1709 Blog: for all the copyright community

Friday, 3 October 2014

The CopyKat - keeping the word

In the 1980s, when Brian Sheppard created his Maven computer program that played Scrabble, he typed in a lot of words - more than 100,000 of them, all from the Official Scrabble Players Dictionary (OSPD) and Merriam-Webster’s Collegiate Dictionary. Sheppard continued to update his software by hand until 1996, when a Scrabble player who helped assemble the third edition of the OSPD gave him the words via a digital file. Electronic word lists have circulated freely ever since. But maybe things are about to change. Hasbro Inc., which owns the rights to Scrabble in North America, is now seeking to license the use of word lists. Last year Merriam-Webster published a new, fifth edition of the OSPD and separately, Merriam-Webster published a third edition of the Official Tournament and Club Word List (The OWL), sold only to members of the North American Scrabble Players Association (NASPA) - and Hasbro claims the copyright on them: it recently  told NASPA that it had concerns about the revised word lists getting loose. It wanted to ensure that digital versions of the new OSPD and OWL were not freely downloadable from applications that contained them, as the current lists often have been. With competitive Scrabblers regarding Hasbro’s action as restricting - a battle is looming. More here on what might be a fascinating battle.


The U.S. 11th Circuit Court of Appeals has affirmed the award of fees for defence attorneys in an "objectively unreasonable" copyright action  - here brought by InDyne Inc., against  Abacus Technology Corporation.  The District Court in Florida had previously found that InDyne failed to present evidence sufficient for a reasonable jury to find that the copied portions of software were “original and thus deserving copyright protection.” - and indeed the Plaintiffs no longer possessed a copy of the software or even a clear software revision history. Indyne, Inc. v. Abacus Technology Corporation, Jerry Reninger, and Matthew Boylan, Case Number 14-11058, decided September 24, 2014. Echoes of Judge Richard Posner's criticism of the actions of the Conan Doyle Estate in the Sherlock Holmes litigation when he awarded costs $30,679 to defendant Leslie Klinger sprang to mind: Here Judge Posner in 7th Circuit appellate court said that the Doyle estate's business strategy was plain; "charge a modest fee for which there is no legal basis, in the hope that the 'rational' writer or publisher will pay it rather than incur a greater cost in challenging the legality of the demand.". Calling the model 'a form of extortion' Judge Posner said 'It's time the estate changed its business model' and complemented Klinger for performing a "public service" for fighting against a “disreputable” business practice and  further noted that the Estate, which had suggested in a letter to Mr. Klinger’s publisher that it might prevent the book from being sold at Amazon or Barnes & Noble unless a $5,000 use fee were paid, had been “playing with fire,” calling such an action a violation of antitrust law. More on Sherlock here and here.

Law.com has an interesting follow-up to the surprise settlement in the five-year-old legal battle between Marvel Comics and Jack Kirby’s heirs, noting that a major copyright issue remain unresolved. The children of the legendary artist filed 45 copyright-termination notices in September 2009, seeking to reclaim what they saw as their father’s stake in such Marvel characters as the Avengers, the X-Men, the Fantastic Four and the Incredible Hulk. Marvel, joined by its then-new parent company Disney, responded with a lawsuit, which ultimately saw the Second Circuit Court of Appeals affirm that Kirby’s contributions to the publisher between 1959 and 1963 were on a  “work for hire” basis and therefore not subject to copyright termination. A Supreme Court hearing was expected but the settlement means the grey area surrounding work for hire before 1978 remains, although experts say given that 56-year window — or 35 years for copyrights transferred after 1979 — it’s only a matter time before another case, more likely to involve a musician/songwriter than a comics artist, makes its way to the Supreme Court, requiring the Supreme Court justices to weigh in.


Straying into designs: Along with additions to the copyright exceptions for format shifting, quotation and parody, the Intellectual Property Act also became law on the 1st October in the UK, meaning it is now a crime to intentionally infringe on a registered design. The changes set out in The Intellectual Property Act have been introduced to reduce the scale of registered design infringement by acting as a deterrent. The changes also increase protection for the holders of registered designs and more effectively deter and punish perpetrators of blatant design infringement. The new Act also outlines that individual board directors can be held accountable for infringement. The Act means that intentionally infringing a registered design and producing a copy that differs from an original in only immaterial respects now becomes a criminal offence punishable by up to 10 years in prison.

And finally in the Philippines, the Court of Appeals has rejected a plea by car manufacturer Honda to copyright the design of one of it's engines, and has upheld the trial court’s decision to cancel the copyright registrations for Honda’s engine designs that had previously been granted by the National Library. Section 172 (h) of the Philippines Intellectual Property Code (IP Code) provides that copyright protection is available for literary and artistic works that include “original ornamental design or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art.”  In reaching a decision, both the trial court and Court of Appeals relied on the Supreme Court's decision in Ching vs. Salinas (GR No. 161295, June 29, 2005), which explained that a useful article and industrial design may be copyrightable only if such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of the utilitarian aspects of the article.  Here the Court of Appeals further explained that to be copyrightable the design must be capable of existing independently from the article itself, meaning that, at the very least, the design must be able to stand on its own in terms of decorative quality or value.  In this case, the Court of Appeals agreed with the trial court that the colour-coded components of Honda’s engine do not meet this two-part test, and could not be copyrightable.  They were neither artistic creations with incidental utilitarian functions or artistic works incorporated in a useful article.   Moreover, the specifications in the copyright applications merely describe the original or unique appearance of the engine, and such appearance cannot be equated to a decorative quality or artistic work.  The case is TLA Corporation, et al. vs. Honda Motor Company Ltd. and the National Library (CA-G.R. CV No. 98777, Aug. 5, 2014).

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