CREATe Symposium 2019

CREATe, the UK Copyright & Creative Economy Centre based at the University of Glasgow, recently has started work on a number of ambitious projects that will occupy the team for the next five years.

CREATEe have announced a Symposium with series of events to support this. The events are free, They include a BLACA lecture by CREATe’s Elena Cooper on Portrait of Lady Eden by Whistler (subject of a famous Paris court case in 1897, and held in the University of Glasgow’s Hunterian collection); and a policy keynote by Catherine Stihler, CEO of the Open Knowledge Foundation (and until 2019 a Member of the European Parliament for 20 years). Come and join us in shaping the next phase of CREATe’s research programme! The link below takes you to the full programme but here is some more detail on the two featured events:

Glasgow - Tuesday 8 October 2019
17:15 – 18:45
Location: Hunterian Art Gallery

British Literary & Artistic Copyright Association and CREATe lecture – ‘Whistler, Faed and Painting Copyright in the Nineteenth Century’

Speaker: Dr Elena Cooper (CREATe)

Welcome by Prof. Jane Mair (Head of School of Law, University of Glasgow) and Prof. Alison Firth (BLACA)

Until recently, copyright history has overwhelmingly concerned literary copyright protecting books. Drawing on her recent monograph, Art and Modern Copyright: The Contested Image (CUP, 2018), the first in-depth and longitudinal account of copyright as it applies to the visual arts, Dr Cooper will explore a number of ways in which nineteenth century copyright applying to painting was understood to be different. In doing so, and to celebrate the fact that this is the first BLACA event in Scotland for some years, Dr Cooper will connect UK copyright history to two paintings with links to Scotland: Brown and Gold: Portrait of Lady Eden by James McNeil Whistler (1834-1903) and Home and the Homeless by Thomas Faed (1826-1900).

We are delighted to announce that the first picture – Portrait of Lady Eden by Whistler (the subject of Eden v Whistler, Cour d’appel de Paris, 1897) – will be brought out of store especially for this talk.

Glasgow - Wednesday 9th October 2019
17:00 – 19:00
Location: Humanities Lecture Theatre, Main Building

Public lecture – Catherine Stihler: Reflections on the Making of EU Copyright Law

The first CREATe public lecture of 2019/2020 will be given by Catherine Stihler, CEO of the Open Knowledge Foundation. She was a Member of the European Parliament from 1999 to 2019. As an MEP, her roles included Vice-Chair of the Internal Market Committee, and Rapporteur for Article 13 of the Copyright in the Digital Single Market (DSM) Directive (now Article 17).

Chair: Prof. Martin Kretschmer (CREATe)


Academic responses: Prof. Giorgio Fazio (Newcastle University, Professor of Economics, PEC Management Board Member), Assoc. Prof. Rebecca Giblin (Monash University; head designate, Intellectual Property Research Institute of Australia IPRIA, University of Melbourne)

MORE INFORMATION HERE https://www.create.ac.uk/create-symposium-2019/

THE COPYKAT

This CopyKat from Mateusz Rachubka

Increased Royalty Payments for Songwriters in the US

The US Copyright Royalty Board decided to increase the amount of royalty payments that companies such as Apple, Spotify, Amazon, Google and Pandora would have to make to songwriters and music publishers over the next five years. The streaming companies would now be required to pay 15.1 percent of their revenue, comparing to the previous rate of 10.1 percent. As described by NMPA President & CEO David Israelite, in practical terms “the CRB raised rates for songwriters by 43.8%” and this decision also allows the songwriters to benefit from any agreements concluded by record labels in the free market. As a result the ratio between what “labels are paid by the services versus what publishers are paid” will now significantly improve. Additionally, the CRB has introduced a late fee, up to 18 percent annually, in case any royalty revenue is not paid on time by the streaming company. Although music creators did not manage to get ‘per-stream rate’, the songwriters consider increase in overall rates as a success in the market which is currently dominated by the streaming companies. 

US Senate Introduced the CLASSICS Act 

Senators, both from Republican and Democratic parties, have introduced the CLASSICS Act (Compensating Legacy Artists for their Songs, Service, & Important Contributions to Society), which would impose an obligation on digital services to pay both rightholders and artists for the use of recordings that were created pre-1972. Under the current legal framework, the way in which digital music services pay to use recordings made after 1972 is covered by federal copyright law, whereas the use of works created before 1972 is regulated by state law. This situation has led to many questions and complicated litigation in several states. With the versions of CLASSICS Act introduced in the Senate, now the rates for the use of both pre and after 1972 recordings for digital services will be the same and paid in an identical way. Introduction of the bill will also enable digital platforms to settle any outstanding claims with rightholders, in California. This will allow services to avoid state infringement lawsuits. Nevertheless, in order to do so digital music services would have to pay three years’ worth royalties at the current statutory rate for all the music they have used across the whole country.

The Big Entertainment Companies are Campaigning For Changes in Copyright in NAFTA Negotiations

Recently we have reported that the debate over introduction of ‘Safe Harbour’ provisions to NAFTA agreement is heating up. Now Public Knowledge has explored the proposals that were suggested by the lobbyists for the big entertainment companies. One of the ‘wildest ideas’ was a recommendation not to include ‘Safe Harbour’ provisions into NAFTA. In the view of the lobbyists, they “facilitate child pornography and human trafficking” by allowing internet intermediaries to avoid responsibility for any content that is published on their services. This argument according to Gus Rossi is highly misleading. He argues that without a legal framework exempting online platforms from responsibility for context posted by their users, the intermediaries “would be obligated to censor and control everything their users do on their platforms”.

Another argument proposed by the entertainment industries is that exceptions and limitations are unnecessary in trade agreement, claiming that they are “a barrier to the protection of American artists”. Rossi, again, considers this proposal as widely inaccurate. In fact, in the digital age the US copyright system would not be able to work without fair use provisions. Therefore, the author suggests that with the importance of current negotiations of NAFTA, which may be used in the future as a standard of ‘American-sponsored free trade agreements’, it is important to fight any misconceptions and protect a balanced approach to copyright.

Is the Current Copyright Law Framework in Australia a Deterrent for Creators?

With the ongoing debate on potential reform of copyright law in Australia and adoption of fair use approach, recently two reports were issued, which show that the current framework allowing for narrow ‘fair dealing’ exceptions is considered as a barrier to innovation. Deloitte in its ‘Copyright in the Digital Age’ paper argues that digital technologies could contribute over $139 billion by 2020 to Australian economy if the legal framework will support innovation and allow to maximise opportunities. The study of Australian Digital Alliance revealed that the creators struggle to understand copyright law. For many of them the exceptions are often confusing and seeking permission to reuse copyrighted content often results in expensive fees and time delays. Therefore, suggestions have been made that Australia should reform its framework and follow such countries like the US, South Korea or Sri Lanka, which have broader exceptions to the use of copyrighted content. Fair use provides that each use is assessed on its own merits and does not need to fall within a specific predetermined category. The authors of the report claim that transition to fair use would enable innovation, facilitate new uses of copyright materials, particularly in such areas as data mining and cloud computing, and ultimately lead to “a more competitive and creative (…) society”.

Rightholders Want to Address ‘Value Gap’ Under the EU Copyright Directive

A coalition of rightholder organisations has addressed the new Presidency of the Council of the European Union, currently held by Bulgaria, to find a solution to the issue of ‘Value Gap’ (the Transfer of Value). The Value Gap arises in the situation where there is a “mismatch between the value that online User Uploaded Content (‘UUC’) website services extract from creative content and the revenues returned to the creative community”. With vast amount of content being uploaded by users, the UUC sites generate revenue from the infringing content. At the same time the UUC websites refuse to negotiate “fair or any copyright licences” with rightholders. Therefore, the creators believe that the proposal for Copyright Directive, which is currently being negotiated by the European Parliament and EU member states, should clarify two elements. First of all, that the “UUC services communicate to the public under the EU copyright framework and therefore are obliged to obtain licences for copyright protected works, unless eligible for e-Commerce Directive ‘safe harbours’”. Secondly, those UUC services that play an ‘active role’ in promotion of the content, should not be able to benefit from ‘safe harbour’ provisions.

The issue of Value Gap was also addressed by the President and Vice-President of CISAC. In their open letter to MEPs, Jean-Michel Jarre and Angelique Kidjo noted that the copyright reform offers “a historic opportunity to bring fairer remuneration for creators and drive economic growth and jobs in the creative industries”. Therefore, in their view the EU law should not shield UUC platforms, which “make vast revenues from creative works while not fairly rewarding the creators”. Thousands of artists and authors supporting the European Commission’s proposal believe that with a reform of safe harbour the new copyright Directive  will offer an opportunity to “shape fairer digital market for creators in the 21^stcentury”.  

For further debate on remedying the Value Gap under the proposal for Directive on copyright in the Digital Single Market go here, and here.

If you would like to support European screenwriters and directors in their call for a modernised EU Copyright framework, please click here.

Does One Have to be a Copyright Owner to Sue Over a False Copyright Takedown?

That was the question in the dispute between ISE Entertainment, and Civillico and Longarzo. ISE claimed that it owns rights to ‘The Weekend in Vegas’ ABC show, which until recently the viewers could also download on Amazon.com. The show was however removed following an infringement notice submitted by Civillico and Longarzo. According to Civillico he owned the rights in the show and ISE by being in breach of a deal had no authority to use his work. ISE sued both parties for allegedly violating DMCA section 512(f) by submitting a fraudulent takedown notice. The defendants argued that ISE had never registered the show for copyright, nor applied for a registration and therefore had no standing to make a claim under section 512(f).

This argument was rejected by the US District Court Judge Fitzgerald. DMCA section 512(f) provides that an ‘alleged infringer’ may recover damages from when harmed by misrepresentation that material or activity is infringing (here fraudulent takedown notice). In the view of the Court “neither copyright ownership nor registration are prerequisites to bring” action under section 512(f). Therefore, the Court concluded that ISE as an ‘alleged infringer’ had standing to sue and that ISE has stated a viable 512(f) claim.

Google Will Improve Attribution of Contributors’ Works in its Image Search

Google has reached agreement with Getty Images over a ‘multi-year’ licence, which will end the European Commission complaint, where Getty “had accused Google of effectively being a one-stop piracy shop”. Getty claimed that the users of Google could simply view and download “high-resolution, copyrighted content”, which accordingly enabled copyright infringement and piracy. As revealed by the parties, Google has agreed to reform its approach to copyright in its image search function. The search will now include more prominent copyright disclaimers and will remove view image links to the image URL. In return Google will be able to use Getty Images’ content in its products and services.

CREATes need you!

The  School of Law and CREATe Centre at the University of Glasgow have Two CREATe-related roles now available at the University of Glasgow. There is an opportunity to join the School of Law and CREATe at an exciting point in our development, as part of the University of Glasgow’s ongoing investment in the creative economy. Two positions are now available, as Lecturer in Intellectual Property Law and Graduate Teaching Assistant, at the School of Law-hosted Centre for Copyright & New Business Models in the Creative Economy (CREATe), an international copyright research hub established in 2012 with research funding from the AHRC, EPSRC and ESRC. Please click here to read more about the roles  http://www.create.ac.uk/blog/2018/01/29/two-create-related-roles-now-available-at-the-university-of-glasgow/ 

Informal enquiries about both the above positions may be directed to Professor Martin Kretschmer (Professor of Intellectual Property Law and Director of the CREATe Centre).  Email: martin.kretschmer@glasgow.ac.uk and Tel: +44 141 330 3886

European Copyrigh Reform: Open Letter from European Research Centres

On 14 September 2016, the European Commission published a package of reform proposals, including two Regulations (that have direct effect in Member States) and two Directives (that will have to be implemented into national laws).

CREATe have now alerted us to a new OPEN LETTER TO MEMBERS OF THE EUROPEAN PARLIAMENT AND THE EUROPEAN COUNCIL which reads:

EU Copyright Reform Proposals Unfit for the Digital Age

We are independent legal, economic and social scientists, and represent the leading European centres researching intellectual property and innovation law.

It is likely that you personally are being lobbied with regard to a complex Copyright Reform package that extends to 3 Regulations and 2 Directives (supported by over 400 pages of Impact Assessments).

The proposals say the right words on the cover: “EU Copyright Rules Fit For The Digital Age. Better choice & access to content online and across borders. Improved copyright rules for education, research, cultural heritage and inclusion of disabled people. A fairer online environment for creators and the press.”

While the Proposed Directive on Copyright in the Digital Single Market (COM(2016) 593 final) contains a number of reasonable, common sense measures (for example relating to cross border access, out-of-commerce works, and access for the benefit of visually impaired people), there are two provisions that are fundamentally flawed. They do not serve the public interest.

Article 11 seeks to create an additional exclusive right for press publishers, even though press publishers already acquire exclusive rights from authors via contract. The additional right will deter communication of news, obstruct online licensing, and will negatively affect authors.

Article 13 indirectly tries to amend the E-Commerce Directive (2000/31/EC) that arranges the liability of online intermediaries for user generated content into a shared responsibility of rights holders and service providers. The proposals will hinder digital innovation and users’ participation.

With respect to both provisions, independent empirical evidence has been ignored, consultations have been summarised in a misleading manner, and legitimate criticism has been labelled as anti-copyright. We urge you to look inside the copyright package and seek out independent expertise.

In order to facilitate debate, we have produced two short appendices to this letter, setting out the key flaws of the proposals, and listing sources of evaluation. There is independent scientific consensus that Articles 11 and 13 cannot be allowed to stand.

First signatories include academics of the following Research Centres: The Centre for Intellectual Property and Information Law (CIPIL), University of Cambridge, United Kingdom; Centre d’Etudes Internationales de la Propriété Intellectuelle (CEIPI), University of Strasbourg, France; RCUK Copyright Centre (CREATe), University of Glasgow, Scotland, UK; Chair for Civil and Intellectual Property Law, Humboldt University, Berlin, Germany; Institute for Information Law, University of Amsterdam, Netherlands; Max Planck Institute for Innovation and Competition, Munich, Germany; Center for Internet & Society (NEXA), Politecnico di Torino, Italy; Universitat Oberta de Catalunya (UOC), Barcelona, Spain; SciencesPo Paris, France; Tilburg Institute for Law, Technology and Society & Tilburg Law and Economics Center, University of Tilburg, Netherlands

You may agree with the letter - you may disagree! But it's well worth a read

http://www.create.ac.uk/policy-responses/eu-copyright-reform/ and you can download the letter here http://www.create.ac.uk/wp-content/uploads/2017/02/OpenLetter_EU_Copyright_Reform_24_02_2017.pdf

and here's a link  to the form where academics can join the letter https://goo.gl/forms/POxlrkYn3LcOJYzy1

THE COPYKAT

CREATe Public Lecture 2017: the Case for a Related Right for Press Publishers

CREATe is the Research Council UK’s Centre for Copyright and New Business Models in the Creative Economy at the School of Law – University of Glasgow. The Centre is headed up by Professor Martin Kretschmer.

On February 14^th, Thomas Hoeppner (Professor of Civil Law, Business Law and  Intellectual Property Law, Wildau Technical University of Applied Sciences, and, Partner in a Berlin based law firm), will present on “EU copyright reform: the case for a related right for press publishers.”

The CREATe website states that:

“On September 14th 2016, the European Commission presented a package of proposed copyright reforms under the banner of promoting a Digital Single Market (DSM). Amongst others, the proposal includes an exclusive right of press publishers for the digital publication of their press publications.

The proposal has been criticised by academics arguing that the right lacked a justification and would interfere with the access to information (see above). Picking up on this lecture against a publishers’ right, Prof. Hoeppner investigates the merits of such a right. To this end, the lecture outlines the economic and technical background including the developments in the consumption of press publications since the current legislation came into force. The lecture will then present the arguments in favour of the proposed right and examine the counter-arguments raised against it.”

This lecture is in contrast to a previous lecture presented by Professor Raquel Xalabarder (Chair of Intellectual Property, Universitat Oberta de Catalunya, Barcelona, Spain), in which she discussed the press publisher rights in the proposed Directive on copyright in the Digital Single Market, arguing that the right would not actually achieve the desired policy objectives set out in the recitals.

The lecture is free and open to everyone.

It will be held in the Humanities Lecture Theatre in the University of Glasgow on Tuesday 14 February 2017, 17:30 – 19:00.

Visit the CREATe webpage to register for the event.

P.S. This 1709 Intern is currently preparing analysis on the proposed exclusive right of press publishers for the digital publication of their press publications – watch this space!

Postdoctoral Fellowship Opportunity at Harvard – deadline March 1, 2017

The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for the Qualcomm Fellowship in Private Law and Intellectual Property.

The Qualcomm Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in intellectual property and its connection to one or more of property, contracts, torts, commercial law, unjust enrichment, restitution, equity, and remedies. Fellows have been selected from among recent graduates, young academics, and mid-career practitioners who are committed to pursuing publishable research likely to make a significant contribution to private law scholarship.

Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. In addition, fellows contribute to the intellectual life of the Project and the Harvard Law School community through mentoring students, presenting their research in and attending faculty workshops and seminars, helping to organize and participating in Centre events, and blogging.

Purpose

The Project on the Foundations of Private Law is an interdisciplinary research programme at Harvard Law School dedicated to scholarly research in private law. Applicants should be aspiring academics with a primary interest in intellectual property (especially, patent, copyright, trademark and trade secret) and its connection to one or more of property, contracts, torts, commercial law, unjust enrichment, restitution, equity and remedies. The Project welcomes applicants with a serious interest in legal structures and institutions, and welcomes a variety of perspectives, including economics, history, philosophy and comparative law. The Qualcomm Postdoctoral Fellowship in Private Law and Intellectual Property is specifically designed to identify, cultivate and promote promising IP scholars early in their career.

More information can be found at http://www.law.harvard.edu/programs/about/privatelaw/index.html

Programme

The Qualcomm Postdoctoral Fellowship in Private Law and Intellectual Property is a full-time, two year residential appointment, starting in the Fall of 2017. Like other postdoctoral fellows, IP Fellows devote their full time to scholarly activities in furtherance of their individual research agendas in intellectual property and private law.

Eligibility

By the start of the fellowship term, applicants must hold a J.D. or other graduate law degree. Applications will be evaluated by the quality and probably significance of their research proposals, and by their record of academic professional achievement

For more information, please contact Bradford Conner, conner@law.harvard.edu.

Applications must be received by March 1, 2017.

DailyMotion Permanently Blocked in Russia As A Consequence of Copyright Complaints

DailyMotion, the video-hosting platform, has been permanently blocked in Russia.

The Moscow City court has ordered local ISPs to block subscribers from accessing DailyMotion. In other jurisdictions, this measure is usually reserved for ‘pirate’ sites, such as The Pirate Bay and Book-Fi.

The blocking of DailyMotion is a consequence of repeated allegations of copyright infringement by Gazprom Media, as well as DailyMotion’s alleged inadequacy in dealing with those allegations. his story began back in 2016, when Gazprom Media discovered that video clips from one of its TV channels were being hosted on DailyMotion without permission. Gazprom Media told Russia’s Gazeta that its representatives had sent several complaints to DailyMotion’s offices over the course of 2016 but no response was received. Gazprom Media had DailyMotion URLs blocked at least twice during 2016 by the Moscow City Court. In December of 2016, DailyMotion was given a last chance to remove the problem clips from its platform. The subsequent failure of DailyMotion to comply with the Moscow City’s courts order has led it to engage the laws applying to repeat copyright infringers, therefore giving an order to local ISPs to block DailyMotion permanently.

In comments made to The Hollywood Reporter, a spokesman for DailyMotion stated that the company had no knowledge of any ongoing court procedure against it and was going to “take all necessary steps to make contact with relevant authorities in Russia to resolve the issue.”

Shattered Mirror; News, Democracy and trust in the digital age

Just a few days ago, the Public Policy Forum released its anticipated report on the future of Canadian media, entitled, “Shattered Mirror; News, Democracy and trust in the digital age.” The decline of the news industry is a hot topic across the globe at the moment, with the proposed neighbouring right for news publishers found in the Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market sparking much debate across Europe.

The report makes 12 recommendations (summarised here), including a review of the Copyright Act’s fair-dealing rules in order to strengthen the rights of news originators to control their intellectual property.

The Copyright Act’s fair-dealing rules

The most recent iteration of Canada’s Copyright Act was enacted in 2012, and is due to be reviewed this year. It includes a series of listed exceptions to copyright infringement, including a fair dealing exception for news reporting at Article 29.2. The fair dealing exception in relation to news reporting state that;

“Fair dealing for the purpose of news reporting does not infringe copyright if the following are mentioned:

(a)  The source; and

(b)  If given the source, the name of the

a.       Author, in the case of a work,

b.      Performer, in the case of a work,

c.       Maker, in the case of a sound recording, or

d.      Broadcaster, in the case of a communication signal”

Reviewing the Copyright Act’s fair-dealing rules to strengthen rights of news originators to control their intellectual property (recommendation number 4)

The Public Policy Forum recommends on page 90 of the report a review which “tightens usage of copyrighted news material in favour of creators, without unduly stifling the social power of sharing on the Internet. News producers have a right to benefit from their work for a reasonable period while pursuing the business strategy of their choice.”

The report goes on;

“In many cases, the issue arises when aggregators, bloggers or others use material without permission. This is good for the aggregator, and perhaps convenient for the consumer, but even if the material links back to its source, the original producer should be able to decide whether it wants to share – and whether it wants to negotiate compensation in some form.”

An anecdote is subsequently given;

“In different circumstances, the New Brunswick Telegraph-Journal told us of an exclusive photo posted on its site during the 2014 attack in Moncton that left three members of the RCMP dead. The site maintains what is known as a “hard paywall,” making content available only to paid subscribers. As a result, it experienced a spike in registrations when word spread of its photo. Then the CBC copied the photo

without permission, and the spike quickly subsided. What the CBC did is, in one way or another, common these days, and can be argued to be permissible under fair-dealing provisions.”

This recommendation is likely to spark much debate over its potential consequences for free speech, and whether narrowing the fair-dealing exception in relation to news would result in the desired economic improvement for the news publishing sector. This recommendation has already attracted criticism, and it will be interesting to follow the parallel unfolding debates on this issue across the European and Canadian jurisdictions.

European Copyright Society – Opinion on EU Reform Package

On a brief and final note, the European Copyright Society published its Opinion on the EU Reform Package on 25 January 2017.

The European Copyright Society provides a platform for “critical and independent scholarly thinking on European Copyright Law and policy. Its members are scholars and academics from various countries of Europe, seeking to articulate and promote their views of the overall public interest on all topics in the field of authors rights, neighbouring rights and related matters.”

This CopyKat from Tibbie McIntyre

SEMINAR: The Rise of Web Blocking Orders in the UK: Empirical Evidence Perspectives

CITY UNIVERSITY are hosting a seminar with  Professor Lilian Edwards (Strathclyde University & CREATe) on Friday 3rd February. 13.00 - 15.00

The digital copyright and piracy wars, which began with Napster and continue today into the age of streaming, Spotify and Netflix, have engaged in broadly three strategies to defend existing content industries, which can be described as punish, prevent, and provide alternative business models. Both anecdotal experience in the legal system and empirical research carried out by CREAte and others point to the failure and partial abandonment of the punishment strategy, especially in its legislative "graduate response" form. By contrast, prevention, in its latest forms of site blocking and geoblocking, is rising in popularity, at least in the UK which has recently been described as the world leader in web blocking.  While it may be argued that prevention tactics are unnecessary given the rise  of legal streaming , have unfortunate side consequences and may even impede  a more profitable long term shift to alternative business models, it is hard to prove this using empirical evidence, as seen in recent UK court cases. This paper asks what evidence would be convincing here and if empirical evidence ,rather than normative claims, can ever successfully inform the copyright wars.

More here: It's free to attend but please register here:

News from CREATe: events and copyright education

CREATe, the RCUK Centre for Copyright and New Business Models in the Creative Economy at the School of Law - University of Glasgow, is organising a series of public lectures and PhD development workshops this autumn. 

The calendar can be viewed here.

In particular, CREATe public lecture series will investigate topical policy issues such as the EU Copyright Reform in a post Brexit environment, Open Access to scholarly publications and the press publisher right proposed in the Copyright in the Digital Single Market draft Directive. 

Attendance to the public lectures is free but subject to registration due to limited space availability.

The next event is scheduled for Wednesday October 19th when CREATe's Director, Prof. Martin Kretschmer, will deliver the inaugural lecture on the extremely current topic "EU Copyright Reform in a Brexit Environment". This lecture will investigate what a digital single market means in an interconnected world in which copyright still slices content by territory, and where the balance between artists, investors and users still reflects an analogue world of linear exploitation. Finally, the lecture turns to Brexit. Can the UK become a digital Island?

In addition, as is explained more at length here, CREATe is also delighted to announce the release of the second episode of the award-winning series The Game is On! 

Drawing inspiration from well-known copyright and public domain work, as well as recent copyright litigation, this series of short films provides a springboard for exploring key principles and ideas underpinning copyright law, creativity, and the limits of lawful appropriation and reuse. 

Girl with the Light Blue Hair scoops award with educational copyright film

Last Thursday an animated film, The Adventure of the Girl with the Light Blue Hair, by Professor Ronan Deazley (right, Queen’s University Belfast) and CREATe researcher Bartolomeo Meletti won the AHRC [don't try pronouncing this: it's the Arts & Humanities Research Council] Research in Film Award for Innovation in Film. The panel of judges – consisting of industry and academic experts such as film director Beeban Kidron, Financial Times Arts Editor Jan Dalley, and actor and producer Diana Quick – described the film as 

“a well-constructed, quality animation addressing issues of creativity, IP and copyright for schools and undergraduates: lively, engaging, witty (à la Sherlock Holmes mode), informative and educating at the same time.”

Awards were doled out at the British Film Institute Southbank in London. The AHRC Research in Film Awards – designed to recognise the creative and innovative work being undertaken at the interface between research and film – attracted hundreds of entries including, animations, installations and gallery pieces, music videos, and documentaries. All the winners and full versions of the films can be seen here. Said Ronan: 

“We set out to make a film that would help explain fundamental concepts of copyright in a way that is thought-provoking but also entertaining. It is a privilege to receive an award for work that celebrates the possibilities of lawful, creative copying.”

Added Bartolomeo Meletti: 

“With this film we wanted to educate about copyright but also to highlight the crucial role that lawful copying plays in the way in which we all create and present ourselves, artistically and otherwise, to the world.”

Not yet showing at a cinema near you ...

The Adventure of the Girl with the Light Blue Hair is the first episode of The Game is On!, a series of short animated films that puts copyright under the magnifying glass of Sherlock Holmes [who is not copyright-protected, even though he has been regularly appearing in court], illustrating concepts of remix, reuse and the public domain for school-aged learners and other creative users of copyright. The film is accompanied by 12 Case Files, supplementary educational materials providing points of discussion about copyright for UK teachers and students. Drawing inspiration from well-known copyright and public domain works, as well as recent copyright litigation, the resource provides a springboard for exploring key principles and ideas underpinning copyright law and creativity, and the limits of lawful appropriation and re-use.

Orphans: Much ado about … what?

Many of you will know Martin Kretschmer, Director of CREATe and Professor of Intellectual Property Law at the University of Glasgow, and Martin has just published this post on the CREATe blog and I am delighted to say has agreed that we can re-blog his thoughts:

Much ado, even an air of conspiracy, surrounds the passing of the Enterprise and Regulatory Reform Act (EERA) on 25 April. The main focus has been on the Copyright Provisions in Part VI (“Miscellaneous and general“) that will insert a new section 116A into the Copyright, Design and Patent Act 1988, entitled “Orphan works licensing and extended collective licensing”. 

The section will enable the government to set up (through the statutory instrument of regulations) a body with the authority to license so-called Orphan works, i.e. those works whose owner of copyright “has not been found after a diligent search made in accordance with the regulations” (s. 116A(3)). 

Campaigning photographers (http://www.stop43.org.uk/) have argued that identifying metadata are routinely removed before images are published online, and a misinformed section of the blogsphere has trumpeted a message of expropriation. Eleonora Rosati of the IP Kat and Ben Challis of the 1709 Blog [see our previous post here] offer a nice range of quotes, including Dominic Young’s assertion that the UK had “abolished copyright”, and the Telegraph’s Instagram Act headline: “social media users lose ownership of their own photos”. 

Paul Briden’s KnowYourMobile blog is another typical example: 

“Within the new legislation is a change to UK copyright law which will effectively allow companies to use images which don’t include information identifying the owner for commercial gain. In other words, your holiday snap taken on your iPhone which you shared to your public-facing Facebook page, could end up in someone’s glossy brochure and you wouldn’t even get a penny, let alone a note asking if it’s ok. 

There’s also no section of the new Act which forbids sub-licensing practices, ie: someone can get your photo and sell it to someone else with little risk of repercussions. This is a very serious problem and I can see it only getting worse. 

Interestingly, Instagram tried to enact this kind of commercial sharing approach to users’ content fairly recently but was (quite rightly) shouted down by angry consumers – and yet here it’s happening on a broader scale, by a national government and quietly through the back door.”  

There are many misunderstandings in these short paragraphs. Here are three reasons why social media services will not attempt to rely on the Orphans provisions of the ERR Act for the use of digital images. 

First, users would have to evidence diligent search (which photographers can pre-empt by registering their images on any public database). 

Secondly, users will have to obtain a formal licence from a public body. 

Thirdly, user will have to pay a market price for commercial use (and deposit that fee so that it could be claimed by a reappearing author). 

Why would a social media service want to jump through these hoops? 

Prior to the ERR Act, none of these processes were formalised. The current media practice to strip images of meta data, and even use such images in prominent positions (e.g. on newspaper covers, as is common with Twitter photographs after accidents and atrocities) will now attract greater scrutiny. While these practices may be undesirable (and indeed constitute an infringement under copyright law, both before and after the ERR Act), this a matter for legal remedies (such as the damages available for stripping metadata and indeed for unlawful use). This is where the photographers’ scrutiny should be. 

It is misleading to claim that the ERR Act would permit digital images to be used without permission and compensation for the rights holder, and it is surprising that the claim has gained such currency. 

The Orphan works provisions of the ERR Act are really designed for the large body of copyright works that lie barren because of the long copyright term. For example, Mulligan and Schultz found that only 2.3% of in-copyright books and 6.8% of in-copyright films released pre-1946 remained commercially available in 2002: Mulligan, D.K. & Schultz, J.M., ‘Neglecting the National Memory: How Copyright Term Extensions Compromise the Development of Digital Archives’, 4(2) Journal of Appellate Practice & Process 451 (2002). 

Archives currently run considerable risks making their collections available online. While the intentions of the ERR Act are thus well meaning, and entirely consistent with the overall purpose of copyright law (to release creativity), the details of implementation will matter greatly. I have to declare an interest here, as I am co-author of a study commissioned by the UK IPO which aims to offer a clearer understanding of how Orphan works are regulated and priced in other jurisdictions, and how a pricing system could be structured to ensure that “parents” are fairly remunerated if they re-appear, and users are incentivised to access and exploit registered orphan works. 

Our study (with colleagues Favale, Homberg, Mendis and Secchi) simulated the clearance of Orphan works in several jurisdictions which have an operational system for licensing Orphan works (including Canada, Denmark, Hungary, Japan and India). Another example of the bizarre reception of the ERR Act is the Register’s claim that “[f]or the first time anywhere in the world, the Act will permit the widespread commercial exploitation of unidentified work“. 

Simply not true. Our study found that in most of these systems in particular non-profit, non-commercial uses do not happen in the way anticipated, i.e. Orphan works are not released, or reunited with their parents, as the legislators claim. (I’ll write another blog once we can reveal the data with the publication of the full study.) 

Lastly, I also should put on record that I consider the legislative process of the ERR Act to be problematic (http://www.create.ac.uk/blog/2013/03/17/copyright-in-artistic-designs/). The first version of the ERR Bill (as introduced in May 2012) did not contain any Orphan works provisions at all, and I still do not think the appropriate scope of copyright exceptions should be a matter for secondary legislation. 

Martin's original blog can be found here  http://www.create.ac.uk/blog/2013/05/06/orphans-much-ado-about-what/

Image: publicity shot for Orphan, the 2009 American psychological horror film directed by Jaume Collet-Serra.  (from http://en.wikipedia.org/wiki/Orphan_(film) ).