News and views: snippets from Russia and Australia

The 1709 Blog's mailbox receives some interesting bits of news and comment. Just in are two items worth sharing with readers:

* Sasha Yelnik writes to tell us that, during a World IP Day meeting, the director of the Russian Authors' Society RAS said that the time has come to establish specialised courts that would deal only with copyright and the related matters. She adds:

"His suggestion was based on the increasing number and complexity of copyright infringement claims. Mr Fedotov from RAS thinks that the main reason for the phenomenon is the "legal nihilism that has become entrenched in the minds of the largest part of the society". Another problem which requires an urgent solution (which was not proposed at the meeting) is licensing music downloads from the internet (see Pravo here, in Russian) I think it is a big achievement that the need for specialised courts has been voiced and recognised but -- knowing the speed with which anything requiring at least a bit of formality is happening in Russia -- the realisation of the idea seems unlikely to take place in the foreseeable future".

* Anne Sanders (AAPT) writes on the subject of artists' resale royalties and asks: "Is the UK aware of the detail of Australian legislation?" She explains:

"It is nothing like the compulsory statutory licence that the the copyright agencies pursued. In fact, it is a poor precedent from their point of view. I believe that the agencies in the EU & UK might mention the royalty being adopted in Australia but forget to mention that:

(a) individual artists have an individual right to waive the royalty on a case-by-case basis (Clauses 22/23).

(b) the royalty will only apply to the first resales of artworks purchased AFTER the introduction of the legisalation. There is no royalty imposed upon the first resales of artworks purchase in the decades before the introduction of the act.

(c) the Australian scheme is sui generis - it is not an extension of copyright because even in its current form it is , too tax-like under our constitution to be part of copyright".

The European Copyright Code

This 1709 Blog team member has received so many emails drawing his attention to the launch yesterday of the European Copyright Code that he hopes this information is not equally old news for his readers. The Code is the result of the Wittem Project, established in 2002 as a collaboration between copyright scholars across the EU who were concerned with the future development of European copyright law. Its aim is "to promote transparency and consistency in European copyright law" and, incidentally, to remind legislators of the contribution that academics can make to a debate which is too often dominated by stakeholder interests and the pursuit of the nearest least-damaging compromise.

The Code is not a plea for harmonisation, a restatement of principles or a basis for codification of European copyright law. It takes into account the existing framework of international norms (essentially Berne and TRIPS) and, where possible, the Directives which have been inflicted on the EU Member States.

The Code's methodology is laid bare, its text is clear and its authorship is impeccable. For anyone wishing to be reacquainted of the fundamentals of the economic and moral dimensions of copyright, this is a very good place to start.

Football match lists – copyright penalty

Last week judgment was given in Football Dataco & Ors v Brittens Pools & Ors. Brittens Pools, Yahoo! and two betting companies had been sued for using the fixture lists of the English and Scottish leagues without a licence. Were the lists protected by database copyright, database right or non-database copyright?

IF YOU DON’T WANT TO KNOW THE RESULTS, LOOK AWAY NOW.

Database copyright: yes
Database right: no
Non-database copyright: no

Database copyright - s. 3(1)(d) CDPA

This protects databases that constitute the author’s own intellectual creation by reason of the selection or arrangement of their contents.

Football fixture lists do not easily fit the definition of a database. Usually a database would be the selection and arrangement of pre-existing chunks of information but the makers of fixture lists also create the chunks of information (X plays Y on date, home/away). The list makers select teams and arrange them to create chunks of information but they don’t select or arrange the chunks beyond listing them in chronological order. However Floyd J held that:

‘In my judgment the selection or arrangement required by Article 3(1) is not confined to selection or arrangement performed after the data is finally created. The process of selection and arrangement of the contents of a database can and often will commence before all the data is created. I see no reason why selection decisions made about the contents of the database in the course of arriving at the final version should not properly be described as selection or arrangement. To cut out from consideration these selection decisions, merely because they occur whilst the database is being created, seems to me to be arbitrary, and conceptually fraught with difficulty. Nevertheless it is necessary to focus on skill and labour which is actually concerned with selection and arrangement, and to exclude that which is not.’

Did the lists constitute ‘the author’s own intellectual creation’? Floyd J determined that the test was whether the selection and arrangement involved the author’s judgment, taste or discretion. How much of this would be required? A recital in the Database Directive might imply a high threshhold, saying that making a compilation of songs on a CD would not meet the conditions for copyright protection. On the other hand, a 2005 German database copyright judgment ‘plainly takes the view that not very much room for manoeuvre is required to allow for the creation of a copyright work’. The list makers, Floyd J held, had made a sufficient number of non-deterministic choices.

Database right – s. 13 Database Regulation

This protects a database if there has been a substantial investment in obtaining, verifying or presenting the contents of the database. Floyd J said that the lists were not protected for the same reasons the ECJ had given in the three Fixtures Marketing football lists judgments of 2004. Although there had been investment in creating the contents of the lists, there had not been any additional investment in ‘obtaining, verifying or presenting’ that contents. The purpose of the right was to promote investment in systems for storing and processing existing information, not the creation of materials capable of being stored.

Non-database copyright in a literary (written) work

Floyd J couldn’t conceive that the fixture lists attracted copyright protection beyond the selection and arrangement of data.

‘Stop, thief!’ Privacy and copyright give chase

During a burglary on the night of 29–30 March a laptop was stolen. On the laptop there were images of its owner and others. The laptop’s owner successfully applied for an interim injunction preventing these images from being sold and published. The injunction was based not only on infringement of privacy but copyright infringement too – a friend had made an assignment of copyright to the laptop’s owner. Presumably an account of profits in a copyright claim of this nature could add substantially to the damages.

In yesterday’s judgment, TUV v Persons Unknown, Mr Justice Eady considered how many media companies should be given notification of an application for an injunction not to communicate stolen data. Since Sir David Eady is responsible for many English privacy law judgments, it was no surprise that he found himself quoting a previous judgment of his to reach a conclusion. ‘Taken at face value,’ he went on to say, ‘it is hardly surprising that a reader would infer from this passage that there is indeed an obligation to give prior notice to all relevant third parties.’ However, not prepared to take his own words at face value, Sir David then quoted Sir Charles Gray’s interpretation of his words:

‘ … Eady J cannot have been contemplating an obligation being imposed on individual claimants, who may be of limited means, to arrange through their legal advisers to serve what might be a substantial body of evidence on a large number of media non-parties. It seems to me that the obligation to serve them must, as a matter of common sense and economy, be confined to those media organisations whom the claimant has reason to believe have displayed an interest in publishing the story which the claimant is seeking to injunct.’

So did Eady J take his own words at face value or follow Sir Charles’s view?

‘It is probably appropriate to have in mind the court’s objective in these cases; namely, to provide a fair and practical balance between the potentially competing Convention rights of the relevant protagonists. As I pointed out in X & Y, it is necessary to take account of “a proper consideration for the Art.10 rights of media publishers” as well as paying due regard to the rights of an applicant under Article 6 and Article 8. That is what arises in all of these cases. When the court is confronted with a need to balance competing Convention rights, it will rarely be appropriate to adopt a blanket approach or apply a rule of thumb. Usually, it will be right to arrive at a conclusion in the light of an “intense focus” upon the particular facts: see e.g. Re S (A Child).’

He concluded that ‘the law should only impose an obligation to notify those who are already believed to have shown some interest in publishing.’

So in arriving at a decision on this point, a judge should balance media publishers’ Article 10 right (Freedom of Expression) and an applicant’s Article 6 (Right to a Fair Trial) and 8 right (Respect for Private and Family Life). But there is one right missing from this list: First Protocol, Article 1 (Protection of Property), i.e. copyright.

More privacy plus copyright cases are likely in the future. Millions of photos are uploaded to social networking sites on a private basis but can (and are) easily downloaded and shared outside of the private circle. The human rights that are balanced will have to budge up to make room for another right. But what if the Conservative Party scrap the Human Rights Act? Too late to wipe, these rights are backed up – by the Treaty of Lisbon.

Parody as a defence: an academic speaks

Next Thursday, 29 April, 6pm to 7.30pm, Professor Ronan Deazley (Glasgow University) is delivering the CIPPM Annual Lecture, "Parody, and its Discontents", down on the sunny south coast of England at Bournemouth University.

Right: some works just lend themselves to parody -- American Gothic has been the subject of several cultural and social comment parodies, of which this is one. Grant Wood's original is here. Some other parodies can be seen here.

According to the abstract,

"In 2006 the Gowers Review of Intellectual Property made a series of recommendations for reforming the intellectual property regime to better serve the interests of both consumers and industry. Among the proposed recommendations was that an exception for parody be introduced within the Copyright Designs and Patents Act 1988. In January 2008 the Intellectual Property Office (the IPO) launched the first part of a two-stage consultation process entitled Taking forward the Gowers Review of Intellectual Property: Proposed changes to copyright exceptions. As part of that consultation process the IPO proposed a "fair dealing style exception" for parody, and sought views on whether a new exception should be introduced as well as what form it might take.

In December 2009 the IPO launched the second stage of this consultation process. The Second Consultation document rejected the case for a new parody exception. This lecture considers the place of parody within the copyright regime, and the objections levelled against the introduction of an exception set out within the IPO's Second Consultation document.

It invites the IPO to reconsider its decision not to recommend the introduction of a specific exception for parody within the UK".

Professor Deazley has authored an impressive 33-page response to the Second Stage proposals on behalf of the Intellectual Property Foresight Forum (IPFF), which you can read here.

Please note (say the organisers): The topic of the lecture has been changed in response to recent policy developments. Full details of the lecture can be found here. To reserve a place, please email Denise George.

Recent publications and copyright materials

An attractive publication for people who toil in the fields of archives and record management is the fourth edition of the aptly-named Copyright for Archivists and Records Managers, by Tim Padfield. The author, who has some three decades' experience in what is now The National Archives, is also chair of the Libraries and Archives Copyright Alliance (LACA).

In the book's web-blurb, publishers Facet explain what this book is about though, with four editions coming out within a space of just nine years, it will need neither explanation nor introduction for its regular readers:

"As an archivist or records manager it is essential to keep up to date with the complexities of copyright legislation, and Copyright for Archivists and Records Managers will prove an invaluable tool in enabling you to do so.

What is copyright? Who owns it and for how long? What rights does it confer, and what are the limitations and exceptions? This comprehensive manual uniquely outlines copyright law in the UK with special reference to materials relevant to archive and records collections such as maps, legal records, records of local authorities, records of churches and faiths, most notably unpublished works. It also offers advice on rights in the electronic environment and the problems associated with rights clearance; and covers related areas such as moral rights and rights in databases.

The fourth edition of this respected work has been extensively revised and updated to include:

* advice to take account of recent decisions of courts in the UK and of the European Court of Justice, for instance on the nature of a ‘substantial part’ of a copyright work
* a list of key points about copyright that frequently raise questions, such as the duration of copyright in works whose copyright is owned by companies and other bodies
* details of the duration of copyright elsewhere in the British Isles and in Gibraltar [having had to chase up copyright duration and other information for, inter alia, Gibraltar and the Falkland Islands, I know how useful this sort of information can be]
* details of the duration of copyright in a selection of overseas countries: Australia, Barbados, Brazil, Canada, China, Egypt, Hong Kong, India, Israel, Jamaica, Japan, New Zealand, Russia, Singapore, South Africa, Switzerland, Turkey and the USA
* changes to the licensing of Crown copyright material
* advice on liability [the 1709 Blog's advice is "avoid it"]
* a discussion of the legitimacy of the electronic supply of copies by archives.

Readable and accessible for people without legal training, this approachable guide is essential reading for archivists and records managers. It will also be of substantial value to LIS professionals in libraries, museums and galleries, to students, researchers and genealogists, and to anyone who wishes to understand the implications of copying without recourse to legal texts".

This book certainly does what it says on the cover and, at the rate things are changing, a fifth edition must be expected in the next year or so.

Bibliographic details: xv +345 pages. Paperback. ISBN 978-1-85604-705-0. Price: £49.95 to ordinary mortals, £39.96 to members of CILIP. Book's web page here.

Meanwhile, the Copyright Clearance Center has not been idle. Here are some recent items that may interest readers of this weblog:

* An article has just been published on Publishing Perspectives on the current and future state of copyright. In the article, Copyright Clearance Center's CEO Tracey Armstrong discusses her belief that copyright holders have the right to price and term their works and the ways in which this can be achieved in the digital world. You can find it here.

* An interview was conducted between Copyright Clearance Center’s Chris Kenneally and the Electronic Frontier Foundation’s attorney Fred Von Lohmann at CCC’s conference OnCopyright. During the interview Fred reflects that, just as broadcast radio and VCRs challenged existing business models for the media, the internet is doing so today. He expects that, within 5 to 10 years, the kinks in copyright law will all be worked out. If you want to know what has generated such optimism you can listen to it on the CCC podcast Beyond the Book here or read the transcript here.

* Next Tuesday, 27 April, there's a live podcast which promises to explore mobile content, how much publishers should charge for it and how users can share it. During the programme, listeners can call in and participate in the debate. The show is scheduled for 2pm EST and you can access it here. The podcast, put together by CCC, is hosted by author and digital media authority Bill Rosenblatt with Director of Author Relations and host of Beyond the Book Chris Kenneally.

* The latest issue of Research Information contained an article featuring Tracey Armstrong and gives information on how CCC handles copyrights for ebooks. You can find the article here, though you’ll need to scroll down a bit for Tracey’s part".

Call for Disclosure - a response

Last night, the writers of this blog, alongside a plethora of other copyright bloggers, received an email from one "Wayne Borean, aka the Mad Hatter", who blogs on (among other things) copyright matters in his home nation of Canada.

The essence of Mr Borean's email is the following "several writers who are legal professionals have written articles under their own names, which quite possibly are being influenced by their professional work. This is not to say that the influence is in any way wrong, but rather that if there is a connection, it should be disclosed, even if the writing is of a personal nature, so that the reader can consider that connection when evaluating the article..." - you can read his "call for disclosure" and his request that we should swear affidavits [sorry Wayne, no] in more detail here

From this writer's perspective, the answer is clear - under the ethics rules applicable to my profession, I can only disclose the names of my clients and the work I do for them with the consent of those clients. However, it would not take an interested reader (should such a thing exist) very long to find a range of client names either on my firm's website or in various legal directories, such as the Legal 500 or Chambers - from which they would discover that we have clients on all sides of many controversial issues of copyright law, from studios and record companies to ISPs and telcos. Indeed, many large companies have conflicting views between different divisions on some of these issues - think of what will happen when the Comcast/NBC Universal merger closes - or even within divisions; broadcasters are the creators of copyright programmes but are also heavy "consumers" of the works of other rights holders.

Most lawyers are the same - we are paid to argue for a client's position, whether it accords to our personal views or not. But when it comes to writing a blog, while I agree that, if one is advocating a cause on behalf of a client, that should be disclosed, the default should be taken as read that we have a professional interest in copyright matters.

At a more philosophical level, I wonder why legal professional bloggers are held out for particular scrutiny - surely the same accusation could be made against anyone in the blogosphere? The regular occurrences of people trying to (mis)use blogs for PR purposes are not normally conducted by lawyers or indeed using anyone's real name.

And why does it matter? It is not as if blogs such as this are in a position of power. I am reminded of a maxim often quoted by Tony Benn (who, for non-UK readers, was a high-profile left-wing politician here in the '60s and '70s), who used the following (and variations on it) to measure democratic accountability "If one meets a powerful person--Adolf Hitler, Joe Stalin or Bill Gates--ask them five questions: "What power have you got? Where did you get it from? In whose interests do you exercise it? To whom are you accountable? And how can we get rid of you?""

1709 falls at the first question - we have no power, so are free to express our views without answering the other questions. I occastionally read postings on this blog, posted by my co-authors, with which I do not agree - but I defend absolutely their right to say it - and if I do disagree, then like other people, I have the right to add my own comments.

Paper.li - a Twitter moneyspinner

Paper.li is a new site that allows you to turn your Twitter feed into a newspaper. Where a tweet hyperlinks to another site, paper.li displays the entire article without redirecting you to the source - which gets no traffic or advertising revenue. A news-reporting copyright exception seems ambitious - apart from anything else, the articles aren't all news stories. (For what it's worth, the user terms are governed by Swiss law.)

The 'Daily on Twitter' newspapers are covered in advertising (supplied by Google). 'Paper.li is not affiliated, sponsored or endorsed by Twitter', which presumably means they don't make anything out of this either.

Can paper.li last long enough to be tomorrow's fish 'n' chips wrapper?

Limited term assignments: a reader writes ...

One of this blog's readers has posed the following question and would welcome responses (posted below as comments, please!):

"In an assignment of copyright for a limited period (where ownership is assigned for a period of, say, two years and thereafter the ownership will revert back to the assignor), is it possible, or reasonable, to insert a clause into the assignment agreement that the assignment (which is essentially a sale of the copyright) is personal to the assignee and shall not be directly or indirectly transferred, disposed of, encumbered or shared with any party, other than on the express terms of the assignment agreement? Can the new owner of the copyright, albeit only for a limited two year period, be restricted in this manner?"

When commenting, please indicate -- if it's not immediately apparent -- the jurisdiction from which you hail.

Resale rights: the Dali ruling

Yesterday, in Case C‑518/08, Fundación Gala-Salvador Dalí and Visual Entidad de Gestión de Artistas Plásticos (VEGAP) v Société des auteurs dans les arts graphiques et plastiques (ADAGP) and others, the Court of Justice of the European Union ruled on how the meaning of Article 6(1) of the EU's Resale Right Directive 2001/84.

The ruling was prompted by French proceedings in which the court wanted to know whether resale right royalties for French sales of Salvador Dalí's works should be payable to (i) the sole legatee appointed in the painter's will -- this being his Fundación -- or (ii) his legal heirs, as French domestic law requires. According to Article 6(1) of the Directive, Member States had to introduce the resale right by 1 January 2006, entitling an artist or, after death, "those entitled under him" to receive that royalty when their original works of art were resold. But what did "those entitled under him" mean?

According to the Court of Justice, there was nothing in Article 6(1) to stop the French limiting the benefit of the resale right to the author's heirs, even if that was to the exclusion of legatees or other successors in title. Nor was there anything in the Directive to rule out the application of rules for resolving conflict of national laws on succession. In short, it's for the referring court to take due account of all relevant rules for resolving conflicts of laws relating to the transfer on succession of the resale right.

As in the case of other IP rights and pseudo-rights, issues involving the ownership and devolution of the resale right are clearly seen in the EU as a fit subject for national law rather than for harmonisation. While testamentary disposition does not normally affect the manner in which the single market works in Europe, it can leave messy and inconvenient loose ends for heirs -- and bodies representing them -- to deal with.

Spotify - full house or flushed away?

BASCA, the association that represents songwriters, composers and authors, has hit out at Spotify saying that the payments for copyright uses generated by the streaming on demand service are "tiny" and called for the company to be more transparent about the nature of its business. Last year it was claimed that over a five month period there were over one million plays of Lady Gaga's hit Poker Face – the most downloaded song in the British chart history, and one of the most successful songs of the 21st century to date – but this earned the songwriters just $167 from Spotify. BASCA CEO Patrick Rackow told the BBC: "At the moment, the amounts of money that are actually being received are tiny. That might be because there is no money there. But there is no clear trail that can be established so that the songwriter can trace back what they ought to have got. These things are behind a blanket of secrecy, and that is extremely worrying and Rackow added "The danger is that these deals all become so secret that the mist that descends creates uncertainty, creates fear. That allied to the fact that the sums being paid through are very small creates a climate of suspicion. I think it harms Spotify, it harms the writers' perception of Spotify and this is a service they want to support."

The Swedish-owned company, set up by serial web entrepreneur and a technologist Daniel Ek has been hailed by some as a saviour of the music industry, offering users free streaming of a huge catalogue of music punctuated by short adverts. A monthly premium of £9.99 allows users uninterrupted access to the catalogue. The service is part owned by the major record labels.

Spotify would not comment on the BASCA claims, but has said that as more subscribers sign up and advertising revenue increases then that money will trickle down to the people who make the music.

http://www.guardian.co.uk/music/2010/apr/13/spotify-songwriters
http://www.spotify.com/int/about/press/background-info/
See our previous blog on Spotify here
http://the1709blog.blogspot.com/2009/10/spotify-musics-holy-grail-or-tune.html

Do not adjust your sets -- just amend your records

This morning's online version of the Official Journal of the European Union brings the full text of a brand new piece of EU legislation: Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive). It's nothing to panic about, though. Directive 89/552 -- the original Directive -- has been substantially amended several times and, "in the interests of clarity and rationality the said Directive should be codified".

You can access the new Directive here.

If Google paid us every time we clicked...

Last week photographers, illustrators, graphic artists and photo libraries launched a suit against Google, centred on Book Search and the Book Settlement. It alleges that Google reproduced visual works (scanning more than 12 million books), distributing and publicly displaying them. Google, it says, has posted them on its website and stated its intention to exploit them via the Settlement’s book sales and subscriptions.

Get the picture?

Google Book Search displays images in books for which Google has a licence from the publishers. Otherwise it only displays thumbnail jacket images.

The Settlement, for the most part, excludes visual copyright authors but not necessarily images. A Google spokesperson, as reported by Erick Schonfeld of TechCrunch, said: ‘If the book’s rightsholder also owns the copyrights to the photographs in the book, then those images will be included. If they don’t, then the photographs won’t be displayed.’ Publishers can claim that they own images’ copyright by ticking a box on the Settlement claim form.

Thumbnails, digital rights and libraries

The recent French judgment held that Book Search’s jacket thumbnails infringed (small but all there) – would US law give them a thumbs down? In Perfect 10 it was held that Google’s thumbnails in Image Search were ‘highly transformative’ fair use. However, there is a difference between the index of thumbnails generated by a search engine of the Web and Book Search’s catalogue of Google’s book database.

The next question is whether the images in the books licensed to Google by the publishers (for Book Search or the Settlement) have been licensed by the authors and right owners. Needless to say, whether publishers own digital rights is a question that can only be determined by detailed contractual analysis. Not only can a single word turn a contract on its head but choice of law leads to different attitudes to digitization: French law is systematic, Germany’s new law is controversially retrospective, New York law and Californian law are a continent apart and English law is a barrister’s field day.

As for infringement through ‘distribution’, it seems likely the plaintiffs will point to Google’s deal with the libraries that let them scan their collections. Google sends them a copy of the scan as payment.

Cropped

The plaintiffs objected to the Settlement on the grounds that having previously been included in the complaint’s class, they were later dropped. They may have less to complain about than writers (there never was much mileage in snippets from pictures) but it may be that this fresh claim will zoom in on the problems of digital rights ownership and Google’s contracts with the libraries. If they succeed, the Settlement will find itself blocked by an injunction.

Since it’s another class action, what about non-American photographers, graphic artists and picture libraries? That has yet to come into focus. And damages? They’re high – after all, there’s no limit to the cost of a click.

A toast to creativity

300 years ago, on 10 April 1710, the Statute of Anne came into force. Its purpose was 'the Encouragement of Learned Men to Compose and Write useful Books'.

The talent, intelligence and hours and hours of hard graft that our best authors put into writing books is truly staggering and humbling. Let us hope that in this digital era - when things of the highest cultural value are expected to be free and cutting & pasting is considered a great achievement - that those amazing writers, and other creative people, continue to feel encouraged to dedicate their lives to what is an extremely arduous but mind-blowing purpose.

I would like to propose a toast: 'To creativity!'

Last Rites for the Digital Economy Bill

This morning, the list of amendments to the Digital Economy Bill to be debated today was published here. The "committee" debate will take place today, with third reading tomorrow to allow the Bill to pass into law before Parliament is dissolved on Monday in advance of the forthcoming election.

As regards "orphan works", the Government has admitted defeat in the face of a campaign by photographers - an amendment in the name of Ben Bradwhaw (pictured right) the Secretary of State proposes the deletion of the whole of Clause 43 - with the Tories opposing the provisions, they stand no chance of becoming law in the "wash-up" process. This will come as a huge disappointment to many who saw the provisions as providing an opportunity to release swathes of material that is locked away in archives because it is not possible economically to clear the underlying rights.

The Government has also dropped clauses 1 (giving specific new powers to Ofcom) and 29 (dealing with the new funding mechanism for regional news on ITV).

It pays to read the whole document - although the existing "clause 18" is also to be deleted, the concept embodied by that clause, the power to introduce "site blocking" as an anti-piracy measure, lives on (as a new clause at the very end of the list of amendments) despite the controversy it has created - the Secretary of State will have powers (subject to jumping through various hoops - including a "super-affirmative" process in the Houses of Parliament) to introduce "the granting by a court of a blocking injunction in respect of a location on the internet which the court is satisfied has been, is being or is likely to be used for or in connection with an activity that infringes copyright."

Developing countries, moral rights and cultural heritage

On 23 March SABIP hosted an event to explore possibilities for new UK moral rights legislation (see IPKat post). The event began with a session in which the different moral rights systems of various countries were reviewed. These talks have now been uploaded to YouTube. Dr Makeen Makeen's overview of developing countries is particularly fascinating. He explained that:

'In the last fifteen years the “developing countries” have been incredibly active in enacting new pieces of legislation either because they never had copyright law before and they were introducing copyright law for the first time or to expand the scope of the already existing law. Why did they do that? They did that because in 1994 we had what's sometimes referred to as a “swear word” in the developing countries, which is TRIPS. If you want to join the WTO you have to comply with the requirements of TRIPS – otherwise you would become one of the “them”, so all the developing countries wanted to be one of the “us” and they passed new laws to comply with TRIPS. Although TRIPS did not ask any developing country to offer moral rights protection, most of the developing countries who enacted new laws or expanded the already existing laws in the last fifteen years offered a very comprehensive type of moral rights protection.'

Their reasons for doing this were:
1. to sell TRIPS to their own public. 'So whilst their own public were saying, Oh, we are selling out all our national interests ... We are going to get nothing out of protecting foreign copyright works,' moral rights were used as a way to convince their public 'that copyright is not a harmful thing'.
2. There is more to gain than to lose from moral rights.
3. Some countries hope they can protect their cultural heritage through moral rights. On 7 May WIPO is discussing a text to protect traditional knowledge and expressions of folklore. The text is recognizing a type of moral rights to protect cultural heritage.

Other interesting points include: developing countries either followed a civil law system or the common law copyright system, but not according to colonial links. In civil law countries, there are two different standards for the right of integrity, one for their own nationals and another for foreigners: the right is applied subjectively for their own nationals (you don't have to prove your honour is damaged), but objectively to translations so the countries can reliably gain access to foreign works.

Something to read -- or to listen to

From Natalie Nathon comes this link to "Games and other uncopyrightable systems". The subject of this post from Bruce E. Boyden (Marquette University Law School) is news that a fascinating article under that title has been uploaded here on the Social Science Research Network (SSRN). According to the abstract:

"This article solves two puzzles in copyright law. First, it has long been blackletter law that games are not copyrightable [in the USA, maybe, but elsewhere ...?]. But the origins of this rule are lost to history, and the reasons for it are not obvious. Second, it has never been adequately explained what makes something a “system” excluded from copyright protection under Section 102(b) of the Copyright Act. Modern courts interpret “system” as merely a synonym for “idea” or “process,” two other categories of exclusions. Others have interpreted it using the broadest definition in the dictionary, which would sweep in large amounts of copyrightable material as well. Neither definition gives the term any meaningful content.

Like solving a crossword puzzle, this article uses each of these questions to shed light on the other. Games are uncopyrightable because they are systems. The case law that led to the adoption of Section 102(b) demonstrates that systems are schemes for transforming user inputs into a correlated set of outputs. Games do exactly that. A game is a scheme for transforming player activities into moves within the game. The reason why games and other systems are uncopyrightable then becomes clear: the purpose of a system is to serve as a forum for user activity; it is users, not authors, who provide the primary informational value to the outputs of a system. Games and other systems are excluded in order to fence in copyright protection before it reaches user creation".

From Gina Preoteasa (Trylon) comes news of a new podcast from Copyright Clearance Center’s Beyond the Book podcast. This podcast features William Patry (Senior Copyright Counsel, Google). Bill talks about his book Moral Panics and The Copyright Wars, "the lightning pace at which technology is changing our content consumption and the fact that copyright must adapt to our changing behaviors". Podcast here; transcript here.

Patry enthusiasts may not want to stop at the podcast though. The author has a blog bearing the same title here, and the book, published by Oxford University Press, is available here. If you want to know what's about, this is how the publishers describe it:

"Metaphors, moral panics, folk devils, Jack Valenti, Joseph Schumpeter, John Maynard Keynes, predictable irrationality, and free market fundamentalism are a few of the topics covered in this lively, unflinching examination of the Copyright Wars: the pitched battles over new technology, business models, and most of all, consumers.

... William Patry lays bare how we got to where we are: a bloated, punitive legal regime that has strayed far from its modest, but important roots. Patry demonstrates how copyright is a utilitarian government program--not a property or moral right. As a government program, copyright must be regulated and held accountable to ensure it is serving its public purpose. Just as Wall Street must serve Main Street, neither can copyright be left to a Reaganite "magic of the market."

The way we have come to talk about copyright--metaphoric language demonizing everyone involved--has led to bad business and bad policy decisions. Unless we recognize that the debates over copyright are debates over business models, we will never be able to make the correct business and policy decisions.

A centrist and believer in appropriately balanced copyright laws, Patry concludes that calls for strong copyright laws, just like calls for weak copyright laws, miss the point entirely: the only laws we need are effective laws, laws that further the purpose of encouraging the creation of new works and learning. Our current regime, unfortunately, creates too many bad incentives, leading to bad conduct. Just as President Obama has called for re-tooling and re-imagining the auto industry, Patry calls for a remaking of our copyright laws so that they may once again be respected".

For the record, the book's ISBNs are 9780195385649 and 0195385640. It's a hardback, xxiv + 266 pages -- and it's a snip at just $29.95.

Don't like the CDPA? Vent your spleen here

SABIP, the Strategic Advisory Board for Intellectual Property Policy in the UK, has put out a Tweet to the effect that it wants to hear from you on one of its forums as to what you think of the Copyright, Designs and Patents Act 1988. If you want to tell SABIP that this is the most chaotic piece of intellectual property legislation in force anywhere in the world, with (i) a multiplicity of definition sections, (ii) a separate section that lists the addresses of definitions not contained in the definition sections, (iii) vast chunks of amended legislation tacked on with peculiar section numbers that can be easily misunderstood over the phone, (iv) user-unfriendly transitional provisions that could really benefit from accompanying flow-charts and (v) swathes of Statutory Instruments that you need if you want to work out what the law really is, then this is your chance. Just click here.