News and views: snippets from Russia and Australia

The 1709 Blog's mailbox receives some interesting bits of news and comment. Just in are two items worth sharing with readers:

* Sasha Yelnik writes to tell us that, during a World IP Day meeting, the director of the Russian Authors' Society RAS said that the time has come to establish specialised courts that would deal only with copyright and the related matters. She adds:

"His suggestion was based on the increasing number and complexity of copyright infringement claims. Mr Fedotov from RAS thinks that the main reason for the phenomenon is the "legal nihilism that has become entrenched in the minds of the largest part of the society". Another problem which requires an urgent solution (which was not proposed at the meeting) is licensing music downloads from the internet (see Pravo here, in Russian) I think it is a big achievement that the need for specialised courts has been voiced and recognised but -- knowing the speed with which anything requiring at least a bit of formality is happening in Russia -- the realisation of the idea seems unlikely to take place in the foreseeable future".

* Anne Sanders (AAPT) writes on the subject of artists' resale royalties and asks: "Is the UK aware of the detail of Australian legislation?" She explains:

"It is nothing like the compulsory statutory licence that the the copyright agencies pursued. In fact, it is a poor precedent from their point of view. I believe that the agencies in the EU & UK might mention the royalty being adopted in Australia but forget to mention that:

(a) individual artists have an individual right to waive the royalty on a case-by-case basis (Clauses 22/23).

(b) the royalty will only apply to the first resales of artworks purchased AFTER the introduction of the legisalation. There is no royalty imposed upon the first resales of artworks purchase in the decades before the introduction of the act.

(c) the Australian scheme is sui generis - it is not an extension of copyright because even in its current form it is , too tax-like under our constitution to be part of copyright".

The European Copyright Code

This 1709 Blog team member has received so many emails drawing his attention to the launch yesterday of the European Copyright Code that he hopes this information is not equally old news for his readers. The Code is the result of the Wittem Project, established in 2002 as a collaboration between copyright scholars across the EU who were concerned with the future development of European copyright law. Its aim is "to promote transparency and consistency in European copyright law" and, incidentally, to remind legislators of the contribution that academics can make to a debate which is too often dominated by stakeholder interests and the pursuit of the nearest least-damaging compromise.

The Code is not a plea for harmonisation, a restatement of principles or a basis for codification of European copyright law. It takes into account the existing framework of international norms (essentially Berne and TRIPS) and, where possible, the Directives which have been inflicted on the EU Member States.

The Code's methodology is laid bare, its text is clear and its authorship is impeccable. For anyone wishing to be reacquainted of the fundamentals of the economic and moral dimensions of copyright, this is a very good place to start.

Football match lists – copyright penalty

Last week judgment was given in Football Dataco & Ors v Brittens Pools & Ors. Brittens Pools, Yahoo! and two betting companies had been sued for using the fixture lists of the English and Scottish leagues without a licence. Were the lists protected by database copyright, database right or non-database copyright?

IF YOU DON’T WANT TO KNOW THE RESULTS, LOOK AWAY NOW.

Database copyright: yes
Database right: no
Non-database copyright: no

Database copyright - s. 3(1)(d) CDPA

This protects databases that constitute the author’s own intellectual creation by reason of the selection or arrangement of their contents.

Football fixture lists do not easily fit the definition of a database. Usually a database would be the selection and arrangement of pre-existing chunks of information but the makers of fixture lists also create the chunks of information (X plays Y on date, home/away). The list makers select teams and arrange them to create chunks of information but they don’t select or arrange the chunks beyond listing them in chronological order. However Floyd J held that:

‘In my judgment the selection or arrangement required by Article 3(1) is not confined to selection or arrangement performed after the data is finally created. The process of selection and arrangement of the contents of a database can and often will commence before all the data is created. I see no reason why selection decisions made about the contents of the database in the course of arriving at the final version should not properly be described as selection or arrangement. To cut out from consideration these selection decisions, merely because they occur whilst the database is being created, seems to me to be arbitrary, and conceptually fraught with difficulty. Nevertheless it is necessary to focus on skill and labour which is actually concerned with selection and arrangement, and to exclude that which is not.’

Did the lists constitute ‘the author’s own intellectual creation’? Floyd J determined that the test was whether the selection and arrangement involved the author’s judgment, taste or discretion. How much of this would be required? A recital in the Database Directive might imply a high threshhold, saying that making a compilation of songs on a CD would not meet the conditions for copyright protection. On the other hand, a 2005 German database copyright judgment ‘plainly takes the view that not very much room for manoeuvre is required to allow for the creation of a copyright work’. The list makers, Floyd J held, had made a sufficient number of non-deterministic choices.

Database right – s. 13 Database Regulation

This protects a database if there has been a substantial investment in obtaining, verifying or presenting the contents of the database. Floyd J said that the lists were not protected for the same reasons the ECJ had given in the three Fixtures Marketing football lists judgments of 2004. Although there had been investment in creating the contents of the lists, there had not been any additional investment in ‘obtaining, verifying or presenting’ that contents. The purpose of the right was to promote investment in systems for storing and processing existing information, not the creation of materials capable of being stored.

Non-database copyright in a literary (written) work

Floyd J couldn’t conceive that the fixture lists attracted copyright protection beyond the selection and arrangement of data.

‘Stop, thief!’ Privacy and copyright give chase

During a burglary on the night of 29–30 March a laptop was stolen. On the laptop there were images of its owner and others. The laptop’s owner successfully applied for an interim injunction preventing these images from being sold and published. The injunction was based not only on infringement of privacy but copyright infringement too – a friend had made an assignment of copyright to the laptop’s owner. Presumably an account of profits in a copyright claim of this nature could add substantially to the damages.

In yesterday’s judgment, TUV v Persons Unknown, Mr Justice Eady considered how many media companies should be given notification of an application for an injunction not to communicate stolen data. Since Sir David Eady is responsible for many English privacy law judgments, it was no surprise that he found himself quoting a previous judgment of his to reach a conclusion. ‘Taken at face value,’ he went on to say, ‘it is hardly surprising that a reader would infer from this passage that there is indeed an obligation to give prior notice to all relevant third parties.’ However, not prepared to take his own words at face value, Sir David then quoted Sir Charles Gray’s interpretation of his words:

‘ … Eady J cannot have been contemplating an obligation being imposed on individual claimants, who may be of limited means, to arrange through their legal advisers to serve what might be a substantial body of evidence on a large number of media non-parties. It seems to me that the obligation to serve them must, as a matter of common sense and economy, be confined to those media organisations whom the claimant has reason to believe have displayed an interest in publishing the story which the claimant is seeking to injunct.’

So did Eady J take his own words at face value or follow Sir Charles’s view?

‘It is probably appropriate to have in mind the court’s objective in these cases; namely, to provide a fair and practical balance between the potentially competing Convention rights of the relevant protagonists. As I pointed out in X & Y, it is necessary to take account of “a proper consideration for the Art.10 rights of media publishers” as well as paying due regard to the rights of an applicant under Article 6 and Article 8. That is what arises in all of these cases. When the court is confronted with a need to balance competing Convention rights, it will rarely be appropriate to adopt a blanket approach or apply a rule of thumb. Usually, it will be right to arrive at a conclusion in the light of an “intense focus” upon the particular facts: see e.g. Re S (A Child).’

He concluded that ‘the law should only impose an obligation to notify those who are already believed to have shown some interest in publishing.’

So in arriving at a decision on this point, a judge should balance media publishers’ Article 10 right (Freedom of Expression) and an applicant’s Article 6 (Right to a Fair Trial) and 8 right (Respect for Private and Family Life). But there is one right missing from this list: First Protocol, Article 1 (Protection of Property), i.e. copyright.

More privacy plus copyright cases are likely in the future. Millions of photos are uploaded to social networking sites on a private basis but can (and are) easily downloaded and shared outside of the private circle. The human rights that are balanced will have to budge up to make room for another right. But what if the Conservative Party scrap the Human Rights Act? Too late to wipe, these rights are backed up – by the Treaty of Lisbon.

Parody as a defence: an academic speaks

Next Thursday, 29 April, 6pm to 7.30pm, Professor Ronan Deazley (Glasgow University) is delivering the CIPPM Annual Lecture, "Parody, and its Discontents", down on the sunny south coast of England at Bournemouth University.

Right: some works just lend themselves to parody -- American Gothic has been the subject of several cultural and social comment parodies, of which this is one. Grant Wood's original is here. Some other parodies can be seen here.

According to the abstract,

"In 2006 the Gowers Review of Intellectual Property made a series of recommendations for reforming the intellectual property regime to better serve the interests of both consumers and industry. Among the proposed recommendations was that an exception for parody be introduced within the Copyright Designs and Patents Act 1988. In January 2008 the Intellectual Property Office (the IPO) launched the first part of a two-stage consultation process entitled Taking forward the Gowers Review of Intellectual Property: Proposed changes to copyright exceptions. As part of that consultation process the IPO proposed a "fair dealing style exception" for parody, and sought views on whether a new exception should be introduced as well as what form it might take.

In December 2009 the IPO launched the second stage of this consultation process. The Second Consultation document rejected the case for a new parody exception. This lecture considers the place of parody within the copyright regime, and the objections levelled against the introduction of an exception set out within the IPO's Second Consultation document.

It invites the IPO to reconsider its decision not to recommend the introduction of a specific exception for parody within the UK".

Professor Deazley has authored an impressive 33-page response to the Second Stage proposals on behalf of the Intellectual Property Foresight Forum (IPFF), which you can read here.

Please note (say the organisers): The topic of the lecture has been changed in response to recent policy developments. Full details of the lecture can be found here. To reserve a place, please email Denise George.

Recent publications and copyright materials

An attractive publication for people who toil in the fields of archives and record management is the fourth edition of the aptly-named Copyright for Archivists and Records Managers, by Tim Padfield. The author, who has some three decades' experience in what is now The National Archives, is also chair of the Libraries and Archives Copyright Alliance (LACA).

In the book's web-blurb, publishers Facet explain what this book is about though, with four editions coming out within a space of just nine years, it will need neither explanation nor introduction for its regular readers:

"As an archivist or records manager it is essential to keep up to date with the complexities of copyright legislation, and Copyright for Archivists and Records Managers will prove an invaluable tool in enabling you to do so.

What is copyright? Who owns it and for how long? What rights does it confer, and what are the limitations and exceptions? This comprehensive manual uniquely outlines copyright law in the UK with special reference to materials relevant to archive and records collections such as maps, legal records, records of local authorities, records of churches and faiths, most notably unpublished works. It also offers advice on rights in the electronic environment and the problems associated with rights clearance; and covers related areas such as moral rights and rights in databases.

The fourth edition of this respected work has been extensively revised and updated to include:

* advice to take account of recent decisions of courts in the UK and of the European Court of Justice, for instance on the nature of a ‘substantial part’ of a copyright work
* a list of key points about copyright that frequently raise questions, such as the duration of copyright in works whose copyright is owned by companies and other bodies
* details of the duration of copyright elsewhere in the British Isles and in Gibraltar [having had to chase up copyright duration and other information for, inter alia, Gibraltar and the Falkland Islands, I know how useful this sort of information can be]
* details of the duration of copyright in a selection of overseas countries: Australia, Barbados, Brazil, Canada, China, Egypt, Hong Kong, India, Israel, Jamaica, Japan, New Zealand, Russia, Singapore, South Africa, Switzerland, Turkey and the USA
* changes to the licensing of Crown copyright material
* advice on liability [the 1709 Blog's advice is "avoid it"]
* a discussion of the legitimacy of the electronic supply of copies by archives.

Readable and accessible for people without legal training, this approachable guide is essential reading for archivists and records managers. It will also be of substantial value to LIS professionals in libraries, museums and galleries, to students, researchers and genealogists, and to anyone who wishes to understand the implications of copying without recourse to legal texts".

This book certainly does what it says on the cover and, at the rate things are changing, a fifth edition must be expected in the next year or so.

Bibliographic details: xv +345 pages. Paperback. ISBN 978-1-85604-705-0. Price: £49.95 to ordinary mortals, £39.96 to members of CILIP. Book's web page here.

Meanwhile, the Copyright Clearance Center has not been idle. Here are some recent items that may interest readers of this weblog:

* An article has just been published on Publishing Perspectives on the current and future state of copyright. In the article, Copyright Clearance Center's CEO Tracey Armstrong discusses her belief that copyright holders have the right to price and term their works and the ways in which this can be achieved in the digital world. You can find it here.

* An interview was conducted between Copyright Clearance Center’s Chris Kenneally and the Electronic Frontier Foundation’s attorney Fred Von Lohmann at CCC’s conference OnCopyright. During the interview Fred reflects that, just as broadcast radio and VCRs challenged existing business models for the media, the internet is doing so today. He expects that, within 5 to 10 years, the kinks in copyright law will all be worked out. If you want to know what has generated such optimism you can listen to it on the CCC podcast Beyond the Book here or read the transcript here.

* Next Tuesday, 27 April, there's a live podcast which promises to explore mobile content, how much publishers should charge for it and how users can share it. During the programme, listeners can call in and participate in the debate. The show is scheduled for 2pm EST and you can access it here. The podcast, put together by CCC, is hosted by author and digital media authority Bill Rosenblatt with Director of Author Relations and host of Beyond the Book Chris Kenneally.

* The latest issue of Research Information contained an article featuring Tracey Armstrong and gives information on how CCC handles copyrights for ebooks. You can find the article here, though you’ll need to scroll down a bit for Tracey’s part".

Call for Disclosure - a response

Last night, the writers of this blog, alongside a plethora of other copyright bloggers, received an email from one "Wayne Borean, aka the Mad Hatter", who blogs on (among other things) copyright matters in his home nation of Canada.

The essence of Mr Borean's email is the following "several writers who are legal professionals have written articles under their own names, which quite possibly are being influenced by their professional work. This is not to say that the influence is in any way wrong, but rather that if there is a connection, it should be disclosed, even if the writing is of a personal nature, so that the reader can consider that connection when evaluating the article..." - you can read his "call for disclosure" and his request that we should swear affidavits [sorry Wayne, no] in more detail here

From this writer's perspective, the answer is clear - under the ethics rules applicable to my profession, I can only disclose the names of my clients and the work I do for them with the consent of those clients. However, it would not take an interested reader (should such a thing exist) very long to find a range of client names either on my firm's website or in various legal directories, such as the Legal 500 or Chambers - from which they would discover that we have clients on all sides of many controversial issues of copyright law, from studios and record companies to ISPs and telcos. Indeed, many large companies have conflicting views between different divisions on some of these issues - think of what will happen when the Comcast/NBC Universal merger closes - or even within divisions; broadcasters are the creators of copyright programmes but are also heavy "consumers" of the works of other rights holders.

Most lawyers are the same - we are paid to argue for a client's position, whether it accords to our personal views or not. But when it comes to writing a blog, while I agree that, if one is advocating a cause on behalf of a client, that should be disclosed, the default should be taken as read that we have a professional interest in copyright matters.

At a more philosophical level, I wonder why legal professional bloggers are held out for particular scrutiny - surely the same accusation could be made against anyone in the blogosphere? The regular occurrences of people trying to (mis)use blogs for PR purposes are not normally conducted by lawyers or indeed using anyone's real name.

And why does it matter? It is not as if blogs such as this are in a position of power. I am reminded of a maxim often quoted by Tony Benn (who, for non-UK readers, was a high-profile left-wing politician here in the '60s and '70s), who used the following (and variations on it) to measure democratic accountability "If one meets a powerful person--Adolf Hitler, Joe Stalin or Bill Gates--ask them five questions: "What power have you got? Where did you get it from? In whose interests do you exercise it? To whom are you accountable? And how can we get rid of you?""

1709 falls at the first question - we have no power, so are free to express our views without answering the other questions. I occastionally read postings on this blog, posted by my co-authors, with which I do not agree - but I defend absolutely their right to say it - and if I do disagree, then like other people, I have the right to add my own comments.

Paper.li - a Twitter moneyspinner

Paper.li is a new site that allows you to turn your Twitter feed into a newspaper. Where a tweet hyperlinks to another site, paper.li displays the entire article without redirecting you to the source - which gets no traffic or advertising revenue. A news-reporting copyright exception seems ambitious - apart from anything else, the articles aren't all news stories. (For what it's worth, the user terms are governed by Swiss law.)

The 'Daily on Twitter' newspapers are covered in advertising (supplied by Google). 'Paper.li is not affiliated, sponsored or endorsed by Twitter', which presumably means they don't make anything out of this either.

Can paper.li last long enough to be tomorrow's fish 'n' chips wrapper?