Copyright risk management: survey findings

this form.

Sen and the Art of Licence Termination

online calculator and website to enable readers to evaluate the rights and risks associated with the termination of copyright grants. While the termination provisions are regrettably intricate, this online calculator seeks to people through the basic issues and maths necessary to figure out when an author may terminate a grant. It does not cover all of the contingencies needed to make an evaluation, but seeks at least to provide a useful starting-point.

I thank Shourin for drawing this to my attention and would be interested to hear from any readers who put the calculator through its paces -- or, better still, who would like to review it.

Privilege, Property ... and perhaps a Xmas present

here) for contents, author list and other details.

I haven't seen it yet, but I'm intrigued both by the prospect of a good, scholarly read and by the business model on which this title is based. With luck, it should maximise exposure of the contributors to their readers while also capturing a chance to secure some income from reasonable pricing plus a flexible set of options such as only the internet can provide. This could be the ideal Christmas stocking filler for the copyright enthusiast who has everything ...

here. The IPKat says that an appeal is expected.

This of course comes in the wake of the recent ECJ decision in favour of Google in the "AdWords" case, which also impacts on copyright infringement, given that in that case, as discussed by Hugo on this blog at the time, the Court considered the application of the hosting defence in the E-Commerce Directive, which is the closest equivalent to the DMCA language at issue in Viacom v YouTube.

Infringement stats in Azerbaijan: bad news, or good?

report on Azerbaijan, that the country has a nearly complete set of teeth with which to bite copyright infringement. After all, has there not been lots of capacity-building and plenty of training sessions for enforcement officials? But capacity-training and public sector perks are no use so far as most ordinary copyright owners, left to enforce their own rights privately, are concerned. Given that the lack of copyright enforcement in Azerbaijan has been strongly criticised by the International Intellectual Property Alliance (IIPA), the remarkable thing is not that 70 percent of Azerbaijani pressmen do infringe copyright but that 30 percent -- that's nearly one in three -- don't.

web page says this book isn't published yet (it isn't officially out till August), but I spotted a copy on the table in the reception area of Oxford University Press's palatial headquarters in Jericho. The Oxford Book of Parodies, edited by John Gross, is sadly short of detailed analysis of the legislative and case law provisions governing parody as a defence to copyright infringement, private rights versus freedom of speech, transformative use and so forth, but it is rich in enjoyable examples of parody and great fun. Says the web-blurb:

"Parodies come in all shapes and sizes. There are broad parodies and subtle parodies, ingenious imitations and knockabout spoofs, scornful lampoons and affectionate pastiches. All these varieties, and many others, appear in this delightful new anthology compiled by master anthologist John Gross.

The classics of the genre are all here, but so are scores of lesser known but scarcely less brilliant works. At every stage there are surprises. Proust visits Chelsea, Yeats re-writes "Old King Cole," Harry Potter encounters Mick Jagger, a modernized Sermon on the Mount rubs shoulders with an obituary of Sherlock Holmes. The collection provides a hilarious running commentary on literary history, but it also looks beyond literature to include such things as ad parodies, political parodies, and even a scientific hoax.

The collection includes work by such accomplished parodists as Max Beerbohm, Robert Benchley, Bret Harte, H. L. Mencken, George Orwell, James Thurber, Peter Ustinov, and Evelyn Waugh. And the "victims" include Chaucer, Shakespeare, Milton, Wordsworth, Poe, Longfellow, Emily Dickinson, Conan Doyle, A. A. Milne, Raymond Chandler, Agatha Christie, Cole Porter, Ernest Hemingway, Allen Ginsberg, Martin Amis, and many others. The first and longer of the book's two parts is devoted to English-language authors, arranged in chronological order, along with parodies that they have inspired. The second part includes sections on more general literary topics, on aspects of individual authors which transcend the format of the first part, and on a handful of foreign writers".

Sadly I wasn't kept waiting more than a few minutes, so had little opportunity to sample this book's contents -- but it did seem fun.

The Emperor’s New Copyright

Terrible News” and accused of destroying the public domain.  In reality, neither of these lamentations are correct.

What Happened

After the United States signed the TRIPs agreement, it amended its copyright law to be compliant with both the new TRIPs agreement and the old Berne Convention. (“Compliant” as defined by the US.)  The amended copyright act provided new copyright protection to two types of old foreign works: those that had lost their copyright due to non-compliance with a formality (such as failure to renew after the initial term under the US’s 1909 Copyright Act) and those who had not previously received copyright protection in the US because their country had not then been a member of any of the international copyright treaties to which the US was a party. 

This new protection for old works was called “restored copyright,” and authors who wanted their copyrights restored had to provide notice to known users of the works or the US Copyright Office.

That was the law before Golan, and it is still the law after Golan.

Golan’s Challenge

The plaintiffs in Golan were users of those restored-copyright works who had used the works relying on their status as public domain works.  And they had quite a strong group of copyright experts on their team, including the Stanford Center for Internet and Society and Harvard (of Stanford at the time this case began) Professor Lawrence Lessig.  But the arguments in this case were not about copyright law; they were about constitutional law.  And the defendants, the United States government and the United States Copyright Office, they had the Department of Justice on their team.

The Constitutional Claim

This is the second time Golan has been to the 10th Circuit.  The first time it heard the case, the 10th Circuit affirmed the lower court’s holding with respect to two of the plaintiff’s claims, dismissing claims attempting to argue the violation of the “for a limited time” part of the copyright clause in the Constitution. [Vihelm Pendersen, public domain

http://chillingeffects.org/dmca512c/notice.cgi?NoticeID=40373

Linkomanija user lives to fight again

ANVA, the Lithuanian Anti-piracy Activities Association, sought a ruling of administrative liability against a user of Linkomanija, Lithuania's biggest torrent search engine, was apparently dismissed on what were mainly procedural grounds relating to the collection of evidence.

Actions against internet users for copyright infringement have been possible since Lithuania's Code of Administrative Infringements was amended last year, extending the scope of the earlier provisions which could only be invoked against infringements perpetrated for commercial purposes. In cooperation with the police, the association tracked the internet protocol addresses of 106 Linkomanija users who were downloading and seeding the Microsoft Windows 7 operating system. Based on this information, the police issued a statement of administrative infringement against one of the users.

The Kaunas Regional Court, referring to principles of legality and Supreme Administrative Court case law on the collection of evidence, ruled that there was no evidence that the association, as a public institution, was authorized to collect evidence independently, and no information had been provided as to whether the equipment used to track copyright and related rights infringements by internet users was officially certified. Accordingly the defendant's activity had not been shown to amount to an administrative infringement and the case was dismissed. This decision is under appeal.

Influence and the Copyright Tribunal

here.

Flickr Teaming with Getty – Good for Copyright Holders?

Yesterday, Flickr comments,

“The effort is not minimal. Gathering model releases, unloading full size images, doing any post processing required, filling in photo details, having to book the shot date in about three different places, uploading model releases seperately [sic] for every photo even if you have the same release for 5 photos from one shoot.”

With all this work required to submit photos, plus the restrictions of a two-year long exclusive contract that prohibits anyone other than Getty Images from licensing your submitted photos and photos similar to your submitted photos – yes that includes even you – is there really any benefit to participating?

After all, there really isn’t a need for a third-party intermediary for licensing photos on Flickr.  Every photographer can easily be contacted via Flickr Mail.  Why should it be necessary to ask a third-party for permission when you can already ask the copyright holder directly?  Additionally, many photographers have already granted licenses to use their photos, without the need to contact anyone.

The most apparent benefit, currently, appears to be the vetting.  Photos admitted to the Getty program are thoroughly reviewed by Getty Images and approved for admission to the program.  Knowing that the vetting is already done might make some photo users feel better about the search process for the right image.  However, Flickr has a strong community that can also serve as a vetting process based on how many views, uses and comments a photo receives.

In the end, the program seems to be more of a way for Getty to increase the number of photographers in its pool than to really help copyright owners with licensing.  But perhaps this judgment is coming too early.

Stretching copyright with contract

Product Licensing Agreement. Under this agreement, globalCOAL grants licensees a licence ‘under its Intellectual Property Rights in the globalCOAL Products to use the globalCOAL Products and the Trade Marks’ and in return the licensees undertake not to the ‘use the globalCOAL Products’ in certain ways, including transactions with parties that are not other globalCOAL licensees. ‘Products’ include data, prices, indices and contracts developed and published by globalCOAL.

This agreement was scrutinized last week in So when a licensee signs the agreement he finds himself in some ways more restricted than he was before signing it both because much of the ‘Product’ information is in the public domain and because the restricted ‘uses’ go beyond the types of uses that IP law regulates. Briggs J tried to make sense of this by saying that it would be difficult to trade in this market without making use of globalCOAL’s IP, so globalCOAL’s IP ownership gave it de facto control of the Products. This is questionable and hotly contested by the parties: it seems entirely possible for a broker to implicitly refer to SCoTA and globalCOAL’s index without using the trade marks or copying the contract.

Either way, the licensees’ obligations technically extend beyond IP rights. Copyright could never forbid you to refer to a dictionary when you write something. A contract can, perhaps. Moreover, restricting use of the Products was working more efficiently for globalCOAL than enforcing IP: the court found it easier, quicker and cheaper to determine whether a licensee had used the Products than the IP (e.g. copying SCoTA) – and jurisdiction was cleaner too.

But the advantages may not be without their risks. As the judgment draws to a close, it makes a passing reference to ‘potentially serious issues of abuse of dominant position’, but leaves them for another day.

More freshly-squeezed Lime

http://www.dailytech.com/New+Suit+Against+Limewire+Could+Total+15+Times+Music+Industrys+Yearly+Income/article18769.htm

Why you won't find Specsavers in the Thesaurus ...

[2010] FCA 507, a recent Australian Federal Court decision in which interim injunctive relief was granted to restrain the use and publication of an advertising campaign where the alleged infringement consisted of the substitution of synonyms for the plaintiff's original work.

In short, Budget alleged that Specsavers' print ad and itscorresponding terms and conditions infringed copyright in two versions of a print advertisement, a radio script and a set of terms and conditions under which an offer in the advertisements were made, seeking interlocutory relief for infringement. Budget pointed to the following phrases as reflecting originality:

'If your Specsavers glasses break – and we're not saying they will – simply bring them into Budget Eyewear. We'll replace them with [sic] pair from our own range – free of charge';

'We're not saying they will, but if your Specsavers glasses break, we'll replace them for free'; and

'If your glasses aren't all they're cracked up to be, don't worry, we'll come to the rescue. For the next two weeks... you can take any Specsavers glasses to your nearest participating Budget Eyewear store and we'll replace them with a pair from our range – free of charge'.

Specsaver's print ad contained the following phrases:

'If your OPSM glasses happen to break, and we're not saying they're going to, we'll exchange them with a pair from Specsavers with a 2 year guarantee, for free'

'If your prescription glasses aren't what you hoped for, don't stress – we're here to help. From Thursday 13th May to Thursday 27th May, take any broken OPSM glasses to your nearest Specsavers store and we'll give you a pair from our range – for free'.

Did copyright subsist in the works? Before asking whether there had been infringement, Bennett J first had to establish whether copyright subsisted in the works at all. She felt there was sufficient evidence of authorship for the purposes of seeking interim relief, and said Budget had an arguable case that

"the way in which a concept is expressed in an advertisement intended to attract customers may involve originality that attracts copyright protection ... the fact that the words are commonplace does not mean that the way in which they are put together cannot have a degree of originality".

On the issue of infringement, Specsavers acknowledged the a causal connection since it had read and absorbed Budget's advertisement and did not deny it had copied the text of Budget's ad for its own ads; it also accepted that it had copied the idea of the campaign, although this copying did not extend to exact word reproduction. Said Budget, Specsavers had sought to avoid infringement by the simple use of synonyms; Specsavers in return argued that the use and arrangement of the words and phrases in the ads was 'obvious and prosaic' and since there was a lack of any requisite originality.

Justice Bennett agreed with Budget that Specsavers chose to adopt the same expression of ideas where various means could have been used to express the concept. Specsavers could have copied the idea but exercised its own imagination to express that novel concept in new and different language. rather than "using a thesaurus" to substitute a synonym. Accordingly a prima facie case of infringement had been made out.

Says the 1709 Blog, if the original Budget ads had been more imaginative and less prosaic, Specsavers' synonyms might -- at least in an application for interim relief -- been clad with the figleaves of parody and/or commercial free speech. Even so, the message is clear: that well-known Thesaurus Rex no longer rules the world of advertising copy, if indeed it ever did.

Squeezing the Lime Dry?

http://the1709blog.blogspot.com/2010/05/limewire-bites-dust.html

Does Limewire owe the RIAA 1.5 Trillion? http://www.p2pnet.net/story/40481

British Black Music Month host copyright panel

Talking Copyright: Reflecting On A 300 Year History & The Music Industry

The University of Westminster is playing host to a British Black Music Month panel on copyright law aimed at music industry, media and law students and lecturers, and music industry and practitioners, who determine a wrap-up vote on (a) are today's copyright laws robust enough for an internet age? and (b) copyright awareness: have we lost the fight to win the hearts & minds of the youths – tomorrow’s consumers? Panellists including Kienda Hoji (lawyer/head of the University of Westminster commercial music), David Stopps (MMF UK & International copyright & related rights director), Pauline Henry (ex-Chimes singer/IP consultant), Dave Laing (researcher/lecturer), Ben Challis (lawyer/lecturer), and Kwaku (BMC) who will lead an irreverent yet factually-rich discussion covering various angles - history, landmark cases, causes célèbre, 'good' and 'bad' copyright stories/policies in association with the University's Black Music Centre.

When: Tuesday June 15, 6.30-8.30pm

Where: University Of Westminster (The Old Cinema), 309 Regents Street, London W1B 2UW

Cost: Free, but pre-booking necessary - for booking and more info contact [email protected] and see http://www.britishblackmusic.com/

Economics has a go at copyright

Armenia proposes to get tough with infringers

twice Armenia's gross per capita annual consumption], with a prison sentence of up to 12 months for second and subsequent offenders. The most recent BSA survey showed Armenia among the top nations for software piracy, where 93% of computer programs are reported to be illegal.

For prison conditions in Armenia click here

Ofcom issues first consultation on three strikes implementation

here.

Eyeworks: Dutch court keeps an eye on Newzbin

here or, if you prefer it in the original, here. It's good to see how much more comfortable the judiciary in Europe is when looking at decisions of other national courts within the EU: there's no suggestion that a judge is bound by a decision made by a brother judge in another country, but there is at least the prospect of a sanity check, available to any judge who might otherwise feel he was heading in the wrong direction.