|© Jim Unterschultz|
|© Jim Unterschultz|
"The text provides a clear and thorough exploration of the doctrinal and policy issues in American copyright law in a style accessible to both new and advanced intellectual property students, as well as to practitioners. The book covers every major topic in basic copyright courses: the history of copyright, ownership and duration, formalities, exclusive rights of the copyright holder, fair use, civil and criminal enforcement of copyright law, and federal preemption of state law. Beyond that, the authors address the major new issues that have emerged over the past two decades, including the rules of the Digital Millennium Copyright Act regarding circumvention of technological protections of copyrighted materials, and the principles of secondary liability, both in their basic form and as developed through application of the DMCA to internet service providers. Moreover, attention is given to the important points at which U.S. copyright law intersects with international intellectual property treaties.This book, which part of the publishers' Concepts and Insights series, certainly lives up to this description.
Each chapter includes concise summaries and discussions of significant cases, ideal for gaining a complete overview of the doctrine and of the statutory provisions, those that are written with a broad brush as well as those written with painstaking detail. Finally, the book suffuses this doctrinal and statutory analysis with illuminating discussions of the public-policy issues -– from the earliest and most fundamental to those that are at today’s cutting edge -- that help inform and shape the development of copyright".
|UK IPO -- please note the|
correct spelling of Telekabel
"1. Is Article 8(3) of the [InfoSoc] Directive [2001/29] to be interpreted as meaning that a person who makes protected subject matter available on the internet without the right holder’s consent is using the services of the access providers of persons seeking access to that protected subject matter?Eleonora has called on Austrian readers of the IPKat to post some background information relating to the underlying litigation; at the time of posting of this blog, however, it appears that no public-spirited Austrian has responded to her call. Meanwhile, this post reminds readers that the UK's Intellectual Property Office invites comments that will determine whether any British lawyers have the joy of being commissioned to present the UK government's position -- should it have one -- to the CJEU. If you'd like to submit your thoughts or observations to the UK government, you should email Policy here by not later than 7 September of this year.
2. If the answer to the first question is in the negative, are reproduction for private use and transient and incident reproduction permissible only if the original reproduction was lawfully reproduced, distributed or made available to the public?
3. If the answer to the first and second question is in the affirmative, and an injunction is therefore to be issued against the user’s access provider in accordance with Article 8(3) of the Directive, is this compatible with Union law, in particular with the necessary balance between the parties’ fundamental rights?
4. If the answer to the third question is in the negative, is it compatible with Union law to require an access provider to take specific measures to make it more difficult for its customers to access a website containing material made available unlawfully if those measures require not considerable costs and can easily be circumvented without any special technical knowledge?".
"Contrary to popular belief, illegal filesharing sites are not shoestring operations run by penniless kids. They require vast servers to host stolen content. They also require huge bandwidth to handle the illegal downloads. Even start-ups – let’s call them small town dealers – need computer equipment, software and broadband services that cost considerable amounts of money. To pay for their operations, traffickers use two revenue models: paid-for premium subscriptions that enable faster downloading; and display advertising – often supplied through Google Ads – which appears as content downloads.On the assumption that this isn't a sufficiently mouth-watering proposition to encourage authors to say, "if you can't beat'em, join'em", she then lists her suggestions for tackling the phenomenon:
The revenue raised is eye-watering. When the executives behind file-sharing site Megaupload were indicted for copyright violations, racketeering and money-laundering, the indictment left many authors (average income £7,000 and falling) slack-jawed at the money involved. The FBI accused the seven executives, including CEO Kim Dotcom (yes, seriously, that is his name) of amassing $175m since the site launched in 2005. In 2010 Dotcom took home $42m; another executive earned $9m. Among seized assets were a Lamborghini, a Maserati and 15 Mercedes cars with personalised number plates including the legends "STONED", "GOOD", "BAD", "EVIL" and "GUILTY". Oh, and a Rolls-Royce Phantom (list price £250,000 to £300,000) bearing the number plate "GOD"".
- Contact: Companies whose advertising or services benefit trafficking sites. When you find ads for companies on filesharing sites contact those companies through the "investor relations" pages on their website and point to the specific places in which their advertising revenue is being used to support illegal sites. Ads are usually supplied by services such as Google; again use the investor relations page to contact the provider and point out that its service is helping fund a trafficker [it would be good to hear of any empirical evidence that this has any effect. Where advertisers are not public companies with a corporate conscience -- for example small retailers and etailers who are selling big brand products that may be grey goods or infringements in any event -- this may either be impossible or unlikely to bear any fruit].
- Note: Every time you search for a piece of music, book or film and the first result page that appears is illegal downloads, inform the copyright holder and the search engine. One of the issues faced by copyright holders is the ease with which illegal sites get their content to the top of search results, making it easier to entice punters into stealing [Again, it would be good to know how effective this is. Other than depressing copyright owners, who are generally aware when this is the case if they're commercial enterprises or unable to do much about it if they're not, it's not clear what effect this has].
- Lobby: The Open Rights Movement has massive lobbying power. They put their case to MPs and MEPs through lobbyists based in London and Brussels. Counter their arguments and contact your MP, MEP and relevant ministers to show how copyright infringement is undermining creativity, not feeding it [the Open Rights Group does call for an evidence-based overhaul of copyright law, as its website indicates, which rather leaves open the question as to what its final policy might be on the subject. Given that MPs and MEPs generally know little and care less about IP, which is never a vote-winner, it might be more effective for authors and copyright owners to join the Open Rights Movement and debate the issues with it from the inside].
- Join: Organisations like ALCS, the Publishers Association and the Society of Authors can keep you updated on what is needed, such as changes to search engine protocols to stop traffickers ranking top in searches [this isn't going to change the world, not at least initially, but a better-informed author or copyright owner can be expected to make better decisions].
- Publicise: No company wants bad publicity. Use shareholders' meetings, blogs and articles to point out how specific businesses are profiting from the Big Rip Off of Writers [blogs, tweets, Facebook and the social media in general have had some notable successes in influencing corporate behaviour, and sometimes even policy. The big problem here is the risk of an action for defamation if authors and copyright owners get the facts wrong].
Danuta closes with the following sentiment:
- Argue: A recent study of BitTorrent traffic showed that 35.8% was pornographic. Ask these businesses if they know they are making money from sites that include the exchange of child pornography. Ask filesharing friends about the company they keep" [Again, brand owners who are sensitive about their image may not be able to influence the marketing and sale of products once they have been placed on the open market -- but it can do no harm to draw this to their attention].
"This is not an easy fight, but writers and other artists should not assume they cannot fight back. We can. We know we can, because we have been in a world where ripping off writers was endemic before. It was the active and vocal campaigns of writers in the 19th Century that established copyright in the first place. It’s time we brought our fighting skills up to date".This is true, but back in the 19th century authors like Charles Dickens and Victor Hugo had an easier time of it than did the authors of today. It was a time when much if not most of the debate over the existence and extent of copyright focused on moral issues, not purely economic ones -- and the public sense of what was right and wrong, fair and unfair, was probably a good deal more pronounced in those days than it is now.
|Well, one of them must|
have been the original ...!
A Rose by Any Other Name? Moral Rights, Plagiarism, Lehrer and ZakariaThe 1709 Blog is pleased to announce that Mira is joining the blog team as a regular member.
What do Jonah Lehrer and Fareed Zakaria have in common? Apparently, bad judgement. Both have been involved in matters of plagiarism. In Zakaria’s case, plagiarism led to suspension from his duties at CNN and Time, followed by swift reinstatement. In Lehrer’s case, an episode of so-called “self-plagiarism” was followed by the discovery that he had fabricated facts, and led to his resignation from his position as a staff writer at the New Yorker.
From a moral rights standpoint, both cases are worth a closer look.
The cases involved plagiarism, and the plagiarism has been described in terms of mis-attribution, or failure to attribute material. In a culture where moral rights seem to provoke a good deal of controversy, the concept of attribution still meets with universal acceptance.
And, indeed, extraordinarily high standards are applied to condemn any possible crossing of the line between original and “copied,” or unattributed, material – even if, as in Lehrer’s case, it was copied from himself. Lehrer’s articles for the New Yorker included extensive “unattributed” passages from his blogs and other writings. His offense amounted to passing off old material as fresh thinking (Or fresh “ideas”: see Kelly McBride’s fascinating discussion, entitled “What’s wrong with Jonah Lehrer plagiarizing himself (at least 13 times)” Poynter, 20 June 2012, available here). He did not lose his job at the New Yorker over “self-plagiarism.” He was reprimanded, and apologized. In a sense, it is remarkable that the incident generated as strong a response as it did. Once again, Lehrer was held to a very high standard of originality with respect to his New Yorker publications. Attribution was required, even if it was attribution of his own, earlier work. He should not have used his earlier work and claimed, by implication – through its publication in the New Yorker – that it was new, original work.
Zakaria’s situation was different. He, too, had copied, but what he copied was an excerpt from a New Yorker article by another author, Jill Lepore, which then appeared in his column in Time magazine. Once again, the problem was failure to attribute. But, in contrast to Lehrer’s case, the problem here is painfully obvious – trying to pass off the words of another as one’s own, “free-riding” on another’s work to maintain one’s own productivity or reputation. Zakaria apologized “unreservedly” to the author of the original article, saying that he had “made a terrible mistake.” The paragraphs from Zakaria’s work and Lepore’s article are virtually identical, but Time and CNN have both taken Zakaria at his word, and reinstated him. The message seems to be that Zakaria blundered, but that he did not have the nefarious intention of stealing another writer’s work and passing it off as his own. He is human, and should be forgiven for his mistakes.
The issues involving these two cases of “plagiarism” bring out some interesting conflicts in our culture. As much as they are writers, Zakaria and Lehrer are both media “brands.” It is understandable that media companies would reinstate people like them – they are hard to replace, and anyone who is expected to produce such a volume of “content” for the various media outlets that now demand it, is at risk of becoming involved in recycling material and making errors. By failing to attribute the work of another – or, in other words, violating Jill Lepore’s moral right of attribution – Zakaria crossed a line that Lehrer did not. However, beyond the scandal of a few days, Zakaria has paid little price for his error.
In today’s media climate, what makes the public, including the employers of these two men, cling so desperately to the ideal of “originality,” and to embrace the concept in such a strict form? The “remix” culture is widely championed, and those who argue in favour of the “freedom” to use and re-use the work of others often enjoy the status of folk heroes. It is not just in music that remixing has become popular. Helene Hegemann, a teenage writer who published a novel that was built out of unattributed passages from other works, affirms that “there is no such thing as originality – only authenticity” (See Kate Konolly, “Helene Hegemann: ‘There’s no such thing as originality, just authenticity,’” Guardian Observer, 24 June 2012, available here. In the current English version of the book, Konnolly notes, “All quotations are now sourced”). Yet the standards applied to Lehrer and Zakaria suggest just the opposite. Not only does originality continue to be recognized, but we are entering the era of a new neurosis of originality. An author should not copy even from himself or herself. But there are probably numerous cases of writers re-working their own material. For example, F. Scott Fitzgerald was apparently known to “use” material from his commercial short stories in his literary novels. In Lehrer’s case, if he had cited his earlier work (and if it continued to be valuable to the New Yorker on that basis), much of the controversy could have been avoided.
Lehrer, though rebuked, was in no danger of losing his position on account of self-plagiarism. But he went on to something much more interesting. Writing about Bob Dylan in a recent book, he invented a quotation and attributed it to Dylan. When those knowledgeable about Dylan came calling, Lehrer tried to maintain the quote’s authenticity, but finally admitted to fabrication. This incident, in contrast to the earlier one, cost him his job.
The right and wrong of this second transgression stood out starkly in black and white. Facts had been falsified – the incident violated the integrity of Lehrer’s subject, and of his book. But there was a subtle irony in Lehrer’s misconduct. David Kinney, writing for the New York Times, notes that Bob Dylan himself was a a great teller of tales about his own life. Of Dylan’s autobiography, Kinney notes, “Mr. Dylan got a longer leash with “Chronicles.” He filled it with knowing winks and nods to its unreliability, and anyone who didn’t know that he’d play around with his story hadn’t been paying attention.” Was it Dylan’s stature in pop culture that spared him the awkward judgement meted out to Lehrer? Was it the fact that he toyed with his own life and not the life of someone else? Whatever the reason, Lehrer’s offense struck a chord for its impropriety, while Dylan’s history, entwined with self-made myths, is known and accepted.
For the time being, these questions have no easy answers. But two interesting conclusions can be drawn. First, from a moral rights point of view, and despite appearances, the concepts of attribution and integrity are actually quite well-recognized in the culture. But they are recognized under different names: plagiarism, on the one hand, and ethics, journalistic integrity, or just plain truth, on the other. As a result, lawyers who want to encourage the recognition of moral rights may have to work with a wider vocabulary, and within a wider discourse. This is no bad thing: the term “moral rights” is nothing but a poor translation from the French, and finding new ways to describe what moral rights really stand for would probably be helpful in many respects.
Secondly, originality is not dead. It lives – and indeed it has become something of a Frankenstein in the context of new media. Originality and attribution are inextricably intertwined. The right of integrity, too, makes sense here – whether it is integrity of authorship, or integrity of information. But, either way, it is good to remember that the author, himself or herself, is a mere human being. Mistakes happen – temptations arise – and the inhuman demands of technology can have a corrupting influence on the integrity of authorship. Good writing is still something more than “content.” With time and freedom more scarce than ever before, it is harder than ever to produce it.
|Kanye feels Stronger after the ruling|
|German philosopher Nietzsche|
|What "substantial similarity" is about?|
(photo by Diane Arbus)
|Is the newspaper a dying breed?|
|© Pat Dalton|