Arnold J calls for a holistic review of copyright

On a very damp Monday night, the great and good of the London copyright scene, from the Bench to the IPO and from the Bar to University Chairs (and some, like this blogger, tipped off to the existence of the event by our sister IPKat blog) crammed a lecture theatre somewhere between Smithfield and the Barbican to hear Mr Justice Arnold deliver the 2014 Herchel Smith lecture. 

The title of the lecture was "The Need for a New Copyright Act: A Case Study in Law Reform".  In case anyone has not guessed the answer after reading the title of this post, it is "yes", there is such a need; a point which was argued clearly and cogently by the speaker, who elucidated no fewer than 7 reasons why a new Act is needed, including technological change and wrong implementation of Directives.

As he explained, there were three United Kingdom Copyright Acts in the twentieth century, each preceded by a deep and holistic analysis of the then-current legislation. However, in the 26 years since the Copyright, Designs and Patents Act 1988 was passed, we have seen endless tinkering, involving over 70 separate amending instruments; even the so-called major reviews, by Gowers and most recently Hargreaves, did not fully explore the impact of specific changes which were advocated on the copyright system as a whole.

Arnold J also called for a re-think of our approach to copyright law reform - in essence a return to the measured analysis by a well-qualified and properly supported committee, which is reflected in the reports which led to the Acts in 1911, 1956 and 1988.  

This blogger welcomes the idea in theory, but has reservations about whether, in a world where the EU copyright consultation received 9500 responses, such a review is possible within a realistic timeframe and before changes in Brussels will lead to the need for such a committee to re-commence proverbially painting the Forth Bridge

The event's chair, Professor Johanna Gibson of Queen Mary, University of London, who holds the Herchel Smith chair in IP law, promised that the full text will be published in due course in the QM Journal of IP - in the meantime, any failure of this piece accurately to reflect the opinions expressed during the lecture is entirely mine.

IP Enforcement - late news from Vietnam

Three weeks' late as it happens, but better late than never.

Way back on 24 September, City of London Police Commander, Steve Head, gave a speech at the snappily entitled "International Law Enforcement IP Crime Conference" in Vietnam calling for greater global co-operation and a worldwide day of action to tackle organised criminal networks who are making millions of pounds through intellectual property (IP) crime.

The conference, co-hosted by INTERPOL and the Vietnam National Police, was attended by more than 500 public and private delegates from nearly 70 countries - all of whom I am sure found it hard to tear themselves away from their desks to visit beautiful, warm Vietnam.

According to the Force's press release Commander Head, who oversees PIPCU, provided attendees with an insight into the unit’s work, focusing on how the team has successfully targeted individuals and organised crime gangs that are damaging legitimate businesses through copyright infringing websites and selling counterfeit goods online.

The Press Release quoted Commander Head  - under whose lead PIPCU has launched the ground-breaking follow-the-money projects discussed in Mike Weatherley's recent paper which you can find here [declaration of interest - this Blogger helped Mike to write the report] as saying, “PIPCU are pioneers in the way it is [sic: they are? it is? how many PIPCUs are there] tackling intellectual property crime, moving away from traditional policing methods to embrace new and innovative initiatives to disrupt and dismantle the criminal networks responsible for causing huge damage to legitimate businesses.

“This work includes close collaboration with private sector organisations inadvertently supporting IP crime either through advertising or allowing payment provision on websites that are providing illegal access to copyrighted material".

“At the International Law Enforcement IP Crime Conference I urged delegates to support and engage with PIPCU and to look at its strategy for policing IP crime as a potential way forward for themselves and partner agencies".

​​

A Tidy trawl!

On 29 September, in "Trawl for Tidy Transcript", the 1709 Blog posted a call for help from fellow 1709-er Mira T. Sundara Rajan, who was desperately seeking sight of the full transcript of the judgment of Mr Justice Rattee in Tidy v Trustees of the Natural History Museum [1996] 39 IPR 501 which, as the earlier post explained, was a decision in which master cartoonist Bill Tidy failed to persuade the court that he was entitled to summary judgment in a claim that the reproduction of his cartoon sketches of dinosaurs in reduced size in a book constituted a distortion or was otherwise prejudicial to his honour or reputation.

We are delighted to report that, thanks to the good offices of one of our favourite readers, Mira's wish has been granted.  If you too have been frustrated by the non-availability of this decision, you can access it here or download it here.

Weatherley promotes copyright awareness

Mike Weatherley MP, the UK Prime MInister's Intellectual Property Advisor, has published the third of his copyright reports t, this one called 'Copyright Education And Awareness'. It follows on from the Hove & Portslade MP's previously reported papers on piracy, the first focused on the 'follow the money' approach to combating online infringement, the second looking at the role of the search engines. Key recommendations in the new report include:A step up in the coordination of IP awareness programmes, led by the IPO; more coordination in government and industry-led IP awareness initiatives; Greater measurement of IP perceptions and behaviours; Incorporating IP education in the school curriculum; The BBC to create a copyright education programme; Emphasis on better, clearer information on IP education; Making better use of technology; Introduction of an IP/Education coordinator; Emphasis on reporting outcomes across Government. The incorporation of IP education into the school curriculum may come back to bite the MP: When similar moves were introduced in the USA they caused quite a stir - particularly when materials were produced for schools by content owners (including film, music and TV companies) with a percieved lack of balance and opposition from those with different views on copyright.

Commenting on this report, Weatherley told reporters : "Getting education right on intellectual property awareness is paramount if, as a country, we are to properly respect the value of the creative industries. I have now submitted three reports to the Prime Minister on various aspects of intellectual property and I hope that my education report will help shape the future of both IP education and awareness across the country". Backing the report, Culture Minister Sajid Javid added: "Intellectual property underpins our creative industries. It's what our past success was built on and it's what our future success depends on. We need to get the message across that if people value creativity - and most do - then it has to be paid for. Education plays a vitally important role in changing people's behaviour. By communicating the vital importance of copyright, not just to the success of our creative industries but to the many jobs these sectors will create, we hope to bring about behavioural change".

You can download Weatherley's report via his website - although currently this download does'nt seem to be working.

Mike's previous report Search Engines & Piracy here

Some rather sensible advice for (US) teachers on Education World here

Friday's CopyKat is a snappy Katty

We have recently posted a couple of blogs looking at the position of hardworking professional photographers who feel somewhat let down by the current copyright regime. No, not the Getty Iamages of this world, but the likes of inspect photographer Alex Wild who takes brillant shots and just wants to make an honest living. Well, now we have Pixsy, a new automated copyright infingement software that looks to help photographers around the globe tackle an issue that plagues the industry and for the most part goes unresolved - "Fighting copyright infringement can be a long and costly ordeal and Pixsy hopes to be your one stop solution for fair compensation.". For a disfferent perspective, TechDirt have more to say on this.

A U.S. judge has thrown out a screenwriter's copyright suit accusing Academy Award-nominated director Neill Blomkamp of stealing his screenplay and turning it into the 2013 movie “Elysium.”. U.S. District Court Judge Phyllis J. Hamilton granted Blomkamp and co-defendants Sony Pictures, TriStar Pictures and others a summary judgment against writer Steve Wilson Briggs, who claimed that Blomkamp read his screenplay called “Butterfly Driver” online and turned it into his film starring Matt Damon. Both stories are set in a futuristic world in which the protagonists leave Earth for a satellite space city, but the shared aspects are only abstract, Hamilton wrote in her decision. More here. 

In Nigeria a group of copyright owners under the auspices of Concerned Copyright and Intellectual Property Owners (CCIPO) have decried "the monopoly imposed on the business of collecting societies in the copyright sector of the economy" by "a cabal in the Nigerian Copyright Commission (NCC)". CCIPO says this negates the spirit of President Goodluck Jonathan’s Transformation Agenda, which centres on the observance of the rule of law and opening up of the nation’s economy to enable all Nigerians participate. The group also called for the implementation of the December 18, 2013, House of Representatives’ resolution directing the NCC to immediately de-monopolise the collective administration of copyright, particularly the business of royalty collection in the entertainment industry.

And more from Nigeria - Linda Ikeji, owner of one of the top ten most visited websites in Nigeria, is seemingly facing being taken offline by Google because her site allegedly contains infringing images and recycled text.  A social commentator on Twitter (@MrAyeDee) tweeted that Google had responded to his complaints about  Ikeji using his content without compensating him or giving recognition to the original author. Ikeji responded to the news in a blog post titled "To the guys that want to take down LIB, here's a message to you...lol"  saying "I admit that I take content from other sites. Plenty of it sef, but the question is, which website in the world doesn't?" before adding "So Mr Aye Dee, Mr EE, Mr #bringmedown or whoever you are and Jeremy Weate (look who is talking ..lol) and all the others talking, I am not afraid of you! You didn't bring me this far and you're not enough to bring me down" and commenting that the reason she was being attacked was because of the success of her blog - which earns her an estimated $900,000 per annum (N140M).


Rights holders could lose even more control over their content if they take cases to court to test new copyright exceptions, Professor Ian Hargreaves, the Cardiff Ubiversity academic whose proposals prompted the new laws has exclusively told Out-Law.com. As this theor exclusive why not head over to thier website to see more. 

In Canada it seems that the Conservative government is planning to change Canada’s copyright law to allow political parties to use content published and broadcast by news organisations for free in their own political ads. An internal Conservative cabinet document obtained by CTV News details an amendment to the Copyright Act which would allow “free use of ‘news’ content in political advertisement intended to promote or oppose a politician or political party.” The amendment would also remove “the need for broadcasters to authorize the use of their news content.” And it would force media outlets to run political ads even if their own footage and content was used in a negative message to voters. More from CTV News here and CBC here. Heritage Minister Shelly Glover was reported as saying "There is a public interest in ensuring that politicians are accountable for their actions and accountable for what they say in public settings" and "Major television networks should not be able to censor what can and cannot be broadcast to Canadians. We believe this has always been protected under the fair dealings provisions of the law, and if greater certainty is necessary, we will provide it." Comments from Michael Geist and video footage from both sides of the argument here.

Reuters report that Google has asked the U.S. Supreme Court to wade into the contentious litigation against Oracle Corp, arguing that the court must act to protect innovation in techology. Google is seeking to overturn an appeals court ruling that found Oracle could copyright parts of the Java programming language, which Google used to design its Android smartphone. The three-judge U.S. Court of Appeals for the Federal Circuit in Washington reversed this decision of Judge William Alsup in the District Court saying "We conclude that a set of commands to instruct a computer to carry out desired operations may contain expression that is eligible for copyright protection". The EFF had previously gathered together 32 computer scientists and tech industry leaders to support an amicus brief  to the appellate court arguing that  APIs should not be copyrightable because they are critical to spurring innovation and inter-operability in the tech world. In its filing this week, Google said the company would never been able to innovate had the Federal Circuit's reasoning been in place when the company was formed.  More on this here.

And finally: the citizens' initiative in Finland to amend laws regarding copyright violations, which was partly spurred on by the 2012 police raid on the home of a young girl who had illegally downloaded music onto her 'winnie-the-pooh' computer is likely to fail. The 'Common sense for copyright' proposal, which 50,00 citizens signed up to,  would water down sanctions for illegal downloading of both music and movies by private individuals (although penalties for 'commercial' sharing and wholesale downloading would be retained). Format shifting woulld be legalised and other exceptions to copyright rewritten, and these would include a 'fair use'exceptionThe Finnish Parliament's Education and Culture Committee is proposing that a citizens' initiative on making copyright laws more lenient be rejected.  More here.

Patrons, curators, inventors and thieves

Patrons, curators, inventors and thieves is the title of a book which has just been published by Palgrave Macmillan and carries the subtitle "The storytelling contest of the cultural industries in the digital age."

The author is 1709 Blog friend Jonathan Wheeldon, currently a Chartered Accountant and Visiting Fellow at Henley Business School with an impressive professional background as an executive across a wide range of content industries.

What is this book about? This blogger has not yet had the time to finish reading it, so she will revert to the explanation provided on the publisher's website:

"This book is a rare and unusually reflective insider account of the transformational challenges of the cultural industries over the past 15 years. Opening with a fresh new perspective on music industry history, it explores how the industrial world evolves more by narrative plausibility than by strategic precision, recognizing that corporate identity, purpose and power can be both reinforced and subverted by modifications to various cultural master-plots and their traditional heroes and villains. 

Of most interest are the insights into the strategic struggles faced by corporate managers and by intellectual property policymakers dealing with the seismic new millennium shifts in technology, communications and related social behaviour. Illustrating how a satisfactory 'postprivate' master-narrative of social equality in the digital age has yet to emerge, the book also helps to loosen the industrial-political deadlock in the debate over copyright reform. It is essential reading for anyone who takes an interest in the changing processes of creation, dissemination and industrialization of knowledge and culture."

The CopyKat - keeping the word

In the 1980s, when Brian Sheppard created his Maven computer program that played Scrabble, he typed in a lot of words - more than 100,000 of them, all from the Official Scrabble Players Dictionary (OSPD) and Merriam-Webster’s Collegiate Dictionary. Sheppard continued to update his software by hand until 1996, when a Scrabble player who helped assemble the third edition of the OSPD gave him the words via a digital file. Electronic word lists have circulated freely ever since. But maybe things are about to change. Hasbro Inc., which owns the rights to Scrabble in North America, is now seeking to license the use of word lists. Last year Merriam-Webster published a new, fifth edition of the OSPD and separately, Merriam-Webster published a third edition of the Official Tournament and Club Word List (The OWL), sold only to members of the North American Scrabble Players Association (NASPA) - and Hasbro claims the copyright on them: it recently  told NASPA that it had concerns about the revised word lists getting loose. It wanted to ensure that digital versions of the new OSPD and OWL were not freely downloadable from applications that contained them, as the current lists often have been. With competitive Scrabblers regarding Hasbro’s action as restricting - a battle is looming. More here on what might be a fascinating battle.

The U.S. 11th Circuit Court of Appeals has affirmed the award of fees for defence attorneys in an "objectively unreasonable" copyright action  - here brought by InDyne Inc., against  Abacus Technology Corporation.  The District Court in Florida had previously found that InDyne failed to present evidence sufficient for a reasonable jury to find that the copied portions of software were “original and thus deserving copyright protection.” - and indeed the Plaintiffs no longer possessed a copy of the software or even a clear software revision history. Indyne, Inc. v. Abacus Technology Corporation, Jerry Reninger, and Matthew Boylan, Case Number 14-11058, decided September 24, 2014. Echoes of Judge Richard Posner's criticism of the actions of the Conan Doyle Estate in the Sherlock Holmes litigation when he awarded costs $30,679 to defendant Leslie Klinger sprang to mind: Here Judge Posner in 7th Circuit appellate court said that the Doyle estate's business strategy was plain; "charge a modest fee for which there is no legal basis, in the hope that the 'rational' writer or publisher will pay it rather than incur a greater cost in challenging the legality of the demand.". Calling the model 'a form of extortion' Judge Posner said 'It's time the estate changed its business model' and complemented Klinger for performing a "public service" for fighting against a “disreputable” business practice and  further noted that the Estate, which had suggested in a letter to Mr. Klinger’s publisher that it might prevent the book from being sold at Amazon or Barnes & Noble unless a $5,000 use fee were paid, had been “playing with fire,” calling such an action a violation of antitrust law. More on Sherlock here and here.

Law.com has an interesting follow-up to the surprise settlement in the five-year-old legal battle between Marvel Comics and Jack Kirby’s heirs, noting that a major copyright issue remain unresolved. The children of the legendary artist filed 45 copyright-termination notices in September 2009, seeking to reclaim what they saw as their father’s stake in such Marvel characters as the Avengers, the X-Men, the Fantastic Four and the Incredible Hulk. Marvel, joined by its then-new parent company Disney, responded with a lawsuit, which ultimately saw the Second Circuit Court of Appeals affirm that Kirby’s contributions to the publisher between 1959 and 1963 were on a  “work for hire” basis and therefore not subject to copyright termination. A Supreme Court hearing was expected but the settlement means the grey area surrounding work for hire before 1978 remains, although experts say given that 56-year window — or 35 years for copyrights transferred after 1979 — it’s only a matter time before another case, more likely to involve a musician/songwriter than a comics artist, makes its way to the Supreme Court, requiring the Supreme Court justices to weigh in.

Straying into designs: Along with additions to the copyright exceptions for format shifting, quotation and parody, the Intellectual Property Act also became law on the 1st October in the UK, meaning it is now a crime to intentionally infringe on a registered design. The changes set out in The Intellectual Property Act have been introduced to reduce the scale of registered design infringement by acting as a deterrent. The changes also increase protection for the holders of registered designs and more effectively deter and punish perpetrators of blatant design infringement. The new Act also outlines that individual board directors can be held accountable for infringement. The Act means that intentionally infringing a registered design and producing a copy that differs from an original in only immaterial respects now becomes a criminal offence punishable by up to 10 years in prison.

And finally in the Philippines, the Court of Appeals has rejected a plea by car manufacturer Honda to copyright the design of one of it's engines, and has upheld the trial court’s decision to cancel the copyright registrations for Honda’s engine designs that had previously been granted by the National Library. Section 172 (h) of the Philippines Intellectual Property Code (IP Code) provides that copyright protection is available for literary and artistic works that include “original ornamental design or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art.”  In reaching a decision, both the trial court and Court of Appeals relied on the Supreme Court's decision in Ching vs. Salinas (GR No. 161295, June 29, 2005), which explained that a useful article and industrial design may be copyrightable only if such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of the utilitarian aspects of the article.  Here the Court of Appeals further explained that to be copyrightable the design must be capable of existing independently from the article itself, meaning that, at the very least, the design must be able to stand on its own in terms of decorative quality or value.  In this case, the Court of Appeals agreed with the trial court that the colour-coded components of Honda’s engine do not meet this two-part test, and could not be copyrightable.  They were neither artistic creations with incidental utilitarian functions or artistic works incorporated in a useful article.   Moreover, the specifications in the copyright applications merely describe the original or unique appearance of the engine, and such appearance cannot be equated to a decorative quality or artistic work.  The case is TLA Corporation, et al. vs. Honda Motor Company Ltd. and the National Library (CA-G.R. CV No. 98777, Aug. 5, 2014).

Google respond to NewsCorp

In our last CopyKat we noted that NewsCorp's CEO Robert Thomson had written to the European Union Competition Commissioner Joaquín Almunia criticising Google, accusing it of anti-competitive practices, and of failing to play its part in combating online piracy. Well - Google have now responded via a blog posting  from Rachel Whetstone, SVP Global Communications that notes that "Google has done more than almost any other company to help tackle online piracy" and details the web firm's adherence to copyright takedown notices and that the system the web giant  uses has to deal with a vast number of takedowns - and that Google is proud that "the average take-down time is now just six hours", provides the ContentID software on YouTube and "we downgrade websites that regularly violate copyright in our search rankings.". Google also points out that it has helped NewsCorp monetise its content, and take umbrage about the accusation that it has become "a vast, powerful, often unaccountable bureaucracy" and that "The shining vision of Google's founders has been replaced by a cynical management" saying founders "Larry Page and Sergey Brin are still very much at the helm of Google" and continue to innovate. Finally turning to web dominance and competition issues (perhaps the most dangerous of Newscorp's claims given the recipient's job and complaints made by other European media owners such as Axel Springer, Germany's largest newspaper publisher) the blog says "As The Economist reported last week 'mobile devices have changed the way people travel the internet. Users now prefer apps to websites' home pages'. In this world Google Search is an app alongside many others. The same article adds 'the rise of social networks such as Facebook, Twitter and Pinterest ... have become an important navigation system for people looking for content across the web'. It's why many newspapers get an increasing number of referrals from Facebook and Twitter".