The Hargreaves Review – perhaps we don’t have to make heavy weather of this

Last year David Cameron initiated a review of the UK’s IP law – to come up with proposals for how it can further promote entrepreneurialism, economic growth and social and commercial innovation. The review subsequently issued a call for evidence (deadline 4 March). This sets out specific questions but welcomes contributions beyond their scope. Some of the questions are about copyright and some about enforcement.

Given that economic data about copyright is extremely limited, this seems like a good idea in theory, but very ambitious in practice. Won’t it be difficult to conjure up new significant, reliable and balanced economic data in this timeframe?

Perhaps I can help? I wondered. I checked the bottom drawer of my desk. No unpublished economic studies languishing there… How about my own experience? Could that count as a case study?

During the Nineties and the Noughties I spent about fifteen years working in book publishing in editorial and legal capacities. I attended hundreds of editorial meetings and reviewed thousands of book proposals. Some of our authors were certainly groundbreaking economic successes – Nick Hornby and Terry Pratchett spring to mind.

Did copyright law support the publishing business? That’s easy – yes, without it there would be no publishing business. Did copyright law ever get in the way? That’s easy too – no. I never once heard anyone say they couldn’t publish a book because of copyright law (libel law, that’s another story). Is it different in the US? No. Has digitization made a difference? No.

There – that wasn’t so difficult. Next question?

"Win the game or lose the plot?" seminar on plots, formats and themes

"Win the game or lose the plot?" This seminar on the copyright aspects of plots, themes and formats takes place in London on 9 March, at Hardwicke, Lincoln's Inn.  It has a half-day structure (11am to 3pm) and carries three CPD points.  The programme runs is as follows:

* Fact and fiction: recent UK case law on protecting plots (Mark Engelman, Hardwicke)

* Protecting computer games and business programs: is it possible? (Shireen Peermohamed, Harbottle & Lewis)

* Music themes (Nick Kounoupias, DHM Stallard)

* Plots, themes and formats - a US overview (Annsley Merelle Ward, Collyer Bristow)

* How do other countries handle these problems? (Rebecca Dimaridis, Jeffrey Green Russell)

* If copyright won’t provide protection, what of other IP rights? (Birgit Clark, Berwin Leighton Paisner)

Jeremy Phillips (1709 Blog; IP consultant, Olswang LLP) will be in the chair.

Registration is £70, inclusive of VAT and lunch. For further details click here or email Lisa Pick or phone her on +44 20 7242 2523.  Early booking is advised.

The New Renaissance

In April last year the European Commission commissioned a reflection group (‘comité des sages’) to make recommendations for bringing Europe’s cultural heritage online. The Comité has now delivered their report, ‘The New Renaissance’.

As well as looking forward to EU orphan works legislation, the Comité would like to avoid future orphan works by introducing registration for copyright. ‘Refreshing’ the Berne Convention is in order. ‘Creative production is exploding online (e.g. user-generated content) without a clear indication of how to contact the creator…’

They would like to see all out-of-distribution works digitized even if they are not orphans. If right owners don’t want to exploit, digitization should be paid for with public money. ‘It may be necessary to collectively manage the rights to older out of distribution works’ with remuneration for rights holders and the possibility to opt out. They believe that the primary responsibility must rest with the public sector, though in partnership with the private sector with up to 7 years preferential use by private partners.

According to the report:

‘The ease with which today’s users can access big search engines and platforms and find an overwhelming offer of information, books, newspapers, websites, archival material, pictures, music or movies naturally leads to expectations towards cultural institutions. Accustomed to the comfort of search engines and new services, they expect to find everything on the web. “What is not on the web, does not exist” is the core of their belief and behaviour. What is on the shelves, in the archives, in the exhibition halls of cultural institutions will soon fall into oblivion, if it is not digitised and offered alongside the born digital works and all the other internet services.’

It seems that in the New Renaissance people will never travel to exotic places to see real works of art (to be astonished by their size or mesmerized by their brushstrokes). They will work as scanning-machine engineers, obesity doctors or information-overload therapists. And one day someone at the central cultural website Europeana will finish reading the last Mills & Boon novel, inspecting the last photograph of a coin and watching the last episode of Coronation Street and in a moment of joyous liberation he will reach for the big Delete button … and the Renaissance will slide peacefully back into the Dark Ages.

Court sheds light on lamp protection

It's not the sort of case that crops up on a daily basis, but Case C‑168/09 Flos SpA v Semeraro Casa e Famiglia SpA, a Court of Milan reference to the European Court of Justice for a preliminary ruling, does raise some interesting points of principle.  What happened here is that Flos's classic Arca lamp, created in 1962, was originally protected by design law in Italy but fell into the public domain.   Subsequently, when Italy implemented the Design Directive (Directive 98/71), the lamp fell back into the private domain, this time being protected by copyright.  Semeraro imported Chinese Fluida lamps which looked pretty much the same, so Flos sued for copyright infringement.

Now different versions of the Italian law (i) provided for a 10-year moratorium on enforcing copyright against defendants trading in re-protected works or (ii) provided that they couldn't be sued for an indefinite period of time.  Were these laws compatible with the Directive's Article 17, which states:

"A design protected by a design right registered in or in respect of a Member State in accordance with this Directive shall also be eligible for protection under the law of copyright of that State as from the date on which the design was created or fixed in any form. The extent to which, and the conditions under which, such a protection is conferred, including the level of originality required, shall be determined by each Member State".

No, said the court, Italy was precluded from enacting moratoria which eroded the effective benefit that copyright was intended to confer. This ruling is particularly interesting in its analysis and application of the principle of the protection of legitimate expectations -- a doctrine that doesn't get discussed in IP cases before the ECJ.

The Digital Economy Act – a technical point

As BT and TalkTalk Broadband prepare for the judicial review of the Digital Economy Act, the Act itself continues quietly to prepare itself for life post-JR. The statutory instrument that apportions costs for the Initial Obligations (right owners pay 75% and ISPs the rest) has now been laid before Parliament. The cost split needs to be approved for inclusion in the Code for Initial Obligations, which has a completion deadline, I think, of 8 March.

The consultation over costs took place in Spring last year and the Government published a draft SI in the autumn, which then disappeared for three months. The Government had decided the SI had better be notified to the European Commission under the Technical Standards Directive separately from the Code. The Directive requires Member States to send the Commission ‘draft technical regulation’ (including requirements relating to the provision of electronic services) in case it presents barriers to trade.

Compliance with the Directive is one of the key grounds for JR – the ISPs say the Government should have notified the Digibill itself to the Commission (JR grounds here). Is the Government’s notification too little, too late?

I wonder what readers think? The Technical Standards Directive doesn’t apply to rules relating to matters covered by EU telecoms legislation – Art 1(5). Doesn’t telecoms law cover the DEA’s areas? The Authorization Directive allows governments to impose conditions on ISPs in accordance with the E-Commerce Directive (Art 15 covers requiring service providers to inform about illegal activities) and the Framework Directive covers measures restricting end users’ access to the internet.

ACS:Law seeks to end pursuit of alleged file sharers

The BBC and Which? both report that Andrew Crossley, the lawyer behind controversial law firm ACS:Law, has withdrawn from pursuing 26 alleged illegal filesharers, blaming “criminal attacks” and bomb threats as reasons. In a statement read out in court by Tim Ludbrook, barrister for MediaCAT, Crossley’s client, Mr Crossley says "I have ceased my work...I have been subject to criminal attack. My e-mails have been hacked. I have had death threats and bomb threats," adding "It has caused immense hassle to me and my family". This Blog previously reported (28/09/10) that in September, ACS: Law was the victim of a cyber attack which exposed thousands of its e-mails which provided personal details of the people ACS:Law were pursuing and the pornographic films they were accused of downloading for free. That data breach is the subject of an ongoing investigation by the Information Commissioner. Which? had complained to the Solicitor's Regulation Authority over ACS: Law's 'bullying' and 'excessive' behaviour in 2009.

Colin Birss QC, Judge of the Patents County Court, seems rather unimpressed with ACS:Law and Mr Crossley, with the BBC reporting that Judge Birss described the twists and turns as "mind-boggling" and saying “I am getting the impression with every twist and turn since I started looking at these cases that there is a desire to avoid any judicial scrutiny”. But it was the detail that came out in court that was fascinating – and the court heard that when any revenues are generated from ACS:Law’s actions, the law firm received a 65% share with copyright owners getting 35%. The monies are primarily from members of the public who have settled after receiving letters threatening a court action unless a payment of £500 is made.

The BBC reports that in his statement Mr Crossley said of the 26 potential actions "It has always been my intention to litigate and, but for the fact that I have ceased this work, my intention was to litigate forcefully in these 26 cases”. The court was not going to automatically agree to that either and Judge Birss said granting permission to discontinue the cases was not a simple matter, due largely to the fact that the actual copyright holders were not in court. This meant that, in theory, these copyright holders could continue to pursue cases against the 26 defendants. The case seems to have been made even more complicated by the fact that a new firm, GCB Ltd, had begun sending similar letters, including one letter to one of the defendants who had been told just the day before that no further action would be taken, although Mr Crossley said in his statement that there were "no new letters pending" and that GCB Ltd had also halted its work. He then explained that he had no connection with GCB Ltd beyond the fact that the founders of the firm had previously been employed at ACS: Law.

http://www.bbc7.co.uk/news/technology-12253746

http://www.which.co.uk/news/2011/01/acs-law-stops-pursuing-file-sharers-243011/

Russia Prosecuting Online Infringement. For the WTO?

The Criminal Code of the Russian Federation provides for those convicted of copyright infringement to forfeit up to 18 months of their wages, among other possible punishments including jail time or work-relief.  (Art. 146.) 

Rumor has it that though Russia has these laws on her books, their enforcement has been less ideal.  According to an AFP story on Yahoo! News, Russia is working to change that.  The proposed motive: entry into the WTO.

The Recent Enforcement

Basic story-line, young man uploads music tracks to a social networking site without permission from the copyright owner.  Other users download the songs.  In this case, the Russian music tracks uploaded by the young man were downloaded over 200,000 times by other users.  The young man was caught and prosecution charges filed.

High-profile raids to confiscate infringing goods have also increased in the move to step-up enforcement.

The WTO Relationship

According to the AFP story, Russia is increasing its copyright enforcement in order to finally join the WTO, a process it began in 1993.  The article states, “Russia's inability to implement any meaningful form of copyright protection has been one of the main issues raised by the United States during the latest rounds of two sides' World Trade Organization negotiations.”

Some other research sheds some doubt on this reasoning.  Russian WTO negotiations with IP-promoting Western governments have been going well recently.  The EU backed Russia for WTO admittance late last year and negotiations with the US have been progressing with the support of President Obama.  (See here, here and here.)  And while there is some discussion of intellectual property enforcement being a problem, the major barriers remaining are more likely tariffs.

This is not to say that increased enforcement will not help Russia in its bid for the WTO, but merely to suggest that it is not quite as an important factor as the AFP story suggests.  At the very least, such enforcement should help get Russia removed from the Priority Watchlist in the infamous Special 301 Report (pdf).

Pirate Party General Assembly Announced

Readers interested in all aspects and all sides of copyright may find a frolic to Germany an amusing way to spend the pre-Ides of March weekend. The Pirate Party International has announced that its General Assembly will be taking place in Friedrichshafen in a few months.

The General Assembly meeting’s main events include:

• Electing a new board, apply here
• Discussions of amendments to the PPI statutes, submit proposals here
• Decisions on new members

There will also be an Open Space workshop: 

“Open Space Technology is a powerful tool that allows [sic] to handle the most complex matters with the ease of a coffee break, and will allow us to take a glance at the future of the PPI.

We'll open a space where you'll work with other pirates to identify and address the most important issues in your work, your organization and your community. Come prepared with your own burning questions and pressing needs... and be ready to address them in a dynamic, high-learning environment.”

Non-members are welcome to attend as guests and each member can register up to six official delegates.  If think it would be much more interesting to have a six-way split personality than just be yourself, you can apply for membership here.

If any 1709 readers attend the conference, we would love to hear from you after the event.

Details

Location: Messehalle Friedrichshafen, Friedrichshafen, Deutschland [As this is in the very southern part of Germany, attendees might have some trouble pulling their boats into town.]

Dates: 11 – 13 March 2011 (Friday, Saturday and Sunday)

Cost: Early Reg: 35 Euros, after 13th February 50 Euros

Timetable: http://int.piratenpartei.de/PPI_Conference_2011/timetable

More info: visit http://int.piratenpartei.de/PPI_Conference_2011 or contact board@pp-international.net