Monday 21 December 2009

Groundless copyright threats

Just as the human mind is changeable and inconsistent, so intellectual property law is not without anomalies. For example, while copyright protects even the most banal 2-D images, the Lucasfilm judgment sets the bar for 3-D creations at a daunting height. Another anomaly that has risen to the surface in recent days is the penalty for groundless threats of infringement proceedings. There are stiff penalties for most intellectual property rights – patents, trade marks, registered and unregistered designs – but none for copyright.

Lord Lucas is seeking to set this right by proposing a new section in the Copyright, Designs and Patents Act 1988. The noble lord, as previously noted, is eager to see some checks and balances in the Digital Economy Bill to rein in heavy-handed right owners, especially top-shelf copyright proprietors. The proposed section is:

"169A. Remedy for groundless threats of infringement proceedings

(1) Where a person threatens another person with proceedings for infringement of copyright, a person aggrieved by the threats may bring an action against him claiming—
(a) a declaration to the effect that the threats are unjustifiable;
(b) an injunction against the continuance of the threats;
(c) damages in respect of any loss which he has sustained by the threats.
(2) If the claimant proves that the threats were made and that he is a person aggrieved by them, he is entitled to the relief claimed unless the defendant shows that the acts in respect of which proceedings were threatened did constitute, or if done would have constituted, an infringement of the copyright concerned.
(3) Mere notification that work is protected by copyright does not constitute a threat of proceedings for the purposes of this section.
(4) A copyright infringement report within the meaning of section 124A(3) of the Communications Act 2003, if notified to a subscriber under section 124A(4) of the Communications Act 2003, does constitute a threat of proceedings for the purposes of this section."

Do readers of this blog think there is good reason for this proposal...or is it groundless?


Unknown said...

This is an interesting idea. A songwriter I know was threatened by another songwriter with a copyright infringement suit, claiming that the music involved (not the words) was copied. Since my friend had never heard of the second guy, he was quite puzzled. Thankfully things blew over, but it could have been otherwise.

And of course there's Davenport Lyons, who have been documented to have threatened people with a lawsuit for downloading things that they hadn't.

So I can see the utility of this, it would add some balance. At present the copyright holder has no check on their ability to threaten and sue, and they can walk away without even an apology at any time if they chose (see some of the RIAA cases in the USA).

Anonymous said...

Lord Lucas? Well what do you expect when we enoble a Hollywood producer!

Anonymous said...

I have suggested a similar amendment to that proposed by Lord Lucas for some time. My response from David Lammy was very negative. He ignored my letter and referred the matter to the relevant section of the IPO. Initially they rejected me as a "nutter". When they discovered I was an IP professional they showed some respect and referred me to Hansard where the actions of the PRS had been the subject of a parliamentary question. Lucas is right and the existing law on copyrigt is lacking authority.

Chris-Mouse said...

I would also add a bit more to section 2. Specifically, in order to avoid a claim for relief, the defendant must also show that the copyright involved is the property of the defendant, and not some unknown third party.

Dave Levy said...

I agree with what Chris Mouse said...

Copyright owners are trading in rights, we should not allow them to sell the rights to collect revenue from alleged infringers.

I think there should be an offence of vexatious pursuit. A sort of three strikes for those that erroneously threaten alleged infringers.

If there is no downside, they'll misbehave, they already are. They need some skin in the game.

I also think that ISP's and web sites should be able to claim that they are being threatened with legal action. Their damages would hurt the copyright owners, most of whom are not small song writers trying to make a living.

Anonymous said...

Fate of this Amendment can be read here:

Incidentally, Lords are positively obsessed with ACS Law. This is an act of parliament for one law firm.