PRS' Digi Licensing Results - Good in Parts

Something here to cheer the European Commission, desperate to find a pan-European solution for collective licensing: Britain's PRS for Music announced this week that they have processed over one million pounds in licences to pan-European digital services for mobile and on-line mechanical rights in the Anglo-American catalogue. This service's acronym, IMPEL, stands for Independent Music Publishers' European Licensing - so good news for smaller publishers and their writers. The gaping hole in the system appears (still) to be the majors - plus ca change, plus c'est la meme chose. In this light it is "Good luck to the UK's Richard Hooper" for the Digital Exchange Feasibility Study - the deadline for submissions approaches - Friday 10th February!

Of biomedical research, academic publishing and copyright

Some doctors are not used to asking for permission ...

As our readers will probably know, on 16 December last, a controversial bill was introduced to US Congress, this being the Research Works Act (HR 3699). 

This short piece of legislation (it is comprised of just three sections) is co-sponsored by Republican representatives Darrell Issa and Carolyn Maloney and its purpose is "[t]o ensure the continued publication and integrity of peer-reviewed research works by the private sector."

If enacted, no federal agency will be allowed to adopt, implement, maintain, continue, or otherwise engage in any policy, program, or other activity that

(1) causes, permits, or authorizes network dissemination of any private-sector research work without the prior consent of the publisher of such work; or

(2) requires that any actual or prospective author, or the employer of such an actual or prospective author, assent to network dissemination of a private-sector research work.

The Research Works Act has attracted criticisms from the world of biomedical research, in that it will overturn the US National Institutes of Health (NIH) 4-year-old public open-access policy, notes the prestigious The Lancet. NIH policy requires its grantees to submit copies of their peer-reviewed papers to PubMed Central for posting no later than a year after journal publication. On PubMed Central, the public can freely access papers reporting publicly funded research.

As noted by Columbia University's Dr Abdulrahman El-Sayed, in the field of biomedical research,

"almost all high-quality health research is submitted for publication in academic journals -- journals like the Journal of the American Medical Association (JAMA), or the New England Journal of Medicine. They serve the purpose of coordinating peer-review, organizing the health literature, and benchmarking high quality research ...  This bill would make it illegal for the NIH to mandate unrestricted access to published NIH-funded material -- choking this crucial information off from health providers and researchers who are unable to pay."

Copyright restrictions in the access to the results of biomedical research are becoming increasingly frequent (see the case of the MMSE which was reported on this Blog here). However, as pointed out by The Lancet, which strongly opposes the bill, 

"Putting limitations on the dissemination of a scientist's own work is a startlingly ill-considered strategy. Science is a public enterprise. A scientific publisher's primary responsibility is to serve the research community. Their own interests—financial and reputational—depend upon the trust the public has in science. Obstructing the dissemination of publicly funded science will damage, not enhance, that trust." 

What do our readers think of this bill?

Signed, sealed, delivered - you're mine

With PIPA, SOPA and Mega hogging all the news space, the European Union and twenty two of its member states have signed the Anti-Counterfeiting Trade Agreement (ACTA) which is designed to ensure a basic system of global intellectual property protection. The signing ceremony went quietly in Tokyo yesterday (although there were some very public protests in Poland) and only five EU countries did not sign up yesterday - Germany, the Netherlands, Estonia, Cyprus and Slovakia - though they are expected to sign in due course. The EU signature itself must be confirmed by a vote of the European Parliament scheduled for June. The signatories join the USA, Canada, Australia, New Zealand, Singapore, South Korea and Morocco, who all signed up last October.

While there have been protests, supporters of the Treaty say that it does not commit signatories to any of the more extreme anti-piracy measures some countries have adopted (such as three strikes law in France) some expected or predicted, and supporters in Europe insist the agreement will simply force other participating countries to ensure the basic IP protections that already exist within the EU. But interestingly Kader Arif, the French MEP charged with the task of compiling background information about the Treaty for the European Parliament, quit his role and hit out at the way ACTA has been handled saying "I want to denounce in the strongest possible manner the entire process that led to the signature of this agreement: no inclusion of civil society organisations, a lack of transparency from the start of the negotiations, repeated postponing of the signature of the text without an explanation being ever given, and the exclusion of the EU Parliament's demands that were expressed on several occasions in our assembly" adding "As rapporteur of this text, I have faced never before seen manoeuvres from the right wing of this parliament to impose a rushed calendar before public opinion could be alerted, thus depriving the parliament of its right to expression and of the tools at its disposal to convey citizens' legitimate demands. Everyone knows the ACTA agreement is problematic, whether it is its impact on civil liberties, the way it makes Internet access providers liable, its consequences on generic drugs manufacturing, or how little protection it gives to our geographical indications.”

Arif concluded by saying "This Agreement might have major consequences on citizens' lives, and still, everything is being done to prevent the European Parliament from having its say in this matter. That is why today, as I release this report for which I was in charge, I want to send a strong signal and alert the public opinion about this unacceptable situation. I will not take part in this masquerade".

http://www.theinquirer.net/inquirer/news/2141813/european-parliament-official-resigns-acta

Image - 'V' masked MPs in Poland protest against ACTA

Innocent infringement is not a defence, says Judge Birss QC

Even if you don't think it's forbidden, it actually is ...

These are interesting times for copyright and photography in the UK.

Following by one week his decision in Temple Islands Collection (noted in this Blog here), His Honour Judge Birss QC published his ruling in David Hoffman v Drug Abuse Resistance Education (UK) Limited [2012] EWPCC 2. 

This was an action for damages for copyright infringement, brought by photographer David Hoffman against Drug Abuse Resistance Education (DARE), a now out-of-business government-affiliated charity, which operated in schools to help young people understand the dangers of substance abuse and to provide them with life skills to tackle peer pressure in this regard.

The claimant's case was that, from about 2004, the defendant's websites used 19 photographs of various drugs. The images used were apparently copies of his copyright photographs and the defendant was using them without his permission. 

Mr Hoffman issued proceedings in November 2010, under s.16 of the Copyright Designs and Patents Act 1988 (CDPA).

DARE did not dispute that the photographs were Mr Hoffman's and that it was using them without his permission. However, at the time of the alleged infringement, DARE had employed a firm to produce a website for the charity. This, claimed the charity, had found a website sponsored by the Deparment of Health (DoH) - Talk to FRANK - on which Mr Hoffman's photographs appeared. The defendant had therefore understood that the site was covered by Crown copyright, so that the text and images could be used without seeking to obtain a licence.

However, this was not the case, as copyright in the photographs - which Judge Birss recognised as being clearly original artistic works protected under s.4 CDPA  - belonged to Mr Hoffman.

This said, DARE's position was that it had not paid Mr Hoffman because it had not intentionally or knowingly infringed his copyright and that the DoH and its misleading website were the actual cause of any infringement.

This, found Judge Birss QC, did not avoid liability for copyright infringement under s16(1)(d) and s.20 CDPA, in that:

"The fact that the defendant may have thought that it had permission to use the images is not a defence to infringement under s16. There is a form of innocence defence in copyright law provided for by s.97 of the 1988 Act … The s.97 defence would not mean that the defendant had not infringed, it would be a bar to damages.

Thus if the defendant did carry out one of the acts provided for in s16, the fact that they thought they had permission is not relevant. Although this may seem harsh, it is not. From the copyright owners point of view, the copyright is his property and his rights have been infringed if he did not give permission. Copyright law provides for other secondary acts of infringement which generally amount to dealing in infringing copies and those acts only infringe if the person knew or had reason to believe that the copies were infringing copies. However for the primary acts of infringement set out in s16, the policy of the law is that if there was in fact no permission, an infringement has occurred even if the person genuinely thought they had permission.

The key question on liability therefore is whether the defendant has committed any of the acts restricted by copyright as set out in section 16."

This being the case, Judge Birss QC found that the defendant had committed acts restricted by copyright, specifically the act of communicating the work to the public, which thereby infringed Mr Hoffman's copyright. He ordered for £10,000 in damages and £2,444.57 in interest be paid to Mr Hoffman. 

As the photographer told the British Journal of Photography, though he welcomes the result, he does not expect to receive these damages.  "My claim originally was for around three times as much [as £10,000]. This was based on the flagrancy of the abuse, the lies and threats made by the defendant and the continued infringement for a long time after I had demanded the removal of the images. However when the time came for me to make my submission to the court the defendant was already in the process of becoming insolvent and so there was no point in putting in the additional work to support a higher claim as there was no expectation that it would be paid." He added: "For years, the Department of Health has been stalling this case, pretending that they were ready to settle when they were not. They've stalled long enough for DARE to go out of business. So, now, DARE has gone insolvent." 

1709 Blog Red Bus seminar: early announcement

The recent decision of Judge Colin Birss QC in Temple Island Collections Ltd v New English Teas Ltd & another [2012] EWPCC 1 has attracted a good deal of attention on the blogosphere and beyond in the way in which it has approached the scope of copyright protection which the creator of a photograph or digitally manipulated image might now expect to enjoy in the courts of England and Wales. Andy Johnstone authored a guest-note on this weblog here, while Catherine Lee provided this analysis for the IPKat and Rosie Burbidge has since posted her view of the ruling on Art & Artifice. Further comments come from ACID, NIPCLAW and beyond.

The 1709 Blog is to host a seminar on Tuesday 21 February 2012, 5.30pm to 7.00pm, at which Michael Edenborough QC -- who appeared for the successful claimant -- will give an explanation of the legal issues as the court has stated them. There will also be at least one other speaker who will seek to dissect the ruling, plus a small panel to help generate an informed discussion.  Olswang LLP has kindly once again consented to the use of its lovely High Holborn, London, office as our venue and 1709 Blogger John Enser, a partner in Olswang LLP, will take the chair.  Light refreshments are planned and at least 1 CPD point is hoped for. As usual for 1709 Blog events, admission will be FREE.

If you'd like to attend, please email me here, with the subject line "Red Bus Seminar" -- but don't expect an immediate response: I'll get back to you when I can.