No change (for now) for "2039" Unpublished Works

Yesterday, the IPO published the outcome of its consultation on changing the rules regarding so-called unpublished works subject to the so-called 2039 rule.  Broadly speaking, these are unpublished works which, under transitional provisions introduced at the time the CDPA 1988 came into force, will remain in copyright until 2039, even if (in some cases) they were written long ago by authors who cannot have survived until 1945 (i.e. 70 years ago)

Ben wrote about the original consultation on this blog here pointing out that the most vocal lobbying on the issue had come from CILIP, on behalf of libraries, museums and archives.

Those same lobbyists will no doubt be deeply disappointed that the consultation response decides to take no action for now, other than to undertake further discussions to deal with some of the difficult issues raised by various consultation respondees.

At least this is one issue ticked off the "to do" list at the IPO in what looks like being a busy year for copyright policy, led by the European agenda.

UK government speaks on copyright

This Blogger, having been out of the UK for a short time, has returned somewhat surprised by how much the outgoing UK government has had to say about copyright in the last few weeks and thought that a round-up might be worthwhile.

It started off with the first published speech by the new IP Minister, Baroness (Lucy) Neville-Rolfe at an event called the "Intellectual Property Annual Seminar Mentor Dinner" (no, me neither) on 8 January, which you can read in full here.  This is really a round up of all of the activities of the outgoing administration in the IP arena, with very little forward-looking vision, save that, the Baroness observed 
"So what are the challenges for the next 5 years? 
Our focus will continue on strengthening the UK IP framework to maximise support for business innovation and help drive growth.
There will be an increasing concentration on the European and international scene. 
We are working with the EU on the successful delivery of the unitary patent and the Unified Patent Court, with its pharmaceutical division to be based here in London.
And we will be making sure that proposed copyright reform and digital single market meets the interests and needs of the UK."

Building on this theme, it later emerged that on the very same day, David Cameron wrote to Commission President Juncker sending a document setting out the UK priorities for the reform of the Digital Single Market.  That document - which apparently in international relations terms is not a paper, but a "non-paper" was published last week.  You can experience it as a jazzy website here including an embedded version of Vince Cable's "Robert Schuman lecture" at the Lisbon Council on 20 January or download as more prosaic text here

This is a high-level vision piece, which it would be wrong to characterise as primarily about copyright, but it does have some interesting things to say on copyright topics, in particular:

Consumers should be able to buy a wide range of digital products and services and use them wherever they are in the EU, just as they can with physical products. Their online subscriptions to music or film should still be available when they travel and they should be able to buy [So - this is not just about free movement but an actual obligation to supply; outside of market power situations, it is rare for the EU to legislate to require companies to supply, indeed it is not clear where the Government thinks this power lies in the TFEU, or that this is an approach which one would expect from a libertarian centre-right government] online content not easily accessible from a home provider [who decides what is easily available?  does that mean I can have access to parts of Netflix France, but only the bits which have programmes not on Netflix UK?]: Europe’s creative output is one of its richest resources, and those who want to enjoy it should be able to pay to do so, even when it is only sold in another Member State [but not, apparently, if it is supplied other than for sale? such as ad supported VOD?]. At the same time, Europe needs to maintain choice and diversity by protecting intellectual property in a way that ensures a flourishing and innovative creative sector. Our enforcement of the intellectual property regime must have teeth. The Commission should ensure that consumers can access lawfully-available content on fair and reasonable terms across borders [again - no talk of removing barriers, but a positive obligation to ensure access].

 ...the EU should support copyright exceptions to allow research, education and text and data mining to take place across the market, and reject copyright levies in all forms [now there is a very direct statement of intent], providing a major boost to European innovation

In case anyone wonders what that means the Govt position is, yet another minister Ed V popped up earlier this week at an event called "Let's Go Connected" saying (according to Advanced TV Markets) that "the continued existence of the [audiovisual] sector depends on the ability of creatives to monetise their work ... and that requires a robust and properly-enforced copyright framework ... to ensure that creatives were fairly rewarded for their endeavour." 

ALCS: tough times if you want to live off your writing

The Authors' Licensing and Collecting Society (ALCS) in the United Kingdom commissioned a survey on authors' earnings (by Queen Mary, University London's Phillip Johnson, Johanna Gibson and Gaetano Dimita). It's called What Are Words Worth Now? A Survey of Authors' Earnings and you can read the report (12 pages) here.

Here's what the BBC ("Typical writer 'earns £11,000 a year', research reveals"), The Guardian ("Authors' Incomes Collapse to 'Abject' Levels"), the Daily Telegraph ("JK Rowling’s 'little story about wizards' makes it hard for authors, says Joanne Harris"), the Bookseller ("Typical author earnings 'dropped to £11,000 in 2013'") and the International Business Times ("Writers' Block: Authors' Average Earnings Plummeted to £11,000 in 2013") have to say about it.

The reports concludes thus:

Adapt and survive

The UK creative industries are a proven world-leading success story, punching well above their weight internationally. However, these are concerning times for writers.

Digital use earnings are going up but overall incomes are coming down and the proportion of professional authors who earn a living solely from writing has fallen from 40% to just 11.5%.

For writers to continue making their irreplaceable contribution to the UK economy, they need to receive fair remuneration for their work.

This means ensuring clear, fair contracts with equitable terms and a copyright regime that supports creators and their ability to earn a living from their creations.

This blogger has done a fair amount of writing in his time, and there have been years in which he has earned a welcome addition to his income from this source -- but he costed out his first attempts at remunerative writing and worked out that, taking into account time spent not just writing but also reading and correcting proofs, dealing with publishers and so on, his earnings were somewhere around 30 pence an hour. While this experience may not be typical of all authors, the reality check proved to be of greater value than the royalty cheque ...

The Copykat - just before we rest our paws in Glastonbury .......

The Church of Jesus Christ of Latter-day Saints - the Mormons -  has been accused of copyright infringement and breach of contract by the owner of a popular audio recording of the Bible in a lawsuit filed Tuesday in a U.S. District Court in Florida by Litchfield Associates Ltd. Inc., the owner of audio of the King James Bible read by Alexander Scourby. Reports say that The Mormon Church entered into an agreement with Litchfield in 1988 to use the recording to produce cassette tapes that would also include Latter-day Saint chapter headings and footnotes. The Church is accused in the suit of improperly sub-licensing the copyrights with for-profit Deseret Book, a Church-owned bookstore with locations in 35 cities in Utah and the Western U.S., using the recording in apps, and making them available online without permission.

The Guardian asks "Will News Corp's Australian newspapers win a legal battle with Mail Online over its lifting of articles?" and comes to the conclusion that according to three media law experts canvassed by the Crikey website the view is that it is hard to claim that online copy is covered by copyright. With the Mail Online's pursuing a strategy of allegedly reproducing the 'heart' of the work of every other media organisation as a summary in order to ensure that it becomes a "one-stop shop" for web news surfers the Mail does follow certain protocols - the original source is credited fairly high up and most often there is also a hyperlink to the original article, news story or interview. But is it legal? News Corp has now served Mail Online's parent company with a legal letter listing 10 instances of alleged theft of content. Examples were highlighted in Monday's Australian, above.

Having previously told Prenda lawyer Paul Duffy "To fabricate what a federal judge said in a ruling before another court falls well outside the bounds of proper advocacy and demonstrates a serious disregard for the judicial process",  Arts Technica tells us that  US District Judge John Darrah has now agreed to a $11,758 sanction as costs in a defamation lawsuit filed by the 'copyright trolls'. It is the eighth known award against Prenda and its various lawyers. Prenda, also known as the anti Piracy Law Group and linked with a number of firms involving three main principals, John Steele, Paul Hansmeier and Duffy, had previously incurred the wrath of federal judge Otis D Wright II (who had heard 45 Prenda cases and who had latterly described the firm's business methods as 'extortion') who decided to investigate and get to the bottom of exactly what was going on in his courtroom saying  "It should be clear by now that this court's focus has now shifted dramatically from the area of protecting intellectual property rights to attorney misconduct[,] such misconduct which I think brings discredit to the profession. That is much more of a concern now to this court than what this litigation initially was about". Sanctions of $81,000 off were applied in that matter. Judge
Mary Scriven in the Middle District of Florida was equally unimpressed, and Scriven is reported as stating that she would entertain a motion for sanctions against Prenda and its attorneys for "attempted fraud on the Court", as well as against Duffy for "lack of candor".

The new UK exceptions to copyright for the private use of personal copies, quotation and parody of copyrighted material have been put before Parliament and are expected to come into force from October 1. The draft regulations are identical to those introduced before, but were withdrawn last month. On the withdrawal, Intellectual Property Minister Lord Younger stated: “The Committee [JCSI] has some questions about the private copying and parody exceptions”  after the British Copyright Council (BCC) raised concerns that some of the wording of the SIs failed to meet specific requirements of EU law. It seems no more! The most controversial move is the proposed exception to legalise actions such as copying music from a CD for personal use, long resisted by the recorded music sector. This also allow rights holders to legally deploy ‘restrictive measures’ which prevent private copies of their work being made, although this only applies to audio visual material. But the most debated provision is the the right to use copyrighted material in works of caricature, parody or pastiche - in effect ‘fair dealing’.  The wording for the thee exceptions remain unchanged and will be considered by the Secondary Legislation Scrutiny Committee (SLSC) and the Joint Committee on Statutory Instruments (JCSI). They will then be debated in the House of Commons and House of Lords. If approved by Parliament, the regulations will be brought into force at “the next available opportunity”, which is expected to be 1st October.

Canada - now we always make sure to try and keep up to date with Canada whenever we can (to avoid slighting "poor little Canada, your erstwhile colony" (c) 2013 Castor Canuck Redux) and reports say that The federal government has confirmed that it will introduce the long-awaited notice-and-notice system which will compel ISPs to target serial copyright infringers - although critics says that the system stops short of the notice-and-takedown regime used south of the border under the U.S. Digital Millennium Copyright Act. The first-time notice-and-notice system compels ISPs to tell subscribers suspected of piracy that they are breaking the law. The annoucement is the final step in implementing the Copyright Modernization Act, which the government says is a “balanced” approach to modernising Canada’s copyright laws better to protect the rights of creators and innovators in the digital age - Industry Minister James Moore and Minister of Canadian Heritage and Official Languages Shelly Glover said that the regime would be brought into force without additional regulation in recognition of the flexibility ensured by the Act. ISPs are encouraged to continue to work together to develop market solutions to address online piracy.

It's only just related to copyright - but Google owned YouTube's threat to remove content owned by small independent record labels from the video streaming service who refuse to sign up to the web giant's new music streaming service - on apparently rather disadvantageous terms - has stirred up quite a media storm. The indie labels - who collectively have something approaching a 30% market share in some territories - are dwarfed by the two big majors Sony and Universal - who are believed to be prime position to get the best deals possible from YouTube. Now the indie labels trade bodies IMPALA and WIN have called on the European Commission to intervene - saying that  the the threat of removing material if the independent labels didn’t play ball could constitute an abuse by Google of YouTube's near monopoly in the video streaming domain to give the firm an unfair advantage in the audio space with Helen Smith, Executive Chair of IMPALA, commenting "YouTube is behaving like a dinosaur, attempting to censor what it doesn't like. This is completely out of sync in Europe where the EC has systematically insisted that European citizens should be able to access the cultural diversity and choice they demand. Europe has already had to take a tough line with Google on issues such as search and privacy. Prompt intervention with YouTube must be the next step". Meanwhile Alison Wenham, head of the Association of Independent Music in the UK and who also heads up the Worldwide Independent Network, added: "We will start this process in Europe with IMPALA referring YouTube to the EC for urgent regulatory action, which will be the first step in a global campaign. Our fellow trade associations around the world, representing tens of thousands of independent companies, also take issue with the actions of YouTube towards the most creative sector in the music industry. We must therefore do everything we can to protect the independent sector from the actions of one very powerful company, which seeks to railroad content owners, and by association their artists, into unfair and unjust contracts while threatening to block access to their platform". Wenham also wrote to the UK’s Business Secretary, Vince Cable, calling on hi to act in the matter. More on this in the Observer newspaper in comment that leads with From YouTube to Amazon, tech innovators need to be held to account - YouTube's threat to indie music labels is just one of many examples of why the new cultural gatekeepers need to follow the rules. Making the record labels look like the good guys is some going - and YouTube move may yet backfire ....

Over on the IPKat Eleonora has posted up details of an internal draft of the White Paper on "A Copyright Policy for Creativity and Innovation in the European Union".  This is the document that Commissioner Michel Barnier announced for release before the summer break, following the conclusion of the Public Consultation on the Review of EU Copyright Rules The issues covered in the White Paper refer to three main objectives: (1) further facilitating the availability of and access to content in the digital single market; (2) ensuring the optimal articulation between copyright and other public policy objectives; and (3) achieving a copyright marketplace and value-chain that works efficiently for all players and gives the right incentives for investment in creative and intellectual work.

And now to Somerset for (hopefully) sun, fun and lots of great music!

UK library lending right gets an update

This blogger has always taken an interest in the compensation of authors for notional loss of sales inflicted upon them through the borrowing of their books from public libraries [this once-common and indeed formerly almost universal custom still lingers on in the age of e-books and downloads, along with other quaint British practices such as Morris dancing and shove ha'penny].  The statutory scheme for authors' remuneration (a shove of a bit more than a ha'penny into a substantial number of authorial pockets) is now over 30 years old, but it is infused from time to time with the occasional amendment, the most recent of which --SI 2014 1457 The Public Lending Right Scheme 1982 (Commencement of Variations) Order 2014 -- is noted here:

The Public Lending Right Scheme 1982 (the Scheme) provides for payments to be made to authors based on the number of times their books are lent out of public libraries. This Order brings into force on 1st July 2014 variations to the Scheme following the extension of the public lending right to narrators and producers and to audio-books and e-books on 30 June 2014.

The Appendix to the Order sets out the variations to the Scheme.

Article 4 of the Scheme is amended so that producers and narrators of audio-books can be eligible for payments under the Scheme. A person can prove their eligibility in respect of an audio-book or an e-book by reference to a written contract with the publisher, or to the case in which the audio-book is sold, or by being named within the audio-book if these identify them as a writer, translator, editor, narrator or producer.

Article 6 of the Scheme is amended so that it extends to audio-books and e-books. Article 9B is inserted in order to specify the shares in the payments made under the Scheme to the various contributors to an audio-book.

Article 14A is amended so that payments can be made in respect of a posthumously eligible producer and narrator in accordance with the shares specified in article 9B.

Article 17 is expanded to include a producer or narrator applying for registration of an audio-book for payments under the Scheme.

In Article 39(a) ‘marked’ is replaced with ‘separately identified’ as a more appropriate term in relation to the obligation on designated library authorities to identify individually the printed, audio-book and e-books whose loans are recorded and reported so that payments can be made.

The Impact of this Order on business, charities and the voluntary sector is negligible and for that reason, no Regulatory Impact Assessment is required to accompany it.

Thanks go to Graham Titley (Information Specialist, Copyright Advisor and Subject Lead for Biomedicine; Dentistry; Law; Medicine. Technology and Information Services at the Charles Seale Hayne Library, Plymouth University) for spotting this information and for drawing it to my attention.

Here come some new Exceptions

As Eleonora reported earlier over on the IPKat,
the Government has finally issued an extensive pile of paperwork dealing with its implementation of the new Exceptions recommended by the Hargreaves report.

There are to be five separate exceptions, dealing with:

• what used to be called private copying and what we must now learn to call Personal Copying for Private Use;
• Quotation and Parody;
• Public Administration;
• Research, Education, Libraries and Archives; and
• Disabilities.

While the process that has led to these drafts has been long and convoluted, at least (from a purely legal perspective) the drafting has been much improved since the initial attempts were put out for consultation in July of last year.

To take personal copying as an example, the new Regulations have made clear that the personal copying right does not extend to copies that have been made pursuant to other exceptions, such as time shifting; they have also made clear that the exception only applies to (purchased or gifted) copies that can be kept forever and does not apply to streams or to rented or other temporary copies - including time limited downloads.   The right is backdated so that a copy made before implementation which would have been permitted if it was made post-implementation becomes lawful.

However, other controversial measures remain in place - the much-debated "contractual over-ride" and the Secretary of State's powers to intervene to protect user rights where technological measures (such as DRM) are being used to prevent permitted personal copying.  The latter power is now at least modelled on the existing powers to intervene - so the delightfully numbered section 296ZEA is, at least in form, very similar to the existing section 296ZE which applies where technological measures prevent other permitted acts.  There is also a recognition that the Secretary of State needs to take account of what rights-holders are offering voluntarily in terms of copiability of DRM protected works.

Finally - there is still no provision of fair compensation for private copying - which appears to be a requirement of the Directive.

Alongside the draft laws, the IPO has issued an Explanatory Memorandum, an explanation of the outcome of last Summer's consultation, new Impact Assessments - and a set of guidelines designed to explain the new laws to a range of different interest groups.   All of this is available here.  Once the 1709ers have had a chance to read the other exceptions, further coverage may follow.

The Regulations are set to come into force on 1 June, having been approved by a vote in both Houses of Parliament after Easter.

Perplexing Perpetual Protection (not Peter Pan)

A case of perpetual copyright protection has been puzzling me, and it is not Peter Pan (s. 301 CDPA 1988) for a change, but universities.

The Copyright Act 1775, also referred to as the University Act 1775, was implemented after the House of Lords had established in Donaldson v Beckett ([1774] 4 Burr 2408) that there was no such thing as a perpetual copyright at common law parallel to the Statute of Anne. It bestowed the right on "the Two Universities in England, the Four Universities in Scotland, and the several colleges of Eton, Westminster, and Winchester to hold in Perpetuity their Copy Right in Books given to or bequeathed to the said Universities and Colleges".

So why do I care, surely the CDPA 1988 or even one of its predecessors repealed the Act? Well, yes and no. In para 13(1) Sch 1 CDPA 1988, it says that "[t]he rights conferred on universities and colleges by the Copyright Act 1775 shall continue to subsist until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force and shall then expire." Para 13(2) goes on to state that exceptions and limitations, remedies, provisions with respect to licensing and the provisions on the Copyright Tribunal apply to those rights in the same way as in relation to "normal" copyright.

While technically repealed by the CDPA 1988, the Copyright Act/Universities Act 1775 is still in force for practical purposes and continues to be applicable until 31 December 2039. Given that state of affairs, I find it very vexing (am I falling into 18th century parlance here, or do you still say that?) that I cannot seem to find the complete text anywhere. The Legislation Services Team at legislation.gov.uk have informed me that there are no plans to include the Act on their website in the foreseeable future either.

If any of our kind readers happen to have the text of the Act, I would be very grateful if they could post it in the comments section or email it to me. I would also be very interested to hear whether the list of beneficiaries was extended at any point in time (hello, University of London colleges?) and if anyone knows of any practical cases where that right was enforced. Many thanks in advance!

Clearance: the IPO speaks

The most recent issue of the UK's Intellectual Property Office e-mag Insight carries a short feature entitled "How do I locate a copyright owner if I want to use the work?" Titles like this are always likely to be a hostage to fortune. The article reads:

"If you want to use someone else's material which is still protected by copyright, and if there is no exception to copyright which covers the situation, you need to seek the permission of the right holder.

You may therefore need to consider who owns or controls the rights in the material. This person could be:

* the creator of the material or his heirs, or
* the creator's employer, or
* anyone else to whom the rights in the material have been sold, or otherwise transferred or licensed, or
* a collective licensing society which has been asked to collect fees on behalf of the rights holder. [Pretty good. In this miserable economic climate the person in control may also be a liquidator or trustee in bankruptcy, as this note mentions below. Another possibility is the Treasury Solicitor's Bona Vacantia division, the website of which providentially contains information about the abandoned copyright it sells]

You should remember that as copyright is an automatic right, there are no registers that can be checked to locate the creator or right holder in a work. There are though organisations representing copyright owners who may be able to assist you in tracking them down.

The copyright protection for many works will continue for 70 years after the [end of the year in which the] creator or owner of the rights in a work has died. The rights will have transferred to someone else, perhaps through testamentary deposition (a will) or by inheritance. If there was no will, or if the creator of the work has not specified where the rights in the material should go, then the normal rules of inheritance will apply. (These rules are not specific to copyright, and advice should be sought from a legal adviser.)

When a company goes out of business or ceases trading, any copyright it may own continues for the customary copyright duration. The rights will be part of the assets of the company, and may be sold or otherwise dealt with by the company or its liquidator, etc.

If you wish to trace a right holder, there is no official body that can help you directly, but you could try the following:

* Contact the appropriate collecting society (see the above link)
* Contact the creator's publisher, agent, representative etc.
* Carry out internet searches on various search engines.
* Establish any family connection.
* Use the WATCH file, (Writers, Artists and Their Copyright Holders) - a joint project of the University of Reading, in the UK, and the University of Austin, Texas, USA. They hold a list of some right holder contacts for some authors and artists.

Please note that if you are having difficulty locating a right holder, you should keep good records of your efforts. (This will help to show that you have been trying to act in good faith.) If you are unsuccessful in tracing the right holder, and still wish to proceed with your project, you should do so with caution. You may wish to set aside an appropriate fee for the use of the work in a special bank account [I've personally felt that, for small-scale unauthorised acts, this should come to roughly what a decent meal for two at a good restaurant would cost you], and, when you use the work, apply a statement indicating that you have tried to trace the right holder, but have failed to do so, and then invite any legitimate right holder to contact you [one can imagine some scenarios in which this is impractical, impossible or just plain unaesthetic]. You should bear in mind that should the right owner appear, they may consider suing you for infringement of their rights, and in such a case you would want to show the right holder, and perhaps the courts, that you have acted in good faith and have made reasonable efforts to try to track down the right holder".

The 1709 Blog invites readers to offer the IPO their own tips and suggestions for the first revision of the advice on this web page.

Victoria's new station in life

Some say that, with the advent of new technology, copyright has become a matter of purely academic interest. Is this perhaps why President Barack Obama has nominated the unquestionably academic Victoria A. Espinel as the first copyright czar for the United States? If so, cynics may be in for a surprise. According to Threat Level, Victoria's appointment has been applauded by both sides of the econo-political divide.

Congress created this new position last year as part of a legislative package of intellectual property reform. The formal title of the czar “Intellectual Property Enforcement Coordinator”, which suggests that she may not be equally popular with all sides of the copyright community if she gets the chance to fulfil her job description. According to Threat Level:

"The czar’s position is charged with overseeing government anti-piracy crackdowns and, among other things, training other countries about IP enforcement. The Pro-IP Act also called for the creation of an FBI piracy unit and allows for the forfeiture of equipment used in large pirating operations. The legislation was strongly backed by Hollywood, the recording industry, unions, manufacturers and the Chamber of Commerce".

Web battle intensifies as original combatants sit it out

Once upon a time the big battle over unauthorised file-sharing was between copyright owners and the estimated 6 million or so illegal British downloaders. Now both these vested-interest combatants are sidelined as a potentially far bigger battle brews up, the warring parties being the UK government and the internet service providers (ISPs).

Today's BBC report on the government's latest position shows that the ISPs are quite furious. The new stance includes cutting repeat offenders off from the internet which, says UK ISP Talk Talk, was likely to "breach fundamental rights" and would not work. Talk Talk's competitor Virgin said that "persuasion, not coercion" was the preferred solution. ISPs point out that the disconnection of alleged offenders is futile, since they can easily mask or share their identities, or indeed their activities, in order to avoid detection. Today's move smacks of desperation:

Originally the Digital Britain report, published in June, gave Ofcom until 2012 to consider whether technical measures to catch pirates were necessary. However, according to a statement from the Department for Business, Innovation and Skills released ... that timeframe is now considered "too long to wait".

Times Online: Mandelson accused of caving in to lobbyists here
Daily Mail: speculation about a secret deal between Mandelson and Geffen is reignited here