Tuesday, 5 May 2009
UK Government U Turn on Digital Rights Agency
CMU Daily (today 5th May 2009) amusingly covers Communications, Technology and Broadcasting Minister Lord Carter's announcement at the PRS AGM of his decision to "re-visit" the proposed UK Digital Rights Agency.
Pan-European Collecting Society for Digital Licensing
Thanks to a tip-off from Hugo Cox - who clearly spent the holiday weekend in the UK browsing the International Herald Tribune and the New York Times - readers might like to keep an eye on progress of a plan being proposed today in Strasbourg by European Telecommunications Commissioner Viviane Reding and Meglena Kuneva the Consumer Affairs Commissioner. The proposal is that consumers be enabled to shop online throughout the EU on the payment of a single licence fee for media products. In justification the proposal says:
The New York Times observed that resistance would be expected from the EU collecting society network which administers rights territorially across the 27 states and (ergo) different copyright regimes. You don't say! Like democracy, collective administration might be the worst form of [administration] (pax Winston Churchill] "except all those other forms that have been tried from time to time" - like endless individual owners being sought out by consumers seeking licences, or piracy or file-sharing perhaps?
There is the problem of pricing. If there is a European-wide licensing price, how is such a price point to be determined (or indeed regulated) and accommodate competition concerns? There is the risk of penalising consumers in economies that are less developed by charging high prices that are out of step with their local economic conditions. Alternatively a lower, single EU-wide price penalises creators and owners in countries with a tradition of higher value licence fees who suddenly are faced with such a drop in the value of their copyright revenues that it damages future investment in their local creative and cultural economies. It is not in the interests of creators and owners if consumers can simply acquire media at rock bottom prices in less developed Member States - the bucket-shop effect (left). Nor is it, in the long term, in the interests of consumers, consumer choice or the long term future of creative investment right across the EU (and its international economic muscle) if values of content are driven down right across the board.
One hopes the Commission may look for guidance to Article 5 (2) Berne, namely that "the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed", as a guide to the territory in which the consumer is liable to payment for the licence to download and thus the price would reflect local differences in tariffs or value.
"The offer of content online is growing more and more but the current regime is still locked into national territorial licensing, with the result that EU consumers are often prevented from legally watching content anytime, anywhere on any platform."
The New York Times observed that resistance would be expected from the EU collecting society network which administers rights territorially across the 27 states and (ergo) different copyright regimes. You don't say! Like democracy, collective administration might be the worst form of [administration] (pax Winston Churchill] "except all those other forms that have been tried from time to time" - like endless individual owners being sought out by consumers seeking licences, or piracy or file-sharing perhaps?
There is the problem of pricing. If there is a European-wide licensing price, how is such a price point to be determined (or indeed regulated) and accommodate competition concerns? There is the risk of penalising consumers in economies that are less developed by charging high prices that are out of step with their local economic conditions. Alternatively a lower, single EU-wide price penalises creators and owners in countries with a tradition of higher value licence fees who suddenly are faced with such a drop in the value of their copyright revenues that it damages future investment in their local creative and cultural economies. It is not in the interests of creators and owners if consumers can simply acquire media at rock bottom prices in less developed Member States - the bucket-shop effect (left). Nor is it, in the long term, in the interests of consumers, consumer choice or the long term future of creative investment right across the EU (and its international economic muscle) if values of content are driven down right across the board.One hopes the Commission may look for guidance to Article 5 (2) Berne, namely that "the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed", as a guide to the territory in which the consumer is liable to payment for the licence to download and thus the price would reflect local differences in tariffs or value.
Barbara A. Ringer
The Los Angeles Times carries a rather lovely obituary of Barbara Ringer, a former Register of Copyrights in the US and the woman who did much of the behind-the-scenes work to modernise the archaic US Copyright Act of 1909. Credited as the initiator of "fair use" doctrine, she also pushed for authors to enjoy a life plus 50 years term in place of the complicated 28 + 28 year formula that preceded it.I did not meet Barbara Ringer myself, but she was a formative influence on the thinking of my PhD superviser Harry Bloom in the early days of the ill-fated Unit for Legal Research in Computers and Communications at the University of Kent, Canterbury. Indeed, in the days before copyright law students had quick and easy access to articles on the subject, a succession of copies of Ringer's papers and memorandums on a number of live issues found their way on to the reading lists of students at that establishment.
Same old Directive, new number
Do you remember Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs? The Directive which requires EU members to protect computer programs as literary works and to provide for interoperability, decompilation and the making of back-up copies? Well, it is being repealed and re-enacted in consolidated form because a sufficient number of amendments have been made to it. It has now become Directive 2009/24/EC of 23 April 2009 on the legal protection of computer programs.
You can read the new version in full on the OJ website, where it was published here this morning. It comes into force 20 days after its publication in the Official Journal of the European Union.
You can read the new version in full on the OJ website, where it was published here this morning. It comes into force 20 days after its publication in the Official Journal of the European Union.
Monday, 4 May 2009
Affordable Legal Route for Victims of Infringement?
This is more of a question than a statement: but, in advising predominantly creators, many at the early stages of their career, I often find that, on occasions where creators' rights as owners have been infringed, legal redress is out of their reach financially. The question equally applies where an SME has acquired rights by contract. It occurs that there may be an opportunity for such victims to seek justice or recompense in the UK via the provisions of the Copyright, Designs and Patents Act (CDPA) regarding secondary infringement (CDPA ss 107-110) and the criminal liability that attaches to the making of or dealing in infringing articles. Being a matter of criminal law, with the standard of proof being beyond all reasonable doubt, this option would, of course, only be open where ownership was not at issue and there is clear evidence of infringement. Yes, one has the option of making a complaint to the Crown Prosecution Service or Trading Standards, but there is no guarantee that these bodies will instigate proceedings.
However, the Prosecution of Offences Act 1985 enables anyone to stand in the name of the Queen - so in theory surely the victim of infringement can take the faster (and cheaper) route of instituting a private prosecution of the infringing culprit? The CDPA penalties of imprisonment and a fine (with the potential, also, for an award of compensation) imposed by a Magistrates or Crown Court would , I imagine, act as a powerful wake up call. Limited companies could be challenged using this route as well as the individuals who control them. Section 110 CDPA states that, where an offence is committed, with the "consent or connivance of a director, manager, secretary or other similar officer of the body ... he as well as the body corporate is guilty of the offence". So the way is open (in the words of the most erotically charged principle in company law) to "pierce the veil of incorporation". And, any conviction would follow such an individual around! To paraphrase Dr Johnson (above, right), "[d]epend upon it, Sir, when a man knows he [is facing a summons for copyright infringement], it concentrates his mind wonderfully" (Life, Vol 3 19 September 1777).
What would be interesting to know is whether readers have tried this -- has it been successful?
However, the Prosecution of Offences Act 1985 enables anyone to stand in the name of the Queen - so in theory surely the victim of infringement can take the faster (and cheaper) route of instituting a private prosecution of the infringing culprit? The CDPA penalties of imprisonment and a fine (with the potential, also, for an award of compensation) imposed by a Magistrates or Crown Court would , I imagine, act as a powerful wake up call. Limited companies could be challenged using this route as well as the individuals who control them. Section 110 CDPA states that, where an offence is committed, with the "consent or connivance of a director, manager, secretary or other similar officer of the body ... he as well as the body corporate is guilty of the offence". So the way is open (in the words of the most erotically charged principle in company law) to "pierce the veil of incorporation". And, any conviction would follow such an individual around! To paraphrase Dr Johnson (above, right), "[d]epend upon it, Sir, when a man knows he [is facing a summons for copyright infringement], it concentrates his mind wonderfully" (Life, Vol 3 19 September 1777).What would be interesting to know is whether readers have tried this -- has it been successful?
Sunday, 3 May 2009
A crime to buy pirate DVDs -- does Maharashtra have the power?
In a post on the excellent Spicy IP weblog, Prashant Reddy ("Beware Mumbaikars: The Slumlord's Act could detain you for a year for simply buying a pirated DVD") discusses provisions enacted by the Western Indian state of Maharashtra -- which includes copyright-rich Mumbai -- that render not only the sale of pirate product a criminal offence but also the purchase of those items. After discussing whether the amended Copyright Act 1957 as amended already makes provision to the same effect, given the generous definition of "computer programme" under s.2 of that Act which may well cover the sophisticated modern DVD, he then asks whether India's states have power to legislate over copyright: "... the law related to copyright and other intellectual property is a subject of the Union List which means that only [India's] Parliament is competent to pass such a legislation in regards pirated DVDs. The State may try to argue that the pith and substance of the legislation is actually in regards 'law and order' which falls under the State List but I think that will be quite a weak argument ...".This recalls distant memories of the Federal preemption rulings of the US Supreme Court in Sears, Roebuck v Stiffel and Compco v Day-Brite-- but those rulings dealt with the preemption of state power to prevent the copying of subject matter that Congress chose not to protect under Federal IP laws. Here, the "weak argument" of legislation to enforce law and order may carry the day on grounds of efficacy, whatever the merits of the pure legality of the situation.
Friday, 1 May 2009
301 Watch List on both sides of the fence
Yesterday (April 30th) the US Trade Representative (USTR) released its 2009 Special 301 Report, the annual survey of the “adequacy and effectiveness" of IP protection for the US’s trading partners. Ambassador Ron Kirk launched this year’s Report identifying it as the critical US Government tool that identifies “urgent problems that undermine one of America’s great strengths in the global economy – our innovation and creativity”.Right: Canada -- a country to list, and to watch ...
Twelve countries feature on this year’s Priority Watch List: China, Russia, Algeria, Argentina, Canada, Chile, India, Indonesia, Israel, Pakistan, Thailand and Venezuela. No surprises for the continued featuring of China and Russia, despite some improvements over the past year in the enforcement and protection. Algeria and Indonesia have been added this year along with ... Canada, the nation’s first appearance.
Canada’s failings in its IP protection regime similarly featured in an earlier industry report from IIPA, The IIPA Special 301 Recommendations filed with the USTR in February. The International Intellectual Property Alliance, a grouping of seven trade associations from the US copyright industries, had made recommendations to USTR based on their own statistical survey into trade losses due to piracy on 17th February 2009. The grouping, made up of the Association of American Publishers, the Business Software Alliance, the Entertainment Software Association, the Independent Film and Television Alliance, the Motion Picture Association of America, the National Music Publishers Association and the Record Industry Association of America, said of their Canadian cousins “Canada remains almost entirely out of compliance with the global minimum world standards embodied in the Treaties”.
Those readers anxious to review the ground on both sides of the fence, and working on the basis that, for the creative industries, the audience is a key factor in the creative process, may wish to cast their eyes over the IP Watch List report 2009 from Consumers International’s Access to Knowledge Network project.
Sixteen countries are ranked from “best” ie most consumer-friendly to “worst” ie most hostile to consumer interests. Canada was not surveyed, so a lost opportunity there for the nation to feature near the top of an international list but in a “good” way. The outright “winner” was India with the somewhat disingenuous comment:
they want to demonstrate real concerns for the rights of the audience or consumer.
Twelve countries feature on this year’s Priority Watch List: China, Russia, Algeria, Argentina, Canada, Chile, India, Indonesia, Israel, Pakistan, Thailand and Venezuela. No surprises for the continued featuring of China and Russia, despite some improvements over the past year in the enforcement and protection. Algeria and Indonesia have been added this year along with ... Canada, the nation’s first appearance.
Canada’s failings in its IP protection regime similarly featured in an earlier industry report from IIPA, The IIPA Special 301 Recommendations filed with the USTR in February. The International Intellectual Property Alliance, a grouping of seven trade associations from the US copyright industries, had made recommendations to USTR based on their own statistical survey into trade losses due to piracy on 17th February 2009. The grouping, made up of the Association of American Publishers, the Business Software Alliance, the Entertainment Software Association, the Independent Film and Television Alliance, the Motion Picture Association of America, the National Music Publishers Association and the Record Industry Association of America, said of their Canadian cousins “Canada remains almost entirely out of compliance with the global minimum world standards embodied in the Treaties”.
Those readers anxious to review the ground on both sides of the fence, and working on the basis that, for the creative industries, the audience is a key factor in the creative process, may wish to cast their eyes over the IP Watch List report 2009 from Consumers International’s Access to Knowledge Network project.
Sixteen countries are ranked from “best” ie most consumer-friendly to “worst” ie most hostile to consumer interests. Canada was not surveyed, so a lost opportunity there for the nation to feature near the top of an international list but in a “good” way. The outright “winner” was India with the somewhat disingenuous comment:
“India's Copyright Act is a relatively balanced instrument that recognises the interests of consumers through its broad private use exception, and by facilitating the compulsory licensing of works that would otherwise be unavailable. Neither has India rushed to accede to WIPO Copyright Treaty, which would expose India's consumers to the same problems experienced in other jurisdictions which have prohibited the use of circumvention devices to gain access to legally-acquired copyright material. It is true that copyright infringement, particularly in the form of physical media, is widespread in India. However this must be taken in the context that India, although fast-growing, remains one of the poorest countries in the world. Although India's cultural productivity over the centuries and to the present day has been rich and prodigious, its citizens are economically disadvantaged as consumers of the culture to which they have contributed.”UK is bottom of the list (“[I]t is generally very restrictive”), Australia 9th (“strongly favour[s] copyright owners over consumers”) and the USA 4th:
“Amongst all the countries surveyed in this Watch List, the United States is the most obvious anomaly, in that whilst its own copyright regime remains amongst the most liberal in the world - almost entirely due to its broad "fair use" exception - it is the most unremitting in its demands for higher levels of copyright protection from other countries, all of which are net importers of copyright content from the USA. Having said that, the United States copyright regime is far from a paragon. For one matter, its heavy reliance on the discretionary doctrine of fair use to provide flexibilities to content users may cause confusion and uncertainty as to exactly what is permitted and what is not; a state of affairs of which some content owners have taken full and unfair advantage.Handy little country-by-country summaries of the regimes surveyed will benefit law students, cunningly demonstrate consumers’ concerns through the nature of the questions posed and, perhaps, may suggest to pro-IP lobbyists areas in their arguments that may need attention if
For another matter, its terms of copyright protection have been ratcheted up time and again, now peaking at 120 years from the date of creation for works of corporate authorship. Also, the US copyright regime betrays much partiality to copyright owners in matters of enforcement, particularly in the DMCA amendments which prohibited the circumvention of Technological Protection Measures (TPMs) even for fair-use purposes, and streamlined the removal of content from the Internet by IP owners without court order. For better or worse, the United States effectively sets the global benchmark for intellectual property protection worldwide, through the norm-setting activities of its trade representatives and private sector lobbyists. Thus other countries can at least be thankful that the relatively balanced and equitable treatment shown to consumers in US law throws its one-sided foreign policy on IP into stark relief.”
they want to demonstrate real concerns for the rights of the audience or consumer.
Comment by Canadian copyright expert Howard Knopf (Excess Copyright) here
Posted by Jeremy for Amanda Harcourt
Santangelo case finally comes to a close
One of the longest-running and highest profile fileswapping lawsuits pursued by the Recording Industry Association of America (RIAA) has reached its final conclusion – probably to the relief of the RIAA whose former high profile campaign against individual file swappers has led to criticism and ridicule from consumers, industry commentators and musicians alike.
The case is actually two cases, the first an action against Patricia Santangelo in 2005 after discovering that unlicensed music had been uploaded to a file-sharing network via her computer. Ms Santangelo defended herself in court and made it clear that she didn’t use the computer in question in any way. Attention then moved to Santangelo's two children, Michelle and Robert, and eventually it became clear that it was they who did the file sharing via the internet connection registered in their mother's name, although at one time a friend of the children was blamed. After asking the court to find Patricia Santangelo liable for the action’s of her then under-eighteen year old children (a plea rejected by the court) the case was dismissed.
The RIAA then began proceedings against Michelle and Robert. Michelle failed to respond to the lawsuit against her, and so a judge found in the RIAA's favour by default and ordered her to pay $30,000 in damages – although this was overturned on appeal. Robert Santangelo, meanwhile, defended the case but following a testimony by a friend of Robert's to the effect that Robert used Kazaa on an "almost daily" basis to access illegal sources of music, and a deposition by Michelle in which she admitted to accessing music via P2P, a settlement has finally been reached in the region of US$7,000.
The RIAA have now brought to an end their actions against individual file swappers although a number of cases remain in the pipeline, including the case against postgraduate student Joel Tennenbaum who is being defended by a team of Harvard law students and their professor Charles Nesson - here the RIAA had to appeal to the First Circuit Court of Appeals to prevent the preliminary hearings in the trial being webcast live (something the trial judge, Judge Nancy Gertner, was minded to allow). In the new world of the internet this blogger feels that, whilst he doesn’t quite know what to do to protect copyrights in the future, this and other high profile cases brought by the RIAA mean that he certainly knows what not to do.
Read more at
Subscribe to:
Posts (Atom)