Tuesday 12 July 2016

The abyss that stared back: Vantablack’s copyright conundrum

A few months ago our friend Alberto Bellan at the IPKat discussed the very question whether it is possible to own a colour, especially when this is Vantablack, ie the "blackest black ever existed".

Today The 1709 Blog is delighted to host a guest contribution by Divya Mirlay (Christ College, Bangalore) on the specific copyright implications surrounding Vantablack.

Here's what Divya writes:

"Oscar Wilde in his inimitable fashion once said, “mere color, unspoiled by meaning, and unallied with definite form, can speak to the soul in a thousand different ways.” Ironically, Wilde’s eloquent description of color resonates with the British art maestro Anish Kapoor’s description of the complete absence of color, which goes by the name Vantablack. 

A unique material composed of millions of incredibly small nanotubes grown on a metal surface, Vantablack is recognized by the Guiness World Records as the World’s Darkest man-made substance. In an interview, Mr Kapoor describes the unique qualities of Vantablack’s use in art and the powerful responses it evokes. 

This unique material has recently surfaced in the context of a potential copyright row. According to Surrey NanoSystems, a British company that developed the material, Mr. Kapoor alone possesses the exclusive license to use Vantanblack in artistic creations. 

Appalled by the apparent monopolization of a colour, several in the creative world have vehemently opposed it. The protection afforded to colours under the intellectual property regime has been hoarsely advocated by several MNCs in the past- be it Cadburys purple or T-Mobiles magenta. 

The exclusive ownership of colours by individuals, particularly in the context of artistic works, though rare, is not unheard of. What is still in a state of flux however, is the copyright protection of colour.

The man that ‘bought’ blue

The oft-touted precedent for the ownership of color is that of International Klein Blue (IKB), a hue mixed by the French artist Yves Klein in 1960. IKB was developed by suspending dry pigments in synthetic resins, resulting in the individual particles of the pigment retaining their brightness and intensity over time. 

In this regard, Klein received the Soleanu envelope from the French Patent office, ie a system peculiar to the French patent system. Whats interesting is that Klein’s patent did not extend to the colour or the binding medium, but was limited to its chemical concoction. Vantablack, on the other hand, is licensed exclusively to Kapoor Studios UK for its use in the field of art.

Gold and Vantablack
The norms of owning colour

Some sources claim that Mr Kapoor now owns a copyright in respect of Vantablack.  The copyright protection of a colour has not surfaced yet. As stated above, Klein’s rights over IKB pertained to a patent, not copyright. 

Other instances of ownership of colors are largely in the domain of trade marks. US courts have seen a plethora such cases-the first being In Re Owens-corning FiberglassCorporation, where the Court of Appeals for the Federal Circuit ruled that in limited circumstances, a color that has become associated with a specific manufacturer can qualify as a registrable mark. The appellants in this case were given the right to prevent competitors from using the color pink in their insulation products. This marked the first time a company in the US was granted a trade mark for a particular colour. 

Nearly a decade later, the US Supreme Court in Qualitex Co v Jacobson Products Co, Inc, held that there existed no objection to the use of color alone as a trade mark, when the colour has attained a secondary meaning and therefore identifies and distinguishes a particular brand.  

Ever since, the courts have dealt with several cases pertaining to the protection of colours as trade marks, especially in the context of pharmaceutical trade dress. Vantablack, however, cannott be protected by trade mark as the question of any secondary meaning identifying it with any particular brand does not arise.

Just black and white
A colourful dichotomy?

The idea-expression dichotomy forms the foremost axiom of copyright law. In this regard, “ideas, sentiments or creations of the imagination” are often contrasted with "the language, idiom, style, or the outward semblance and exhibition" of such creation.  However, the boundary between an idea and an expression is at times unclear, and as posited by Judge Learned Hand, “nobody has been able to fix the boundary, and nobody ever can.” 

The question in this case is whether a colour forms an idea or an expression. What is to happen if colours are considered as expressions of ideas? Say, red for danger, white for peace, white and gold/blue and black for consternation, etc. These colours, much like words, form common property to the human race, and are therefore as susceptible to private appropriation as air or sunlight. [(Holmes v. Hurst, 174 U.S. 86 (1899)] The purpose of limiting copyrights to expressions, and not ideas is to prevent the monopolization of the latter. Only when arranged in an original form, can they merit copyright protection. As held in an Indian landmark ruling, every expression does not ipso facto become protectable, and must pass the test of originality, which requires the exercise of skill, labour and judgment in creating the work.  A colour alone is lacking in originality, and its protection would arguably result in monopolization of an idea which would strike at the foundations of copyright law.

Additionally, certain countries (US for instance) require fixation of the work in a tangible medium as a prerequisite for copyright protection. Therefore, ideas, plots, themes, and, arguably in the same vein, color cannot be copyrighted on this ground alone. 

As the requirement of tangible fixation is optional under the Berne Convention, certain countries have opted not to include this requirement in their domestic laws. The Indian Copyright Act, 1957 (Act) for instance, makes no such mention. Section 13 of the Act lists the classes of original work over which a copyright subsists, which includes artistic works, defined under section 2( c ) as: (i) a painting, sculpture, drawing (including a diagram, map, chart or plan), engraving or photograph; (ii) work of architecture; (iii) any other work of artistic craftsmanship.

A colour by itself would not form an artistic work under the aforementioned section. Only when used in a painting, sculpture, drawing, etc, can a copyright be claimed. Section 16 of the Act further prevents the entitlement of copyrights or any similar rights except in accordance with the provisions of the Act. It therefore would not be plausible to categorize Vantablack as an ‘artistic work', thereby making it unfit for copyright protection.

Like Klein, SurreyNanoSystems could patent the material. The company’s FAQ portal states that Vantablack is not a paint or pigment, but comprises of a functionalized forest of millions upon millions of nanotubules, grown at 750 degrees centigrade. 

Vantablack has diverse industrial applications in aerospace technology, touch screens, ultra light wiring, etc. The material appears to check the boxes of novelty, non-obviousness and utility, thereby making it patentable. Thus, if Vantablack was to be monopolized in any manner, it would be more palatable as a patent, rather than copyright."

Tuesday 5 July 2016

The CopyKat

U.S. Internet provider Windstream is asking a New York federal court to shield the company from broad piracy accusations. The ISP filed a complaint against BMG and Rightscorp after it was accused of direct and contributory copyright infringement. The lawsuit follows on the heels of a similar complaint by fellow Internet provider RCN, which also seeks legal clarity in the wake of several conflicting decisions on whether or not Internet provider can be held liable for subscribers who share pirated file - but clearly prompted by the decision of a Virginia federal jury - in a case brought by BMG Rights Management against Cox Communications - who answered in the affirmative. 

PRS for Music has won the Copyright Tribunal reference brought against it by ‎ITV in July 2014 - a final hearing took place for two weeks in November 2015. The decision concerns, amongst other things, the annual sum ITV must pay to PRS for Music to use musical works in its programmes and broadcasts. In August 2015, PRS wrote to its members to announce it would be temporarily increasing the admin fees it charges on royalties collected from TV companies in order to fund the legal costs of the Copyright Tribunal hearing. The Tribunal decided that the base royalty (beginning in 2010) would be some £24 million for all ITV uses (including breakfast TV) adjusted by (a) BARB viewing figures for ITV during each year and (b) the percentage change in RPIJ (the RPI inflation measure). Michael Simkins LLP (now Simkins), who acted for the PRS, said the Tribunal's decision "is the most significant decision relating to such rights for almost 20 years, since the 1997 BSkyB case."

PRS for Music has also written to its members saying that from the end of June the BBC will need to seek prior approval from publishers for use of North American repertoire. Why? well it seems the BBC’s blanket licence with PRS for Music and a number of BBC Worldwide’s MCPS licences are due to expire on 30 June 2016 and whilst negotiations with the BBC to agree new licences continues, and the PRS have agreed that the existing licences will be extended for a 6 month period from 1 July 2016 to 31 December 2016, as a condition of extending BBC Worldwide’s TV Programme Sales licence, the MCPS Board has asked that the BBC seek prior approval from publishers for uses of North American repertoire in programmes which are sold into the US and Canada on a trial basis, although if approved any licence will be at MCPS rates. See more on use rates here and existing approvals here

New copyright legislation has come into effect in Cayman to provide greater legal protection for Cayman’s musicians, visual artists and others in the creative fields, and is the first step in modernising intellectual property legislation. Commerce Minister Wayne Panton said government had plans to present more bills in September to update existing trade mark legislation for local registration and design rights. 

Asparagus - yes - and copyright: A New Zealand company, Oraka Technologies has been awarded $4.1 million in damages in a copyright case involving an automatic asparagus grading machine. Tired of grading asparagus by hand, Oraka Technologies owner Michael Schwarz developed the first automatic asparagus sorter, known as the Oraka Grader, in the early 1980s and asked Napier Tool & Die to prepare drawings for a cup that transported the asparagus for the Oraka Grader, and Napier began manufacturing it for Oraka Technologies. But a rival company Geostel Vision used Napier to manufacture their own cup assembly that was alleged to be substantially copy of Oraka's design and in 2013 the Court of Appeal found that Geostel and Napier Tool & Die copied part of the machine. 

And staying "down under", Australia’s Full Federal Court has confirmed digital data streams are not protected by the Copyright Act. The court upheld Justice Annabelle Bennett’s December 2014 ruling that held that copyright did not subsist in digitally streamed broadcasts. The case is actually a taxation case (Commissioner of Taxation v Seven Network Limited), which revolved around whether payments made to the International Olympic Committee for broadcasting rights by Seven were royalties and therefore taxable. The court found that “a cinematograph film in which copyright subsisted under the Copyright Act is not made until the first copy is made” and that there was no way for the broadcast to be reproduced without an external receiving device. More on IPPro here and the judgment can be found hereSeven Network Limited v Commissioner of Taxation [2014] FCA 1411