Think twice before copying yourself!

Usually your own work is the last thing you’d worry about copying but Burrows v Smith, a Chancery Division judgment published today, reveals the pitfalls. Burrows is a computer games designer who came up with a game in 1998, recording it in a document. In 2005 he became an employee of Circle Studio Ltd and designed a game called Traktrix. Unbeknowst to Circle, Traktrix embodied elements of the 1998 game. Burrows was copying his own work! Circle subsequently went into liquidation and Crush Digital Media bought some of its assets.

Burrows argued that he’d given Circle an implied licence to use the 1998 document but the licence had been terminated when Circle went into liquidation and could not be assigned to Crush. Norris J held that the 1998 document was not incorporated into Traktrix consensually, so there was no licence but an assignment (if it had to be categorized).

Copyright and Copyleft -- a glimpse of the Futura

Thank you, Nia Roberts (Llywodraeth Cynulliad Cymru or, if you prefer, Welsh Assembly Government) for this link to Copyright and Copyleft Gloves. The text proclaims as follows:

"Do you find copyright law as confusing as figuring out which glove goes on which hand? If you do, then have I got the invention for you! I present to you now the Copyright and Copyleft gloves. With their unique integrated design, the Copyright and Copyleft Gloves both enable you to quickly differentiate left from right and familiarize yourself with the ongoing intellectual property debate. Never be confused again!

Make your own today! This project is in the Public Domain".

The site then provides a set of instructions for those who wish to make them. They're easy enough to follow, but you'll need a Singer Futura sewing machine ...

Who pays for private copies?

The IPO website draws attention to a reference to the European Court concerning Article 5(2)(b) of the Copyright Directive (which allows national laws to create a private-copying exception so long as rightsholders receive fair compensation). The question:

“Does Directive 2001/29/EC, in particular Article 5(2)(b) and (5) thereof, provide any assistance in determining who should be regarded under national law as owing the 'fair compensation' referred to in Article 5(2)(b)? If so, what assistance does it provide?

In a case of distance selling in which the buyer is established in a different Member State to that of the seller, does Article 5(5) of Directive 2001/29/EC require national law to be interpreted so broadly that a person owing the 'fair compensation' referred to in Article 5(2)(b) of the directive who is acting on a commercial basis owes such compensation in at least one of the Member States involved in the distance selling?”

Dutch law (see Article 16c) has a private-copy exception provided that the author receives remuneration from the manufacturer or importer of the object on which the recording is made. Foundation ThuisKopie collect and distribute this remuneration. In this action they sued the German company Opus, a supplier of blank media, who sell into the Netherlands but are paying a comparable fee under German law.

Oink's Ellis found NOT guity!

The trial of the Alan Ellis, one of the main people behind the infamous ‘Oink’ Peer-2-Peer invite only file swapping site, has ended at Teeside Crown Court. The file-sharing community had just under 200,000 users when it was closed down in 2007, who between them had downloaded some 21 million illegal songs. Six men were arrested in raids in the UK and Amsterdam, four of whom pleaded guilty to copyright infringement in late 2008, receiving community service and fines for their crimes. Two cases remained and the first heard was against Ellis, aged 26, who founded the community. He was charged with conspiracy to defraud. Ellis had denied liability for copyright infringement, using the (classic) defence that the Oink website and server did not, in themselves, host any unlicensed content, saying that it merely provided a forum through which others could share music.

As the case centered on an accusation of fraud, and prosecutors also had to prove Ellis made a profit and prosecutors moved to show the amount of money made by Ellis by operating the venture. It appeared from evidence given that there wasn't a subscription fee as such for using Oink, but users were encouraged to make donations, and it's alleged that a donation was compulsory whenever someone wanted to invite a friend to join the community.

Prosecutors said Ellis had amassed $300,000 in donations in his PayPal account by the time site was shut down and was receiving about $18,000 each month in ‘donations’ – and that he had £20,000 in his bank accounts. Ellis insisted that the monies were to pay server costs – and possibly buy a new server - and that he, unlike the Oink’s actual users, wasn’t personally guilty of infringement, because he didn't personally host or share any infringing content. By way of an aside, in the US in MGM v Grokster a charge of what was in effect 'authorising infringement' was successfully brought and in Sweden the four men behind The Pirate Bay were found guilty of copyright infringement. However, Ellis painted a picture of Oink as geeky student programming project that got out of control. He told the court how he created the website while studying at Teesside University and in a short period afterwards, mainly because he felt the programming skills he'd been taught were outdated and that he should endeavour to teach himself some up to date web-based programming saying "I didn't have an intention, I was furthering my skills as a programmer, as a software engineer".

Well, we can report the verdict - and in this case Mr Elllis has been found NOT GUILTY. He left court without speaking to reporters.

http://news.bbc.co.uk/1/hi/england/tees/8461879.stm

Infopaq – a substantial change?

A meeting of BLACA last night considered the question of ‘what is a substantial part?’ in the light of the ECJ’s Infopaq judgment last year, where it was held that:

‘An act occurring during a data capture process, which consists of storing an extract of a protected work comprising 11 words and printing out that extract, is such as to come within the concept of reproduction in part within the meaning of Article 2 of Directive 2001/29, if the elements thus reproduced are the expression of the intellectual creation of their author; it is for the national court to make this determination.’

Lionel Bently lamented this decision, which he believes is revolutionary in a bad kind of way because the simple test lacks the subtlety of English law. Lord Hoffmann, by contrast, thought nothing had changed: Infopaq perfectly matches the existing English approach. Lord Hoffmann, it might be observed, has demonstrated a distaste for obscure ancient case law and a knack with Occam’s razor (paring down interpretation of contracts in Investors Compensation Scheme and patents in Kirin-Amgen).

Is it possible, however, that some of the historic judicial approaches to substantiality may not have been rendered entirely redundant in determining the potentially complex question of whether a copied part includes ‘expression of intellectual creation’ (a phrase that gathers together a roomy collection of abstract concepts)? Of those previous judicial considerations that are no longer relevant, how many can we not live without – or have already been put out to grass?

Google’s Chinese walls

Google’s threat on Tuesday to pull out of China on human-rights grounds coincided with Google cancelling the next stage in talks with the China Written Works Copyright Society over copyright infringement. Are there Chinese walls between these two episodes?

Google sent some kind of apology to the CWWCS on 9 January – although apparently only for poor communication. According to the CWWCS a bigger apology was anticipated: ‘Google was supposed to apologize for its infringement, provide a final list of Chinese books it scanned, and fix a timetable for copyright issue settlement during the talks during Tuesday's talks’ (People’s Daily Online). Although it would be too much to suppose that the books dispute is the sole cause of Google’s human-rights stand, perhaps the timing is relevant? Google has saved itself from admitting copyright infringement – which would have undermined Book Search and the Settlement globally.

Time to reflect on traditional (distribution) windows?

I read with interest a blog written by Willian Patry, a senior copyright lawyer with Google (although his blog is completely independent from his employer), about how the actions of a certain major film studio have driven him to cancel his Netflix subscription. You can read his blog here.

Netflix is a US subscription service which is broadly equivalent to the UK's Lovefilm service and offers DVD and Blu-ray disk rental by mail. If you sign up to a monthly subscription plan one of the great benefits is that no late fees are payable, no matter how long you keep a DVD (provided you return it before your subscription expires!).

According to Patry, Netflix agreed with Warner to a 28 day embargo on renting the latest movies, in exchange for reduced DVD purchase costs. As a result Patry has cancelled his subscription and observes that "Netflix's new business model is, apparently, the old business model of businesses first, consumers last". Patry also adds that "I expect the new business model will also be bad for Netflix and the studios. Instead of watching movies, I will do something else.".

It seems to me that the deal could also have another unintended effect. Old business models do not legislate for the advent of high-speed broadband, the ubiquity of pirate sites and the ease and speed with which infringing content may be viewed online. If consumers know that content is available legitimately in one form or other (in this case via physical sales of DVDs) but cannot obtain such content when they want it or how they want it (in this case via download, streaming or rental of a physical copy), surely they may be driven towards illegal sources. Piracy is so rife that in any event one may expect a distribution strategy to involve making it as easy as possible for consumers to obtain a legitimate copy of the content, via as many mediums as possible. Warner seems to have chosen the reverse strategy.

This comes as a surprise because Warner are leading the move towards day-and-date VOD releases and are generally seen as quite innovative, all of which makes their arrangement with Netflix more puzzling. However, we must assume that the economics work in each party's favour. See here and here for two examples of WB taking the lead on distribution strategies.

South Korea provides an interesting case study. In South Korea 95% of households have a broadband connection, making it the most "connected" country in the world (source here), and it also has some of the fastest broadband speeds in the world, with speeds of 49.50 megabits per second (source: "Speed Matters" report released by CWA in August 2008 as quoted by USA Today, 20th August 2009). In 2008 Warner Bros., the last major studio to have a home video and DVD unit in Korea, withdrew its operations. Its move was seen to cap a steady withdrawal of Hollywood studios' home video and DVD units, hurt by the slowing sales and continued illegal downloading of videos on the Web. "The Korean video and DVD Market was valued at 100 billion won in 2003 but began to decline in 2004, undermined by the growing availability of online download services, many of which were illegal. In 2007/8, the home video and DVD market was estimated at 56.9 billion won" (source: The Korea Herald, 12th November 2008).

No changing of UK copyright law by stealth

The author previously commented on this blog about Clause 17 of the Digital Economy Bill which proposes sweeping powers to amend copyright law to deal with new internet piracy problems, including, for example, allowing the government to create a range of new copyright exceptions in order to reduce infringement by legitimising formerly infringing activities - or conversely, a new series of rights for copyright owners.

Following complaints about the breadth of the powers, last night Lord Mandelson published a series of amendments to Clause 17, seeking to narrow the powers - so amendments can now only be proposed where there is "any infringement of copyright by means of the internet [and the Secretary of State is] satisfied that (a) the infringement is having a serious adverse effect on businesses or consumers, and (b) making the amendment is a proportionate way to address that effect." There is also a new "super-affirmative" process proposed for adopting the new legislation, which is designed to make sure it receives a proper airing in both Houses of Parliament - even if that is something short of a full series of debates on new primary legislation.