Saturday 19 October 2013

Bryson claim puts free speech in focus

Who owns the words in an interview? In the absence of an agreement (which of course are more and more common with with celebrity interviews in today's World) is it the Interviewer, the Interviewee? Or perhaps both? 

The Sydney Morning Herald reports that author Bill Bryson's "warm and cuddly image" has been somewhat tarnished after he and his publisher reportedly too action against a journalist for republishing an interview from nearly 20 years ago. 

The story seems to be that British travel writer and guidebook author Mike Gerrard interviewed Bryson back in 1994, and recently decided to republish the interview as an 8,000 word, 27-page e-book Bill Bryson: The Accidental Travel Writer, which he put on sale via Amazon. According to travel industry blog, World Travel Market, Bryson’s lawyers took exception to Gerrard’s enterprise, claiming it breached the Bryson's copyright. They demanded the book be removed from the Amazon store, a request Amazon agreed to, much to Gerrard’s annoyance. 

It seems that Bryson claims that he did not authorise publication of the interview beyond 1994 and moreover,  claims he remains the owner of the words actually spoken by him to Gerrard. Gerrad retorted by saying this of the claim: 

"If that were the case, no journalist could ever quote anything anyone ever said to them, because the person speaking the words owned the copyright in them. There would be thousands of breaches of copyright every day, in newspapers and magazines, in the radio and on TV, and online."

"Bill Bryson himself quotes conversations with people throughout his travel books, frequently to ridicule them ..... does he breach their copyright in the words they spoke? Does he ask their permission?"

And it's Gerrard's move to take the dispute beyond just his own argument with Bryson, and into the wider political debate, that interested me.

With speeches and interviews, there has been an evolution in the way the author here is determined. Way back in 1900 in Britain, a majority of the House of Lords in Walter v Lane, reversed a decision of the Court of Appeal, and found that reporters from the Times newspaper who took down shorthand notes from a series of speeches given by the Earl of Roseberry, a prominent politician, and later transcribed them, adding punctuation, corrections and revisions to reproduce verbatim the speeches, were authors for the purposes of copyright. Lord Brampton found that it was crucial that "The preparation [of the reports] involved considerable intellectual skill and brain labour beyond the mere mechanical operation of writing"; Lord Robertson, dissenting, compared the reporters to phonographs, and found that there was no authorship even though there was much skill required. 

Walter v Lane was, of course, before the 1911 Copyright Act which added the word 'original' to qualify a 'work' in the statute - meaning that the (here literary) work must originate from the author. That was 1900. Surely in the days of dictaphones and digital recorders there is little skill in recording a speech beyond simply pressing the "on" and "off" buttons. Even when moving from a 'sweat of the brow' approach to the "skill, judgement and labour" or "selection, judgment and experience" tests (see in University of London Press in 1916 and Macmillan v Cooper in 1923) to the more liberal approach taken by the European Court of Justice in Infopaq, it's still hard to see how anyone making a recording of a speech has in some way passed the test of authorship and that that material drawn from that recording is the expression of the intellectual creation of the person making the recording as an author (although of course there is a separate copyright in each recording of a speech or an interview). With the qualifications to Infopaq made by  Mrs Justice Proudman and the Court of Appeal in Meltwater, a simple recording of an interviewee surely cannot be an act of authorship of the interview content. So is the position quite the reverse?

In 2009 in the USA  the 10th Circuit appellate court cited William F. Patry from Patry on Copyright when holding that court reporters were not "authors of what they transcribe and therefore cannot be copyright owners of the transcript of court proceedings".

And readers of this blog will remember that on the 50th anniversary of the Dr Martin Luther King's "I Have a Dream" speech (delivered on August 28th 1963) many in the US press commented  that Dr King's Estate was "aggressive" in protecting the copyright not only in the video film of the speech - but in the words of the speech themselves, and indeed an appellate court in the US had agreed that the speech was not in the public domain. It was Dr King's - although many commentators felt the words were of such importance they should not be fettered by copyright. 

That said, and it's a big but - an interview is usually a two way process - questions and asked - and questions are answered - here with Gerrard presumably asking and Bryson certainly answering. There is a skill in posing and framing questions, in holding the attention of the interviewee, and often in editing the resulting words and in formatting into a readable article. There again it is an "art" that only has a successful conclusion if the answers to the questions are worth using. And they will be the interviewee's words. So good questions and good answers make for a good interview. It's a two way thing.

Australian copyright lawyer Isabella Alexander is quoted in the Sydney Morning Herald as saying the Bryson case is in a "difficult area" opining "I think that currently Australian law would not think that a reporter who is just transcribing would be an author because they would not have put in independent intellectual effort in creating that work."  I think I have to agree with that, but an interview might  well be different a different scenario.  I would suggest that this might well lead to co-authorship as the interviewer and interviewee's contributions are joint - and interwoven with each other - each with a significant creative input - which indeed would mean, in the absence of any agreement to the contrary,  Mr Gerrard would need Mr Bryson's permission before he could re-exploit the 'work'. And vica-versa of course.

Mr Bryson's words clearly have a value - his book sales top $100 million. And commercially his actions may make sense. That all said, who owns what when it comes to speeches - political or otherwise - and interviews - remains important, with a significant impact on free speech. What if Politicians could block re-use of, say, a controversial speech or an embarrassing interview by using copyright to protect their words? Beyond the exemptions for news reporting, criticism and review granted by the doctrines of fair dealing and fair use, and any implied licence, what if politicians, world leaders, celebrities and others could use copyright to expunge any record of mistaken words? It may be correct in copyright - but I have to say the implications for free speech would be somewhat chilling. 

Back in 2008 in a New York Times article titled Copyright and Politics Don’t Mix, Lawrence Lessig noted a spat between Republican New York State Assemblyman George Amedore and his rival Democratic candidate, Mark Blanchfield, which arose after Blanchfield used a short clip of Amedore saying  “I don’t look at the Assembly position as a job” in an advert - prompting a lawyer's letter asserting ownership of the copyright in the words by Amedore: Lessig said "It would be far better if copyright law were narrowed to those contexts in which it serves its essential creative function — encouraging innovation and ensuring that artists get paid for their work — and left alone the battles of what criticisms candidates for office, and their supporters, are allowed to make."

The British Political Speech website makes it clear that "Copyright for the Conservative Party leaders’ speeches resides with the Conservative Party Archive Trust. Copyright for the Labour Party leaders’ speeches resides with the Labour Party. In all other cases, unless otherwise stated, copyright resides with the person or estate of those who delivered the speech." This position, coupled with the now widespread use of of pre-interview and pre-performance agreements which either restrict future use beyond specific purposes or indeed transfer any copyright the speaker may or may not own over to them could be considered to be significant barriers to free speech and a free press. Are they?

Any thoughts of 1709 readers would be most welcomed.

Cases referred to:

The Newspaper Licensing Agency Ltd & Others v Meltwater Holding BV & Others [2011] EWCA Civ 890
Case C-5/08 Infopaq International A/S v Danske Dagblades Forening
MacMillan v Cooper [1923] 92 .L.J.P.C.
University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601
Walter v Lane [1900] AC 539

Estate of Martin Luther King, Jr., Inc. v. CBS, Inc. William C. O'Kelley [1999] in U.S. District Court for the Northern District of Georgia No. 98-9079


Anonymous said...

Haven't thought about the issue, but under US law (at least as interpreted by the 2d Circuit) wouldn't an interview be a joint work of authorship? Both interviewer (questions) and interviewee (answers) are contributing copyrightable expression. It shouldn't then matter who writes it down. Under US law (but not necessarily that of other places) both parties can license the expression but are under a duty to account to the other for profits.

Ben said...

There are some very interesting comments on TechDirt on this story - including comment from Mike Gerrad himself: Its here

Mike Gerrard said...

Thanks for a fascinating and detailed look at a complex situation. It certainly isn't as black and white as Bryson's lawyers make it out to be.

I think there is a substantial difference between a political (or other) speech and on off-the-cuff interview. If someone has written a speech and delivered it, clearly they own the copyright and not someone who happened to be there who recorded it.

However, Bryson claims he owns the copyright in the words he spoke on that day. It would be impossible for him to say what those words were, if I hadn't written them down.

I also did put effort into turning his spoken words into a readable piece of non-fiction. I left out extraneous comment that was immaterial (like chat about his children), I edited out the umms and ahhs of a person's speech, and I shaped the interview into a more logical order. As you say, there is skill involved both in keeping the interviewee interested and in keeping the reader interested when you write the piece.

I think it also important to point out that if Bryson's lawyers are right, then any expert Bryson interviewed for any of his more serious books, like the one on Shakespeare, could change their mind about allowing their words to be used, claim copyright in the words Bryson quotes, and demand they be removed from the next edition. It would be a nightmare, including for Bryson himself, and I only hope common sense prevails.

Alastair said...

"There is a skill in posing and framing questions, in holding the attention of the interviewee, and often in editing the resulting words and in formatting into a readable article. There again it is an "art" that only has a successful conclusion if the answers to the questions are worth using. And they will be the interviewee's words. So good questions and good answers make for a good interview. It's a two way thing."

Whole generations of TV interviewers have made a living from their skills. Unless specified in an original contract, nobody considers celeb interviews re-transmitted years later to be to copyright of the celeb.

Indeed the technique, craft & expertise applied by Sir David Frost to Richard Nixon were considered SO skillful and significant, they were turned into a Hollywood movie!

In the absence of any contract, the words "I am not a crook" might belong to Nixon, but his apology, I would suggest, belongs to Frost.... and the American people ofc!

Ben said...

I am not expert on US law and I took this from John T. Aquino's blog:

"Legal precedent in the United States appears to be divided, with some cases suggesting that the interviewer holds the copyright (e.g. Taggart v. WMAQ, Channel 5, 57 U.S.P.Q.2d 1083 (S.D. Ill. 2000), and others indicating it is the interviewee (e.g. Suid v. Newsweek, 503 F. Supp. 146 (D.D.C. 1980)). Another case in District of Columbia federal district court--Quinto v. Legal Times, 506 F. Supp. 554 (D.D.C. 1981))--posits that both the interviewer and the interviewee have ownership interests in their separate contributions."

more here

Sheogorath said...

In 2009 in the USA the 10th Circuit appellate court cited William F. Patry from Patry on Copyright when holding that court reporters were not "authors of what they transcribe and therefore cannot be copyright owners of the transcript of court proceedings".
And that decision is immaterial to the case between Mike Gerrard and Random House (who were actually the ones to put a flea in Amazon's ear) since it has been recognised for a long time that any work an employee produces in the course of their duties automatically belongs to their employer as a work for hire. I've never heard of a freelance court stenographer, have you? Pretty clear any copyright in the work belongs to the court in this case, unless it's a federal court, in which case there is no copyright and the work instantly enters the Public Domain. As Mr Gerrard is probably aware, I'm something of a hot-shot on copyright law, despite being self-taught.