Copyright - the UK IPO's way ahead

Yesterday, the UK IPO and BIS announced their strategy for
Copyright in the digital age. The full paper is here - it explains that it draws on previous work [to which some might add that the IPO is retreading the same ground again]. Anyway, the key findings (as annotated by the author) are as follows:

"The Investigation led by the Intellectual Property Office (IPO) over the course of the last year found that:

• For the first time, individual citizens have the means to create, use and distribute copyright works through digital technology. People want to make use of these opportunities but in doing so it is almost inevitable that they will violate copyright. This mismatch of expectations is significant because neither the law nor people’s attitudes is easy to change.

• Copyright is also complex for users. Much of this complexity can be addressed by rights holders and how they administer their rights. [and that means that we, the Government, don't have to carry the can for it] This would have many advantages over changes to the law, which can be slow and risks adding to rather than reducing complexity.

• Making non-commercial use less onerous for consumers, for example by removing the need to seek permission and make payment for personal use of individual copyright works, would help tackle the “mismatch of expectations” problem. But fair compensation for rights holders would be required. Action at a European level would be necessary [and that means we can kick this one into the long grass too].

• Processes for licensing copyright works need to be improved. The Government has already brought forward proposals in the Digital Britain Report, which noted problems with access to “orphan works” and the potential benefits of extended collective licensing in tackling some of these problems. Non-compulsory registration systems may also help rights holders manage their rights more effectively [and that will be down to rights owners not government, either - do I detect a theme developing here?]

• Creative industries face real challenges in monetising content. Firms must continue to
evolve products and services to offer consumers something they value at prices they are prepared to pay. [this one wins the "no sh*t Sherlock award for stating the obvious] Education and enforcement can support these efforts but cannot tackle infringement of copyright on their own.

Actions and recommendations

Based on these findings, the Government’s intentions are:

• for authors of copyright works; to support fair treatment through new model contracts and clauses and fair returns for use of their work by improving education about and enforcement of rights; [is this a commitment to do anything about education or enforcement, or just a statement of good intentions?]

• for rights holders; to help secure a viable future by encouraging the development of new business models, modernising the licensing process and maintaining support for education about and enforcement of rights; [ditto]

• for consumers; to allow them to benefit from the digital age by seeking to legitimise non-commercial use of legitimately-purchased copyright works and improving access to ‘orphan works’ such as out-of-print books;

• for educators and researchers; to support them by improving access to works, resolving issues around copyright and contract and ensuring exceptions to copyright are right for the digital age; and

• for businesses and other users; to work towards a simpler copyright system by, improving the copyright licensing process and encouraging the development of new business models.

This means:
• UK action to improve access to orphan works, enable extended collective licensing, encourage the development of model contracts and clauses, and tackle P2P fi le-sharing; and

• A willingness on the Government’s part to consider European action that provides
commonsense rules for private, non-commercial use of copyright material that will give consumers much more freedom to do what they want (such as creating mash-ups) and make clear what they cannot do.

There are a total of 51 pages of this paper, but a cynic might conclude that it contains nothing new.

The clash between copyright holders and personal data

The International Journal of Law and Information Technology (IJLIT), a three-times-a-year journal from Oxford University Press which is going quarterly in 2010, has asked me to draw the attention of 1709 readers to a pertinent article which considers the clash between two well-recognised rights, copyright and data protection/informational privacy.

The article begins by noting that one of Sweden’s anti-piracy groups, Antipiratbyrån (APB), in its bid to track copyright infringers, allegedly processed the personal data of Swedish peer to peer (p2p) file sharers in contravention of the Swedish Personal Data Act.

It goes on to say that this story is representative of the divergent perspectives that have been adopted by copyright owners and p2p file sharers. On one hand, a review of postings in some of the forums frequented by p2p participants indicates that some file sharers assume that there should be a legal rule by which copyright holders are prevented from invading their privacy. On the other hand, developments in the US go to show that the copyright holders seem to have taken the view that the fight against online copyright infringements should supersede all privacy considerations.

The article considers the clash which occurs when right holders track online infringements and harvest IP addresses and when right holders seek to unmask the infringers behind the harvested IP addresses.

This is undoubtedly a hot topic. The article is available to read online without charge and is called "When Rights Clash Online: The Tracking of P2p Copyright Infringements v the EC Personal Data Directive" by Okechukwu Benjamin Vincents (click here to read).

The IJLIT website contains lots of information about the journal and its distinguished editorial panel, together with instructions for would-be authors, subscription data and the contents of the current edition.

Joseph Smith and the Copyright Revelation

1709 Blog reader Arnold Thomas writes to ask whether it would have been possible for early Mormon leader Joseph Smith, an American citizen, to obtain in early 1830 a copyright for his book The Book of Mormon that would have been valid for Canada? According to Mr Thomas,

"Joseph Smith had registered an American copyright for The Book of Mormon on June 11, 1829 and the book was announced for sale on March 1830.

There is a discussion going on now on this topic [for which see link to The Fair Blog here], spurred by the recent publication of a previously unpublished document in which Smith sends his men to Canada in order to secure a copyright and attempt to sell it to raise money.

A complex and difficult-to-follow argument was posted in support of the position that it would have been possible for Smith to do so. Others have maintained that Smith couldn't, variously because he was an American citizen, or because the Statute of Anne did not apply to Canada.

I am wondering which argument is correct, or perhaps another answer is".

The Fair Blog, which I took to be an allusion to the copyright concepts of fair use or fair dealing, turns out to be subtitled 'Defending Mormonism'. If any readers of this blog have an interest in copyright history, the Fair Blog would greatly appreciate their opinions.

Copyright and A2K: a useful list

The abbreviation A2K is one with which not everyone is familiar: it stands for Access to Knowledge. In this context the 1709 Blog has just been introduced to Copyrightanda2kinfo, described by this blog's informant, Denise Nicholson (who runs the list) as

"a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc".

This looks pretty useful for people whose livelihood either depends on looking after their own copyright or advising others how to do so. The 1709 Blog welcomes users' comments.

More on the A2K movement can be found here.

God and Mammon are in the Detail

How refreshing to see the UK's PRS humbly admitting its mistake after it had demanded a licence fee from a singing shop assistant! Heaven forfend that the produce should be noisome. See Bath's Natural Theatre's Singing Underpants here.

How infuriating to see PPL's efforts to secure via the Copyright Tribunal an appropriate licence fees from bars, cafes, shops and office frustrated by the Tribunal's "one-size- fits-all" fee ruling.

PPL's statement reveals that "PPL had proposed a tariff, based on the principle of fairness, where larger establishments paid more than smaller ones. The Tribunal rejected this and took the view that small pubs and cornershops should pay the same as large bars and shops. This is currently £100 per annum. The result of the Tribunal's decision, therefore, is that bars with a thousand drinkers will pay exactly the same as a pub with a handful of regulars."

Fran Nevrkla, Chairman and CEO announced that PPL will, quite rightly, be appealing the decision. PPL's gorgeous, pouting Director of Government Relations, Dominic McGonigal, blogs briefly on the subject - shame his employer can't spell his name.

Are these the Top Ten Plagiarisms?

Thank you, Amber Johnson, for sending the 1709 Blog this link to the "Top 10 Plagiarism Scandals of All Time". The list opens with the rubric,

"Plagiarism isn’t just for procrastinating students or juvenile delinquents. Even high profile politicians, writers, artists and educators can be found guilty of plagiarism, whether it is on purpose or by accident. Check out these top 10 plagiarism scandals of all time that have affected some of the world’s most illustrious publications and individuals".

A quick perusal of the list leads to one of two conclusions: either the list is a little local in its outlook, or the United States is truly the epicentre of world plagiarism. In either event, the 1709 Blog invites readers to post below the details of any particularly egregious examples of plagiarism which we can all consult when doing serious research or preparing after-dinner speeches.

Better a live dealer than a dead artist

A press release from the United Kingdom's Intellectual Property Office today, "UK extends the derogation on Artists Resale Right for two years", conveys depressing news for dead artists:

"In 2008, the UK Government notified the European Commission that it intended to maintain its existing derogation from resale right for the works of deceased artists for a further two years. The instrument that extended this derogation was laid today and will come into effect on the 1 December 2009.

Resale right entitles authors of original works of art, such as paintings, engravings, sculpture and ceramics, to receive a royalty each time one of their works is resold in a sale involving an art market professional.

The decision to extend the derogation comes after consultation with a wide range of stakeholders including artists and traders [This rather creates the impression that the product of the consultation is some sort of consensus. The 'stakes' of artists and of traders are not however entirely congruent with one another].

Ministers decided that the current economic climate would accentuate the difficulty the art market would face when coping with the application of artist’s resale right to the works of deceased artists [Are the works of deceased artists more difficult to cope with than the works of live ones? And is this a precedent of sorts for treating the position of dead authors less favourably than the living in other areas, eg when dealing with 'orphan works', applications for injunctive relief or fair dealing?].

This extension to the derogation will apply until January 2012. The extension means that in the UK, resale right will apply to works by living artists only [note for slightly puzzled readers: you thought the word 'only' referred to the word 'until' which follows it and not to the word 'apply' which precedes it] until 1st January 2012".

Simpler Music Licensing in Sight?

Yesterday, European Commissioner Neelie Kroes hosted a round table (although judging from the photo on the Commission website, right, it was in fact an oval table) among licensors of music publishing rights (EMI Music Publishing, SACEM, PRS for Music, Universal Music Publishing) and other interested parties (including Amazon, iTunes, Nokia, BEUC).

The outcome was a joint statement (here) setting out general principles designed to deliver improved online music opportunities for European consumers, including working towards "an open, fair and transparent licensing process that secures an appropriate level of royalties for right holders and authors is in the interest of all players and therefore of cultural diversity in Europe."

It will be interesting to see whether the Commission can deliver on making this into reality - in the past, attempts to make life easy for licensees have foundered either on competition grounds (the Commission itself being instrumental in this) or on societies fighting to preserve their own parochial interests.

The Commission promised that it remained committed to work with the market to bring "real benefits to consumers", so we can all rest easy and look forward to a bright future.

Electronic Book Burning: a poet writes

While the various copyright issues involving Kindle and other e-books are the subject of the sort of restrained discussion that takes place when money is at stake, those whose commitment is to the culture of reading are far less inhibited. "The Electronic Book Burning", an essay by Alan Kaufman for the handsomely-produced online Evergreen Review, demonstrates this. The imagery of book-burning, the citation of Fahrenheit 451 and his threnody for the death of the bookstore make powerful and highly persuasive reading -- which itself triggers some provocative thoughts.

If one detaches from books the emotional and cultural significance that one's personal experiences has breathed into them, one might be able to concede that the e-book, no more and no less than the printed book, is primarily a medium and not a message. There were doubtless those who lamented the introduction of the printing press and the death of quill-on-parchment (not least the legions of scribes in religious orders, whose productiveness and penmanship were no longer needed), while others may have welcomed the relatively impersonal medium of the printed book where the text of each print-run was soul-numbingly identical in form and content.

But is not the conventional book, just like the e-book, no more than a barrier that separates the author, the poet, the scholar from the reader? If a bayonet is a weapon with a worker at each end of it, are not 'real' books and e-books alike a cultural medium with a sentient being at each end of them?

Changing the subject, it seems to me that Alan Kaufman makes an original point when he suggests that the outcome of the the Google Book dispute may somehow be less important to some of its participants than the fact of having participated in it:

"Some have chosen to oppose in the form of a mysterious lawsuit that one somehow belongs to if one is any sort of author, agent or publisher. Rumors abound as to the outcome of this lawsuit. Some claim that Google and the world's authors, living and dead, have reached a “settlement” but what it is no one seems to know for sure. Google has, apparently, the power to commune with authors in our dreams or even to contact and negotiate with deceased writers in the afterlife.

The reports given over NPR or in the Times as to the lawsuit's outcome appear to conflict. The truth is, few have any idea what the suit is about or how they got involved in the first place. It is a lawsuit reminiscent of Jarndyce vs. Jarndyce in Charles Dicken's 'Bleak House'—a boundless ever-extending spiderweb engulfing everything and everyone in its fine legalistic filigree".

Unlike the settlement, which if played out will provide for winners (that is, Google) and losers, the dispute does not exclude anyone -- all may have an opinion, an interest, a stake. The Google dispute is in reality a giant multi-authored work in which all may write, a sort of judicial wiki where all are friends (amici curiae) even while all oppose.

Paranoid Android?

Two stories in the Times this Saturday neatly illustrate the sharp divide between the approach of ‘old media’ and ‘new media’ to copyright and content. First up we have the Times’ owner itself, News Corporation, and Rupert Murdoch’s announcement that he wants ‘fair compensation’ for content produced by his media companies – and that in addition to looking to monetise his newspapers in the online arena, he would be seeking re-transmission fees from US cable and satellite operators that carry his Fox Television network. Murdoch has said that he will ask cable companies and other distribution partners to pay over a small proportion of the profits they make by reselling the channels. On the other side of the fence are Google, who Murdoch refers to as ‘content kleptomaniacs’. Google have announced that their Android search engine for mobile telephones will take the group into a new profitable area – advertising around mobile searches. To facilitate this, Google has made the operating code for Android open source and all handset manufacturers and operators from Nokia to T-Mobile to HTC can use it for free in their mobile phones – which is a distinct advantage for handset manufactures in quickly bringing product to market, and a distinct advantage for Google allowing it early domination of the mobile search market – and associated advertising revenue In it’s 2009 fiscal year News Corps operating income was $3.44 billion and net income for Google in the third quarter of 2009 was $1.64 billion.

Something to read

If you want to know what the copyright law is, there are treaties, statutes, decided cases, learned books and literally reams of guidance from copyright collecting societies and representatives of rights owners. You can read them and get a good idea of what's allowed, what's not, and what's exercising the minds of policymakers, legislators and economists. However, if you want to know how people actually operate within the law, then books written by and for information managers will give you a far clearer picture.

One such book is Copyright: Interpreting the law for libraries, archives and information services, the 5th edition of Graham Cornish's bible (this word is carefully chosen). There are far more information managers, archivists and librarians in the world than there are copyright lawyers, and the point at which legal norms meet professional ethos is the point at which the typical reader of this work will quietly and unassumingly make the system work -- for authors, publishers and readers alike. According to the web-blurb of publishers Facet:

"Cornish's Copyright, which has become a standard work in its field, explains the provisions of the UK Copyright Act and supporting legislation in quick and easy question-and-answer form.

This latest edition is revised and expanded in the light of new legislation and some decisions by the courts which have changed our understanding of what the law means. There is also expanded coverage of moral rights and the text has been expanded by the use of practical examples to illustrate complex points. Areas such as originality, databases, and the use of broadcast material in education all receive additional attention. And of course Wikipedia, Flickr, MySpace, Yahoo, Creative Commons and Open Archives are considered in a copyright context ...".

Bibliographic data: Publication date October 2009; 208pp; paperback; 978-1-85604-664-0; price £44.95 (for CILIP members): £35.96. Web page here.

Meanwhile the most recent issue of Informa's Copyright World (October 2009) has just been released (you can see its contents list on its home page here). The cover story depicts a feature by William D. Schultz and Aaron M. Johnson (Merchant & Gould) on the present state of play regarding the US case law on sports statistics. The taster for this article reads thus:

"Every Sunday during the NFL season, millions of fans log on to their computers and are instantly transformed into owners of teams with names like Double Deuce, Just Johnson, and Dos Moss. Randy or Santana Moss, Chris or Calvin Johnson, and Deuce McAllister (all current or former NFL stars) do not get paid for their performance on these teams, but to their owners, the statistics and player information are priceless".

If you want to read more, you'd better subscribe or borrow a copy. If you don't want to read more, you're probably an insular American with a low tolerance of that nation's passion for sports stats and/or a hatred of anything that reminds you of sui generis database right in the EU.

Will MOG's sub float?

After all the discussion of Spotify's business plans and its 'will-it, won't it' viability (see The 1709 Blog here), the Guardian brings news of MOG, which it terms a "music blogging website" which plans to diversify into paid-for streaming service. According to this article MOG, which started in 2006 and boasts more than 8.5m users, says it will launch its own streaming music service later this year for American customers, having secured deals with all four major record labels. How does it add up in financial terms?

The service will give customers who pay $5 (£3.14) each month the chance to access millions of tracks on demand - a scheme that will put it in direct competition with rivals like Real's Rhapsody and the re-invented Napster.com.

Details of MOG's so-called All Access scheme remain relatively light, but chief executive David Hyman said that he planned to "set the music bar" with an offering that could mount a substantial challenge to existing services.

As the article correctly points out, "the jury is still out on subscription services, which - despite having been attempted many times - have failed to live up to their potential". Problems in need of a fix, according to the article, include consumer apathy towards monthly fees and high royalty payments for on-demand music delivery online. Competition is presumably not seen as a "problem" in this context.

MOG is reported to have significant financial backing, sitting on $12m from investors which include Sony BMG and Universal Music Group.

Spotify - music's holy grail or a tune destined to fail

The word on everyone’s lips in the music industry (this week) is Spotify – and it’s ‘all you can eat’ business model for providing unlimited music streams to music fans either for free – if fans are prepared to put up with advertising – or for £9.99 per month as a premium service. As Spotify, launched by Swedish internet entrepreneur Daniel Ek, reached its first birthday, attention turned to figures released by Ek about the success of the service and his self-declared problems in getting what he considers workable deals with the record labels who control the rights to sound recordings and music publishers (and their collection societies) who control the rights to songs.

Many media commentators argue that the service will soon be out of business unless it can get more people to pay for music – with commentators saying that the adverting funded model will not work and Spotify needs to rapidly increase the number of its two million UK users who pay the subscription. Currently it is thought only about 10% pay and indeed Ek, writing on the company's blog to mark the first anniversary this week, said

"Spotify has a long way to go but continued support from the music industry in the face of a recession and rampant piracy has made the difference and I feel that we are set up to succeed with this kind of willingness to innovate and try new things from the music industry... together we can do even better things",

adding

"it's been an interesting year within the music industry, with many insiders questioning whether Spotify's model is a sustainable one. Meanwhile, it's been amazing to see just how our users have taken Spotify to their hearts".

Clearly everything is not all rosy in Ek’s world and he took a shot those knocking his business model (and Spotify’s future success) saying

“the notion of overnight success is very misleading and actually rather harmful to any hope for long term and sustainable growth in this industry. Yet this is unfortunately something the music industry as a whole is particularly good at, expecting business models to be proven within months of inception. The truth is that even the most successful digital business to date, iTunes, missed its revenue targets in its first year by 30%, and label executives were far from convinced that this was the future. We are in this for the long haul. We aren't interested in just trying to hype the company and then 'flipping it'".

That said, one music executive commented “Spotify will be dead within a year if it carries on like this”.

Ek goes further with his criticisms which he said were stopping the music business from properly capitalising on the potential of digital, in particular the labels' and publishers' continued obsession with per-click royalties rather than profit share deals. Against a background of record industry’s core business model -- shrinking by 15% year on year -- he may well have a point. Ek argues that, if record labels and publishers approached digital with a different mindset, then music could become a "$40-50 billion industry and [grow] stronger than it ever has [before]" but Ek argues that this would not happen while labels continue to try to "squeeze as much as possible out of every single transaction".

Fascination about the specifics of Spotify's business model remains, particularly given that Ek's comments on the need for further change in the music sector suggests that he recognises the deals his company is currently tied to may not add up long term. Whilst Ek had been silent on the detail of Spotify’s deals and finances but he did reveal that advertising revenues had now passed "millions of Euros per month", and that Spotify was already 7Digital's biggest download affiliate and this: an announcement of a subscriber base between 100,000 and 600,000 users in six countries, which has provided some basis for speculation and some speculative calculations that, I am pleased to say, have been undertaken by others rather than this blogger!

First off, Pinsent Masons’ wonderful www.out-law.com estimated that Spotify’s subscription revenue was anywhere between £1 million and £6 million per month based on Ek’s rather fluid analysis of premium subscribers and, with each paying £9.99, this gives estimated annual earnings of between £12m and £72m. Then the Guardian's Technology Editor Charles Arthur analysed all of the available information on Spotify costs, with help from Steve Purdham, the founder of Spotify’s rival We7, and the pair started to put some maths together. This turned into a major exercise, not least because Arthur's original calculations missed off any record label royalty payments for using the sound recordings, focusing only on PRS payments for the use of the song and technical streaming costs. Arthur’s blog morphed and it became clear it was almost impossible to work out what sums of money Spotify is currently spending and, possibly, losing, not least because the chances are that Ek has done special deals with the labels and the PRS and that Spotify isn't paying industry standard rates.

Purdham's input provided some interesting insights - "By going for scale, Spotify creates the problem that the cost base for the music is so high. The costs make the “freemium “model, pushing people to subscriptions, hard to handle”.

Arthur’s maths are based on UK figures as the PRS rate (for the use of songs) is public with Purdham saying "Until July 1 (when the new PRS licensing change came in) the perceived wisdom was that the total cost of a stream was publishing plus label cost was 1p in the UK, 1 Euro cent. Purdham also pointed out that Arthur’s “ suspicions were right: the UK's MCPS/PRS publishing organisation collects 0.085 pence per streamed track, or 10.5% of your revenues, whichever is greater (and Purdham says that the UK's publishing costs are probably the cheapest in Europe). There are then hosting costs and the costs paid to record label saying that the hosting cost comes to about 0.03 -0.04 pence per stream and that the labels get about 0.8p per track streamed”. Purdham and Arthur then take’s Spotify’s own publicity material which says "Billions of tracks are streamed every month" and so taking a low estimate if 2 billion tracks per month streamed the maths is relatively simple – the costs will be approximately 0.9p per track x 2 billion - and that means that Spotify apparently owes £18m per month in music licensing costs. Even taking a the highest level of Out-law.com’s estimated income per month (£6 million), this is against three times as much per month owed in licensing charges.

Arthur then makes the point that there is a obviously a significant gap that would need to be plugged by adverting. He summarises thus:

“The final answer therefore on Spotify's costs? Much more - in theory - than my previous estimate. But, in reality very probably much less in reality than the calculations suggest. All the signs are that Spotify is getting an easy ride from the record labels, because the raw numbers would suggest that it's burning through anywhere north of £10m per month - which, even with the generous funding it has had, would simply be unsustainable”.

On the evidence available it does seem that the labels have, to an extent, been supporting the new service in return for a significant shareholding for a number of labels in Spotify. This might show a willingness of the labels to adopt realistic business models in the digital age although it does bring into question the position of the recording artists whose recordings are being used and who rely on royalties themselves - and are not shareholders in the service – and indeed whose sound recordings appear to be in the position of being licensed to a new service part owned by their own labels.

http://www.out-law.com//default.aspx?page=10434
http://www.guardian.co.uk/technology/blog/2009/oct/08/we7-spotify-music-licensing-figures

Stream may run dry for fans of free music The Times October 9th 2009 p32

Is Spotify a Trojan Horse for Music Record Labels? http://www.itproportal.com/portal/news/article/2009/10/9/spotify-trojan-horse-music-record-labels/

Merkel attacks Google’s book project

France may have reluctantly accepted Google’s plan to build a massive digital library of the world’s books but now German Chancellor Angela Merkel has waded into the debate on the eve of the Frankfurt Book Fair, appealing for more international copyright protection and saying that her government opposed Google’s drive for the giant online library full of the world’s books, warning of “considerable dangers” for copyright protection in the internet.

Google has already scanned in 10 million books but, in her weekly video podcast, Merkel said

“the Government has a clear position: copyrights have to be protected on the internet”.

In the US a court approved settlement between publishers and authors and Google is in its final stages with a lump sum payment and ongoing royalties payable for the use of literary copyrights -- but German book publishers have criticised European regulators for failing to oppose the settlement.

The Observer 11th October 2009, p35

New copyright journal

This year sees the emergence of a new kid on the IP journal block, the Harvard Journal of Sports and Entertainment Law. Editor-in-Chief Ashwin Krishnan writes:

"We are currently ramping up our operations and are actively soliciting and reviewing submissions as we speak. As we envision publishing our inaugural issue in the Spring, we were hoping to receive some coverage on your site, as many of the issues relating to Copyright Law would be ripe for coverage in our Journal. We would be honored to receive submissions from the numerous scholars and practitioners that visit your blog.

I am attaching a Call for Papers, which I am hoping you can post in some form on your blog. Please also feel free to direct visitors to our website here".

Good luck, says the 1709 Blog, we look forward to monitoring your progress.