By a strange coincidence, just as the US Copyright Office announced its inquiry into the droit de suite, the French Constitutional Court issued a ruling last week (September 28th) confirming that the statutory provisions governing the droit de suite's transmission post mortem are constitutional.
Pursuant to Section L.123-7 of the Intellectual Property Code, upon the author's death, the droit de suite passes to the author's heirs (and spouse) to the exclusion of legatees. This provision was attacked as creating an undue discrimination between heirs and legatees.
The Court held that though the difference in treatment was justified:
"Whereas in creating the droit de suite, the legislator intended to allow authors of graphic and plastic originals to benefit from the appreciation in value of their works subsequent to the first sale thereof; by providing for the inalienable nature of this right and by ensuring its transmission to the author's heirs, the purpose of the provisions at issue is to reinforce this protection and to extend it to the artist's family after his death;
Whereas by reserving the transmission of the droit de suite upon the author's death to heirs [...], to the exclusion of legatees and other successors-in-interest, the legislator has instituted a difference in treatment between persons who are differently situated; such difference in treatment is directly related to the objective pursued by the law".
For US Copyright Notice of Inquiry see here
For ruling by Constitutional Court see here
Friday, 5 October 2012
Orphan Works Directive adopted by the Council
The Orphan Works Directive, which has long been in the pipeline (see Eleonora's June blog post), has finally been adopted by the Council.
The Council's approval marks the final step in the legislative procedure meaning that the Directive will formally enter into force in the coming weeks further to its publication in the Official Journal of the European Union. Member States will then have two years to transpose it into national law.
Orphan Works are works which are protected by copyright but whose creators cannot be identified or found. The Commission memo, released yesterday, confirms that the new Directive on Orphan Works "will provide
Commissioner Barnier has said that "Today's adoption of the Orphan Works Directive is a significant achievement in our efforts to create a digital single market. It will enable easy online access for all citizens to our cultural heritage. The swift and successful outcome of the legislative process and the broad consensus reached both in the Council and the Parliament prove that by working together we can agree on measures to ensure that the EU copyright rules are fit for purpose in the digital age. Alongside other achievements such as the European Memorandum of Understanding to facilitate the mass digitisation of out-of-commerce books, this Directive is one more step in making licensing and online access to cultural content easier."
As this blog reported in September, although the Commission's Vice-President Neelie Kroes, is in favour of the Orphan Works Directive and proposals relating to collective rights management, she has been very clear other issues exist beyond licensing and orphan works, and that "substantive copyright reform" is required.
Thursday, 4 October 2012
Colonial copyright: read all about it!
The book is quite unusual, and not a little intriguing. According to the publishers:
"When the British Empire enacted copyright law for its colonies and called it colonial, or Imperial, copyright, it had its own interests in mind. Deconstructing the imperial policy regarding copyright offers a startling glimpse into how this law was received in the colonies themselves. Offering the first in-depth study from the point of view of the colonized, this book suggests a general model of Colonial Copyright as it was understood as the intersection of legal transplants, colonial law, and the particular features of copyright, especially authorship.More details of the book can be found on the publisher's website here.
Taking as a case study the story of Mandate Palestine (1917-1948), the book details the untold history of the copyright law that became the basis of Israeli law, and still is the law in the Palestinian Authority. It queries the British motivation in enacting copyright law, traces their first, indifferent reaction, and continues with the gradual absorption into the local legal and cultural systems. In the modern era copyright law is at the forefront of globalization but this was no less true when colonial copyright first emerged. By shining a light on the introduction and reception of copyright law in Mandate Palestine, the book illuminates the broader themes of copyright law: the questions surrounding the concept of authorship; the relationship between copyright and the demands of progress; and the complications of globalization".
YouTube just got smarter says YouTube
Starting with the latter, YouTube has now implemented an appeals process for material taken down via the "Content ID" system, YouTube’s own copyright protection system. Content ID enables some 3,000 approved rights holders to upload videos to a central reference database, where they are digitally fingerprinted. There are some 500,000 hours logged. When YouTube detects content with a fingerprint match but uploaded by someone else, it enables the rights holders to automatically take it down, or place ads on it. Now the system has been updated with YouTube saying: "Users have always had the ability to dispute Content ID claims on their videos if they believe those claims are invalid. Prior to today, if a content owner rejected that dispute, the user was left with no recourse for certain types of Content ID claims (eg monetize claims). Based upon feedback from our community, today we’re introducing an appeals process that gives eligible users a new choice when dealing with a rejected dispute. When the user files an appeal, a content owner has two options: release the claim or file a formal DMCA notification.
YouTube also says that it has introduced smarter detection of "Unintentional Claims". Pointing out that content owners have uploaded more than ten million reference files to the Content ID system, YouTube "accepts that mistakes can and do happen". To address this, YouTube say "we've improved the algorithms that identify potentially invalid claims. We stop these claims from automatically affecting user videos and place them in a queue to be manually reviewed. This process prevents disputes that arise when content not owned by a partner inadvertently turns up in a reference file. A recent example was NASA's footage of the Mars landing being taken down because the footage was subsequently used in a new service who logged the footage as their own, despite the fact the original video was on NASA's own YouTube channel - and they owned it - and had put it in the public domain! Hopefully a 'human' review element might improve this, although this in turn may slow valid take downs.
Writing on the official YouTube blog, Thabet Alfishawi, YouTube's Rights Management Product Manager said “There is still a lot of work ahead of us, but we believe that these are significant steps forward in our efforts to keep YouTube a vibrant place where the rights of both content owners and users are protected and everyone can control their original content and make money from it – money which can be put towards the production of more great content.”
Small claims for copyright on track
England and Wales have a new
‘small claims track’ at the Patent County Courts, simplifying the process for
copyright owners who want to take action against others who they believe have infringed
their rights – and whilst this may well involve commercial disputes, a number
of commentators have pointed out that the Court could hear civil cases against individual suspected file-sharers. The main limit to the court’s jurisdiction is the usual
cap for damages for small claims which cannot exceed £5,000. The move, which can trace its recent history back to the Hargreaves Review of Intellectual Property, means copyright claims can be dealt with in a swifter, less formal and cost effective manner and certainly at least partially addresses the concerns of some small businesses - photographers, illustrators, cartoonists and some designers all spring to mind, who had no real way of protecting their rights due to prohibitive costs. The new system also provides an alternative to the still partially dormant Digital Economy Act, which when (or if) implemented will provide a ‘three strikes’ regime in the UK, although as yet the ‘third strike’ is undecided, meaning such small claims litigation might well be a viable sanction for rights owners until parliament revisits the legislation.
Michael Fallon MP, the Business Minister, said: "Small firms, whose intellectual property has been infringed, will have today a simpler and easier way to take their cases forward, by writing direct to the judge and setting out the issues.Lower legal costs will make it easier for entrepreneurs to protect their creative ideas where they had previously struggled to access justice in what could often be an expensive progress. A smarter and cheaper process is good for business and helping businesses make the most of their intellectual property is good for the economy". Interestingly Peter Bradwell from the Open Rights Group supported the move saying "A less costly and complex route to justice is another important step towards intellectual property laws that are fit for the digital age. A small claims track will mean creators can access justice more easily when their rights are infringed. And it should help consumers defend themselves against lower value infringement claims".
More on this in the ISP Review here http://www.ispreview.co.uk/index.php/2012/10/small-claims-track-makes-court-best-for-handling-uk-internet-piracy-cases.html
Tuesday, 2 October 2012
IP For In House Lawyers
Topics covered will include recent developments in intellectual property law in the EU and the UK and their impact on IP Protection. In particular case law relating to website blocking, the position in the UK post NewzBin2, the ongoing lack of some Digital Economy Act provisions in the UK, and new challenges in the European Trade Mark system will be highlighted.
Attendees qualify for 4.5 CPD hours and a marvellous 20% discount is available for 1709 Readers if you use this code when booking: L11419/MLU
More here: http://www.conferencesandtraining.com/en/Browse-Events/Law-conferences/Ip-For-In-House-Lawyers/
US copyright law needs serious attention from Congress and the courts
Richard Posner,
the US Seventh Circuit Court of Appeal Judge who recently ruled in the MyVidster
case that linking to infringing content is not an infringement of copyright
in the US, has expressed concern on his blog
that "that both patent and copyright protection, though particularly
the former, may be excessive". Posner writes that the protection offered
by copyright law is too extensive, particularly in relation to term of
protection and the courts' narrow protection of the fair use exception.
Posner does acknowledge that films these days often cost hundreds
of millions of dollars to make, and concedes that they suffer from the problem
of being "copiable almost instantaneously and able to be both copied and
distributed almost costlessly". In respect of these he feels that the need
for copyright protection is comparable to that in the pharmaceutical industry.
Posner does acknowledge that films these days often cost hundreds
of millions of dollars to make, and concedes that they suffer from the problem
of being "copiable almost instantaneously and able to be both copied and
distributed almost costlessly". In respect of these he feels that the need
for copyright protection is comparable to that in the pharmaceutical industry.
On the other hand, Posner cites academic books and articles (apart
from textbooks) which are created as a by product of academic research as less
useful and therefore less worthy of protection. These works, he says, are
created by academics seeking to preserve their professional reputation and
would continue to be created even if afforded no copyright protection at all.
He goes on to say that "it is doubtful that there is any social benefit to
the copyrighting of academic work other than textbooks, which require a lot of
work and generally do not enhance the author's academic reputation and may
undermine it."
This blogger does not particularly agree with this analysis:
textbooks often do enhance an author's academic reputation. The exposure
afforded by publishing a textbook must be at least part of the reason that
textbooks are written, in addition to the revenue that they generate. To take
protection away from academic articles, when academics often rely on publishing
papers to make their research public, seems a little unfair on a group of professionals
that arguably does more for the public benefit that the film industry does. In
addition, academics rely on publication to enhance their reputations and so secure
grants for their research. Therefore although an academic may well publish in
order to "preserve his professional reputation", the net effect is to
fund further research.
Posner's two specific criticisms of copyright law are the duration
of protection and the fair use exception. In the US, most works are protected
by copyright for the life of the author plus 70 years. Posner says that:
"Apart from the fact that the present value of income
received so far in the future is negligible, obtaining copyright licenses on
very old works is difficult because not only is the author in all likelihood
dead, but his heirs or other owners of the copyright may be difficult or even
impossible to identify or find. The copyright term should be shorter."
The term of copyright protection has crept up over the years, and
it does seem illogical that a person should be protected so long after their
death. The creative industries would be far better served if works were to
become available earlier; in this day most authors are lucky if revenue from their
life's works see them through old age, let alone go on to provide a source of
income for their children.
Another consideration has to be computer-generated works: so many
works now are created electronically or by vast teams of people. Copyright
authorship rules accommodate that fact, however it hardly seems fair or
relevant that copyright should extend so far beyond the death of the author
when in fact the work took a whole team of people (or computers) to create.
Finally Posner considers fair use. He says that "the problem
is that the boundaries of fair use are ill defined, and copyright owners try to
narrow them as much as possible, insisting for example that even minute
excerpts from a film cannot be reproduced without a license." In his view,
because most works are built on previous existing works, this defence should
not be interpreted so narrowly. The US system does at least recognise that use
any work which is deemed to be fair should be permitted, which is more flexible
than fair dealing in the UK.
Posner finishes by saying that: "The need for reform is less
acute in copyright than in patent law, but it is sufficiently acute to warrant
serious attention from Congress and the courts." That copyright law should
receive serious attention from the top should not be in dispute. The real
question, is what should they do about it?
Monday, 1 October 2012
Japan introduces new download sanctions
http://edition.cnn.com/2012/10/01/business/japan-music-piracy/index.html
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