The Hargreaves Review – perhaps we don’t have to make heavy weather of this

Last year David Cameron initiated a review of the UK’s IP law – to come up with proposals for how it can further promote entrepreneurialism, economic growth and social and commercial innovation. The review subsequently issued a call for evidence (deadline 4 March). This sets out specific questions but welcomes contributions beyond their scope. Some of the questions are about copyright and some about enforcement.

Given that economic data about copyright is extremely limited, this seems like a good idea in theory, but very ambitious in practice. Won’t it be difficult to conjure up new significant, reliable and balanced economic data in this timeframe?

Perhaps I can help? I wondered. I checked the bottom drawer of my desk. No unpublished economic studies languishing there… How about my own experience? Could that count as a case study?

During the Nineties and the Noughties I spent about fifteen years working in book publishing in editorial and legal capacities. I attended hundreds of editorial meetings and reviewed thousands of book proposals. Some of our authors were certainly groundbreaking economic successes – Nick Hornby and Terry Pratchett spring to mind.

Did copyright law support the publishing business? That’s easy – yes, without it there would be no publishing business. Did copyright law ever get in the way? That’s easy too – no. I never once heard anyone say they couldn’t publish a book because of copyright law (libel law, that’s another story). Is it different in the US? No. Has digitization made a difference? No.

There – that wasn’t so difficult. Next question?

"Win the game or lose the plot?" seminar on plots, formats and themes

"Win the game or lose the plot?" This seminar on the copyright aspects of plots, themes and formats takes place in London on 9 March, at Hardwicke, Lincoln's Inn.  It has a half-day structure (11am to 3pm) and carries three CPD points.  The programme runs is as follows:

* Fact and fiction: recent UK case law on protecting plots (Mark Engelman, Hardwicke)

* Protecting computer games and business programs: is it possible? (Shireen Peermohamed, Harbottle & Lewis)

* Music themes (Nick Kounoupias, DHM Stallard)

* Plots, themes and formats - a US overview (Annsley Merelle Ward, Collyer Bristow)

* How do other countries handle these problems? (Rebecca Dimaridis, Jeffrey Green Russell)

* If copyright won’t provide protection, what of other IP rights? (Birgit Clark, Berwin Leighton Paisner)

Jeremy Phillips (1709 Blog; IP consultant, Olswang LLP) will be in the chair.

Registration is £70, inclusive of VAT and lunch. For further details click here or email Lisa Pick or phone her on +44 20 7242 2523.  Early booking is advised.

The New Renaissance

In April last year the European Commission commissioned a reflection group (‘comité des sages’) to make recommendations for bringing Europe’s cultural heritage online. The Comité has now delivered their report, ‘The New Renaissance’.

As well as looking forward to EU orphan works legislation, the Comité would like to avoid future orphan works by introducing registration for copyright. ‘Refreshing’ the Berne Convention is in order. ‘Creative production is exploding online (e.g. user-generated content) without a clear indication of how to contact the creator…’

They would like to see all out-of-distribution works digitized even if they are not orphans. If right owners don’t want to exploit, digitization should be paid for with public money. ‘It may be necessary to collectively manage the rights to older out of distribution works’ with remuneration for rights holders and the possibility to opt out. They believe that the primary responsibility must rest with the public sector, though in partnership with the private sector with up to 7 years preferential use by private partners.

According to the report:

‘The ease with which today’s users can access big search engines and platforms and find an overwhelming offer of information, books, newspapers, websites, archival material, pictures, music or movies naturally leads to expectations towards cultural institutions. Accustomed to the comfort of search engines and new services, they expect to find everything on the web. “What is not on the web, does not exist” is the core of their belief and behaviour. What is on the shelves, in the archives, in the exhibition halls of cultural institutions will soon fall into oblivion, if it is not digitised and offered alongside the born digital works and all the other internet services.’

It seems that in the New Renaissance people will never travel to exotic places to see real works of art (to be astonished by their size or mesmerized by their brushstrokes). They will work as scanning-machine engineers, obesity doctors or information-overload therapists. And one day someone at the central cultural website Europeana will finish reading the last Mills & Boon novel, inspecting the last photograph of a coin and watching the last episode of Coronation Street and in a moment of joyous liberation he will reach for the big Delete button … and the Renaissance will slide peacefully back into the Dark Ages.

Court sheds light on lamp protection

It's not the sort of case that crops up on a daily basis, but Case C‑168/09 Flos SpA v Semeraro Casa e Famiglia SpA, a Court of Milan reference to the European Court of Justice for a preliminary ruling, does raise some interesting points of principle.  What happened here is that Flos's classic Arca lamp, created in 1962, was originally protected by design law in Italy but fell into the public domain.   Subsequently, when Italy implemented the Design Directive (Directive 98/71), the lamp fell back into the private domain, this time being protected by copyright.  Semeraro imported Chinese Fluida lamps which looked pretty much the same, so Flos sued for copyright infringement.

Now different versions of the Italian law (i) provided for a 10-year moratorium on enforcing copyright against defendants trading in re-protected works or (ii) provided that they couldn't be sued for an indefinite period of time.  Were these laws compatible with the Directive's Article 17, which states:

"A design protected by a design right registered in or in respect of a Member State in accordance with this Directive shall also be eligible for protection under the law of copyright of that State as from the date on which the design was created or fixed in any form. The extent to which, and the conditions under which, such a protection is conferred, including the level of originality required, shall be determined by each Member State".

No, said the court, Italy was precluded from enacting moratoria which eroded the effective benefit that copyright was intended to confer. This ruling is particularly interesting in its analysis and application of the principle of the protection of legitimate expectations -- a doctrine that doesn't get discussed in IP cases before the ECJ.

The Digital Economy Act – a technical point

As BT and TalkTalk Broadband prepare for the judicial review of the Digital Economy Act, the Act itself continues quietly to prepare itself for life post-JR. The statutory instrument that apportions costs for the Initial Obligations (right owners pay 75% and ISPs the rest) has now been laid before Parliament. The cost split needs to be approved for inclusion in the Code for Initial Obligations, which has a completion deadline, I think, of 8 March.

The consultation over costs took place in Spring last year and the Government published a draft SI in the autumn, which then disappeared for three months. The Government had decided the SI had better be notified to the European Commission under the Technical Standards Directive separately from the Code. The Directive requires Member States to send the Commission ‘draft technical regulation’ (including requirements relating to the provision of electronic services) in case it presents barriers to trade.

Compliance with the Directive is one of the key grounds for JR – the ISPs say the Government should have notified the Digibill itself to the Commission (JR grounds here). Is the Government’s notification too little, too late?

I wonder what readers think? The Technical Standards Directive doesn’t apply to rules relating to matters covered by EU telecoms legislation – Art 1(5). Doesn’t telecoms law cover the DEA’s areas? The Authorization Directive allows governments to impose conditions on ISPs in accordance with the E-Commerce Directive (Art 15 covers requiring service providers to inform about illegal activities) and the Framework Directive covers measures restricting end users’ access to the internet.

ACS:Law seeks to end pursuit of alleged file sharers

The BBC and Which? both report that Andrew Crossley, the lawyer behind controversial law firm ACS:Law, has withdrawn from pursuing 26 alleged illegal filesharers, blaming “criminal attacks” and bomb threats as reasons. In a statement read out in court by Tim Ludbrook, barrister for MediaCAT, Crossley’s client, Mr Crossley says "I have ceased my work...I have been subject to criminal attack. My e-mails have been hacked. I have had death threats and bomb threats," adding "It has caused immense hassle to me and my family". This Blog previously reported (28/09/10) that in September, ACS: Law was the victim of a cyber attack which exposed thousands of its e-mails which provided personal details of the people ACS:Law were pursuing and the pornographic films they were accused of downloading for free. That data breach is the subject of an ongoing investigation by the Information Commissioner. Which? had complained to the Solicitor's Regulation Authority over ACS: Law's 'bullying' and 'excessive' behaviour in 2009.

Colin Birss QC, Judge of the Patents County Court, seems rather unimpressed with ACS:Law and Mr Crossley, with the BBC reporting that Judge Birss described the twists and turns as "mind-boggling" and saying “I am getting the impression with every twist and turn since I started looking at these cases that there is a desire to avoid any judicial scrutiny”. But it was the detail that came out in court that was fascinating – and the court heard that when any revenues are generated from ACS:Law’s actions, the law firm received a 65% share with copyright owners getting 35%. The monies are primarily from members of the public who have settled after receiving letters threatening a court action unless a payment of £500 is made.

The BBC reports that in his statement Mr Crossley said of the 26 potential actions "It has always been my intention to litigate and, but for the fact that I have ceased this work, my intention was to litigate forcefully in these 26 cases”. The court was not going to automatically agree to that either and Judge Birss said granting permission to discontinue the cases was not a simple matter, due largely to the fact that the actual copyright holders were not in court. This meant that, in theory, these copyright holders could continue to pursue cases against the 26 defendants. The case seems to have been made even more complicated by the fact that a new firm, GCB Ltd, had begun sending similar letters, including one letter to one of the defendants who had been told just the day before that no further action would be taken, although Mr Crossley said in his statement that there were "no new letters pending" and that GCB Ltd had also halted its work. He then explained that he had no connection with GCB Ltd beyond the fact that the founders of the firm had previously been employed at ACS: Law.

http://www.bbc7.co.uk/news/technology-12253746

http://www.which.co.uk/news/2011/01/acs-law-stops-pursuing-file-sharers-243011/

Russia Prosecuting Online Infringement. For the WTO?

The Criminal Code of the Russian Federation provides for those convicted of copyright infringement to forfeit up to 18 months of their wages, among other possible punishments including jail time or work-relief.  (Art. 146.) 

Rumor has it that though Russia has these laws on her books, their enforcement has been less ideal.  According to an AFP story on Yahoo! News, Russia is working to change that.  The proposed motive: entry into the WTO.

The Recent Enforcement

Basic story-line, young man uploads music tracks to a social networking site without permission from the copyright owner.  Other users download the songs.  In this case, the Russian music tracks uploaded by the young man were downloaded over 200,000 times by other users.  The young man was caught and prosecution charges filed.

High-profile raids to confiscate infringing goods have also increased in the move to step-up enforcement.

The WTO Relationship

According to the AFP story, Russia is increasing its copyright enforcement in order to finally join the WTO, a process it began in 1993.  The article states, “Russia's inability to implement any meaningful form of copyright protection has been one of the main issues raised by the United States during the latest rounds of two sides' World Trade Organization negotiations.”

Some other research sheds some doubt on this reasoning.  Russian WTO negotiations with IP-promoting Western governments have been going well recently.  The EU backed Russia for WTO admittance late last year and negotiations with the US have been progressing with the support of President Obama.  (See here, here and here.)  And while there is some discussion of intellectual property enforcement being a problem, the major barriers remaining are more likely tariffs.

This is not to say that increased enforcement will not help Russia in its bid for the WTO, but merely to suggest that it is not quite as an important factor as the AFP story suggests.  At the very least, such enforcement should help get Russia removed from the Priority Watchlist in the infamous Special 301 Report (pdf).

Pirate Party General Assembly Announced

Readers interested in all aspects and all sides of copyright may find a frolic to Germany an amusing way to spend the pre-Ides of March weekend. The Pirate Party International has announced that its General Assembly will be taking place in Friedrichshafen in a few months.

The General Assembly meeting’s main events include:

• Electing a new board, apply here
• Discussions of amendments to the PPI statutes, submit proposals here
• Decisions on new members

There will also be an Open Space workshop: 

“Open Space Technology is a powerful tool that allows [sic] to handle the most complex matters with the ease of a coffee break, and will allow us to take a glance at the future of the PPI.

We'll open a space where you'll work with other pirates to identify and address the most important issues in your work, your organization and your community. Come prepared with your own burning questions and pressing needs... and be ready to address them in a dynamic, high-learning environment.”

Non-members are welcome to attend as guests and each member can register up to six official delegates.  If think it would be much more interesting to have a six-way split personality than just be yourself, you can apply for membership here.

If any 1709 readers attend the conference, we would love to hear from you after the event.

Details

Location: Messehalle Friedrichshafen, Friedrichshafen, Deutschland [As this is in the very southern part of Germany, attendees might have some trouble pulling their boats into town.]

Dates: 11 – 13 March 2011 (Friday, Saturday and Sunday)

Cost: Early Reg: 35 Euros, after 13th February 50 Euros

Timetable: http://int.piratenpartei.de/PPI_Conference_2011/timetable

More info: visit http://int.piratenpartei.de/PPI_Conference_2011 or contact board@pp-international.net

Closing the window – but have the little birds flown?

Readers of this blog may or may not be aware that almost ever since radio, and then television, became the music industry’s most important marketing tools, record labels and artists have used what seems to be an ever extending time period between releasing a track to the media and actually selling discs (and now downloads) to the consumer to promote the song and the sound recording. For the last few years, as rampant peer to peer file swapping and illegal downloading seriously decimated record label’s profits, many commentators have warned the labels that the ‘I want it now’ generation – brought up in a digital world of instant gratification - Google, Youtube, Spotify, We7 - simply won’t play the waiting game, however hard the labels try.

Now Sony and Universal have finally decided to give in - by making legal downloads available on the same day that tracks hit the radio airwaves. With labels have sometimes waiting up to six weeks between starting promotion and releasing tracks to customers the writing was definitely on the wall for the practice – enhanced by the idea that if the digital customer can’t buy then they might just might ‘steal’. Universal Music CEO David Joseph seemed to acknowledge this saying "what we were finding was the searches for songs on Google or iTunes were peaking two weeks before they actually became available to buy ... meaning that the public was bored of - or had already pirated new singles". Sony, which will begin its "on air, on sale" policy simultaneously with Universal Music next month, had massive success by immediately releasing X factor winner of Matt Cardle's single When We Collide as the TV series ended. It sold 439.000 digital copies in the UK – and Jessie J’s single “Do it like a Dude” was also released to radio and consumers on the same day – reaching No 5 in the charts last week.

Interestingly, Sony and Universal have both notified Ed Vaizey, minister for culture and the creative industries of the move. It will be interesting to see what the film industries make of the move – and whether or not we will see a shift in release patterns to cinemas, DVD and television to try to beat the pirates.

http://www.guardian.co.uk/business/2011/jan/16/universal-sony-music-singles-release

The cloud is the future - Google joins the EFF in MP3tunes' battle against EMI

Google have reportedly filed a paper with the New York District Court in support of MP3tunes.com in its ongoing legal battle with EMI, joining The Electronic Frontiers Foundation who had previously filed an Amici curiae brief in support of the company and its founder Michael Robertson. MP3tunes provides an online music “locker” service where users can store their music and access it from computers and mobile devices. MP3tunes also operates a music search engine called Sideload where users can find music tracks on other sites and then put them in their locker. EMI says the service makes mass copyright infringement easy by letting users upload music they didn’t buy and providing links to online songs that users can then “sideload” into their library and EMI claims that digital locker service such as MP3tunes infringes copyright unless licensed by rights holders . Robertson unsurprisingly argues that EMI’s position is an incorrect interpretation of copyright law saying that MP3tunes is shielded from liability by the “safe harbor” provisions of the Digital Millennium Copyright Act - because it doesn’t encourage copyright infringement and promptly removes infringing content when notified but EMI. Applying for summary judgment, said that “This case is about defendants’ unlawful exploitation of copyrights they do not own to advance their own business interests,” saying “Defendants’ plan was simple: Steal assets, build up a user base, and sell the company before copyright owners could obtain a judgment and shut the service down.” Robertson is a veteran of digital companies. He first tangled with the music industry a decade ago with his previous company, MP3.com which, whilst it was successfully sued by the major record labels, was brought by Universal Music. Last year Robertson sold his web based calling startup company Gizmo5 to Google for $30 million.

The case may well have an important bearing on the future of similar services and Google’s move is seen by some as confirmation of the web’s leading search engine’s (and owners of YouTube expanding) ambitions in the digital content space with a move to these called digital or “cloud-based” lockers and it is widely believed that when Google launches its long awaited music offer, a cloud based digital MP3 storage facility will be at its core.

EMI, which is one of a number of claimants brining the action, have already asked a New York federal judge to bar the EFF from filing their friend-of-the-court. EMI says the brief, supporting MP3tunes argument that it’s not responsible for what music its users store on its servers should be barred because it is “a pure advocacy piece, not a ‘friend of the court” further arguing that EFF’s brief is too long, thereby “circumventing” the court’s “page restrictions” causing “additional burden” to the court and “prejudice” to the EMI. Because EFF’s brief supports MP3tunes, EMI says, its arguments are “duplicative” and should not be allowed. In addition, EMI says, EFF’s brief “contains unsupported speculation that is not helpful to the Court”. The US Consumer Electronics Association, Home Recording Rights Coalition and IP lobbying group Public Knowledge are also expected to support MP3tunes in the case – EMI is joined as a plaintiff by a number of record labels and music publishers including Capitol Records, EMI Virgin songs and Jobete Music and has the support of the Recording Industry Association of America.

Although Google is thought to be talking to the four majors and big indie labels about licensing its digital music offer, Google must clearly recognise the importance of a win for MP3tunes for the future of cloud computing ansd one which would free them from the legal necessity of dealing with record labels, music publishers and collection societies. When the EFF launched their amicus brief, EFF senior staff attorney Corynne McSherry said ”The DMCA safe harbors were designed to encourage the growth of new internet innovations and expression by helping service providers manage their legal exposure, and they’ve been an extraordinary success,” adding “Without the safe harbor provisions, companies like YouTube, Facebook, and many others could have been shut down before they got off the ground. That’s not what Congress intended.”

Commenting on Google's submission Robertson told P2Pnet last week: "Since Google has bet their entire future on the cloud it's not a surprise to see them supporting MP3tunes. This will be a defining case about the future of cloud services" and told Wired.com “This case will define digital-media ownership in the 21st century” adding “Can companies assist their consumers in storing their possessions on the cloud where they can control them? That’s the issue at stake.”

Capitol Records, LLC. et al v MP3Tunes, LLC., and Michael Robertson
No. 07 Civ 9931 United States District Court Southern District of New York

EFF brief of amici curiae http://www.wired.com/epicenter/tag/eff/

Three little pieces

Just because you're small shouldn't
mean you get kicked around

A friend writes to the 1709 Blog with the following little tale of woe, hoping for some advice in return:

"A friend of mine who has a sideline licensing use of her photographs recently came to me with a plea for help. An organisation has used one of her pictures and has refused to agree to, or even acknowledge, her request for her usual fee of around £50. Having sought advice from Own-It she was told that her course of action was to bring a claim for copyright infringement. However, she can only do this in the Patents County Court, and absent a Small Claims procedure for IP disputes (as proposed in the Jackson Report) this will be an expensive option. On her behalf I contacted a specialist IP litigator; they expressed interest and sympathy but noted that their normal costs regime meant that even writing a Cease-and-Desist letter would probably be disproportionately expensive given the low value of the dispute.

Is there any credible route to redress for my friend? It seems manifestly unjust that flagrant copyright infringement should go without remedy, but the current system for IP litigation does (and this is, I know, not news) seem to ignore the small-scale creators who are supposed to be the bedrock of innovation and our creative economy. Are we likely to see reform to address this, and in the mean time is there anything my friend can do that won't involve outlay an order of magnitude larger than the sum she wants to claim?"

All comments are welcome. This blogger wonders whether naming and shaming the organisation concerned via a concerted bit of social media  campaigning might be more effective than anything else -- and a lot more fun.


Meanwhile, in "Sony Asks Court to Remove PlayStation 3 Jailbreak From Net", Wired reports on the tale of  some nifty "jailbreaking" which, it seems, falls foul of the current regime for dealing with software hacking in the United States. This may be one to watch ...


Finally, Barry Sookman's "Copyright law 2010 –the year in review in Canada and around the world" can be accessed here, replete with slides and text. Thanks, Barry!

More on that Bezpečnostní softwarová asociace ruling

In "The Lionel, the Bezpečnostní softwarová asociace and the Wandering Court of Justice", the IPKat hosts a thoughtful summary by Professor Lionel Bently of the e-discussions which he has been having with a number of leading copyright lawyers about the recent of the Third Chamber of the Court of Justice of the European Union in Case C-393/09 Bezpečnostní softwarová asociace –Svaz softwarové ochrany v Ministerstvo kultury and its potential impact on common law jurisdictions such as the UK and Ireland where the categories of copyright-protected subject matter are closed, being limited by statute.

You can read Lionel's piece and are invited to make your comments on it here.

Viacom v YouTube

Follwing YouTube's summary judgment success in the Viacom litigation last year when Judge Stanton held that YouTube was able to benefit from the Safe Harbor provisions in the Digital Millennium Copyright Act because it did not have actual or constructive knowledge of every specific YouTube URL containing infringing material on the site, The IPKat now has a very good update and summary of Viacom's appeal in the US by Annsley Merelle Ward. Those of you who get the IPKat email updates will know this - and for those of you who don't subscribe to the IPKat - why not? Its marvellous and its free!

http://ipkitten.blogspot.com/2011/01/letter-from-amerikat-i-viacom-v-youtube.html

http://ipkitten.blogspot.com/2011/01/letter-from-amerikat-ii-viacom-v.html

Introducing Art and Artifice

It's not specifically copyright-oriented but already carries plenty of copyright content: it's Art and Artifice, a new art-and-law weblog.  This weblog covers all aspects of art -- particularly but not limited to visual art -- and its points of intersection with the law.

 The team consists of Simone Blakeney (McCann Erickson), Rosie Burbidge (Forsyth Simpson) and Louise O'Callaghan (One Essex Court), with a little assistance from 1709 Blog team member Jeremy.  The blog already has an archive reaching back to October of last year, plus all the usual functionality -- and, as you might expect, lots of illustrations.

You can visit Art and Artifice here.

Willy the Wizard falters in the US, but can he still pull a rabbit from

The BBC report, "Harry Potter plagiarism case dismissed" (here), will not have escaped the eagle eyes of 1709 Blog readers.  The headline refers not to the ongoing litigation in England and Wales between the estate of Adrian Jacobs and the JK Rowling crew, which is set to go to a full trial (see earlier posts on the 1709 Blog here and on the IPKat here) but to its United States counterpart.

In both the US and England and Wales actions Jacobs' estate has claimed that the plot of Harry Potter and the Goblet of Fire plagiarised parts of his earlier Adventures of Willy the Wizard. Judge Shira Sheindlin has however concluded that there were major differences between the two works, which were "distinctly different in both substance and style", adding that "the contrast between the total concept and feel of the works is so stark that any serious comparison of the two strains credulity."

While Mr Justice Kitchin, in the England and Wales proceedings, doubted that the claim would succeed at full trial, it must be remembered that the test of infringement in the United Kingdom does not turn on whether there are major difference between the works in substance or style, or whether the contrast between the two is so stark as to strain credulity, but boringly whether there has been a reproduction in the later work of all or a substantial part of the earlier one -- and a part doesn't have to be very big in order to be  substantial.  This blog accordingly waits with unfeigned excitement to see whether, as has been predicted, the action will fail or whether Willy the Wizard will have just enough magic in him to achieve a result against his best-selling foe.

The PPL provision II: PPL secures not-for-profit levy

Christmas is over – and from January 1st 2011 Phonographic Performance Limited, the record and recording artists collection society, have secured the removal of an exception in music licensing rules which enables PPL to collect from charities and not-for-profit sector. The sector had enjoyed an exemption from the Copyright Designs and Patents Act 1988, although this did not include an exemption from PRS payments which are collected on behalf of publishers and songwriters. PPL has extensively lobbied to have the exemption for music use in village halls, community halls, student nightclubs and council buildings to be removed and bring the UK in to line with European law (the European Copyright Directive and the Copyright and Related Rights Regulations 2003) and provide remuneration for performers and record companies. PPL and VPL chairman and chief executive Fran Nevrkla told Music Week “From a business point of view the countless artificial exceptions and exclusions in existence gave the excuse to many licensees to avoid payment for use of sound recordings” and Nevrkla added, “On my part I was not prepared to accept a situation which meant that the rights of our constituents, both the performers and the record labels, were being constantly downgraded”. New tariffs have yet to be set and the number of organisations that will require a licence unknown, PPL’s Director of Government Affairs, Dominic McGonigal, says it is impossible to calculate how much PPL will collect from the sector in the future following the changes. There will also be a year’s grace period and during this period PPL and the charity sector will sit down to negotiate rates and how the scheme can be implemented. Music Week say that it is already envisaged that there will be a blanket licence for some village halls and community centres and small charities using these facilities will, therefore, not need to obtain a separate licence. Performers who receive payment can choose to donate their revenues to charities of their choice

PPL will continue not to license the use of sound recordings in NHS hospital wards, religious services, domestic use in care homes and in medical treatments taking place in NHS hospitals

http://www.musicweek.com/story.asp?sectioncode=1&storycode=1043770&c=1

http://www.ppluk.com/en/Music-Users/Information-for-Charities/

http://www.prsformusic.com/SiteCollectionDocuments/PPS%20Tariffs/CB-2010-04%20Tariff.pdf

The PPL provision I: Right to free use of sound recordings in student bars removed

A little noticed statutory instrument that came into force on 1 January, the snappily entitled "The Copyright, Designs and Patents Act 1988 (Amendment) Regulations 2010" - SI 2010/2694.

In it, the government has tacitly signalled its capitulation (after a battle lasting nearly 15 years) to the record industry - led by collecting society PPL - who have long maintained that sections 67 (playing sound recordings for clubs and societies) and 72 (free public showing or playing of broadcast) of the CDPA are inconsistent with the rights granted to sound recording producers and performers by the Rental Right Directive.

The effect of the SI is to repeal section 67 and to remove sound recordings from section 72 (which still applies to broadcasts and to the films incorporated in them). Because an earlier set of amendments had limited the impact of those sections to commercial users of sound recordings, the principal impact will be that the not-for profit sector - village halls, student nightclubs etc. Will PPL be the target of the next bunch of student demonstrations?

This decision should not be a surprise to anyone - the consultation took place back in 2008 and the Government response committed them to implementing the changes by April 2010.

Some concrete issues concerning abstracts

Not so scientific -- abstract
work by Paul Klee

In the United Kingdom the Copyright, Designs and Patents Act 1988, section 60(1) states:

"Where an article on a scientific or technical subject is published in a periodical accompanied by an abstract indicating the contents of the article, it is not an infringement of copyright in the abstract, or in the article, to copy the abstract or issue copies of it to the public".

This is echoed in a somewhat different form by the Irish Copyright and Related Rights Act 2000, section 90 of which states:

"Where an article on a scientific or technical subject is lawfully made available to the public in a periodical accompanied by an abstract indicating the contents of the article, it is not an infringement of the copyright in the abstract or in the article to copy the abstract or to make available to the public copies of the abstract or to include the abstract in any other work".

I was wondering whether the availability of scientific and technical abstracts emerged from as an idea: I don't recall seeing it as a defence or an exception under the Berne and Universal Copyright Conventions, and it's not in the US Title 17 or the EU Directives. Nor, despite its obvious value to the patenting community, is it mentioned in the Paris Convention or the Patent Law Treaty.

Three quick questions: (i) do any other countries make specific provision for the unauthorised use of abstracts in this way? (ii) in the absence of such a provision, is it even an infringement to do the specified acts, or could we argue that there is a presumed implied licence to use an abstract for this purpose, by virtue of its very existence and function; (iii) do we even care -- or are people actually litigating over abstracts?

Happy New Year and Welcome to the Public Domain

Holidays, festivals and parties abound as the year turns from one to another.  As we recover from all the celebrating, let us not forget one of copyright’s biggest days buried in the midst of all the punch, eggnog and streamers: Public Domain Day.

As is usual for this most festive of IP days, many posts around the blogosphere are listing works that have entered the public domain, works that would have entered the public domain under previous copyright laws and parties and events celebrating it all.

Picture: A page from this blogger’s favorite public domain work

To help you parse through all the delectable free delights, here’s a smattering of some of the goodies the blogosphere has to offer:

• Publicdomainday.org  An entire website dedicated to the special day.  There’s a color-coded map of copyright terms around the world [oooooh, that’s going to be helpful at work], a list of upcoming public domain related events [the next one is in Torino on 22 Jan] and the Public Domain Manifesto, which you can sign and see your own name on if you have the patience to scroll to the bottom of the very long list of signers.
• The Public Domain Review  Part of the Open Knowledge Foundation site, the Review features in depth looks at works in the public domain this year and the works’ creators.  So far, it appears there is only one review, of American author Nathanael West.  However, the year is young and the Review site is designed to accept contributions from many sources.
• Publicdomainworks.net has a list of authors whose works are entering the public domain in jurisdictions where the copyright term is life of the author plus 70 years.  [The many red countries on the Public Domain Day map.]
• Duke Law has a list of items that would have entered the public domain in the United States had the 1909 Copyright Act still been effect today. 

On a related note, the Duke website also has a sad blurb about Public Domain day in the US:

“What is entering the public domain in the United States? Sadly, we will have nothing to celebrate this January 1st. Not a single published work is entering the public domain this year. Or next year. Or the year after. Or the year after that. In fact, in the United States, no publication will enter the public domain until 2019.”

This last statement is not entirely true.  Americans do get something, just not in the traditional sense of expiration of the term of protection on a long existing work.  At least two exceptions jump out to me, maybe some readers know of the others.  The first is a specific work, the second applies to many works.

Late last year, in 2010, Mark Twain’s memoirs were published.  Twain had requested that the memoirs not be published until 100 years after his death.  That’s long enough that under current copyright laws everywhere, the work should be in the public domain.  However, there seems to be some dispute as to whether or not the memoirs are in the public domain or whether Twain’s estate has a copyright in them.  The published book, which contains more material than just Twain’s own memoirs bears a copyright notice, but that copyright notice also says that Twain passed away in 1910.  It seems even the publishers aren’t sure. The issue was explored more in-depth in The Sydney Morning Herald a few months ago.

Even without death and the passage of time, works can essentially enter the public domain if the author chooses.  Tools like CC0 allow an author to note that he is giving up all the rights the law will allow him to waive.  Those of us sitting and pouting in the US because nothing is entering the public domain via expiration of copyright term don’t have to fret too hard; there’s always the works that will be voluntarily placed there.