Tuesday, 30 July 2019

Copying music without knowing

The Guardian this morning reports another case in which a piece of music was held to infringe copyright in an earlier piece. It happens more and more often, it seems - as the twin evils, long identified in the trade marks world, of depletion and foreclosure insinuate themselves into copyright, albeit with changes to their form to take account of the very different subject-matter of trade mark protection.

The case in the papers today was decided in the United States, and by a jury, which means that the same will not happen here, not by the same route anyway. Katy Perry's song Dark Horse was found to have a similar beat to a piece called Joyful Noise by Flame, a Christian rapper (a new genre to me). It seems that several others were accused of infringing, too.

For copyright infringement to happen, in the USA as well as in this country (and every other country that has a copyright law, which I think is every country although in some of them the situation is a bit unclear), there has to be a nexus between the copyright work and what an infringer has produced (you can't say the infringer created it, because the whole point is that he or she hasn't, nor can you call it a work because it doesn't represent work, just appropriation). If an alleged infringer has no knowledge of the copyright work in question, there is no infringement: there is a second, similar or identical, copyright work, created independently by the defendant.

Many copyright owners don't like this situation, of course. They would rather their copyright was a true monopoly right. But copyright law is not patent law, and quite right too. Copyright doesn't protect the piece of music (or the book, or the painting) per se, but the effort that the creator put into it. So the owner of copyright in a piece of music has to show that the defendant had heard that piece. The case law tells us that it isn't necessary to show that the defendant has to recall the piece - if that were the case, a little selective amnesia would be enough to defeat any infringement claim - but merely that they have been exposed to it.

To avoid being exposed to others' music, composers will not generally listen to the recordings that they might receive from aspiring composers hoping for an endorsement (or perhaps hoping to contrive a situation in which an infringement action might lie). But in the modern world it becomes much more difficult to avoid exposure to music. When it is playing, unnecessarily, in lifts, shops, restaurants, gyms, and workplaces, it's impossible to get away from. I might have heard Dark Horse and Joyful Noise many times, quite involuntarily, but I certainly don't recall either of them. Were I a songwriter, I might well have incorporated some part of them (one or other of them) in a work of my own. And to some extent that's how music gets written, and always has been.

What strikes me as novel in this case is that sheer numbers of YouTube views seem to have raised a presumption that Katy Perry and her co-authors must have heard it. That's frightening. I might be exposed to a piece of music in the gym, however hard I try to shut it out and concentrate on my workout, and therefore become a prospective infringer.

How can this be addressed? It's right that the copyright owner should get something when another composer appropriates their hard (or even not-so-hard) work. What is needed is a narrower concept of what amounts to actionable appropriation, as well as consideration of what damages should be awarded and whether there ought to be some sort of licensing scheme to cover some types of infringing act. In the Kay Perry/Flame case, the situation is complicated by the fact that a jury made the decision that there had been an infringement, and having a jury decide matters like that doesn't appeal to me as a sound way to deal with them. Perhaps that accounts for why just taking the beat was held to be an infringement. In the name of research I have listened to the two songs on YouTube, and indeed the beats are very similar, although they are also pretty mundane and I wonder where Flame's came from in the first place. A rigorous analysis of the originality of the claimed work would be the starting point for a more rational approach to questions of infringement.

Another important difference between UK and US copyright law is that while the UK law considers the originality of a work as a whole, US copyright law is more inclined to take the work apart and look for originality in its components. Here, it seems to me quite likely that an English judge, asked to consider the two, might remark that the beats sounded similar but that the two songs as a whole were so completely different that the similarities could not be considered substantial. Perhaps it's not a problem that would ever come to court in this country, but the fact is that US copyright casts its shadow over the whole world and we need to take care always to distinguish what goes on there from our own approach.

Thursday, 14 March 2019

Commodities, commodification, commoditization and intellectual property laws

In a piece in The Guardian today, Anish Kapoor is quoted as saying: "Only poetry and the more serious classical music seem able to resist becoming commodities." He admits that he has benefitted from "neo-liberalist commodification", and indeed few artists can have done as well as him out of it, but even so he doesn't make it sound like a good thing. Which I guess he doesn't think it is.

Commodification is not a necessary consequence of copyright (or more generally intellectual property) protection. What the world of commerce needs is proprietary rights:
The merchant must have property in the things in which he trades, his rights to that property must be identifiable, When he sells an article he must be able to assure the buyer that the things is his to sell; he must be able to prove his property in it, if he is challenged. (Hicks, A Theory of Economic History, OUP, 1969, p.34).
It is true as much for intangibles as for tangible things. Argubly, a far-reaching law prohibiting unfair competition could do the job of all IP laws, but giving them the status of property rights probably makes them much more useful - much more tradeable, and available for use as security - than a mere right of action against an unfair competitor would be.

So, to make intellectual property tradeable it is commodified - turned into objects of trade. "Commodification" is a term used in Marxist theory, where it denotes the process of giving an economic value to something that it didn't have already, by producing it and presenting it for sale rather than just consuming it oneself. It's different from commoditization, which is a term found in business literature to denote the process by which goods that have economic value and can be distinguished by their attributes - their uniqueness or brand - become simple commodities in the eyes of the market or consumers. Here, the meaning of "commodities" is somewhat different from the Marxian one: the word denotes goods that have full or substantial fungibility (a great word), meaning that the market doesn't care who produced them, as one person's commodities are much the same as another person's.

So it seems to me that commodification is an essential result, or perhaps a goal, of copyright protection, whereas commoditization is what intellectual property laws (trade marks probably play a more important role here than copyright) are designed to prevent. Kapoor can earn a living (a very good one, I imagine) because his work is commodified, but it would be incorrect to consider his creations as commodities because they are readily distinguishable from the works of other artists. Ineed, I can see an argument for saying that anything that can be labelled a commodity in the second sense mentioned above should not receive any form of protection from intellectual property laws (by which I mean, in the trade marks field, that purely descriptive or non-distinctive trade marks like BREAD for bread must not be registrable, not that bakers should be denied access to the trade marks system altogether).

This is an aspect of intellectual property law about which I am developing my thoughts, so please excuse any half-bakedness in this posting. Any comments would be gratefully received.

Monday, 25 February 2019

Spare Rib archive threatened by B****t

I was surprised when I read about this today in the Guardian. Why should the British Library's digital archive of the celebrated feminist magazine have any problems arising from the impact on the orphan works directive of B****t?

My first thought was that the Directive (implemented in s.44B and Sched.ZA1 of the 1988 Act) must surely remain part of UK law. But (according to its website) the BL has been advised by the soi-disant Intellecual Property Office that the "legal exception" (properly, permitted act) would no longer apply. Which makes me ask, what is the BL doing taking legal advice from there? Don't they have lawyers (with insurance)? Given the extent to which the BL works with copyright (all the time), I would have thought the advice should have been flowing, if at all, in the opposite direction.

Thanks to Eoin O'Dell's Cearta blog I have now looked at the draft Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2018 (pdf) and their Explanatory Memorandum (pdf). I am astonished to see that the government plans to throw the baby out with the bathwater, repealing (or "omitting", as the legislation says - is that another example of B****t Newspeak?) section 44B which is the permitted act, along with Schedule ZA1 (and I do think that with a title like that it probably deserves something, though I'm not sure repeal is called for).

Is the real problem that the right to issue copies etc across the EU will be lost (and as the archive is online it is available, presumably, EU-wide)? Would geo-blocking help (but if it would, is it acceptable)? The BL won't be able to add anything to the EUIPO database, but if it has published stuff in reliance on the fact that it was in the database then it seems to have complied with para 5 of Sched. ZA1 and I don't see anything to require it to refresh its due diligence. It looks as if Cultural Heritage Institutions in the UK will no longer be able to look at the EUIPO database (which seems a bit miserly) so in future it would be impossible to comply with para 5: but that doesn't have to destroy the legal basis for the Spare Rib archive.

The domestic licensing scheme (s.116A and SI 2014/2863) might help but seems too limited, and expensive, so I am disregarding it as a practical alternative. I will however note that the SI is being amended to remove references to the EU database - which as the Regulations stand is an essential component of a diligent search. Well, of course this has to be done, but why couldn't the same approach be taken to the permitted act?

The answer is, I guess, that there was always a certain amount of tension between the UK's licensing approach and the Directive's permitted act approach - described by Eleonora Rosati in this paper and by the IPKat, 22 November 2013. Eleonora suggested that the UK law was incompatible with the directive, the Infosoc directive, the Copyright, Designs and Patents Act 1988, and even the Charter of Fundamental Rights, which is a pretty comprehensive charge sheet. On that basis, I can imagine that the UK government was content to see the back of the EU orphan works scheme: in the orphan works sphere, the UK had been taking back control since 2013. So following B*****t orphan works will be subject to the IPO-operated licensing scheme, and the BL and others (a wider range of others than under the Directive) can pay for the privilege of using orphan works.

Of course we have to respect the will of the so-called majority (including, I am pretty confident, no readers of Spare Rib) who voted to trash all the hard work that has gone into this.

Numbering of "comparable" UK trade marks

The UK-only trade marks that will, if leaving the EU ever becomes a reality, be carved out of existing EU trade marks are being called "comparable" trade marks. It seems like an odd choice of word, but compared with the madness that is Brexit this is a minor quibble. The Patent Office has published a notice about how these will be numbered:
In order to identify comparable UK rights and distinguish them from existing UK trade marks, the number allocated to the comparable mark will be the last 8 digits of the EUTMprefixed with UK009.
The following examples show how comparable UK trade marks will be numbered:
Existing EU trade markComparable UK trade mark
000000977UK00900000977
000025197UK00900025197
000340513UK00900340513
017867542UK00917867542
By retaining the EUTM number, we aim to keep the administrative process to a minimum.
Of course the best way to "keep the administrative process to a minimum" (let's read that as if it had the word "burden" in place of "process" - one does not keep processes to a minimum, and in any case it is surely more accurate to say it's as small as possible, not a minimum) would be to stop the nonsense altogether, but our Prime Minister is clearly dead set on it. As a numbering scheme this makes sense and is pretty simple - it reminds me of how when the 1994 Act came into operation the Registry started with number 2,000,000, which meant losing only a few numbers but provided a nice easy way to recognise "new Act" trade marks.

I wonder what will happen to comparable UK trade marks when the country rejoins the EU in a few years' time? Is the government planning for that contingency yet?

Wednesday, 20 February 2019

Book review: Copyright Law and Derivative Works by Omri Rachum-Twaig

Calling a work "derivative" is not a compliment, but there has been a tendency (since at least the Gowers Review) to consider the way that copyright laws treat derivative works as too restrictive. The author's starting point is the proposition that copyright regulates creativity: indeed, "regulating creativity" appears as a sub-title on the front cover. It seems to me that exploring creativity through the prism of derivative works is the wrong starting point, but I don't think it detracts from this fascinating and important book.
It seems customary these days to explain that one has been given a review copy of a book, so let me start by stating (though it seems pretty obvious to me) that I have been given a review copy of this book, published recently by Routledge at the eye-watering price of £115 - that being the main reason that declaring the gift of a review copy is surely redundant. I wouldn't go so far as to say that it's worth £115 of anybody's money, but it will be worth that much of some people's money, and it is a very interesting not-so-little (190 pages of real text) monograph, not padded out with lots of front- and back-matter.
After considering matters of quantum, always the first thing I notice about a book, I start to wonder about the author. He is, the book tells me, an adjunct professor of law at the University of Tel Aviv. The Internet tells me more, and I was particularly interested to read that his first degree is a Bachelor of Music and that he has had an impressive orchestral career already. That might have been his route into copyright law, but if it was it doesn't show in this book, and I found that slightly disappointing: but it doesn't claim to be a book about music copyright, so my disappointment is probably misplaced anyway.
The work, my reservations about the focus on derivative works notwithstanding, is an exploration of how well copyright understands creativity, compared with other fields of study: so, despite the title, it is quite light on black-letter copyright law - and more interesting for it, IMHO. It uses derivative works to inform its discussion of creativity, considering whether the law's treatment of the right to make derivative works (and its inclusion, generally, in the bundle of exclusive rights that the copyright owner enjoys) is compatible with what other disciplines teach us. The author examines the cognitive aspects of creativity before going on to look at genre theories (with an interesting discussion of how Sherlock Holmes derives from the work of Edgar Allen Poe) and the justifications for what he calls the "derivative works right", though I am not convinced of the need to identify it as a distinct instance of copyright protection - reproduction right ought to do the job.
But perhaps that remark just shows me to be unsympathetic to the argument that copyright, in the interest of encouraging creativity, should be more liberal in its treatment of derivative works: surely "derivative" is the opposite of "creative" or "original", and where a later creator wants to use another's copyright material it is a transaction that should be resolved by licensing, not by permitting otherwise infringing acts. A transformative work is another matter, and to my mind copyright should be encouraging the creation of such works rather than engaging in a sterile argument about creating space to make derivative works, space which already exists and is regulated by the requirement that making them requires the copyright owner.

Sunday, 3 February 2019

Crown use as a solution to drug costs

There's nothing new about controversy over the cost to the NHS of patented pharmaceuticals. It's inherent in the patent system that patentees who invest possibly eye-watering amounts of money in devising inventions will want to use their monopoly rights to recover that investment and gain a return on it.

Today The Observer reports on a novel solution to the sometimes terrible problems that can arise when drugs are available to treat life-threatening conditions but the price is out of reach. Mechanisms are in place to try to ensure that the NHS is not charged excessively for new drugs, but they have failed to close the gap between what the NHS can afford and what the patentee wants (£105,000 per patient) in this case. The mooted solution is to use the Crown use provisions of the Patents Act 1977, under which the patentee will receive a modest royalty. Section 55 actually uses the expression "for services of the Crown", but section 56(2) specifically includes "the production or supply of specified drugs and medicines" within "the services of the Crown", making it a surprisingly wide concept.

I don't recall section 55 being invoked very often, and while the facts as narrated by The Observer are rather thin - it concentrates on the undoubted human interest aspects - this certainly looks like an interesting departure in patent law. I hope above all else that a solution can be reached that delivers what the unfortunate patients need.

Monday, 21 January 2019

New podcasts

I have had a break of a few years from podcasting, for various reasons. I hope you will have seen the IPso Jure YouTube channel (link on the right hand side bar) which I started up a few months ago, on which I plan to publish some basic material including a lot of stuff for law students (such as how to answer exam questions) as well as practitioners.

Today I have relaunched my podcasts with a production about the reform of UK trade mark law which came into effect on 14 January this year. It's about 40 minutes long and I am selling copies for £1 each. I will soon be recording a monthly update podcast (like I used to do a few years ago) and selling that too. You can get your copy here. You can also download the accompanying slides here.

Wednesday, 16 January 2019

The effect of a "no-deal" departure from the EU

Yesterday's vote in the House of Commons, a record-breaking defeat for a government, leaves us with no clearer idea of what might happen at the end of March. By default, according to the law as it stands, we leave the EU on 29 March, and as there is no withdrawal agreement we will leave with nothing to govern our relationship with the EU. The chances of that changing are fairly good, given that Parliament (which is trying to wrest control of the process from the government - ironic, given that "taking back control" was supposedly at the heart of the whole idea of leaving the EU) has put in place provisions that make it pretty well impossible to crash out without a deal.

The most likely alternatives at present seem to be an extension beyond 29 March of the notice period given under Article 50 TFEU, or withdrawal of that notice (which the Court of Justice has kindly indicated can be done unilaterally, although only if it is in good faith - that is, not simply to delay matters). Neither of those requires consideration at present, because the status quo would be preserved.

The government has published guidance on what will happen in a variety of areas if there is no deal. One of its briefings concerns trade marks and designs. Originally these documents said that a "no-deal" withdrawal was unlikely: more recent editions seem to lack that reassurance. Ho hum. Although it does say: "We expect to negotiate a successful deal with the EU."

Of particular interest to trade mark and registered design owners is what will be the effect of their EU trade marks if no deal is reached. After all, for years they have been encouraged to believe that all they needed was protection at the EU level and many allowed their UK national rights to fall away, to save renewal fees. The answer is:
The government will ensure that the property rights in all existing registered EU trade marks and registered Community designs will continue to be protected and to be enforceable in the UK by providing an equivalent trade mark or design registered in the UK.
Note that this says nothing about charges. Under the draft withdrawal agreement, there would have been no charge for this: will the government be able to resist an opportunity to raise some revenue, especially when so much would come from foreign companies? Perhaps the financial arrangements of the Patent Office (or Intellectual Property Office as it prefers to be called) remove any attraction to this course of action - it might not benefit the Treasury.
Right holders with an existing EU trade mark or registered Community design will have a new UK equivalent right granted that will come into force at the point of the UK’s exit from the EU. The new UK right will be provided with minimal administrative burden. The trade mark or design will then be treated as if it had been applied for and registered under UK law.
And if a new corresponding trade mark has not been used in the UK in the past five years - will it immediately be liable to revocation? Will the proprietor be able to rely on the reputation acquired by the trade mark in other EU countries, when suing an infringer in the UK? The rejected withdrawal agreement dealt with these points, but the guidance says nothing. Logically, leaving the EU should mean that the new trade mark's past counts for nothing - the five year non-use period should start from scratch, and any reputation acquired elsewhere in the EU should be irrelevant.
This means that these trade marks and designs:
  • will be subject to renewal in the UK
  • can form the basis for proceedings before the UK Courts and the Intellectual Property Office’s Tribunal
  • can be assigned and licensed independently from the EU right
No surprise there.
After exit, business, organisations and individuals with EU trade mark and Community design applications which are ongoing at the date of exit will be able to refile with the Intellectual Property Office under the same terms for a UK equivalent right, using the normal application process for registered trade marks and registered designs in the UK.
Was that even worth saying?
This means that for a period of 9 months from exit, the government will recognise filing dates and claims to earlier priority and UK seniority recorded on the corresponding EU application. Right holders taking this step will need to meet the cost of refiling the application in accordance with the UK application fee structure.
 Does this actually follow? I would have thought that if the normal application process were followed there would be a 12-month priority period, although seniority (being a pecularily EU thing) is a different matter. Anyway, this "special priority period" could be useful for applications for EU rights outstanding on the key date (29 March 2019 or such other date as might emerge) because it could enable an applicant whose EU application is opposed to salvage UK protection while retaining the priority date.
These same provisions will apply to international registrations designating the EU filed with the World Intellectual Property Organisation. This ensures that there is continued protection in the UK from March 2019 onwards for trade marks and registered designs (filed through the Madrid and Hague Systems, and designating the EU as the area where they apply).
That seems reasonable, if "reasonable" is a word that can be used in connection with any of this.

Two other points are worth mentioning: first, without an agreement to govern withdrawal the rights of UK lawyers to represent clients before the EUIPO will be in the gift of the European Union rather than based on a sound legal right; and second, EU TM owners might need to find themselves an address for service in the "residual" EU after the UK leaves. More headaches for small businesses.

You might find it useful to listen to this presentation which I published a while ago on the IPso Jure YouTube channel, although it is now to be treated with care!


 

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