Current copyright issues: two new titles

Law Applicable To Copyright: A Comparison of the ALI and CLIP Proposals is the title of  relatively compact and very serious piece of scholarship from Rita Matulionyte (Leibniz Universität Hannover, Germany). In essence, it is the author's doctoral thesis, submitted in late 2009, defended in mid-2010 and updated till December 2010. There was a time when publishers would avoid doctoral theses like the plague. Fortunately those days are long past and books -- including some but fortunately by no means all doctoral theses -- are published on the basis of their genuine merit.

But what is this book all about? To anyone who is not at home with acronyms the title gives little away. However, as the publisher's web page explains

"This book discusses the problems of applicable law in international copyright infringement cases and examines the solutions proposed to them in the recent projects by the American Law Institute (ALI) and the European Max Planck Group for Conflict of Laws and Intellectual Property (CLIP). 

In particular, the book analyses how the territoriality principle and the lex loci protectionis rule are applied in traditional, broadcasting and online cases in selected European and US jurisdictions. It then evaluates whether the rules on ubiquitous infringement, de minimis, initial ownership and party autonomy, as proposed by ALI and CLIP, address the identified problems. 

This detailed and thorough study will appeal to academics, researchers, postgraduate and doctorate students, as well as to EU and international policymakers in the field of intellectual property and international private law". 

The author generally welcomes the initiatives both of the ALI and the CLIP, though she draws attention to the fact that the most problematic issue they face is that of the initial ownership of copyright -- a point on which the two approaches diverge: the CLIP proposal opts for a 'multi-law' solution, while the preferred choice of the ALI is a 'single law' approach. Neither, she feels, considers the interests of the work exploitation and the protection of the creator in a sufficiently balanced manner.

Dr Matulionyte should be congratulated for the care with which she has navigated her way through a technical, and for many copyright enthusiasts, dry subject. This book may not influence policy-makers, since it was not written by Cliff Richard or published by a lobby group-- but it will certainly help policy-makers understand the ramifications and possible consequences of what they do decide, should they choose to take a look at it.  With the addition of a table of cited cases and legal materials, it would help a number of practitioners too.

Bibliographic details: publisher: Edward Elgar Publishing. xi + 275 pages. Hardback 978 0 85793 428 4. Price £75.00 (online purchase price from the publisher £67.50).  Web page here. Also available as an e-book (details on web page).

Copyright In The Information Society: A Guide to National Implementation of the European Directive, edited by Brigitte Lindner (Rechtsanwältin, Member of the Bar of Berlin, Germany, Registered European Lawyer, Lincoln’s Inn, London) and Ted Shapiro (Massachusetts attorney, non-practising Solicitor, England and Wales, and denizen of Brussels), is a very different sort of book. The publisher's web page gives a clue:

"Celebrating the tenth anniversary of the Directive 2001/29/EC on copyright in the information society [and just how many people did celebrate it?], this book sheds new light on an important European legal instrument at a crucial stage – not only in the life of the Directive, but indeed for copyright itself. 

With a foreword by the ‘architect’ of the Directive, Dr Jörg Reinbothe, the book contains two further stage-setting parts, first on the WIPO Treaties which formed the basis for the Copyright in the Information Society Directive, and then on the Directive itself. The challenges created for regional and national legislators are also explored and identified, as are the complex compromises and varying levels of discretion left to these lawmakers as they performed their legislative tasks. The local nuances and particularities of the implementation of the Directive in each Member State are examined in detail via 27 diverse and compelling narratives. 

Combining academic research with practical features, and addressing copyright issues on international, European, and EU Member States levels, this highly illuminating work will strongly appeal to a wide ranging audience encompassing: academics, researchers and post-graduate law students in the area of international, European and comparative copyright law, in-house counsel legal practitioners, policymakers and government officials".

The team of national contributors is long and impressive. Looking at the list of names, reflecting so many skills and indeed nationalities, one cannot but think of the current Manchester City football squad in pursuit of success -- or the crew of the Pequod in pursuit of Moby Dick. The publisher states that the assembled authorities have provided "27 diverse and compelling narratives"; this reviewer respectfully submits that "diverse and/or compelling" might be a better description since some are compelling and some are diverse, while others again are both. It is difficult to achieve the sensation of true diversity when putting together a compilation in which, inevitably, the same provisions of the Directive just keep getting mentioned. However, diversity is there for the reader to behold if he is prepared to look for it: it is apparent that some of the contributors are more reverential  about the sacred task of implementation, while others have given their chapters a more sceptical flavour. Which authors display which characteristics? You have to read the book and see!

Bibliographic details: publisher: Edward Elgar Publishing. xlvi + 598 pages. Hardback. ISBN 978 1 84980 010 5. Price £140 (online price from the publisher's website £126). Web page here.

Pearl Diving At Your Own Risk

Actual Pearls

Cultural Pearl

The Higher Regional Court of Frankfurt am Main (OLG Frankfurt) has been keeping busy of late. It has not only had to deal with the umpteenth instalment of the bunny wars (for those interested in trade mark law and/or chocolate, see Birgit's IPKat post here), but with copyright issues as well. Almost a year ago, I reported on the 'Perlentaucher' ('pearl divers') decision by the Federal Supreme Court (BGH) (see my earlier post here), concerning abstracts of book reviews and whether such abstracts constitute free use of the original review (section 24 German Copyright Act) or an infringement. The BGH reversed and remanded the case to the OLG Frankfurt after giving some general guidance and reminding all concerned about that old copyright favourite, the idea/expression dichotomy.

In a rare press statement (here), the OLG Frankfurt announced that it partly allowed the claimants' appeal (a change of heart, see its 2007 judgment in the same case here). It held that some of the abstracts were indeed infringements in the form of 'unfree' adaptations of the original reviews because they more or less consisted of especially distinctive and expressive passages from the original reviews, only omitting a few sentences.

The court's press office was quick to state that no general conclusions can be drawn from the case, but that the extent to which a book review may be freely copied or adapted is a matter of fact and degree in each individual case. Since that is certainly correct but not very helpful, I shall take a look at the judgment once it becomes available and let you know if it contains any hidden pearls of wisdom...

Book reviews

Here are a couple of new titles which touch on copyright topics, brought to your attention for your interest, amusement and discernment ...

Infringement Nation: Copyright 2.0 and You, by John Tehranian, is one of the most startling titles to grace a book on copyright law as one might encounter on the timelessly respectable shelves of publishers Oxford University Press.  Its author, currently a tenured Professor of Law at Chapman University where he serves as Director of the Entertainment Law Center, is no mere academic: he is also a founding partner of Southern California entertainment and IP firm One LLP which specialises in high-profile infringement litigation.

So what might one find in a book with a title like this? OUP explains:

"... Infringement Nation presents an engaging and accessible analysis of the history and evolution of copyright law and its profound impact on the lives of ordinary [American] individuals in the twenty-first century. Organized around the trope of the individual in five different copyright-related contexts - as an infringer, transformer, pure user, creator and reformer - the book charts the changing contours of our [American] copyright regime and assesses its vitality in the digital age. In the process, Tehranian questions some of our  [here: not only American] most basic assumptions about copyright law by highlighting the unseemly amount of infringement liability an average person rings up in a single day, the counterintuitive role of the fair use doctrine in radically expanding the copyright monopoly, the important expressive interests at play in even the unauthorized use of copyright works, the surprisingly low level of protection that American copyright law grants many creators, and the broader political import of copyright law on the exertion of social regulation and control.

Drawing upon both theory and the author's own experiences representing clients in various high-profile copyright infringement suits, Tehranian supports his arguments with a rich array of diverse examples crossing various subject matters - from the unusual origins of Nirvana's "Smells Like Teen Spirit," the question of numeracy among Amazonian hunter-gatherers, the history of stand-offs at papal nunciatures, and the tradition of judicial plagiarism to contemplations on Slash's criminal record, Barbie's retroussé nose, the poisonous tomato, flag burning, music as a form of torture, the smell of rotting film, William Shakespeare as a man of the people, Charles Dickens as a lobbyist, Ashley Wilkes's sexual orientation, Captain Kirk's reincarnation, and Holden Caulfield's maturation. In the end, Infringement Nation makes a sophisticated yet lucid case for reform of existing doctrine and the development of a copyright 2.0. 

Readership: Lawyers, law students, legal academics, other students, sophisticated general readers with an interest in culture, technology, law and the entertainment industries".

Books on copyright these days are very much like those doctor-and-nurse romances that used to be popular in the days when people didn't have to apologise for their poor taste in literature: they all have the same plot and the same ending. You know that, in approximate order, you are likely to encounter an explanation as to what copyright is, a nod to the fact that it was once regarded as serving a useful purpose, an account as to how it no longer addresses the day-to-day life of Joe Citizen even when he's not online or at the end of his hand-held device and how much more so when he is, a damning description of what some rogue personages -- usually collective ones -- do with the copyright when it's in their hands, concluding with the wise observation that something ought to be done about it.  Some of these accounts are not great; others bounce along with the vigour of a John Grisham novel and also with the promise that, whatever twists the plot takes, the ending you hope for will generally be found in that place where endings are found.  Given this author's experience, erudition and literary skills, this book is definitely at the upper end of this genre and will not disappoint.  Indeed, it makes the reader wonder how we even put up with this tiresome inconvenience. This makes it all the more surprising to discover the existence of another book, from the stable of the same publisher, that shows just how effectively a combination of contract and, among other things, copyright law, can be wielded in order to preserve the old order which Professor Tehranian has so deftly painted.

Bibliographic data: xxx + 289 pages. Hardback. ISBN 978-0-19-973317-0. Price: £30.00. Web page here. Eyesight warning: don't do anything that might make you go blind if you propose reading this before it's available in an e-book format where you can adjust the font size on-screen: it's mighty small print for a mighty good read!

Digital Media Contracts, by Alan Williams, Duncan Calow, and Andrew Lee, is about as distant from Infringement Nation as you can manage.  It doesn't even have a pretty cover (but at least the print is big enough to read -- and even has CAPITALS for IMPORTANT TERMS used in CONTRACTS ...). Alan Williams is consultant to DLA Piper, a firm in which Duncan Calow is a partner. while Andrew Lee is consultant to the eponymous firm of Andrew Lee & Associates. These good souls are not Infringement Nationalists; they deal in the certainties of done deals, personal and corporate commitments, the nailing down of rights to publish, use, access and share works, among other things. Much of the zone which they inhabit is a business-to-business world, in which there is less scope for humans to be astonished at the unseemly amount of copyright infringement they commit each day.  As the publisher's blurb explains:

"Digital Media Contracts contains a collection of sample agreements, presenting annotated contracts from the digital media industry in typical formats for the industry. Included are agreements for digital downloads, user generated content, social networks, wireless apps and cloud computing [the book is stated to be current to October 2010; the technologies and issues in question appear still to be in current use]. It goes beyond traditional precedents by giving practical, commercially-grounded commentary and background information to assist both readers intending to draft their own documents and those looking for hands-on guidance when reviewing standard form documents received from other parties. Lawyers working in the digital media industry, private practitioners and in-house lawyers will find this work especially useful. Its jurisdictional scope is primarily focused on the UK with comparative comments on similar agreements in the US, with input from lawyers based in the US [This is important not just because so many contract-related issues arise in the US before the corresponding technologies and business arrangements take place in the UK and Europe but because of the temptation to adopt and (mis)adapt US provisions which are not fully understood]. This comprehensive guide will provide practical support in the form of checklists and flow-charts, and will include additional supporting documents such as standard NDAs and sample Heads of Agreement. 

Readership: Lawyers working in the digital media industry, both private practitioners and in-house lawyers; more general commercial lawyers, business development executives and contract managers in companies within the digital media industries. Suitable for those working in UK and US jurisdications".

Bibliographic data: viii + 381 pages. Hardback. ISBN 978-0-19-956220-6. Price: £145. Web page here.

BGH: Pearl diving in foreign waters

On December 1, this copyright enthusiast's favourite senate within the Bundesgerichtshof, the I. Zivilsenat, handed down its greatly anticipated judgment in the so-called “Perlentaucher” case, which concerns abstracts of book reviews. Sadly, the full version will be another couple of months coming, but the trusty BGH press office has provided us with a, well, abstract of the judgment, here http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=pm&Datum=2010&Sort=3&nr=54209&pos=0&anz=229.

To dive straight in, the claimants are two German newspapers, the Frankfurter Allgemeine Zeitung (FAZ) and the Süddeutsche Zeitung (SZ). They regularly publish book reviews in the feature pages of both their online and (how quaint!) paper editions.

The defendant, Perlentaucher Medien GmbH, runs an online culture magazine at www.perlentaucher.de. “Perlentaucher” is German for “pearl diver(s)” and is believed by me to refer to the defendant's activities of searching for literary gems or "cultural pearls" (right; not to be confused with cultured pearls, left) and presenting them to its avid readers. Among other things, the defendant makes available brief abstracts of book reviews published in the FAZ and SZ. The titles of the abstracts indicate the source of the original review. However, the abstracts often contain verbatim quotes of particularly expressive or significant sections of the original reviews. The defendant has licensed online book sellers amazon.de and buecher.de to make the abstracts in question available on their respective websites as well. FAZ and SZ contest that the defendant's actions, especially granting licences to third parties, constitute copyright infringement.

The BGH's response to those claims basically consists of the most standard of legal answers. Yes, well done, you've all guessed it: “It depends.” Fortunately, it did not completely leave us alone with that enigmatic judgment (enigma machine, right; presiding judge of the I. Zivilsenat, Prof. Dr. Joachim Bornkamm, left), but actually did care to elaborate. The crucial provision in the German Copyright Act (UrhG) is s. 24 (1). According to s. 24 (1) UrhG, an independent work created by free use of the work of another may be published and exploited without the consent of the author of the used work. That means that for instance the original book reviews published in the FAZ and SZ do not infringe the copyright in the books that are being reviewed. The same would seem to be true for a brief abstract of a lengthy book review. For, as the BGH points out, in literally all cases it is merely the linguistic expression and not the intellectual content of a book review that attracts copyright. Copyright generally permits one to summarise the contents of a literary work in one's own words, and to exploit that summary. In order to establish whether the abstracts in question infringed the claimants' copyright, therefore, it is necessary to establish to what extent the abstracts made use of original phrases (original in the copyright sense) from the original reviews.

Since the BGH was not satisfied that the facts had been properly established in the course of the appellate proceedings, the case was remanded to the Higher Regional Court of Frankfurt am Main (the ball is back in their court, so to speak). As there appear to be a number of abstracts with different ratios of quoted material, it will be interesting to see where the court draws the line between free use and infringement, and if the parties then accept that judgment or pay a second visit to the BGH. Watch this space, but better not hold your breath.

Book Review: International Copyright 2nd Ed.

Normally, I like to sit and read a book cover to cover before reviewing it, but the Second Edition of Paul Goldstein and Bernt Hugenholtz’s International Copyright is not a sit-down-and-read type of book.  It is a reference book, the kind you want to have near your desk at all times.

The book covers the usual suspects, Berne, TRIPs, the UCC, etc.  Sounds not so exciting, but wait.  The neat part comes in how these are approached and what else is included.  The book is arranged in sections of what I can best describe as biggest-issue topics: Norms,

Territoriality, Term of Protection, Economic Rights, Moral Rights, you get the picture.  Each relevant treaty and agreement is addressed under each topic, showing you the interplay between them.  The effects of smaller agreements, such as regional agreements and directives, are also included in these sections.

In addition to the scholar-favorite topics of norms and traditions, the book includes information about the reality of enforcing contracts (Section 4.4.3 specifically address what happens when the law of the protecting country and the law of the contract conflict), and there is an entire chapter devoted to enforcement.

Most of the examples given in the book appear to be from North America or Europe.  While this is a little disappointing, it is also understandable – the main agreements, the underlying principle's of today’s copyright, and the authors are Western in origin.  To the author’s credit, the index indicates that the book does include some information from every region of the world.

The Appendix is a nice addition.  Although all the information in it – copies of the main treaties and lists of their signatories – can be found on wipo.int or Wikipedia, it’s nice to have the information just a thumb flip away.

From the publishers:

“Written by two of the most experienced practitioners in the United States and abroad, International Copyright: Principles, Law and Practice (Oxford, October 2010) proves to be a great analysis of the principal legal doctrines affecting copyright practice.”

Title: International Copyright: Principles, Law and Practice
Authors: Paul Goldstein (Stanford University) and Bernt Hugenholtz (University of Amsterdam)
Publisher: Oxford University Press
Pages: 407 (book-book), 565 (with appendix and index), 592 (with preface and everything)
Color: very pretty medium green
Sturdy, heavy-weight paper-back cover
List Price: $95.00

Book reviews

Emanating from the US office of UK-based publishers Oxford University Press is a stream of fresh, enjoyable and informative books on copyright. They are (in no particular order):

Music and Copyright, by Ronald S. Rosen, which is a fascinating and informative book. The author, a partner in LA law firm TroyGould, is a seasoned copyright and trade mark litigator. If the little portrait photo on the back cover is anything to go by, he is small, grey and happy.

According to the publisher,

"The highly topical area of copyright law, as applied to music, is widely misunderstood by lawyers, business people, and - perhaps most seriously - the federal judiciary [That the judiciary should misunderstand copyright is something that has always baffled this reviewer, since the judges have the benefit of so much advice from litigation lawyers for both sides. Or perhaps that's why they misunderstand it ...]. More than ever, there is a need to understand music infringement issues within the context of copyright litigation [Potential defendants in infringement proceedings certainly need to understand it, but they're a not an easy market to reach]. In Music and Copyright , Ron Rosen provides readers with a practical and strategic roadmap to the music-infringement litigation process, beginning with the client's claim or defense and continuing through the selection and use of trial experts, discovery, motion practice, and trial.

Renowned for his expertise and career-long commitment to entertainment, intellectual property, and commercial litigation, Ron Rosen has condensed his experience into an essential guide for anyone involved in music-infringement litigation. Packed with elucidating examples from the author's own practice, Music and Copyright navigates the often thorny terrain between notions of the legal and the musical providing practical advice, case studies, forms, and commentary along the way".

Apart from the fact that the author is obviously a skilled and passionate litigator, there is another way in which this book is tilted towards the contentious rather than the non-contentious dimension of music copyright -- that is the consequence of the fact that the case law which interprets, explains and develops the bare words of statute law is itself the product of litigation. In any event, in an era in which so much non-contentious copyright is boringly ritualised into boilerplates and collective rites of administration, litigation is clearly where all the real fun is. In short, this is not the book for you if you want to conjure up a new scheme for licensing ringtones -- but it is ever so useful if you either have an infringement dispute or want to calculate your changes of emerging from one unscathed.

Like all of the books in this attractive series, there's nothing in the marketing to remind the purchaser that this is at base a US book for US practitioners. However, the author's thorough treatment of issues involving comparison of works, parody and suchlike will enrich the understanding, and strengthen the forensic armoury, of any practitioner anywhere.

Bibliographic details: ISBN13: 9780195338362, ISBN10: 0195338367. Paperback, xxii + 596 pages. Price: $185. Web page here.

Publishing Forms and Contracts, by Roy S. Kaufman, is a bit of an oddity -- a book on publishing contracts which, written by the Legal Director of one publishing house (the Wiley-Blackwell division of John Wiley & Sons), is published by another. Once upon a time this might have been regarded as a case of sleeping with the enemy, but now things are different: the common foe of all publishers is the major shift in purchasing and reading habits generated by the first decade of broadband-assisted internet use. It is in the interests of all paper-product publishers to streamline their production, smooth over the jagged edges of legal uncertainty and provide a litigation-free income stream for their products while the online sector grapples with business models that are more like income-free litigation streams.

These comments should not lead the reader to think that this book does not cover electronic publication, internet distribution and other current issues, since it most certainly does. Indeed, it is comforting to see that, while the technologies become increasingly unfamiliar, the legal principles that underpin contract law remain comfortingly constant.

Anyway, according to the publisher,

"Publishing continues to be a major industry worldwide [From a publisher like OUP one would expect nothing less], and this book is designed to assist the thousands of entities that regularly contract into a variety of agreements and need advice in drafting or negotiating the best terms for a deal, or otherwise employing or understanding specific terms used. This book-written and compiled by the in-house counsel of a major publishing house-offers more than 80 forms and templates of all of the major agreements regularly encountered by a publishing company, with strategic commentary on their use.

Topics covered include book publishing, periodical publishing, electronic publishing, litigation/litigation avoidance, e-commerce and permissions/subsidiary rights. Each chapter begins with introductory text setting forth key issues and other insights, and then presents the related forms, which in turn are accompanied by drafting and negotiating tips".

Having got out of the habit of using CDs for any purposes, I found it a little disconcerting to have to grapple with a CD-ROM rather than follow a hyperlink, but it's surprising how quickly one can adapt to an old technology when the need arises. Still, when the next edition is published I hope I'll have at least the option of accessing my precedents online, a form of delivery which has the advantage that it can be tinkered with in response to judicial interpretations, new statutes and changing fashions of draftsmanship.

Bibliographic details: ISBN13: 9780195367348, ISBN10: 0195367340. Paperback, xvii + 462 pages. Price: $145. Book's web page here. An accompanying CD-ROM to the book contains all of the forms in electronic format, which can easily be modified for the customer's use.


The third book in this little trilogy of reviews is An Associate's Guide to the Practice of Copyright Law, by Meaghan Hemmings Kent and Joshua J. Kaufman. Both authors practise with the venerable Venable LLP (Meaghan being a senior associate, Joshua being a partner). It is not apparent whether Joshua is related to Roy, author of the book reviewed immediately above.

According to the publisher,

"An Associate's Guide to the Practice of Copyright Law guides associates through what is typically the most challenging part of their job: knowing where to find information and what specifically they need to complete a particular task or assignment. Written by a senior associate and a supervising partner, the authors reign [Should this be 'rein'? Or is it a subtle allusion to 'royalties'?] in the work process for associates and give practice-oriented advice on important topics such as what questions to ask a client, what research to conduct, what elements must be met for various causes of action, the potential repercussions for various actions and the proper alternatives to be considered. The book also includes sample documents and pleadings, references to secondary sources and key cases in copyright law".

Well, actually the most challenging part of an associate's job is how to become a partner. This involves things like never being seen wandering around the office without an important-looking file or two in your hands, not booking social arrangements that can't be conveniently cancelled, remembering to ask intelligent-sounding questions and being slightly better than anyone else whose candidacy for promotion is being considered. While this book does not provide this important advice, it does the next-best thing by giving genuinely helpful tips that enable the young copyright practitioner to be a self-starter and to know how to steer a job from its inception to a plausible conclusion. Apart from a clear, concise text, the authors flag plenty of 'practice tips' which the reader can peruse while waiting to catch a bus (some of these tips are in fact summaries of legal rules).

As with the other books reviewed here, the focus is plainly on the US practitioner. Given the sui generis nature of US copyright law and practice and the sheer wealth of case law, this book will clearly be of less use to the lawyer from other jurisdictions. However, it will be handy for any non-US copyright lawyer who spends hours on the phone to his US counterparts and sometimes struggles to comprehend issues which are alien to him.

Bibliographic details: ISBN13: 9780195373479, ISBN10: 0195373472. Paperback, xi + 327 pages. Price: $150. Book's web page here. A CD-ROM containing many forms in electronic format, is included.