The IPO goes technical (protection measures)

The IPO is clearly in a mood to give early Christmas gifts to its readers.  Snapping on the heels of the consultation on shortening the term of protection for old unpublished works foreshadowed in Ben's post last week (and explored further in the comments to that post) comes news that they have published guidelines on how the Secretary of State will deal with the complaints which he/she might receive under the provisions of section 296ZEA of the Copyright, Designs and Patents Act 1988,  introduced into UK law on 1 October by the snappily titled Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014.

The Guidelines may be found here - on the newly revamped (and from this Blogger's perspective, newly inpenetrable) IPO website.

As the explanatory note published this week says:

Technological Protection Measures (TPMs) (also known as copy protection measures or DRM) are often used to protect copyright works, for example, through encryption on DVDs. TPMs can have a important role in enabling copyright owners (rightsholders) to offer content to consumers in different ways, as well as protecting against unlawful copying (piracy). EU and UK law protects the right of copyright owners to use TPMs to protect their works, and circumvention of such technology is illegal.

However, use of TPMs could potentially prevent activities that are permitted by copyright exceptions [surely they are always permitted, it is just that they can be lawfully undertaken without copyright holder approval]... The law therefore provides for a complaints process that aims to ensure that a TPM does not unreasonably prevent people from benefiting from an exception. The guidance on this page gives information on when and how someone may make a complaint, other steps that they should consider and some of the factors that may influence the outcome of a complaint. 

The guidelines are interesting to read - and although they fail to solve the conundrum at the core of the new exceptions (the Secretary of State can intervene where the TPMs defeat the purpose of the exception ... which is to give the right to make copies), while treading a careful line to make sure that no discretion is being fettered, they do provide reassurance that 

"For example, the Secretary of State would not want to impose a large and disproportionate burden on business and undermine the ability of the Creative Industries to produce the content we all enjoy. 

Equally, the Secretary of State will also want to ensure that the benefits of the exceptions can be realised. For example, it is right that an archive that is seeking to preserve the cultural life of the nation by holding (securely) copies of works should not be restricted from doing so by TPMs." 

Also worth noting is that there is now a complaint form for potential complainants to fill in - and that the same form has been extended to cover not only the Secreatry of State's new power under section 296ZEA, but also the matching power that already existed under section 296ZE (in respect of a range of other exceptions).

Oister Oi! A small episode of infringement

A few weeks ago this blogger's attention was caught by a piece of Danish litigation before the splendidly-named Maritime and Commercial Court in which a production team and reggae band sued an advertising agency and a mobile broadband provider for copyright infringement involving a very short snippet of work.

The defendants initially asked the claimants to produce both text and music for a commercial. This was done; the defendants approved the material and a deal was struck between them which expired in February 2013. Some time after the expiry of the agreement, the defendants produced a new commercial which, said the claimants, used a three-note music sequence and the words "oister oi" which infringed copyright in the work originally produced under the agreement. The defendants denied any infringement, saying that the text merely consisted of the broadband provider's name, Oister, and the word 'oi' [apparently 'hello' in Portuguese: can someone verify this?], and the music was only three notes taken from a whole piece.

The court ruled that, when assessing whether the fragment "Oister Oi" was protected by copyright, the text and music must be evaluated as a whole and had to have an overall level of originality. In the court's opinion, the choice and combination of words, note sequence and rhythm, considered as a whole, were indeed the expression of an individual creative effort.  Accordingly the fragment as a whole had the character of a copyright-protected work. Since the defendants had used the fragment twice, the court found Dkr 20,000 to be a reasonable remuneration.

While very short works have been found to be subject to copyright protection and the taking of short extracts has been found to be an infringement, the risk factor involved when embarking on such litigation is inevitably greater where an argument of de minimis or insubstantiality is available to the defendant.  One would imagine that this uncertainty would tend to lead to cases being settled more often, but there is no evidence that this is so.

Source: "Short fragments of text and music may be protected by copyright", by Mads Marstrand-Jørgensen (MAQS Law Firm, Copenhagen), written for International Law Office.

Is there copyright in the taste of a cheese?

Roland Wigman

From invariably original (not necessarily solely in the sense of the originality requirement) Dutch litigants might soon come the answer to this question.

1709 Blog friend Roland Wigman (Versteeg Wigman Sprey) explains what is happening:

"In the US they have attempted to register the taste of pizza as a trademark [here], but now in The Netherlands copyright is claimed in the taste of cheese.

The manufacturer of "Heks'nkaas" (which roughly translates as 'Witches' cheese), a cheesespread with herbs, is suing its competitor Smilde Foods. Smilde Foods is the manufacturer of a cheaper product called "Witte Wievenkaas" ('White Wives' cheese, 'white wives' being the name for the strings of mist over the meadows in the early morning). 

Cheesy or just cheese?

Heks'nkaas claims copyright in the taste (and scent) of its cheese and refers to the judgment of the Hoge Raad (Supreme Court) in 2006 in which the Hoge Raad said there was copyright in the scent of a perfume.

The battle will take place before the district court of Midden Nederland (Arnhem). This court has to decide whether the taste of cheesespread with leek and garlic meets the threshold of originality [but is it a 'work' in the first place?]. 

The parties have secured top legal aid: Heks'nkaas is represented by Klos Morel Vos & Schaap and Smilde Foods is represented by De Brauw Blackstone Westbroek.  

A judgment is not expected before summer 2015."

Economics of Copyright: a new title for students and teachers

Handbook On The Economics Of Copyright: a Guide for Students and Teachers, edited by Richard Watt (Associate Professor of Economics and Finance, University of Canterbury, New Zealand), is the latest Edward Elgar Publishing title to address the point of contact between economics and intellectual property rights. It's a lot shorter than many of the same publisher's sorties into IP-and-economics, some of which go into two vast volumes and have to be driven around in trucks. The content appears to be pretty fresh too; this is not one of those books that turns out to be a collection of previously published "greatest hits" going back 30 years or more.

According to the book's web-blurb:

Featuring expert contributors from around the world, this book offers insight into the vital theoretical and practical aspects of the economics of copyright. Topics discussed include fair use, performers’ rights, copyright and trade, online music streaming, internet piracy, copyright and visual art markets, and open source publishing. In addition to in-depth coverage of these timely topics, the authors also offer insightful predictions and policy recommendations for the future.

Each of the self-contained chapters is written by a distinguished expert and is pitched at a level designed to be accessible to advanced undergraduate and postgraduate students in economics and law. As a whole, the book covers all of the topical content that a student of copyright economics should know. Teachers and lecturers will find all the required material to provide a comprehensive overview of the subject in a single volume. For scholars with a legal background, the book will also act as an effective introduction or refresher in the economic theory underlying copyright.

This book, refreshingly, does indeed include contributions from outside North America, thus addressing one of this blogger's long-standing objections to IP-and-economics titles from the same publishing house that contain only US material but give no indication to that effect for the benefit of prospective readers and purchasers.  Apart from the US and the editor's home turf of New Zealand, contributors to this volume are drawn from Australia, Germany, the Netherlands, Denmark, Italy and the United Kingdom.

While the chapters on the economics side contain a good deal of algebra that will prove challenging for the regular IP lawyer to navigate, the regular legal chapters (supplied by fellow blogger Eleonora, the evergreen Wendy J. Gordon and the perennially entertaining :Paul J. Heald) should lie within both their comfort zones and their pleasure zones.  This blogger has followed Paul's work on the public domain over the years [this blog has followed it too: see posts here and here] and commends it to anyone who has never previously taken the subject seriously.

Bibliographical data: 351 pp, Hardback ISBN 978 1 84980 852 1; ebook ISBN 978 1 84980 853 8. Price $205 (online price $184.50). Web page here.

Footie and a beer on a Saturday afternoon: soon to be a forgotten pleasure?

With some names changed or concealed to avoid any problems, here's a little tale that has been sent to us for publication:

I was encouraged to get in touch with you by my boss who is an avid reader of your blog. I work for him at the Black Bull Pub in Green Pasture, Bullhampton, England. A smaller part of our business revolves around showing English Premier League football games, and last year we took the step into the big grey area of broadcasting 3 pm Saturday games, which you may know are not shown on British TV due to a ruling some years ago to keep attendance up at football grounds.

We were put in touch with a company (by a fellow landlord already using their service) that provided foreign satellites for the showing of 3pm football games coming in from around Europe. You may remember this case from 2012 in which a landlady won her court case against Sky for using a decoder [on the Karen Murphy case and its aftermath see the 1709 Blog here; see also the BBC here]. This pub was supported in its legal battle by the company which provided our satellites.

The key piece of information from the BBC article states that: 'the Premier League said it still had the right "to prevent the unauthorised use of our copyrights"'.

Will this soon be the only sort of football
you can enjoy in an English pub?

From the beginning on this season our provider has disappeared, along with the money we paid for this season. I've been in touch with friends of mine who run a website for pubs to advertise what sports they're showing and they've confirmed that the showing of Premier League 3 pm games has dropped dramatically this season from last. We were also attempting to run a photographic exhibition with a sport photographer friend of ours this season all about the Premier League, but after the Premier League set their agenda for the season (which I believe focused heavily on their copyright) the photographer decided it wouldn't be worth getting involved with the exhibition as he would run the risk of unnecessary complications concerning the copyright of his images.

There are clearly lots of pubs that have now been left in a precarious position. Our businesses began to revolve around a good Saturday trade and it's difficult to assimilate back into a business without that trade. Our landlord friend who suggested the company to us is in real trouble as his is a local pub, and prior to his showing of 3 pm games his business was struggling. His entire trade is based around Saturdays.

From the Premier League's perspective, its priorities involve the protection and exploitation of its copyrights; from the point of view of local pubs and the communities they serve, while the profit motive cannot be eliminated it is only one of a number of factors to take into account, as both pub-going and football-watching practices are subject to stresses from which they may never quite recover.

Readers' thoughts and observations are welcomed.

Nothing but exceptional copyright exceptions: a new event for copyright enthusiasts!

What will happen to the existing set of copyright exceptions and limitations now that the new EU Commission has taken office? Will there be any actual review of EU copyright directives, notably the InfoSoc Directive and exceptions and limitations under its Article 5? And what about recent case law of the Court of Justice of the European Union (CJEU): has there be any change in the overall approach of the Court towards exceptions and limitations? What do new UK copyright exceptions mean and what is their relationship with corresponding exceptions under the InfoSoc Directive?

I am organising and running a new 2-hour seminar in London entitled Nothing But Exceptional Copyright Exceptions, that will provide an opportunity to both discuss the above in detail – including the practical impact of developments at the EU level on UK exceptions and limitations – and highlight what issues in the sexy realm of exceptions and limitations might be addressed in the near future at the judicial, policy and legislative level.

Who thought that exceptions
could be THAT hilarious ...

With the overall focus being copyright exceptions and limitations at the EU and UK levels, topics will include:

• Discussion of recent CJEU decisions in the area of exceptions and limitations, eg Case C-145/10 Painer (quotation), Case C-435/12 ACI Adam (private copying), Case C-360/13 PRCA (temporary copies), Case C-201/13 Deckmyn (parody), Case C-117/13 Ulmer (libraries, educational establishments, museums, archives), Opinion of Advocate General Cruz Villalon in Case C-463/12 Copydan Båndkopi (fair compensation for private copying and de minimis rule).
• Discussion of new UK exceptions for private copying, parody, text and data mining, and broader exceptions for quotation, preservation and disabled people, as well as their relationship (and actual compatibility) with EU copyright provisions.
• Policy activity of the past EU Commission, including the Public Consultation on the Review of EU Copyright Rules and relevant Responses, leaked draft Impact Assessment and White Paper, and the actual value of all this as a legacy for the new Commission.
• Possible directions in the copyright policy of the new Commission as regards exceptions and limitations.

... Or THAT engaging?

Places are limited (with some tickets available for full time students), so to allow all participants to engage fully in the discussion about the present and future of copyright exceptions and limitations.

Given requests received in the past, there are also some tickets available for those who are interested in following the event in live streaming via YouTube or watch it at a later, more convenient, time.

The date is Friday 12 December, from 3:00 to 5:00 pm (followed by some drinks/nibbles to meditate further on copyright issues, yet in a more social fashion). The venue is the stunning London offices of RPC LLP. And speaking of RPC, associate Adam Cusworth will contribute with a short presentation on an exception-related (of course: what else?) topic.

For further information and registration, just click here!

No final case for Holmes

The U.S. Supreme Court has confirmed that it wont won't hear an appeal in the "Sherlock Holmes" case (Leslie Klinger v Conan Doyle Estate) in which in which the Court of Appeals for the 7th Circui upheld the decision of the US District Court for the Northern District of Illinois - Eastern Division that author and lawyer Mr Klinger was free to use material in the 50 Sherlock Holmes stories and novels that are no longer protected by copyright.

Orphan works and unpublished works - unloved or much loved? Are moves being adopted to foster better care?

The National Library of Scotland has joined a campaign to "free history from copyright laws that are leaving valuable pieces of cultural heritage unseen." What's this all about then? Well, it's not all about orphan works (more o that later on) and it's set against the backdrop of the centenary of the beginning of the First World War -  and criticies the provisons that certain unpublished pieces are protected under the 1988 Copyright, Designs and Patents Act until 2039.  This applies to all works created, but not published before 1 August 1989, where the author died before 1 January 1969. CILIP (the Chartered Institute of Library and Information Professionals) launched its campaign to urge the reform of “out-dated” and “inconsistent” copyright laws this week preventing many British institutions from showing certain works from World War One in centenary exhibits of the Great War. The National Library has now posted the blank letter below on its Facebook page, saying “there would have been a letter from a First World War soldier in this display (image shown). CILIP wants to reduce the term of copyright protection in unpublished text-based works to the author's lifetime plus 70 years  (rather than the set terms of 70 years from 1969).  Many of the soldiers of course perished in the 1914-18 War. The Intellectual Property Office said the government will shortly publish a consultation on reducing the duration of copyright on those works. There is a really good paper on this, andthat's the CREATe website and written by Victoria Stobo (University of Glasgow) here.

That said, there has of course been developments with orphan works (works which are protected by copyright but whose creators (or rather owners) cannot be identified or found)  - and as Eleonora reported just four days ago, the new orphan works licensing scheme set up pursuant to s77 of the Enterprise and Regulatory Reform Act 2013 has launched. This means that it is now possible to apply for a licence to use "at least 91 million culturally valuable creative works - including diaries, photographs, oral history recordings and documentary films" with  UK IP Minister, Baroness Neville Rolfe, saying: "The UK's trailblazing orphan works licensing scheme enables access to a wider range of our culturally important works. The scheme has been designed to protect right holders and give them a proper return if they reappear, while ensuring that citizens and consumers will be able to access more of our country's great creations, more easily." The UK scheme will be administered by the UK Intellectual Property Office.

The Department for Business, Innovation and Skills has now given several examples of how the new scheme could work:

- The Tate Gallery would be able to use unpublished literary works of artist Alfred Wallis, who died in 1942 with no surviving family.

- The Museum of Childhood has tried and failed to trace the owners of photos taken for toy manufacturer Lines Brothers, which went bankrupt in 1971, while the photographic studio is also thought to have closed.

- The Museum of the Mind wants to use creative works by patients of Bethlem Royal Hospital, which were often made anonymously.

- The National Records of Scotland could use unpublished historical maps and plans where the author's name may be known but their families cannot be found.

Not that everyone is that happy - last year, photographers and illustrators launched a petition complaining that their work could be used online by others providing they "have made a small effort to search for the original owner" (a criticism of the requirement for potential users of orphan works to undertake  a "diligent" [reasonable] search within certain defined parameters). With 28,756 signatories the e-petition said "A new legislation that has been rushed through parliament with no thought has now reached royal assent. This legislation means that photographers and illustrators alike will see their artworks legally taken and used for another's own gain." With more than 10,000 signing up the Government responded and that can be found here . 

More here on orphan works licensing from Tom Ohta (Bristows) and more on FREE OUR HISTORY - REFORM COPYRIGHT here. Campaign supporters include the National Library of Scotland, the Imperial War Museums, the University of Leeds and the Chartered Institute of Library & Information Professionals.