Monday, 13 December 2010

Copyright trolls

In a world in which everything has to be counted, measured, sold and bought, there will be trolls. The patent species is well-known, though distinguishing them from genuine operators might be difficult sometimes. Attempts at trade mark trollery are generally doomed to failure, foundering on the rocks of non-use or lack of bona fide intention. Copyright is another matter.

Reports that trolls are buying up copyright and then searching the Internet for infringing uses have become more and more common recently, but there are other ways to become a copyright troll, or something rather like one. Inheritance is one, and a friend told me recently of how she'd used some photos in a presentation that she'd already used with permission in a book, and now faced a substantial claim for royalties. The sum involved seemed to have been plucked out of the air, and certainly bore no relation to the (charitable) use to which the works were put. The troll had, of course, inherited the copyright from an ancestor.

Of course the first thing about this is that my friend hasn't done very well here. The original permission was limited, and if it were foreseeable that the photos might be needed in a presentation (and with the ubiquity of what people are pleased to call PowerPoint, though they should be using Open Office Impress and calling the result by a generic name, which means that reproduction is taking place) that should have been included at the time. Limiting that to use for promoting the book might well help close any gap between the parties. What's really depressing is the avaricious attitude of the copyright owner - which is why I am using the "troll" epithet - though I have only heard one side of the story. That's why my retelling of it is short on details, of course.

My suggestion? Take out the photos and replace them with the legend "photo removed because [name of troll] wanted £[outrageous demand]". Clearly copyright allows the owner to demand a royalty, though whether the demand has any market-based validity I don't know. It sounds like a lot, though if the photos were rare it might be justified. If they are reproduced in a book, though, it's not as if they can't easily be seen.

1 comment:

MTPT said...

I've never really understood why trademark trolling doesn't happen more often. It should be easy enough to maintain a low, but real, level of economic activity via licensees (for example, printing the mark onto cheap garments sold by market traders for Class 25) provided you avoid the obvious pratfalls (having woven labels bearing another brand springs to mind!).

The mutability of brands strikes me as being more significant than non-use or lack of bona fide intention - unlike patents or copyright, it's relatively simple for me to change a mark (albeit there may be costs to doing so) to avoid infringement - along with the costs of registering marks speculatively.

As to copyright trolling, there is an issue of degree involved. Is it really different in substance to the behaviour of art galleries when they seek to prevent photography of works whose copyright protection has expired in order to preserve an effective monopoly on reproduction of them? Relatedly, I was interested to read in the account of the photographer who took the key image of the attack on Prince Charles' car last week that he corralled one bystander, who had taken video of the attack, and took him to his agency, thereby ensuring that the agency maintained an effective monopoly on the best records of the incident.


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