Showing posts with label consumer awareness. Show all posts
Showing posts with label consumer awareness. Show all posts

Tuesday, 17 July 2018

The COPYKAT: "Faceswap" for the Statue of Liberty, trade wars, and embezzlement

It's been an exciting few weeks for copyright around the world. This CopyKat takes a look at three "David vs Goliath" disputes, in which parties (respectively) include the US Government, Fifa and an 8 year-old boy, and one of Africa's largest telecoms companies. Also in the news: YouTube rolls out its anticipated Copyright Match tool, copyright collecting societies in Kenya continue to struggle with accountability, and China launches an IPR awareness campaign.


Lady Liberty "faceswap" will cost the United States Postal Service $3.5M

Between 2011 and 2014, the United States Postal Service (USPS) used an image of the Statue of Liberty for its Forever Stamp series (a type of First Class postage stamp). Unfortunately for the USPS, the image they chose was not actually of the famous statue that towers over New York Harbor designed by French sculptor Frédéric Auguste Bartholdi in 1886. Instead, the image they chose was actually Robert S. Davidson's replica Statue of Liberty which looks over the New York-New York Hotel & Casino in Las Vegas. Davidson sued for – and won – nearly $3.5 (£2.6) million in royalties, plus interest.

As reported by Artsy, an eagle eyed stamp collector identified the mix-up in 2011. The USPS was made aware of the goof in 2013, but went on to print another 1.13 billion stamps with the replica’s image. For context, the judgement cited that the USPS made some $70 million in revenue resulting from sales of this Lady Liberty stamp alone.

The statues in NYC (left) and Las Vegas (right).


The Post Office purchased the photo used on the stamp from the image service Getty for $1,500 (£1,140). However, the license only covered the rights to Getty's photograph of the statue — and not the statue itself. The USPS neglected to seek permission from Davidson, likely because they simply assumed what it was using was in the public domain.

In its defense, the USPS asserted that the statue is a replica and accordingly, contains no truly original work. If true, this would render Davidson’s copyright claim invalid, and the government would owe nothing for its use of the replica statue’s image.

Davidson was therefore tasked with proving that his copyright in the statue was valid, which under US law requires only a showing of “some minimal degree of creativity” and that it was his own “independent creation” of those original elements.

By way of reminder, the focus is on the expression of an original idea and not the idea itself (Oracle Am., Inc. v. Google Inc., 2014). As such, Davidson’s statue did not need to be wholly original, but rather a “new and original expression” of some previous work or idea – namely, the famous Bartholdi statue.

Davidson argued in his lawsuit that he wasn't trying to create a replica of the original, but rather to craft a fresher, more feminine version. As was later quoted in the ruling, he “envisioned his mother-in-law as inspiration ... and viewed her picture every night during the construction of the face of the statue."

The Court examined photographs and was satisfied that Davidson “succeeded in making the statue his own creation, particularly the face.  A comparison of the two faces unmistakably shows that they are different.” Ultimately, the Court agreed that Davidson’s statue “evokes a softer and more feminine appeal.  The eyes are different, the jaw line is less massive and the whole face is more rounded. “

The USPS’s defense that the stamp fell under the fair use exemption was rejected by the Court. As the USPS printed “billions of copies and selling them to the public as part of a business enterprise … so overwhelmingly favors a finding of infringement that no fair use can be found.”


In case you’re wondering how the USPS – which is a US government agency – can be successfully sued for copyright infringement, 28 U.S.C. § 1498(b) waives sovereign immunity for claims of copyright infringement against the federal government “for the recovery of his reasonable and entire compensation as damages for such infringement.”


YouTube's "Copyright Match" offers enhanced screening technology (for a selected few)

As the CopyKat mentioned last month, YouTube has been beta testing a feature called Copyright Match, designed to find re-uploads of content on other channels. The tool will point content uploaders (creators) to instances where their work has been stolen, and allow them to request that YouTube delete the guilty party’s video on the grounds of copyright infringement. Last week, YouTube channels with more than 100,000 subscribers received access to the new tool.

When a creator uploads a video to the Copyright Match tool for review, other video uploads on different channels will then be scanned to detect similar content has been uploaded. Fabio Magagna, the product manager for the Copyright Match Tool, explained on the YouTube Creators blog that “when there is a match, it will appear in the ‘matches’ tab in the tool and you can decide what to do next”.

Although YouTube already offers an automated copyright-flagging system called Content ID, Copyright Match is different because it’s designed especially for YouTube creators who have problems with unauthorized re-uploads.

By YouTube’s own admission, the Copyright Match is “a powerful feature,” which will be monitored closely in its early stages. Magagna noted that the software will continue to expand over the coming months, “with the long-term goal of making it available to every creator in the YouTube Partner program.” The company insists that takedown requests will be reviewed to make sure they comply with YouTube’s copyright policies.

The introduction of Copyright Match comes at a time of intense debate surrounding user-uploaded content on social media platforms such as YouTube. In particular, The European Parliament recently voted to reject a new copyright directive.  At the heart of controversy for many was Article 13, a section of the proposed directive that focuses on the use of copyrighted material uploaded by users.

And yes, in case you’re wondering: new YouTube video reviews of Copyright Match are already available to watch.


Fifa takes down celebratory World Cup dance video: is this a step too far?

The World Cup is the largest single sporting event on Earth, with nearly half the world’s population tuning in. With England’s (somewhat surprisingly!) good run up to the Semi-Finals, fans of the Three Lions were especially eager to show their support.

When England’s captain Harry Kane scored a goal against Tunisia, a mother filmed her 7-year old boy celebrating the moment. She subsequently posted the short 5-second clip of him dancing in the living room on Twitter. However, FIFA - Football's ruling body - ordered the clip removed from Twitter. FIFA claimed the clip infringed their copyright, as viewers could see blurred football action from the family's TV in the background.

Speaking to the Mirror, Kathryn Conn explained that her son “is a massive Spurs fan and he absolutely worships Harry Kane so he started dancing around in the living room. All you can see on the TV in the background is a really blurry replay of the goal. It's hardly visible."
England captain Harry Kane won the Golden Boot for most goals scored in the tournament.


According to Conn’s tweet on the subject, the copyright notice from Twitter was brought under the US Digital Millennium Copyright Act. Several sources including iNews report that Fifa issued a letter stating: “On behalf of Fifa, we hereby assert that your making available and/or promoting of the protected content on your platform is not authorised by Fifa, its agent nor the law and that your activities in this regard serve as a serious infringement of Fifa’s exclusive rights.”

By way of background, Fifa reports on its finances page that around 95% of its revenues come from the sale of television broadcasting, marketing, and licensing rights related to the FIFA World Cup.
From the 2014 World Cup in Brazil, Fifa hauled in $4.8 billion in revenue, which turned a $2.6 billion profit for the association (which is then re-invested into development projects). Compared to ticket sales earned $527 million, Fifa’s broadcast revenue topped $2.43 billion, while sponsorship fees brought in $1.6 billion.

To date, Fifa’s intellectual property portfolio contains 14,000 trade mark registrations, about 300 registered designs, and 150 copyright registrations covering 157 jurisdictions overall. As is made clear in its 30-plus pages of official guidance on brand protection, Fifa has millions of reasons to be protective of its intellectual property.

Fifa engages in active surveillance and brand protection, which includes court proceedings to halt an infringing situation and seek financial compensation for any damages suffered. However, sharing official content belonging to FIFA by fans without any commercial benefit is expressly permitted, as per the branding guidance. Curious by nature, this CopyKat’s therefore wonders why an account with barely 200 followers was singled out in this instance.


Did Safaricom steal Songa app from former employee?

Web developer Evans Gikunda has sued Radio Africa and Safaricom, accusing them of infringing his copyright when they launched a mobile app, Songa by Safaricom several weeks ago. Safaricom is a leading mobile network operator in Kenya, and its Songa music app enables subscribers “to get their local and international songs in one place and keep them consistently entertained and updated.”
Gikunda claims that he created the music app between 2012 and 2016. In 2013, while working as a developer at Radio Africa, the Chief Executive at Radio Africa Patrick Quarcoo “persuaded Gikunda to partner with him to ensure that the product gets to market” (IPKenya). According to Gikunda, Quarcoo proposed that that once Radio Africa’s Board of Directors sanctioned its participation in his app, they would share out the ownership of the app. The ownership was proposed at Radio Africa – 40%; Gikunda- 30%; Quarcoo- 20%; and the remaining 10% to a strategic partner.
In 2016 Gikunda left Radio Africa (under less than favourable circumstances) and says that after his resignation, Quarcoo sold the app to Safaricom without consulting him. Gikunda had not been “involved in the process at any stage, and neither has he benefited from it; despite the claims he created the platform” (innova8tiv). As with most intellectual property disputes arising between (former) employees and their bosses, establishing the ownership of the copyright subsisting in the Songa app lies at the heart of this matter. Gikunda is asking the High Court to compel Safaricom and Radio Africa to reveal how much money they have made from ‘Songa by Safaricom’ and is seeking damages.

To be successful in his claim, Gikunda will need to establish that he created his app outside the scope of his employment with Radio Africa, and that the app currently used by Safaricom is a reproduction or adaptation of his original app. To complicate matters, Gikunda’s app has been known under a variety of other names, including ‘NakedGroove’, ‘The Platform’, ‘The Music Platform’ and ‘RAMP’ – the latter being an abbreviation of either ‘Radio Africa Music Player’. Additionally, neither Gikunda nor Radio Africa obtained copyright registration, which further confuses the evidence.
This calls into question whether or not Gikunda made the program as part of his employment with Radio Africa (see also the work-for-hire doctrine), as well as the enforceability of moral rights for digital works. To achieve an injunction against the companies, which Gikunda is also seeking, he will need to prove that damages alone are an insufficient remedy.


Copyright woes continue for Kenyan collecting societies

Kenya's High Court

Elsewhere in Kenya, the complicated saga of the copyright collecting societies continues. Most recently, the High Court (pictured) ordered the Music Copyright Society of Kenya (MCSK) to account for the money it has collected as royalties and licence fees since January 1st 2017. Justices RN Sitati, DS Majanja and TW Cherere have given the MSCK thirty days to comply with the order (The Star).
In 2015, it was noted that MCSK's disbursement of royalties to artists has been decreasing for several years. The Kenya Copyright Board (KECOBO), the government organisation tasked with enforcing copyright in Kenya, established a minimum standard of 70% of revenue to be given back to artists. However, MCSK’s disbursement rates to musicians has fallen to 58.9% of collected revenue. Although MCSK was once Kenya’s largest royalty-collecting body, KECOBO revoked its licence in February of 2017 when MCSK failed to provide audited financial statements. The move came amidst allegations from local artistes over embezzlement of their royalties by MSCK.

As the CopyKat discovered back in May, Kenya is not the only African country to be experiencing problems with copyright collecting societies: power struggles with the Copyright Society of Nigeria (COSON) and the Nigerian Copyright Commission continue. 


Copyright awareness comes to China 

China has launched a four-month campaign to protect the intellectual property rights: you can visit the campaign website here. First announced in September, the campaign is seen by many as an attempt to alleviate major concerns among foreign investors, including those in the United States. 

China’s lack of strong intellectual property rights protection measures “frequently draw complaints from foreign investors and have been a long-standing focus of attention at annual talks with the US and Europe” (South China Morning Post). The Trump administration has officially launched a probe into alleged Chinese intellectual property theft which, amongst other things, led the United States to impose punitive tariffs on Chinese products. 

The campaign, which will last for at least four months, has been jointly launched by the National Copyright Administration of China (NCAC), the Cyberspace Administration, the Ministry of Industry and Information Technology and the Ministry of Public Security.

It will target key areas including unauthorized republication of news and plagiarism on social media, unauthorized broadcasting of copyrighted content on short video sharing apps, and copyright violations by setting up overseas servers. The campaign will also push service providers to enhance their internal supervision systems (China Daily).
Chairman Mao Memorial Hall in Beijing
In 2012, an article on Forbes argued that “IP protection will always be an uphill struggle in China and for companies doing business there,” as individual rights – including intellectual property rights – may be in some instances at odds with traditional Chinese society. 

A more recent Reuters article from April of this year explained that while Chinese IP protection laws are comparable to U.S. and European legal standards, the weakness lies in implementation, with high levels of bureaucracy. In particular, “court decisions applying on a provincial level rather than nationally, and judges often having different interpretations of the laws.”

In China, many consider that “even the education system works against an embrace of IP protection,” and until IP infringement is seen as an immediate threat to economic success, “few will really care.” Will a potential trade war be the impetus China needs to close the gap?

Friday, 26 December 2014

Copyright education in schools:a riposte

Earlier this month, the 1709 Blog hosted this guest piece by Andreas Rahmatian ("Copyright education in schools as a consumer awareness scheme: a comment"), on which we have now received the following response from IP educationalist and activist Ruth Soetendorp who writes:
It is hard to imagine a group of eminent professors of art, music, or theology agreeing that their subjects should be dropped from the school syllabus because it is impossible for the classroom curriculum to deliver them with the depth and rigour they are accorded in the university. Yet an eminent IP law academic (Dr Andreas Rahmatian) proposes that Intellectual Property should never make it into the classroom for just such a reason.

IP education has developed considerably
since the old days of the 1980s
Intellectual Property education has come a long way since Bill Cornish first produced those 'samizdat'-style typed cases and materials books in the early '80s. IP law has developed a healthy international jurisprudence, at the same time as a respectable literature focusing on the legal, economic, social, political, philosophical and business management aspects of IP. IP is the focus of prestigious research centres across the globe.

But that is not all. At the same time, there is emerging a growing awareness of the practical significance of IP in everyday life, and especially for people in business, whether as managers, strategists, innovators or entrepreneurs. Such people are not looking to be IP experts. They are looking to be more confident in taking the initial steps to protect their own IP and avoid infringing the IP of others. They want to be more at ease with the language and concepts of IP, in order to be more easily able to dialogue with IP experts.

University students recognise the significance of IP in their future careers, as the recent NUS research established. They want to know more about it. Seeing a class of primary schoolchildren ten years ago in Foshan, China presenting their take on trade marks to a WIPO delegation was a revelation. Those 11 year olds were able to share their understanding of the impact of esoteric trade mark concepts on themselves, their families and business. They were expected to use what they had learnt to influence their own parents in the significance of IP.

Copyright education is beginning to filter into the classroom, not least because all classrooms use online resources, which in turn introduce issues of ownership and permission. But copyright education is NOT a full IP education. IP education includes introducing the notion of patents for inventions, of rights to protect designs and of trade marks on which to build brands. Getting all those into the school syllabus won't be easy, because there is no natural ‘accelerator’ amongst education policy makers to do so.

'Frere Jacques' on the recorder, finger-painting, and the nativity play enable children to take their first steps into the worlds of music, art and theology. We should not resist trying to find their IP equivalent.

Wednesday, 3 December 2014

Copyright education in schools as a consumer awareness scheme: a comment

The 1709 Blog welcomes the following guest post from our friend Dr Andreas Rahmatian (University of Glasgow, School of Law) on Mike Weatherley's latest discussion paper, which this blogger welcomed in the IPKat weblog's Wednesday Whimsies this morning.  Andreas writes:
In October 2014, the former Intellectual Property Adviser to the Prime Minister, Mike Weatherley MP (right), published a Discussion Paper, ‘Copyright Education and Awareness’, which ‘aims to ensure more consumers – both young and old – are made aware of the value of IP’. This is because ‘we are all creators today’ and ‘there is a need for individuals to appreciate how copyright positively relates to value creation’ (Discussion Paper, p 8).

This Paper presents several ways to ‘address consumer confusion’ about copyright and ‘to raise awareness of IP-related issues among young people’, for example through collective information campaigns by copyright owners, the Government, the BBC and so on. Furthermore, awareness of IP rights should become part of the school curriculum, for example within the AS/A Level Media Studies curriculum. We are told that ‘it is essential to educate students on the value and application of IP and the role it may play in their future livelihoods’ (Discussion Paper, p 22). It is not essential.

First, I doubt whether teaching copyright awareness in the schools is really that necessary. A great number of pupils who leave school in Britain have little knowledge of a foreign language (essential also for appreciating properly one’s mother tongue), have a limited understanding of mathematics (essential for the logical thinking in all disciplines), and have an unimpressive command of English (e.g. ‘Pisa tests: UK stagnates as Shanghai tops league table’, BBC website, 3 December 2013 It is, however, a different issue how significant the Pisa-tests are). I then get some of these as my intellectual property law students at university. So time at school may be spent more fruitfully than on copyright protection matters. Secondly, especially among teenagers copyright is probably the best-known subject area of the law besides criminal law and family law, and certainly the only topic of commercial law a non-specialist is familiar with. Teenagers who download illegally from the Internet (and typically also know the illegality) accept the rules and therefore show a certain understanding of them. Illegal downloading is usually not the battle cry ‘property is theft’.  For example, that is not the idea of ‘copyleft’ either: ‘Proprietary software developers use copyright to take away the users’ freedom; we use copyright to guarantee their freedom. That’s why we reverse the name, changing “copyright” into “copyleft”. Copyleft is a way of using of the copyright on the program. It doesn’t mean abandoning the copyright; in fact, doing so would make copyleft impossible. The “left” in “copyleft” is not a reference to the verb ‘to leave’—only to the direction which is the inverse of “right”’ here.  "However, illegal downloading is an acceptance of someone else’s property rights (without critical questioning of their entitlement) and an attempt at obtaining an unfair advantage by circumventing the rules and trying not to be caught. "This is like an investment bank speculating against its own clients (eg US National Commission on the Causes of the Financial and Economic Crisis in the United States, ‘The Financial Crisis Enquiry Report (Final Report)’, 25 February 2011, pp. 142-146, 189, 193, 236-237, here). So there is not much gained in telling youngsters the obvious: you should not infringe copyright. Bemoaning that ‘the younger population does not have moral or ethical concerns about the practice of online copyright infringement’ (Discussion Paper, p. 11) is beside the point.

The third issue is most important. Not all downloading from the Internet is illegal (eg Copyright, Designs and Patents Act 1988, ss 28 et seq). And where it is, it should not always be illegal. The Discussion Paper does not mention these aspects at all. Yet, these would have to form an essential part of a school education about IP rights, if awareness of IP rights is to be in the school curriculum at all – leaving aside that the Paper really means copyright only when it speaks of ‘IP’. There seems to be no interest in enriching the school curriculum with a discussion about the history, justification and limits of copyright that a proper humanistic education would require. Instead, apparently unassailable laws should be taught as a skill on a need-to-know basis without fostering any understanding and critical engagement. According to the Discussion Paper, awareness about copyright really means appreciation of economic assets in form of copyright-protected works, the copyright typically being owned by the entertainment and software industries. School children should be indoctrinated that this is necessarily virtuous in itself and should be accepted without further discussion. Future generations should be good and passive consumers who respect these property rights of others and so cause not too much enforcement cost to the copyright owners. This purely commercial attitude that labels a composer or a music band as ‘content providers’ and musicians and listeners as ‘consumers’ is offensive. It degrades the most human of all activities, intellectual and cultural creations, to being just another form of commercial venture. We are not ‘all creators today’, we are all only forced to make money our principal aim in life today. In that we no longer stop at our cultural goods and at the education of the next generation to appreciate and create these.

Not the intellectual and cultural content is relevant, only whether that content can be provided as a commercially valuable asset through copyright. And that asset needs protection and respect, because ‘copyright positively relates to value creation’. Value creation is apparently the only creation that counts; it is not the creation of the creative person for its own sake. And indeed, for the most part the value is not created in favour of the artist, the creator, but for businesses as copyright owners. This is through copyright assignments, exclusive licences and employees’ copyright provisions (Copyright, Designs and Patents Act 1988, ss 11(2), 90). A future school curriculum is supposed to instil respect for the copyright regime to maintain that state of affairs, apparently the best of all worlds. It seems that we can do without that kind of education.
Do you agree with Andreas? Do let us know.