.r.l., the service provider, asking them to remove all the links and files unauthorized by PFA in connection to the film ”About Elly”. Surprisingly the Court of Rome agreed on the request and ordered Yahoo! to disable all the websites which allow the web surfer to watch the film or just some pieces of it in streaming, downloading or peer-to-peer. The judge basically says that only the official film website is lawful while all the others are illegitimate. 


The decision is really astonishing and probably it will be the beginning of a new trend. The judge indeed is very precise in the description of the facts and in focusing her attention in the interpretation of the law. She carefully referred to the legislation and to the interpretation of Italian courts in relation to the service providers’ responsibility. She rightly referred to art. 14, 15, 16 and 17 of decree 9/4/2003 n.70 and to the European Court of Justice (CGE C236/08 and C238/08) [the Google AdWords case] . She defined Yahoo! as a caching provider, which is responsible just for removing all the illegitimate links, only the ones that are brought out to its attention. So Yahoo! was responsible because it did not remove all the pirate links, yet PFA Films did not provide any lists of websites asking in such a general way for Yahoo! the clearing of every content reproducing all or just part of the film “About Elly”. The conclusion is a bit complicated to understand and takes the distance from the other previous decisions on he matter. Yahoo! must not previously verify the contents of the websites to which it links because it does not have any legal obligations to identify the contents previously, yet, just after a general warning notice by the owner of the exploitation rights of the audiovisual aids, it is responsible for removing all the pirate links or audiovisual files, because the official website of the film is the only one which is legitimated to show all or part of the film.

This takes the present UK discussions about a site-blocking remedy to a completely different place and is no doubt not the last word on this subject.

Thursday, 24 March 2011

"Absurd" Limewire Damages Rejected

Following on Ben’s post earlier about the closure of Limewire and its effect on illegal filesharing, a note about the damages ruling recently issued by the judge in the Limewire case, judge Kimba Wood of Manhattan federal district court. Judge Wood rejected the plaintiff record companies’ demanded damages, as reported here. The plaintiffs’ damages request would have reached as high as $75 trillion under their theory of statutory recovery for copyright infringement. Judge Wood noted that this amount is "absurd" and is “more money than the entire music recording industry has made since Edison's invention of the phonograph in 1877.” Rather than assess damages for each instance of infringement, as requested by the plaintiffs, she limited damages to one damage award per infringed work.

While her reasoning makes practical sense in consideration of the fact that the astronomical damages sought by the plaintiffs could not possibly be satisfied by defendant payouts, it nonetheless creates a situation where plaintiffs winning infringement claims on a “smaller” level are able to maximize their damages with damage awards for each instance of infringement, but plaintiffs whose works have been infringed countless times by a defendant are limited in their recovery to prevent “absurd” damages. Is such a result fair or does it dilute the deterrent factor intended by the availability of statutory damages?

Google Book Settlement hits brick wall

On Tuesday, Circuit Judge Chin rejected the Google Book Settlement. Is this the end of the road for the Settlement or merely another inconclusive step in proceedings that have been ongoing for six years (see potted history at the end of this post if you would like a refresher)? The parties can appeal within 30 days but as the Scrivener’s Error blog explains, this is unlikely to succeed. If the judge’s opinion stands, how much room for manoeuvre does it give the parties to redraft the Settlement?

The opinion states:
‘While the digitisation of books and the creation of a universal digital library would benefit many, the ASA [Amended Settlement Agreement] would simply go too far. It would permit this class action – which was brought against defendant Google Inc. (“Google”) to challenge its scanning of books and displays of “snippets” for online searching – to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.…

‘In the end, I conclude that the ASA is not fair, adequate, and reasonable. As the United States and other objectors have noted, many of the concerns raised in the objections would be ameliorated if the ASA were converted from an “opt-out” settlement to an “opt-in” settlement…. I urge the parties to consider revising the ASA accordingly.’
On the face of it, this language does not amount to insisting on right owners ‘opting in’ but when the opinion is taken as a whole, this does seem to be almost mandatory. The most significant reasons for which the judge finds the Settlement unacceptable hinge on its ‘opt-out’ nature:

1. It is for Congress to create any mechanism for the exploitation of unclaimed books (including orphan works).
2. The original litigation was about display of snippets in Google Book Search – it is an unacceptable use of the class-action process that the Settlement releases claims in respect of the extensive further uses that are permitted under the Settlement.
3. ‘It is incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights when Google copied their works without first seeking their permission.’
4. The Settlement would give Google ‘a de facto monopoly over unclaimed works’.

There seem to be only two ways to fix these problems:

1. Make the Settlement ‘opt-in’, in which case it would not be a class-action settlement but the settlement of claims by a specific list of people. They, and only they, would agree to waive their claims against Google and to offer Google licences to exploit their works.
2. Keep the suit as a class action and draft a settlement that only covers past uses of works in Google Book Search. It would not grant future licences, not even ongoing licences for exploitation in Google Book Search.

Potted History of the Google Book Settlement

From 2004 certain libraries have allowed Google to scan their stocks. Google makes the public domain books available in full on Book Search. For in-copyright books a search returns ‘snippets’. Google say they do not need permission from the copyright owners for this: it is covered by fair use.

In 2005 Google was sued for copyright infringement by the Authors Guild (in a class action) and by five American publishers, subsequently deciding to settle, drafting the Google Book Settlement. In 2006 the La Martinière publishing group sued in France. In December 2009 the French court decided that Google Book Search did infringe French copyright. In April 2010 photographers, illustrators, graphic artists and photo libraries launched a suit.

The Settlement Agreement is far wider in scope than the original litigation over snippets. Google acquires US rights to sell ebooks, print-on-demand copies, online access; to include in institutional and consumer subscriptions; to make available free on library computers; and to return 20% of book in internet search. For in-print books, Google needs the express authorization of rightsholders but for out-of-print books this grant of rights is assumed and rightsholders must opt out.

Since it is the settlement to a class action, the Settlement can only be approved by the court after a hearing and on finding that it is fair, reasonable and adequate. The court gave the original Settlement preliminary approval in 2008, fixing the hearing for 2009. An avalanche of objections to the settlement were submitted to the court and the US government rejected it. The court therefore allowed the parties to submit an amended settlement.

The most significant change in the Amended Settlement was that it basically only included books published in the US, UK, Canada and Australia, instead of the whole world. The Settlement had received strong opposition from Continental Europe, especially France and Germany, but barely a murmur from the UK. It is obvious that the revised geographical scope of the Amended Settlement was designed to cut out opposition from the main critics. The US government again rejected the Amended Settlement but expressed willingness to continue to work with the parties. At the hearing on 18 February 2010, the judge said he was not going to rule. His judgment was reserved – until 22 March 2011.

During these protracted proceedings, Google has continued to scan books at an ever-increasing speed. In October 2008, when the Settlement was first drafted, Google had scanned 7 million books. A year later 10 million books had been scanned. Now the figure has passed 15 million.

"Do bad things happen when works fall into the public domain?"

Does this book behave
the same way ...
A rapt audience of nearly forty people (including late arrivals and no-shows) thoroughly enjoyed Professor Paul J. Heald's presentation yesterday afternoon, kindly hosted by Olswang LLP in its congenial panoramic Room 20, on "Do bad things happen when works fall into the public domain?"  Now the readers of this weblog can get a flavour of the event, thanks to a terrific exercise in note-taking by Dr Stephen Moffitt who records as follows:
"Why should we care about the public domain? Since the passing of the Copyright Term Extension Act (CTEA or Sonny Bono Act) in the US in 1998, there have been no copyright works passing into the public domain. Both England and Japan had contemplated a similar sort of extension but chose not to.

Clearly there is a concern about works falling into the public domain. Those who push for extensions to copyright do so on three main grounds.

1. There will be an underusage of these works as they become orphans with no owner to use them. This, Paul argues, was the basis for the CTEA.

2. Over-usage of public domain works, or the tragedy of the commons. Here works will be devalued because they will be used too much because they are free.

3. Debasement of the work through inappropriate or distasteful usage. This is mostly presented as the pornographic use of characters and stories

... as this book?
Since these arguments for the extension of term protection are based on assumptions that are quantifiable, Paul followed in the footsteps of Tim Brooks and began a series of papers where he attempted to prove or disprove the argument against the public domain through comparing the fate of works in the public domain to those still under copyright. In a series of three papers, he looked at the continued publication history of best sellers from 1907-1922, which are all in the public domain and those from 1923-1932, which are still under copyright. He looked at a number of measures, including whether the book was still in print, how many editions of the book were available and the price of the edition. His findings indicated that there was no statistical difference between the works in copyright and those outside. In fact, Paul noted that the data indicated that there was little support for the under-use of the public domain works as almost all of them were in print, compared to around 75% of the copyright works. Additionally, there appeared to be no meaningful difference in price between the two types either.

Paul then looked at popular music used in films between 1968-2008 in order to test the over-usage argument. Again he identified songs that were in the public domain and those that were in copyright in roughly the same timeframe as the books. Looking at the 74 songs that appeared in 4 or more films during that timeframe, he found no difference in usage between protected and unprotected works.This was the same for works that appeared in 1, 2 or 3 films. Public domain and copyright works were used roughly the same amount.

With regard to the debasement argument, Paul is currently working on a study of audiobooks and customer perception of their quality. In the study, he is looking at three types of works: amateur recordings of public domain works, professional recordings of public domain works and professional recordings of copyright works. In his first test of customer perceptions, he surveyed around 160 people on the quality of various recordings. While the full study is not complete, the preliminary reports indicate that there is no difference between the public domain recordings and the copyright ones.

[Stephen adds: these last few lines are a combination of Paul's comments after his talk and my own thoughts] The conclusions that Paul has reached is that there is little statistical evidence to support the assertions that bad things happen to works when they enter the public domain. One may argue that these studies are merely proxies; they do not really look at sales figures for example.  But, as Paul noted, the data is not really there. In the end, this is as damaging for the argument against the public domain as the results of these studies because, if there is no data to support, one way or another, the assertions about the problem of the public domain, we need to be more honest about the basis for our policy decisions".
The 1709 Blog hopes to get its hands on Paul's PowerPoints soon, in which case it will share them with readers too.

Limewire closure slows down illegal filesharing, but new alternatives emerge


Research firm NPD Group have released findings that show that illegal file sharing of songs via peer-to-peer services has dramatically dropped off since Lime Wire was shut down by a US federal court who found the company liable for copyright infringement. The Recording Industry Association of America had file a copyright suit against Lime Wire and CEO Mark Gorton in 2007, claiming the company encouraged the pirating of billions of songs.

NPD said "the percentage of Internet users who download music via peer-to-peer services was at 9 percent in the fourth quarter of 2010, compared to 16 percent in the same period earlier in 2007" which is clearly a significant drop. NPD also found that the average number of music files downloaded from P2P networks also declined from 35 tracks per person in Q4 2007 to just 18 tracks in Q4 2010, although some downloaded just one or two tracks, while others took hundreds. NPD estimates there were 16 million P2P users downloading music in Q4 2010, down from 28 million in the same period in 2007.

Good news for content owners? Maybe ..... the research also noted that it appears that former LimeWire users are now moving to similar networks. Greg Sandoval, writing on CNet, reports that Frostwire had seen usage double in the final six months of 2010 after Limewire was shuttered in October, whilst Bittorrent client u-Torrent had a fifty percent uplift in users.

Read more at: http://news.cnet.com/8301-31001_3-20046136-261.html

Tuesday, 22 March 2011

"Public domain" seminar tomorrow: final reminder

"What happens to works when they fall into the public domain?" is the title of a seminar which The 1709 Blog has organised for tomorrow, Wednesday 23 March.  The speaker is Professor Paul J. Heald, of the University of Georgia Law School.  Paul is going to present some of his thoughts and -- more importantly -- the fruits of some of his own research.

The venue is the London office of Olswang LLP at 90 High Holborn, London.  Registration begins at 5pm; the seminar starts at 5.30pm and, following questions and discussion, will end by 7pm.  Refreshments will be provided.

We have 30 people signed up to attend so far -- but there's still room for more. To register, email Jeremy here and let him know (using the subject line 'Heald Reg').

Monday, 21 March 2011

Tug of love over Davros: the battle-lines are drawn

Lee Curtis has sent this link to a Daily Mail article, "BBC sued over Who first drew the evil Dalek mastermind Davros".  The claimant, Steven Clark, who is now 51, says he invented Davros for a competition run by the now defunct TV Action magazine in 1972. According to the article,
" ...his drawing – a pencil sketch coloured in with felt pens [depicted, right] – showed a ‘half-man half-Dalek’ with an additional eye in the centre of his forehead, a headset, epaulettes, a withered left hand and finger-like switchgear on the Dalek base. ...

He is demanding the Corporation pay damages, or a sum equivalent to the profits generated from the character over the years. This could run into many thousands of pounds.
... The character is so popular it is sold as toy figures, with remote-controlled models costing upwards of £20 each. ... 
Mr Clark, who says he kept handwritten copies of his entry, didn’t win the contest – which had a colour television as top prize – and heard nothing from the judging panel. But three years later his disappointment turned to anger when he saw a brand new episode of Doctor Who called The Genesis Of The Daleks. The episode, regarded as a classic by fans, introduced viewers to a new villain called Davros, but to Mr Clark the character looked almost identical to the one he had sketched. 
... Steven was 16 when the episode was aired. He couldn’t believe his eyes when he saw his creation on screen. It was a mixture of emotions. He was excited, confused and angry.’ The teenager, who by this time was working in his local branch of Halfords, contacted solicitors but it went no further because he had lost the copies of the competition entry. However, 20 years later, he found them hidden in a set of family encyclopedias. He wrongly believed too much time had passed for another claim, although over the years he has sent several letters to the BBC asserting his rights over the character.

... Experts believe that ...Mr Clark can ... earn tens of thousands of pounds in compensation. One legal source said: ‘He is asking for damages or a pound-for-pound equivalent for all the profits generated by the character since he was introduced to viewers in 1975.  
... Last year, BBC Worldwide identified the huge overseas success of Doctor Who as one of the reasons it had notched up record profits of £140 million ...".
To the casual observer there appears to be a not inconsiderable degree of similarity, as the illustrations show, though the 'Dalek' element of the two pre-existed the competition since the first Daleks made their TV debuts as long ago as December 1963.  One topic that the news report doesn't mention is the terms of the competition and whether they might have required the assignment of copyright, or at least a licence, as a condition of entry -- in which case the old question of infant's relief and whether a child back in 1972 could have divested himself of copyright in a situation which could not be said to be for his future benefit.

Thursday, 17 March 2011

Star Wars: the Hearing

Last week during a three-day hearing, the UK’s Supreme Court turned its attention to copyright law – for the first time since its metamorphosis from House of Lords to Supreme Court. The issues in Lucasfilm v Ainsworth are whether the Star Wars stormtroopers’ helmets are ‘sculptures’, so attracting copyright protection, and whether English courts have the jurisdiction to hear claims about infringement of foreign copyrights.

SCULPTURE

In the first-instance decision, Mann J held that the stormtroopers’ helmets were not sculptures on the grounds that their purpose was primarily utilitarian, not artistic – nor were they works of artistic craftsmanship. In the Court of Appeal, Lucasfilm appealed the finding that they were not sculptures but did not challenge the finding that they were not works of artistic craftsmanship. The Court of Appeal affirmed Mann J’s decision.

The question of whether the helmets were utilitarian is central to the appeal. According to Lucasfilm, the Court of Appeal had misdirected itself by considering the pretend functions of the armour as real functionality.

Visual v practical function

Jonathan Sumption QC for Lucasfilm argued that the helmets attract copyright as ‘sculptures’ because (a) sculptures should be defined as three-dimensional works that are created for a predominantly artistic rather than functional purpose, (b) an artistic purpose means that of creating a visual impact and (c) the helmets fall within this definition because their purpose is entirely visual not utilitarian.

Alastair Wilson QC for Andrew Ainsworth said a sculpture would be something of overwhelmingly visual significance (but not, I think, that every object of overwhelmingly visual significance would be a sculpture).

Lucasfilm’s definition of sculpture got the five justices of the Supreme Court thinking. Lord Mance wanted to know if flower arrangements and ornamental gates were sculptures. Lord Phillips’s thoughts turned to birthday cakes.

Lord Mance asked if everything on a film set was therefore a sculpture – weren’t they all there for their visual impact? Sumption said everything on the set was a sculpture provided that it was original.

Wilson argued that the requirement of originality would not significantly limit the number of items on a film set that attracted copyright – originality in the context of copyright simply meant that works were not copies of other copyright works. Therefore a set lamppost could be a precise copy of a real lamppost (which is not a copyright work) and still be an original copyright work. Wilson made no mention of Infopaq – isn’t there a potential problem with saying that making a slavish reproduction of a non-copyright item constitutes the intellectual creation of the author?

In his reply Sumption appeared to change his story: a desk or lamppost made for a set would have a functional purpose – unlike the stormtroopers’ helmets. Some costumes, he said, do have a functional purpose: to clothe the actors. The stormtroopers’ uniforms, by contrast, are not to clothe the actors, rather the actors are there to display the armour.

Wilson’s arguments about the functionality of film sets were no less tortuous. To him the pretend functions of film props should count as utilitarian functions. Lord Mance thought that a ‘pretend function’ is a visual impact though different from other types of visual impact. He asked whether Wilson was drawing distinctions between different types of visual impact. Wilson answered by saying that the relevant visual impact for sculpture would be contemplative. This was one of the moments during the hearing when it seemed that the courtroom had been transported to the 19th century.

In the rather poor acoustics of the court I heard Wilson say that the Tin Man in the Wizard of Oz was probably a work of artistic craftsmanship and he could conceive of costumes so far removed from reality that they were sculpture. The distinctions were starting to become too subtle for some of the justices. ‘You can’t really distinguish between the Straw Man and the Tin Man?!’ Lady Hale exclaimed in disbelief.

How does the criterion of non-functionality to define sculpture fit in the context of other intellectual property rights?

In UK law, 3D objects can potentially attract a number of IP rights. Patents for inventions last 20 years. Design rights last up to 25 years. Copyright lasts for the lifetime of the author plus 70 years. Why is copyright’s term three to five times longer than the design right term?

One reason may be historical: perhaps in the 19th century industrial designs were considered to be less worthy of protection than fine art. Today we would have a problem with saying that a banal chocolate-box painting is more creative/worthy than an iconic design.

A modern defence of the difference between design and copyright terms is economic. The Green Paper for the Design Directive states:

‘The freedom of the designer may, if the product is to perform the function for which it has been conceived, be more limited than the freedom of an author of fiction. There may well be a limit to the number of ways in which a specific product can be designed if the constraints dictated by its intended function are to be respected. If and when this is the case a long lasting protection and the general exclusion by copyright law of reproduction of even small parts of a work may imply the creation of de facto monopolies in the market.’

This argument does not seem particularly strong. If Henry Ford’s Model T was protected by a design right today, would a budding young entrepreneur decide that he couldn’t risk entering the car industry? If this is the modern justification for the difference in design right and copyright terms, then the objective is to avoid creating de facto monopolies in the market for functional products.

The stormtroopers’ helmet design is not going to limit competition in the market for helmets (motorcycle helmets or workers’ helmets). So on that basis, functionality is not a reason why they should have a shorter term of protection.

But are they sculptures?

Even though there may be no policy reason to give the helmets a shorter term of protection, what if the law does not embody a sound policy? It is not the job of the Supreme Court to rewrite acts of Parliament on the basis that they are not underpinned by sound policy.

The Copyright Designs and Patents Act only grants copyright protection to three-dimensional objects if they are sculptures, works of artistic craftsmanship or works of architecture. Non-functional three-dimensional works of the highest artistic quality will not have copyright if they do not fall into one of these three categories.

So what is a ‘sculpture’? Wilson argued that a sculptor must have the intention to make a work of art.

Laddie J in Metix v G. H. Maugham said that the following was close to the right definition: ‘a three-dimensional work made by an artist’s hand. It appears to me that there is no reason why the word “sculpture” in the 1988 Act, should be extended far beyond the meaning which that word has to ordinary members of the public.’

This approach mirrors a basic rule of statutory interpretation: to give the words of an act of Parliament their plain, ordinary and literal meaning.

What is normally meant by ‘sculpture’? The Oxford English Dictionary has ‘that branch of fine art which is concerned with the production of figures in the round or in relief’. A former Keeper of the Tate Gallery Modern Collection tells me that: ‘in the professional art community (and in what I suspect is a growing percentage of the population at large) a sculpture is generally thought to be any three-dimensional entity that is intended by the artist to be a work of art.’

Although the helmets contribute to the aesthetic of the film and communicate a sense of menace, it would seem unlikely that they were intended as works of art in their own right.

Are they ‘works of artistic craftsmanship’? It is harder to determine the ordinary meaning of this phrase as it is not an ordinary phrase. Case law has left it as a fuzzy concept and one into which the helmets could plausibly fall.

JURISDICTION

In British South Africa v Companhia de Moçambique [1893], which concerned a dispute about land in South Africa, the House of Lords held that English courts can have jurisdiction over ‘transitory’ matters overseas but not those that are ‘local in nature’. Lucasfilm say that if the defendant is domiciled in England the default rule is that an English court has jurisdiction over the defendant and can hear claims concerning any wrong done abroad, applying foreign laws. The Moçambique case creates a unique exception for immoveable property but it does not apply to IP.

In support of this they say that IP isn’t immoveable property, but personal or moveable property (s. 90 CDPA). It is true that IPRs have a situs but so do other movables such as debts. English courts are applying the laws of other jurisdictions every day. There would have to be a principled justification for not treating copyright like other rights. The reason given is that there is an international consensus that copyright should not be handled cross-jurisdictionally – but there is in fact no such consensus. Wilson tried to argue that English courts would have difficulty understanding US law, a point that appeared to go down like a lead balloon with private-international law expert Lord Collins. The difficulty of applying foreign laws is never an excuse, he said.

Lord Phillips asked what damages would be applied in a US copyright case. The answer given seemed to be the English damages (but doesn’t Rome II say US damages?).

Lucasfilm went on to argue that even if the Moçambique rule did apply to IP, it has in any case been displaced by the Brussels Convention. The justices seemed to be clear that if the case ends up hinging on the Brussels Regulation, a reference to the ECJ will be required, as the Regulation does not make it clear whether it applies to non-EU claims or not.

Lord Phillips noted the undesirability of leaving someone without a remedy. Unless the Supreme Court reverses some part of the Court of Appeal’s decision, Lucasfilm, whose US copyright has been held to be infringed, will be without a remedy. Apart from infringement of UK copyright and the English court hearing the claim of infringement of US copyright, there was a third alternative: enforcing the US judgment. Lucasfilm have not appealed this but from a pragmatic perspective it would have been the simplest way of providing them with a remedy. Why was it not available? Andrew Ainsworth never submitted to the jurisdiction of the US court. This reason for refusing to enforce a foreign judgment was explained in Rubin v Eurofinance:


‘It is, and has for centuries been, a fundamental principle of English private international law that the judgment of a foreign court is not enforceable unless the defendant was present within the jurisdiction, or in some way submitted himself to the jurisdiction, of the foreign court. This principle applies both at common law and under the Administration of Justice Act 1920 and Foreign Judgments (Reciprocal Enforcement) Act 1933: see Dicey paras. 14-49 and -50. Whilst other countries may regard this as unduly restrictive (and probably the United States would), it represents English law.’

Could it be that this arguably ‘unduly restrictive’ principle of common law needs revisiting?

When the justices deliver their judgment in a few months, it will be interesting to see how widely they cast their net. Sometimes the House of Lords went beyond answering the specific point on appeal, offering a revised textbook in the relevant area of law. Will they restrict their opinions to sculpture or include works of artistic craftsmanship? Will they stick to jurisdiction over copyright claims or cover other intellectual property rights too?

Bits and pieces

Grzegorz Pacek, a Polish lawyer who is currently also a Ph.D candidate at the Jagiellonian University in Cracow, is working on a thesis on the use of copyright-protected works by the press in reliance on statutory permissions (eg news reporting as a part of 'fair use' or'fair dealing'). While Grzegorz is particularly concerned with Polish law, he is also interested in a comparative analysis, taking in other jurisdictions -- so he wonders if there are any readers who share his interest and who wold like to contact him with their thoughts and experiences (presumably this includes newspapers, reporters and authors of works to which the press has helped itself).  Do get in touch if you can. Grzegorz can be emailed here.


Professor Paul Torremans has informed us that "The ALAI Congress is this year being organised by our Irish colleagues. It will take place in Dublin on 30 June and 1 July 2011. The programme and registration details can be found at http://www.alaidublin2011.org/. The early bird registration rate applies only until 1 April".


In December 2009 the 1709 Blog mentioned the references to the Court of Justice of the European Union of Cases C‑431/09 et C‑432/09 Airfield NV and Canal Digitaal BV v Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (Sabam) and Airfield NV v Agicoa Belgium BVBA.  Well, the Advocate General's Opinion was published this morning here -- in a number of languages but not, alas, in English.  In French, AG Niilo Jääskinen opines as follows:
«La directive 93/83/CEE du Conseil, du 27 septembre 1993, relative à la coordination de certaines règles du droit d’auteur et des droits voisins du droit d’auteur applicables à la radiodiffusion par satellite et à la retransmission par câble, ne s’oppose pas à ce qu’un fournisseur de bouquets de chaînes de télévision satellitaires soit tenu d’obtenir l’autorisation des titulaires de droits d’auteur, ou de droits voisins du droit d’auteur, pour des opérations dans lesquelles un organisme de radiodiffusion lui fournit les signaux porteurs de ses programmes dans des circonstances telles que celles en cause au principal.»
In English, thanks to Google, this comes out as
"Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, does not preclude that a provider of channel satellite television is required to obtain permission from the holders of copyright or related rights of copyright, for transactions in which a broadcasting organization provides signals carrying programs in circumstances such as those at issue".
Readers' comments and clarifications are welcomed.

Wednesday, 16 March 2011

US IP Czar wants illegal streaming to be a felony


The White House's Intellectual Property Enforcement Coordinator, Victoria Espinel, has submitted 20 recommendations to Congress aimed at cracking down on copyright infringement on items ranging from drugs to music and military equipment – calling for more effective law enforcement and tougher penalties for people convicted of copyright infringement. In particular Espinel urged Congress to make illegally streaming copyrighted content online a felony saying that online piracy and counterfeiting are "significant concerns" for the White House causing "economic harm and threaten the health and safety of American consumers".

Espinel has recommended that Congress act to "clarify that infringement by streaming, or by means of other similar new technology, is a felony in appropriate circumstances." Bob Pisano, president of the Motion Picture Association of America (MPAA) commented "Closing the legal gap between two methods of equally destructive illegal behavior - unauthorized downloading and streaming -- adds more clarity to intellectual property law and, frankly, makes good common sense”.

Espinel own Report states that "Foreign-based and foreign-controlled websites and web services raise particular concerns for US enforcement efforts. We are aware that members of Congress share our goal of reducing online infringement and are considering measures to increase law enforcement authority to combat websites that are used to distribute or provide access to infringing products."
The list of proposals suggests that Congress legislates for longer sentences for many counterfeiting offenses, including selling fake military or law enforcement items, trade secrets and bogus drugs. The White House also calls for wiretap authority in counterfeiting and trademark investigations.

The recommendations gathered widespread praise from a range of groups, including the US Chamber of Commerce, which urged the Obama administration to make the US a "miserable place for counterfeiters and pirates". Perhaps unsurprisingly MPAA also applauded Espinel for "recognizing the danger posed to our workforce by theft, both in the online and physical marketplace, and by making the protection of the creative workers and their craft a top priority.

Espinel also included a proposal to allow a levy on terrestrial radio stations for playing recorded music in a move that will bring the USA into line with Europe and which drew support from the Recording Industry Association of America although US broadcasters were less than impressed.

http://www.dmwmedia.com/news/2011/03/15/us-quotip-czarquot-espinel-make-unauthorized-streaming-felony

Image: Ian Britton: freefoto.com

Tuesday, 15 March 2011

Public domain seminar: a trailer

Brief Encounter popularised
Rachmaninoff's 2nd Piano Concerto
-- but would the film have been a
success if it opted for public-domain
Mozart, as Elvira Madigan did?
With the 1709 Blog's seminar on "What happens to works when they fall into the public domain?" exactly one week away, Professor Paul J. Heald has given us a flavour of what's to come. He tells us:
"The worldwide copyright term extension debate turns on empirical assumptions about what happens to works when they fall into the public domain. Some proponents of extension claim that public domain works will be underexploited; others claim that works will be damaged through overuse or misuse when they cease to have owners.
I'll be presenting the results of three empirical studies that track works before and after they enter the public domain. The focus of his talk will be on bestselling novels and music from 1913-32, with an eye toward the historically availability of novels, the very interesting market for audio books (including a human subjects experiment on the quality of audio books from PD and protected works), and the frequency of the appearance of musical compositions in movies".
If you've not yet registered, there's still time. Despite the short notice, we've already got 23 people coming, and we're expecting plenty more.

Registration and other details can be found here.

Monday, 14 March 2011

Copyright in currency: taking note of the Bank of England

I've recently been asked what the position is with regard to the reproduction of bank notes in the United Kingdom.  The Bank of England has a helpful page, reproduced below, which would tend to suggest that copyright is the least of the problems facing those who would reproduce British currency, since it seems that even those uses which might pass muster under the 'fair dealing' provisions of the Copyright, Designs and Patents Act 1988 risk attracting criminal liability under the Forgery and Counterfeiting Act 1981 (here).

Incidentally, the 1981 Act employs the term "counterfeit" and furnishes a definition of that word -- but it is specific to that Act and is unlikely to be in much use in intellectual property litigation.

Reproducing Banknotes

Introduction

Under section 18(1) of the Forgery and Counterfeiting Act 1981 it is a criminal offence for any person, without the prior consent in writing of the Bank of England, to reproduce on any substance whatsoever, and whether or not on the correct scale, any Bank of England banknote or any part of a Bank of England banknote. The Bank of England also owns the copyright in its banknotes.

Novelty Banknotes

The Bank of England does not give authority for any reproductions in the form of a novelty banknote (e.g. one where a celebrity or other images are shown on a banknote or other such changes).  This is because there have been instances of notes altered in this way, being accepted as genuine banknotes by unsuspecting members of the public.

Procedure

Those wishing to reproduce Bank of England banknotes should, before taking steps to reproduce such notes, apply for consent on-line by completing and submitting the Banknote Reproductions Application Form, which contains explanation and guidance notes. The Note Reproductions Officer will endeavour to respond within five working days of receipt. Postal applications can also be made by printing and completing the application form below and mailing it to the correspondence address given below. The Note Reproductions Officer will endeavour to post a response within 5 working days of receipt.
The conditions (listed within the Application Form) must be met for any reproductions of any notes currently in circulation and Series D (notes issued in the 1970s and 80s depicting Isaac Newton (£1), Duke of Wellington (£5), Florence Nightingale (£10), William Shakespeare (£20) and Sir Christopher Wren (£50). For notes from earlier Series, the conditions may under certain circumstances be relaxed. If you wish to reproduce older Bank of England notes that were issued before 1971 but cannot meet all of the conditions stated in the current guidelines, please contact the Notes Reproduction Officer to discuss the matter further.
The Notes Reproduction Officer of the Bank of England can be contacted at:banknote.reproductions@bankofengland.co.uk or on +44 (0)20 7601 4028.
Correspondence about the reproduction of banknotes should be addressed to:
Bank of England,
Customer Banking and Notes Division,
Note Reproductions Officer,
Notes Accounting and Policy,
Threadneedle Street,
London,
EC2R 8AH.

The downloadable application form can be accessed here here.

Friday, 11 March 2011

What happens to works when they fall into the public domain?"

"What happens to works when they fall into the public domain?" The 1709 Blog is delighted to confirm that the seminar on this question, which it trailed here, now has a venue.  To refresh memories, the speaker is blog team member Jeremy's friend, Professor Paul J. Heald, of the University of Georgia Law School, who presents some of his thoughts and -- more importantly -- the fruits of some of his own research.

The date of the seminar is Wednesday 23 March and it will be hosted in the lovely, airy room up on the sixth seventh floor of Olswang LLP's offices at 90 High Holborn, London.  Registration begins at 5pm; the seminar starts at 5.30pm and, following questions and discussion, will end by 7pm.  Refreshments will be provided.

Admission to this seminar is free. To register, email Jeremy here and let him know (using the subject line 'Heald Reg').

Thursday, 10 March 2011

European orphans: a Commission leader speaks

Every copyright work was
somebody's child once ...
Hot off the press is European Commission Vice-President and IP-non-enthusiast Neelie Kroes's address today in Brussels to IFRRO (the International Federation of Reproduction Rights Organisations) on the occasion of the launch of ARROW+ (Accessible Registries of Rights Information and Orphan Works towards Europeana).  Neelie (who is responsible for the Digital Agenda) may never have said this, since the text of the Europa media release below was issued ahead of her live performance. But here it is anyway:
"Ladies and Gentlemen,

Europeans like the internet; this is obviously a reflection of our open and diverse societies. Europeans have embraced ICT and we will continue to do so in the digital age.

Yet, I believe Europe can offer much more to the cyber-world: by digitising and putting online our rich cultural heritage – and to start with, our authors' books.

However, before putting our libraries collections online, we also know that there are some legal and financial obstacles to overcome. If we let things go, there is a serious risk that there will be a "20th century black hole" on the internet. It is a duty of our time not to let this happen.

Today's celebration of ARROW's achievements and of the next phase of the project is more than an important step in the right direction. I believe we can make it an ambitious central element to solve this problem.

Indeed, in my view, the work you are doing is vital and I want to outline how I see it as fitting into the wider strategy of the EU for the digital age.

What is at stake?

The Digital Agenda for Europe, our ICT policy agenda through to 2020, would simply not be complete if we ignored the content dimension of our vision for the future. Internet is eager for high quality content from reliable sources.

ARROW offers a practical solution to several challenges identified in the Digital Agenda. First, there is the aim of building a common digital market. Second, there is of course also the development of Europeana, the European digital library, to make sure it can become the reference point for Europe's digital culture online.

For the moment only a very small percentage of the material accessible through Europeana is in-copyright material. That should change. And one of the key problems to solve in order to make that happen is the orphan works problem. Indeed, depending on the sector concerned, estimates of the number of orphan works in cultural institutions vary from around 20% for films and slightly less for books, at the low end, to up to 90% for photography at the high end. That is a truly staggering figure, which shows up one of the massive difficulties in applying theory of copyright in practice.

The British library estimates that 40% of works in their collections are orphan and over 1 million hours of TV programmes from BBC archives are not used due to the impossibility or the disproportionate cost to trace rightholders – and the risk of a subsequent legal action is simply too great for this material to be made available online.

That uncertainly benefits neither the rightholders who cannot be traced, nor the creative industries or the wider public.

In other words, we must move away from the current playing field for specialists in copyright law. It is high time to understand that, while the US is looking for solutions through complex judicial means, Europe should move forward and find innovative practical solutions for tapping the huge treasures of our culture for citizens and businesses alike.

Perspectives for an orphan works Directive

As you know, the Commission is working on a proposal for a Directive for orphan works. It should ensure that orphan works can be digitised and used in the information society in projects such as Europeana.

At the same time it must offer guarantees for the rights holders that their legitimate interests are respected. We are currently discussing the modalities, and I must say that the work of the Comité des Sages on bringing Europe's cultural heritage online has set down a number of clear markers. And that includes the need to support the instrument through rights information databases such as ARROW and link it more directly to Europeana.

Indeed, rights information systems which enable swift, accurate and comprehensive searches for rights and rightholders are critical in this process. By ensuring transparency on rights and recording works identified as orphans or out-of-distribution, they ensure we can avoid costly duplication of searches.

For our economy and for our culture, we need therefore to act urgently to solve the problems posed by orphan works. These problems affect print works, photographs and audiovisual, and we'll need to find a solution for all the sectors, in particular through improving the information available.

What is expected from ARROW?

That is the fascinating aspect of the project you are working on. It is about laying the basis for new economic activity and at the same time huge cultural benefits for our age. It can contribute to what the Comité des Sages on digitisation recently called 'the new Renaissance'.

I have a vision: One search in ARROW should be all you should need to determine the copyright status of a cultural good in Europe. If it were embedded in the forthcoming Directive on orphan works, ARROW could become the official portal in Europe where you can find essential rights information and do automated searches of rightholders and copyrights. In the medium-term, it could cover all European print works (books, magazines, etc.) in the EU, and afterwards – why not? – also photographic and audiovisual works.

ARROW should become a one-stop shop for determining, easily and quickly, with full legal certainty, whether a work is orphan or not, out-of-distribution or not, and so on.

For this to be achieved, the system must continue to be run, on a consensual basis, by all the relevant stakeholders. It has to provide comprehensive pan-European coverage of the rights and rightholders involved. Where the cultural infrastructure is not yet in place, we will need to find ways and means to do it. I also expect that ARROW will be able to scale up in order to deal with non-text material. In the short term that means material like visual works and illustrations, but in the long term it could mean more.

So that is the ambition and the goal to be reached in the coming years.

You have reached some promising results already. The collaboration which you have put in place in this project includes publishers, libraries and collecting societies. This is the right approach. Of course, ARROW is still in a validation phase, but its potential is huge. You are leading the way in showing how larger groups of stakeholders can work together to form a new digital future. That's exactly what we need to get "Every European piece of European culture digital"".
Readers' comments are invited. This author's own comment relates to his fascination with the methodology for assessing the number of works in a collection which are deemed "orphans". Do European archival and other institutions share a common definition of "orphan" and the same way of testing it in respect of the millions of works held by them? It would be good to know.

Tuesday, 8 March 2011

The future of copyright: WIPO's vision

Towards the end of February a media release, "WIPO Director General Addresses the Future of Copyright", gave us an insight into the thoughts of the United Nation's principal agency for fostering intellectual property (it shares this role to some extent with UNESCO) on the vision which it has for the future of a right which, many say, has no future.  According to the release,
"WIPO Director General Francis Gurry ... said that copyright needs to evolve to current technological realities or risk becoming irrelevant [we all agree about that -- but does it evolve to embrace more protection or more exceptions?]. Speaking at a conference hosted by Australia’s Faculty of Law of the Queensland University of Technology (QUT) on the future of copyright, Mr. Gurry said there is no “single magical answer” to the development of a successful policy response to the challenges facing copyright in the digital age, but a combination of “law, infrastructure, cultural change, institutional collaboration and better business models.” [that's a combination of more big concepts than most of us can contain with our little brains, since each of these pulls against forces that are equal and opposite. For example whatever can be achieved through 'institutional collaboration' can be undone by demands for competition and transparency].

Mr. Gurry said the central question facing the evolution of copyright policy is how to maintain a balance between availability of cultural works at affordable prices while assuring a dignified economic existence for creators and performers. Digital technology is having a radical impact on those balances. “Rather than resist it, we need to accept the inevitability of technological change and to seek an intelligent engagement with it,” he said. “There is, in any case, no other choice – either the copyright system adapts to the natural advantage that has evolved or it will perish.” [It's not an either/or scenario.  The copyright system can both adapt and perish, or as a result of its adapting it can end up still alive but not in any useful or meaningful sense for copyright owners]

The Director General said there are three main principles that should guide the development of a successful policy response. The first is “neutrality to technology and to the business models developed in response to technology.” He said the purpose of copyright is not to influence technological possibilities for creative expression or the business models built on those technological possibilities, nor to preserve business models established under obsolete technologies. “Its purpose is…to work with any and all technologies for the production and distribution of cultural works and to extract some value from the cultural exchanges made possible by those technologies to return to creators and performers and the business associates engaged by them to facilitate the cultural exchanges through the use of the technologies. [The idea that business models are not sacrosanct and that they are a means to an end, not an end in themselves, is correct and important -- but it is the nature of every institution to seek to preserve its functions and the mindset is difficult to break. It exists elsewhere in IP where employees of rights-granting offices have to be reminded sometimes that their office exists in order to serve rights owners, not vice versa] Copyright should be about promoting cultural dynamism, not preserving or promoting vested business interests.”

A second principle, he said is “comprehensiveness and coherence in the policy response.” Mr. Gurry recognized the limitation of law to provide a comprehensive answer and said that “infrastructure is as important a part of the solution as law.” In this respect, he said collective management societies “need to re-shape and to evolve“ as their present infrastructure is out-dated as “it represents a world of separate territories and a world where right-holders expressed themselves in different media, not the multi-jurisdictional world of the Internet or the convergence of expression in digital technology.”

“We need a global infrastructure that permits simple, global licensing, one that makes the task of licensing cultural works legally on the Internet as easy as it is to obtain such works there illegally,” he said. [This has much to commend it, and we already have the technology to achieve it. Or if we don't, perhaps we can just borrow it from Google ...]

In this respect, Mr. Gurry said “an international music registry -- a global repertoire database -- would be a very valuable and needed step in the direction of establishing the infrastructure for global licensing. And, secondly, in order to be successful, future global infrastructure must work with the existing collecting societies and not seek to replace them.”

The culture of the Internet also needs to be taken into consideration. Referring to the high rates of illegal downloading, Mr. Gurry said “In order to effect a change in attitude, I believe that we need to re-formulate the question that most people see or hear about copyright and the Internet. People do not respond to being called pirates…They would respond, I believe, to a challenge to sharing responsibility for cultural policy. We need to speak less in terms of piracy and more in terms of the threat to the financial viability of culture in the 21st Century, because it is this which is at risk if we do not have an effective, properly balanced copyright policy.” [Exceeding urban speed limits and taking dangerous drugs for recreational purposes share with downloading the fact that they are widely practised by people who know that they are illegal, who do them regardless of their legality and who do not regard themselves as being criminals.  What can failure to change attitudes in those cases teach us about downloading?]

The third guiding principle for a successful response to the digital challenge is the need for more simplicity in copyright. Mr. Gurry said “Copyright is complicated and complex, reflecting the successive waves of technological development in the media of creative expression from printing through to digital technology, and the business responses to those different media, “ warning “We risk losing our audience and public support if we cannot make understanding of the system more accessible.” [the same end can be achieved by more simplicity and better education; both should be seen as means to achieve an end, not the definition of the end itself].

Monday, 7 March 2011

When the Royals Wed, it's time for the Peasants to Make Merrie ...


If you're planning a party in the United Kingdom, you may be thinking of holding it between 22 April and 6 May 2011 (inclusive), the dates between which music licensing body PRS for Music has temporarily waived the charges that would normally be incurred in securing a licence for the public performance of music.

This waiver applies to not-for-profit events organised by unpaid volunteers "in celebration of the Royal Wedding 2011" for the local community, where fewer than 300 members of the public are present. A further condition of the free licence is that the venue where such celebrations are held must "not otherwise require, or currently hold, a PRS for Music licence".

The 1709 Blog learns from Reuters that the objective of this exercise, according to Keith Gilbert (director of public performance sales) is to allow members of the public to hold street parties for the Royal wedding without having to worry about obtaining a licence (or the threat of penalty for failure to obtain a licence), so that they can play music at these public events.

This blogger sniffs at a larger plot.  The unusually generous period allocated for royal wedding celebrations covers both World Book and Copyright Day (23 April) and World Intellectual Property Day (26 April), both of which are are also dedicated to the celebration of "royalty" ...

Many thanks to Fredericka Argent for the link to this fascinating item!