Recent publications

Issues five and six of the 2010 series of Sweet & Maxwell's European Copyright and Design Reports (ECDR) have both now been published, within days of one another. Cases reported include the recent England and Wales Chancery Division decision on summary judgment for copyright infringement in Allen v Bloomsbury and Rowling (noted by this blog here), the Irish High Court ruling in EMI and others v UPC on the availability of injunctive relief against internet service providers (noted here) and the Court of Justice ruling in the Dali resale rights case (noted here).

The fourth and final issue of Sweet & Maxwell's Intellectual Property Quarterly (IPQ) for this year features "The Centrality of Architecture in Copyright Law" by the University of Exeter's James G. H. Griffin -- the architecture in question being that of Lessig rather than Wren or Palladio: "the way the world is, or the way specific aspects of it are".  Indeed ...

Joost Smiers and Marieke van Schijndel have a highly challenging and lively essay, Imagine there's no copyright and no cultural conglomerates too (you can download it here at no cost). Joost, who is Research Fellow, Research Group Arts & Economics at the Utrecht School of the Arts, explains,

"I just became aware of your interesting blog 1709. Three centuries after this event my co-author and I analyse that it is time to get rid of this tool called copyright. As mentioned in the title of the book, we should also reduce the size of cultural conglomerates that dominate markets substantially, by using revitalised anti trust policies. It does not make sense to approach the question of IP rights isolated from the question whether markets are level playing fields or not. What Queen Anne did [in 1709] was to avoid that book markets would be level playing fields. Now, it's time to reverse this trend". 

Not content with abolishing copyright, the authors dismantle patents too. For those who enjoy vigorous assertion, provocative claims, enthusiastic generalisations and a perspective based largely on the writings of some distinguished radical academic commentators on intellectual property, this is a must-read document.

"The body corporate as author of a copyright protected work" is a Current Intelligence case note by Ankur Gupta on the recent Singapore decision in Pioneers & Leader (Publishers) Ltd v Asia Pacific Publishing Pte Ltd [2010] SGHC 211.  It'll be published in the hard-copy version of the Journal of Intellectual Property Law & Practice next year, but the online version has been available since last week. You can read it here on the jiplp weblog. This decision expanded the scope of authorship under Singapore's copyright law, holding that there is nothing in principle to prevent an incorporated body being deemed the author of a copyright protected work.

Something to read this summer

A few weeks ago I wrote on this weblog that there was a new copyright book just coming out -- Privilege and Property. Essays on the History of Copyright, edited by Ronan Deazley, Martin Kretschmer and Lionel Bently. Delightfully, it comes in hardback, paperback and digital download formats and, if you don't want to buy it, you can still read it online free of charge, here. The good news is that the book is now out, and you can get all the relevant information about it from Open Book Publishers here.

Meanwhile, SABIP -- the UK's Strategic Advisory Board on Intellectual Property Policy -- reminds us that, in February 2010, it organised a policy panel debate to discuss the issues raised by the proposed Google Books settlement. The good news is that a report of proceedings, along with SABIP's own policy recommendations, was published online last Friday and is now available to download here. Also available from the same source is a report, "Attitudes and Behaviours of Consumers in the Digital Age", which you can download here.

Something to read -- or to listen to

From Natalie Nathon comes this link to "Games and other uncopyrightable systems". The subject of this post from Bruce E. Boyden (Marquette University Law School) is news that a fascinating article under that title has been uploaded here on the Social Science Research Network (SSRN). According to the abstract:

"This article solves two puzzles in copyright law. First, it has long been blackletter law that games are not copyrightable [in the USA, maybe, but elsewhere ...?]. But the origins of this rule are lost to history, and the reasons for it are not obvious. Second, it has never been adequately explained what makes something a “system” excluded from copyright protection under Section 102(b) of the Copyright Act. Modern courts interpret “system” as merely a synonym for “idea” or “process,” two other categories of exclusions. Others have interpreted it using the broadest definition in the dictionary, which would sweep in large amounts of copyrightable material as well. Neither definition gives the term any meaningful content.

Like solving a crossword puzzle, this article uses each of these questions to shed light on the other. Games are uncopyrightable because they are systems. The case law that led to the adoption of Section 102(b) demonstrates that systems are schemes for transforming user inputs into a correlated set of outputs. Games do exactly that. A game is a scheme for transforming player activities into moves within the game. The reason why games and other systems are uncopyrightable then becomes clear: the purpose of a system is to serve as a forum for user activity; it is users, not authors, who provide the primary informational value to the outputs of a system. Games and other systems are excluded in order to fence in copyright protection before it reaches user creation".

From Gina Preoteasa (Trylon) comes news of a new podcast from Copyright Clearance Center’s Beyond the Book podcast. This podcast features William Patry (Senior Copyright Counsel, Google). Bill talks about his book Moral Panics and The Copyright Wars, "the lightning pace at which technology is changing our content consumption and the fact that copyright must adapt to our changing behaviors". Podcast here; transcript here.

Patry enthusiasts may not want to stop at the podcast though. The author has a blog bearing the same title here, and the book, published by Oxford University Press, is available here. If you want to know what's about, this is how the publishers describe it:

"Metaphors, moral panics, folk devils, Jack Valenti, Joseph Schumpeter, John Maynard Keynes, predictable irrationality, and free market fundamentalism are a few of the topics covered in this lively, unflinching examination of the Copyright Wars: the pitched battles over new technology, business models, and most of all, consumers.

... William Patry lays bare how we got to where we are: a bloated, punitive legal regime that has strayed far from its modest, but important roots. Patry demonstrates how copyright is a utilitarian government program--not a property or moral right. As a government program, copyright must be regulated and held accountable to ensure it is serving its public purpose. Just as Wall Street must serve Main Street, neither can copyright be left to a Reaganite "magic of the market."

The way we have come to talk about copyright--metaphoric language demonizing everyone involved--has led to bad business and bad policy decisions. Unless we recognize that the debates over copyright are debates over business models, we will never be able to make the correct business and policy decisions.

A centrist and believer in appropriately balanced copyright laws, Patry concludes that calls for strong copyright laws, just like calls for weak copyright laws, miss the point entirely: the only laws we need are effective laws, laws that further the purpose of encouraging the creation of new works and learning. Our current regime, unfortunately, creates too many bad incentives, leading to bad conduct. Just as President Obama has called for re-tooling and re-imagining the auto industry, Patry calls for a remaking of our copyright laws so that they may once again be respected".

For the record, the book's ISBNs are 9780195385649 and 0195385640. It's a hardback, xxiv + 266 pages -- and it's a snip at just $29.95.

Latest IJLIT strikes twice for copyright

The current issue of the International Journal of Law and Information Technology (IJLIT, published by Oxford University Press), contains two articles that address copyright issues. They are

* "In The Aftermath of the Promusicae Case: How to Strike the Balance?" by Fanny Coudert and Evi Werkers (both researchers at KU-Leuven). According to the abstract,

"Copyright societies are currently pushing for increased private enforcement of intellectual property rights on the Internet, in particular by trying to involve Internet Service Providers (ISPs) in their combat against copyright infringements, and by pushing for new legislative mechanisms. This raises serious legal problems and questions both in terms of the protection of users’ privacy, their right to a fair trial, and the liability of ISPs. This article discusses the difficult task of balancing copyright interests and fundamental rights as debated in the Promusicae case".

* "Enabling Free On-line Access to UK Law Reports: The Copyright Problem", by the admirable Philip Leith (of BAILII fame) and Cynthia Fellows (Associate Research Fellow, Institute of Advanced Legal Studies, London). Says the abstract:

"The history of publishing legal decisions (law reporting) in the UK has been that of a privatised system since its inception, and that history has encompassed several hundred years. The privatised nature of this has meant that the product (the law report) has been, except in limited cases, viewed as the property of the publisher, rather than the property of the court or public. BAILII is an open access legal database that came about in part because of the copyrighted, privatised nature of this legal information.

In this paper, we will outline the problem of access to pre-2000 judgments in the UK and consider whether there are legal or other remedies which might enable BAILII to both develop a richer historic database and also to work in harmony, rather than in competition, with legal publishers. We argue that public access to case law is an essential requirement in a democratic common law system, and that BAILII should be seen as a potential step towards a National Law Library".

You can read more about IJLIT here.

Something to read

It was only published this summer, but already "The Future of Copyright in Europe: Striking a Fair Balance between Protection and Access to Information", a report for the Committee on Culture, Science and Education - Parliamentary Assembly, Council of Europe by the noted scholar Christophe Geiger, has a slightly historical flavour to it, such is the rate at which events, thoughts, proposals and assertions continue to evolve in this very difficult area. Geiger, Associate Professor and Director General, Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg, has tackled the subject with restraint and dignity -- two virtues that are in diminishing supply these days in the merry-go-round world of modern copyright. You can read the report here: it's not very long, but a lot of thought has gone into it.


Meanwhile the sixth and final issue of Sweet & Maxwell's bimonthly European Copyright and Design Reports for 2009 has now been published. Three cases are covered in this issue: one is the ECJ ruling in Case C-32/08 FEIA v Cul de Sac on the applicability of Community design law to commissioned works. The other two are both from national courts: the Gruppo C Art dispute from the Court of Turin, which asks the fascinating question as to whether an author's right subsists in artistic philosophy, and the Central Vista decision of a UK hearing officer on the test of who ir what constitutes an "informed person" for the purposes of that increasingly complex puzzle that calls itself design law.

Recent publications

A refreshed, revitalised and abridged form of Ben Challis's classic 2003 essay on music sampling, "The Song Remains The Same", has just been republished in the WIPO Magazine (Issue 6, November 2009) which is free both online and as a pdf. Ben's article can be found and downloaded here. By sheer coincidence, the article which follows it in this issue is "Is Sampling Always Copyright Infringement?" by my Polish friends Tomasz Rychlicki and Adam Zieliński, co-authors along with DJ Twister of "Sampling and scratching in US copyright and Polish law: a comparative analysis", published in the Journal of Intellectual Property Law Practice earlier this year (click here for abstract). A third short-but-sweet piece on contemporary copyright issues is "Legal Use of Digital Content – Making it Clear and Simple" by Lesley Ellen Harris.


Issue 4 of this year's scholarly Intellectual Property Quarterly, published by Sweet & Maxwell in association with the Intellectual Property Institute, features "The 'Three Step Test' in European Copyright Law: Problems and Solutions" by Jonathan Griffiths (Queen Mary), as well as "Copyright and the Fourth Estate: Does Copyright Support a Sustainable and Reliable Public Domain of News?" by University of New South Wales lawyers Kathy Bowrey and Catherine Bond.

Recent publications

* With a close-up portrait of an avatar occupying centre page, the cover of this month's Copyright World is simultaneously attractive and repugnant. The story behind it, "Copyright in Virtual World Creations" by Pillsbury Winthrop Shaw Pittman LLP's Benjamin Duranske, explores the rights which creators of virtual goods in 3D websites may seek to invoke. As the journal explains:

"The increasing popularity of computer-generated virtual worlds on the internet where users can interact as “avatars” highlights a gap in the coverage of current copyright law. This gap arguably gives creators of certain virtual goods, such as virtual clothing, buildings, and hairstyles, significantly greater protection from infringement than that enjoyed by their real-world counterparts".

Other features in this issue include an interview with Pirate Party founder Rikard Falkvinge and an intriguing summary by Barry Kramer and Glenn G. Pudelka (Edwards Angell Palmer & Dodge LLP) of the application of sovereign immunity in US copyright disputes.


* The Journal of Competition Law & Economics, a scholarly title published by Oxford University Press (click here for further JCLE details). This issue carries two major pieces of interest to copyright lawyers. The first is Randal C. Picker, "The Google Book Search Settlement: a new orphan-works monopoly?". According to the abstract, "

This paper considers the proposed settlement agreement between Google and the Authors Guild relating to Google Book Search (GBS). I focus on three issues that raise antitrust and competition policy concerns. First, the agreement calls for Google to act as agent for rightsholders in setting the price of online access to consumers. Google is tasked with developing a pricing algorithm that will maximize revenues for each of those works. Direct competition among rightsholders would push prices towards some measure of costs and would not be designed to maximize revenues. The consumer access pricing provision might very well fail a challenge under Section 1 of the Sherman Act. Second, and much more centrally to the settlement agreement, the opt-out class action will make it possible for Google to include orphan works in its book search service. Orphan works are works as to which the rightsholder cannot be identified or found. The opt-out class action is the vehicle for large-scale collective action by active rightsholders. Active rightsholders have little incentive to compete with themselves by granting multiple licenses of their works or of the orphan works. Plus under the terms of the settlement agreement, active rightsholders benefit directly from the revenues attributable to orphan works used in GBS. We can mitigate the market power that will otherwise arise through the settlement by expanding the number of rights licenses available under the settlement agreement. To do that, we should take the step of unbundling the orphan works deal from the overall settlement agreement and create a separate license to use those works. All of that will undoubtedly add more complexity to what is already a large piece of work, and it may make sense to push out the new licenses to the future. That would mean ensuring now that the court retains jurisdiction to do that and/or giving the new registry created in the settlement the power to do this sort of licensing. Third, there is a risk that approval by the court of the settlement could cause antitrust immunities to attach to the arrangements created by the settlement agreement. As it is highly unlikely that the fairness hearing will undertake a meaningful antitrust analysis of those arrangements, if the district court approves the settlement, the court should include a clause—call this a no Noerr clause—in the order approving the settlement providing that no antitrust immunities attach from the court's approval".

The second, by Jerry A. Hausman and J., Gregory Sidak, is "Google and the Proper Antitrust Scrutiny of Orphan Books". The abstract states:

"We examine the consumer-welfare implications of Google's project to scan a large proportion of the world's books into digital form and to make these works accessible to consumers through Google Book Search (GBS). In response to a class action alleging copyright infringement, Google has agreed to a settlement with the plaintiffs, which include the Authors Guild and the Association of American Publishers. A federal district court must approve the settlement for it to take effect. Various individuals and organizations have advocated modification or rejection of the settlement, based in part on concerns regarding Google's claimed ability to exercise market power. The Antitrust Division has confirmed that it is investigating the settlement. We address concerns of Professor Randal Picker and others, especially concerns over the increased access to "orphan books," which are books that retain their copyright but for which the copyright holders are unknown or cannot be found. The increased accessibility of orphan books under GBS involves the creation of a new product, which entails large gains in consumer welfare. We consider it unlikely that Google could exercise market power over orphan books. We consider it remote that the static efficiency losses claimed by critics of the settlement could outweigh the consumer welfare gains from the creation of a valuable new service for expanding access to orphan books. We therefore conclude that neither antitrust intervention nor price regulation of access to orphan books under GBS would be justified on economic grounds".

* Finally, issue five of Sweet & Maxwell's bimonthly European Copyright and Design Reports contains full-text reports of three cases, of which one is a Scottish decision, Toner v Kean Construction (Scotland) Ltd, a decision of the Outer House, Court of Session, on procedural issues relating to when and whether a single action for infringement of copyright in architectural drawings can be brought against two defendants.

Something to read

If you want to know what the copyright law is, there are treaties, statutes, decided cases, learned books and literally reams of guidance from copyright collecting societies and representatives of rights owners. You can read them and get a good idea of what's allowed, what's not, and what's exercising the minds of policymakers, legislators and economists. However, if you want to know how people actually operate within the law, then books written by and for information managers will give you a far clearer picture.

One such book is Copyright: Interpreting the law for libraries, archives and information services, the 5th edition of Graham Cornish's bible (this word is carefully chosen). There are far more information managers, archivists and librarians in the world than there are copyright lawyers, and the point at which legal norms meet professional ethos is the point at which the typical reader of this work will quietly and unassumingly make the system work -- for authors, publishers and readers alike. According to the web-blurb of publishers Facet:

"Cornish's Copyright, which has become a standard work in its field, explains the provisions of the UK Copyright Act and supporting legislation in quick and easy question-and-answer form.

This latest edition is revised and expanded in the light of new legislation and some decisions by the courts which have changed our understanding of what the law means. There is also expanded coverage of moral rights and the text has been expanded by the use of practical examples to illustrate complex points. Areas such as originality, databases, and the use of broadcast material in education all receive additional attention. And of course Wikipedia, Flickr, MySpace, Yahoo, Creative Commons and Open Archives are considered in a copyright context ...".

Bibliographic data: Publication date October 2009; 208pp; paperback; 978-1-85604-664-0; price £44.95 (for CILIP members): £35.96. Web page here.

Meanwhile the most recent issue of Informa's Copyright World (October 2009) has just been released (you can see its contents list on its home page here). The cover story depicts a feature by William D. Schultz and Aaron M. Johnson (Merchant & Gould) on the present state of play regarding the US case law on sports statistics. The taster for this article reads thus:

"Every Sunday during the NFL season, millions of fans log on to their computers and are instantly transformed into owners of teams with names like Double Deuce, Just Johnson, and Dos Moss. Randy or Santana Moss, Chris or Calvin Johnson, and Deuce McAllister (all current or former NFL stars) do not get paid for their performance on these teams, but to their owners, the statistics and player information are priceless".

If you want to read more, you'd better subscribe or borrow a copy. If you don't want to read more, you're probably an insular American with a low tolerance of that nation's passion for sports stats and/or a hatred of anything that reminds you of sui generis database right in the EU.

Latest EIPR

The June 2009 issue of Sweet & Maxwell's monthly European Intellectual Property Review (EIPR) leads with an opinion by New Zealand lawyer and scholar Paul Sumpter, "Copyright in slogans: another bald spot exposed", which subjects to critical analysis a September 2008 New Zealand High Court decision, Sunlec International Pty Ltd v Electropar Ltd, in which the words "Field Friendly--the best choice for field work" were held entitled to copyright protection as an original literary work. 

The same issue also contains a note by Christian Rütz on Re Software, a November 2008 decision of the Landgericht, Dusseldorf on the application of exhaustion of rights doctrine to the sale of copies of computer software.

For a complimentary inspection copy of the EIPR email Jo Slinn.

Recent publications

The May 2009 issue of Copyright World, published ten times a year by Informa Law, leads with "Parody defence proves successful for Fox Film", an analysis by Cydney A. Tune and Jenna F. Leavitt (Pillsbury Winthrop Pittman LLP) of the decision of the SDNY Federal Court that the song "I need a Jew", which featured in the US Family Guy TV show, was a parody of "When you wish upon a star". Other articles include "Digital rights management: past, present and future" by Davenport Lyons' Nigel Davies and Paul Chamberlain, and an update on implementation of the Audiovisual Media Services Directive within the European Union by Steve Holmes, Ben Allgrove and Simon Sellars (Baker & McKenzie).  Copyright World's home page is here.


Just published this week is issue three of the six-times-a-year European Copyright and Design Reports, from Sweet & Maxwell. This issue gives a full English language translation of SONOFON A/S v IFPI Danmark, a Danish High Court ruling that an internet service provider must block access to specific websites that hold copyright-infringing material, since to do otherwise would be to make copyright material available without authorisation. This issue also reports Virgin Atlantic Airways Ltd v Premium Aircraft Interiors Group, a decision on unregistered design right in flat-bed airliner seats from England and Wales.