Monday 30 December 2013

New copyright regulations coming next year

The government has published a statement  giving details of the changes to copyright law that will come into effect in the first half of next year, mostly concerning exceptions to protection (permitted acts, as the government should call them, to be consistent with the scheme of the legislation). It mentions 'relatively small but important' changes, which will remove 'up to' 45 pages of unnecessary rules and regulations from the statute book. Unnecessary? I find it impossible to understand how legislation can be regarded as 'unnecessary'. Undesirable, obsolete, unwanted, unduly complicated, perhaps, but never unnecessary.

The changes, of course, are inspired by the Hargreaves Review, which seems to have inspired more nonsense every time I look at it. Hargreaves it was who proposed new permitted acts to enable parodists to ply their trade without fear of being sued for infringement - as if good parody needs such a privilege, and as if it did not amount to removing a perfectly legitimate revenue stream for the copyright owner. The problem is that what passes for 'creativity' these days is less about making something pretty much from scratch (of course nothing is ever completely from scratch) but reusing and adapting what others have already created. Soon there won't be anything original to be found - perhaps that will remove the need to modernise copyright law.

The problem isn't that copyright works can't be reused, the problem is that too much is protected by copyright to begin with, and it would be far more constructive to raise the threshold for protection by making the originality requirement a bit more demanding - to require true originality, rather than mere independent creation. But that's another story.

In addition to the parody thing, the legislation will make some useful changes to Chapter III of Part 1 of the much-hacked-about Copyright, Designs and Patents Act 1988. The existing permitted act for archiving and preserving will be applied to all types of media, and to museums and galleries as well as libraries and archives. There will be new rights to copy material for private use and to conduct data analysis for non-commercial research. There will also be a new permitted act to quote copyright-protected content for purposes extending beyond criticism, review or news reporting.

The Department for Business, Innovation & Skills claims that businesses stand to save more than £25 million as a result of the planned changes to copyright exceptions, which is the sort of magical figure that I cannot take without a huge pinch of salt. In the audit society, everything has to be measured and costed, and Hargreaves stressed that policy in this area must be evidence-based, but I find it hard to see how figures like this can possibly be regarded as evidence. I don't think they would satisfy any legal test by which evidence is judged. No, the fact surely is that it suits the government to encourage the sort of ripping-off that can be cloaked with the title 'parody', because it's trendy and looks as if it amounts to modernisation.

At the same time, the government is legislating to support the idea of regulating the conduct of collecting societies by means of Codes. The idea is that the collecting societies should regulate their own activities with voluntary codes, but if this does not work the Government is giving itself powers to intervene.

Patent Erosion 2013: What Would the Founding Fathers Think? - | Patents & Patent Law

Here  is an interesting review of developments in patent law in the US over the past year, by Gene Quinn. I am pleased to be reminded of some of those quotes, and introduced to others that I haven't seen before. Gene's posting reads on its face like a plea for stronger patent rights, but on deeper reflection it's more a call for a better balance, which is what the entire intellectual property universe could do with. His observations about the relative roles of large and small businesses in innovation are thought-provoking (or perhaps they just show that I haven't really thought enough about this?): if innovation comes mostly from small businesses, universities, and the like, and large corporations merely pick up the fruits of others' labour, what constitutes a troll is a subtle matter - although the key element in the definition of a troll is the 'non-practising' part.

What is clear, from Gene's comments and those of many other people, is that the intellectual property systems (and I use the plural deliberately) need to be adapted to the needs of smaller businesses, yet everywhere I look the trend seems to favour big IP owners. To reverse that trend is a huge challenge, but as long as the balance is tipped in favour of big business there will be calls for revolutionary changes in intellectual property protection. Is radical reform the way to stave off revolution? I am sure that legislators everywhere need to think carefully about their presumptions, which too often come down to the simple proposition that intellectual property is a Good Thing and therefore more of it is even better.

Thanks, Gene, for an valuable piece. I would have added that you ought to review and rewrite and correct before pressing 'publish', but the beam in my eye prevents me from drawing attention to the mote in yours (Matthew 7: 3-5).

Saturday 28 December 2013

Fix Copyright!

Fix Copyright!  is a campaign umbrella which seems to have been formed in response the the European Commission's consultation on copyright (on which, see separate posting although I haven't posted anything of substance on the topic yet). It assumes that copyright is broken, which I think might be a slightly extreme view of things but isn't far out. That begs the question, though, if copyright is broken, should we be asking the Commission to fix it?

Fix Copyright! brings together a number of organisations which, broadly, could be described as pro-user. Which is far from saying they are anti-copyright, but they probably take a saner view of copyright than many other organisations - rights owners and their associations.

Plans to modernise trade mark legislation backed by Legal Affairs MEPs

Plans to modernise trade mark legislation backed by Legal Affairs MEPs says this press release from the European Parliament: by no means an unqualified Good Thing, especially for the small businesses for whom the trade mark system is little more than an unwelcome tax.

Thursday 26 December 2013

IPse Dixit: Copyright in ideas

If there is no copyright in an idea (which, in fact, is not true, but has enough validity for my purpose), how do we account for Elanco v Mandops [1979] FSR 46?

I can't point you to a readily-accessible online copy of the judgment. As it predates the world wide web (1980, at the very earliest) there is virtually no commentary on it, yet it looms large in undergraduate IP courses, where it causes confusion. That probably makes it worth jotting down my thoughts on it: part of a series of postings on topics of general interest for students of intellectual property, perhaps. I should try to think of a snappy label for the series ... how about IPse Dixit (literally, 'he said it himself', although figuratively it means a dogmatic assertion - never mind, it's good enough, and in fact the figurative meaning is pretty good anyway!).

In the case, the plaintiff had invented a new herbicide. It had a patent for the herbicide, but as patents do it expired, and the defendant started making its own herbicide to the same recipe.

When you sell something like herbicide you have to make sure buyers know what to do with it. Not only do you want to make sure they appreciate what plants it will deal with, you don't want them poisoning themselves, or livestock, or wildlife. The instructions provided with the plaintiff's products (on the side of the barrel) contained information drawn from public sources, including the results of field trials carried out by the plaintiff itself and by independent research institutes. The instructions were apt to be referred to as a compilation - which of course is a species of literary work.

To start with, the defendant produced instructions for its product using the plaintiffs' material. The plaintiff objected that it was too similar, and the defendants recast their instructions several times. It did not work. On an interlocutory application, the judge took the view that the final version of the instructions was arguably infringing because the defendants had not returned to public sources but simply drew their information from the plaintiff’s instructions. The Court of Appeal, refusing the appeal, accepted that the instructions were a copyright literary work, and noted that a great deal of time and labour had been spent in putting the compilation together. It stressed the skill and labour expended in developing the compilation, protecting not only the expression of the information but also the process by which that expression of the information came into existence.

Copyright lawyers are often asked, 'how much do I have to change to avoid infringing copyright?': and the answer is always that you will never avoid infringing copyright if you start from that point.

It is often said that Elanco effectively secured a monopoly over the information contained in their instruction despite it being in the public domain. But in fact they only secured exclusive rights over their compilation of material collected from the public domain, and that is a very different matter. Copyright does not prevent others using the same sources, but it certainly prevents others from saving themselves the trouble of consulting those sources by taking material from someone else's compilation. In his judgment, Goff LJ. cited with approval a passage from the judgment of the Vice-Chancellor in Scott v Stanford (1867) L.R. 3 Eq. 723: "No man is entitled to avail himself of the previous labour of another for the purpose of conveying to the public the same information".

So how, you might ask (especially if you are an examiner), can this be reconciled with Green v Broadcasting Corporation of New Zealand [1989] 2 All ER 1056 (PC)?  The answer seems pretty simple: Hughie Green's problem was that he could not point to a copyright work in which his rights had been infringed. The defendant convinced the Privy Council that all it had taken was ideas. There was no dramatic work to copy, and as for copyright in a broadcast, they had made their own programme. Contrast this with the Elanco situation where the Court of Appeal was satisfied that the plaintiff had made a compilation.

It remains difficult to distinguish between ideas and expression, or as Lloyd LJ said in Baigent and Leigh v Random House [2007] EWCA Civ 247 (28 March 2007), no clear principle 'is or could be laid down ... to tell whether what is sought to be protected is on the ideas side of the dividing line, or on the expression side.'

Tuesday 24 December 2013

Iron Maiden Tracks Down Pirates…. And Gives Them Concerts | TorrentFreak

TorrentFreak  reports a variation on the frequently-heard theme that either illegal downloading actually enhances sales of legit music, or it doesn't. Unfortunately, it is now recognised as inaccurate: it seems that it's more in the nature of speculation about what Iron Maiden (or anyone else) could do with the data that they can get hold of about downloading, and Iron Maiden were merely used as an example - but chosen for the very good reason that they have a record of going where the fans are, even if those fans are downloading illegal material. The CiteWorld article tells us that the band has played some very profitable gigs in South America.

It's hardly surprising that the people who download illegal stuff are often supplementing spending on legitimate stuff, including concert tickets - it's not that people buy the illegal stuff and trade up to the real thing, in the way that I used to tape friends' LPs (and allow them to tape mine) before buying a copy of the record if I liked it (and wanted to hear it properly). It's also not far removed from buying bootlegs when you've already got all the albums the record company sees fit to release, and it's also not far removed from allowing fans to tape gigs, as the Grateful Dead always did and Robyn Hitchcock (to name one) does now.

So they would be identifying where's a good place to go on tour by using data about downloading. Clever, huh? As you'd expect from a band with a Hartlepudlian guitarist. I didn't knowingly go to junior school with him.

Perhaps now that it's had so much exposure, Iron Maiden or someone else will think of actually doing it. That would be a Good Thing.

Friday 20 December 2013

BBC News - Oxford University wins claim against Oxford Law School

BBC News has this entertaining story which deserves a wide audience. The Oxford Law School was located in Eastleigh, Hampshire, a railway town 62 miles down the A34 and before it became a seat of legal learning famous for the first flight of the Spitfire (manufactured nearby in Southampton), as the place where Benny Hill had his first job (on Woolworth's, and his second job, as a milkman), and as the constituency of Chris Huhne before he became Steward of the Chiltern Hundreds.

The case is not yet reported on BAILII but rest assured I will let you know when I see it there. It is a judgment of Judge Janet Lambert in the trendily-renamed Intellectual Property Enterprise Court (the 'enterprise' part allowing the audit-obsessed government to tick a box somewhere, I assume). The defence seems to have been that even a moron in a hurry would not have been deceived (the BBC report elides trade mark infringement and passing off, so it is  not clear what cause of action was involved: perhaps both), which indicates that the principal ought to attend some of the School's lectures - that hypothetical individual plays no part in determining whether deception or confusion occurs. As I wrote of that phrase in my Dictionary of Intellectual Property Law:
A regrettable expression in this day and age, first used by Foster J in Morning Star Cooperative Society v Express Newspapers Limited [1979] FSR 113 (a different day and age, perhaps). The publishers of the Communist Party newspaper sought an injunction to prevent Express Newspapers from launching a new tabloid newspaper under the name The Daily Star, which was light on politics (especially of the left-wing variety) and heavy on the sort of photographic works not seen, for ideological as well as aesthetic reasons, in the Morning Star.
The judge asked whether the plaintiffs could ‘show a misrepresentation express or implied that the newspaper to be published by the defendants is connected with the plaintiffs’ business and that as a consequence damage is likely to result to the plaintiffs’ and stated that ‘if one puts the two papers side by side I for myself would find that the two papers are so different in every way that only a moron in a hurry would be misled.’

Study: EU Citizens Value IP, Yet Find Some Infringement Acceptable | Intellectual Property Watch

Study: EU Citizens Value IP, Yet Find Some Infringement Acceptable | Intellectual Property Watch

EUROPA - PRESS RELEASES - Press release - Licences for Europe: industry pledges solutions to make more content available in the Digital Single Market

EUROPA - PRESS RELEASES - Press release - Licences for Europe: industry pledges solutions to make more content available in the Digital Single Market

EUROPA - PRESS RELEASES - Press release - Copyright –Commission launches public consultation

The Commission has launched a public consultation  about its plans to extend its copyright empire. In fact, it did so earlier this month, when I was otherwise engaged, and I have just got round to making something of it here. You might have noticed that I have taken to posting links to matters of interest and then coming back to write them up later (or not, as the case may be). I hope that at least makes this blog fairly comprehensive, if a bit thin on comment.

Something about the Commission proposing further incursions into the copyright field makes me uncomfortable. They have given us until 5 February to tell them what we think, and Fix Copyright! (see separate posting) has conveniently provided online assistance to those who wish to make comments: I hope I'll have time to make my views known, to the Commission and on this blog.

Review of the EU copyright rules - Consultations - The EU Single Market - European Commission

Review of the EU copyright rules - Consultations - The EU Single Market - European Commission

Russia and US join TMview

I guess TMview  must be a whole lot more useful now, as two big countries have joined it. You can now search Russian and US trade marks using the TM View portal. The announcement from Rospatent is here. So I had to give it a try - and looked up the trade mark for my favourite Russian product, Velle, best described (I think) as very fine porridge with fruit flavours - perfect nourishment for long-distance runners, but as far as I know unavailable in the UK.

NIPC Law: Clause 13 of the Intellectual Property Bill

An excellent critique of the intellectual property world's equivalent of the Dangerous Dogs Act - an analogy that hadn't occurred to me before - from Jane Lambert on her NIPC Law blawg. The Dangerous Designs Act, perhaps.

The government, committed as it is to the audit society, claims to make policy on evidence-based grounds: at least that's what the last inexpert (non-lawyer, even) reviewer of intellectual property law recommended, and the government seems to have swallowed his line (and hook, and sinker): but just about all the evidence shows that this is as bad an idea as any government has ever had. I don't know whether even the axe-grinders at ACID think it's a good idea, but accommodating their views would be as clever as having the IP lawyers at Ford draft Part III of the Copyright, Designs and Patents Bill back in 1987. I'm sure Bob Drakeford and Peter Orton would have loved to do it, but the government wouldn't even have looked at the result. Why is ultra-strong protection for designs now seen as a Good Thing?

BBC News - Wensleydale cheese granted protected status

BBC News reports that my favourite food (after tiramisu) has been given protection - or, rather, to be precise and pedantic, its name is now protected. But actually the story reveals that the protected geographical indication is in fact the tautology (or perhaps pleonasm) 'Yorkshire Wensleydale.' According to Food Manufacture UK (which sounds to me like an oxymoron, or at least it should be) back in 2006 when an application for a protected designation of origin was made, the applicants went for the tautology because it would give them a 'quick win'. The PGI application can be read here, complete with egregious comma splice - why can whoever commissions these documents not find someone familiar with the rules of English grammar, and with some notion of style, to do the work? And the application as published in the Official Journal C231 09.08.2013 (without comma splice) is here. But it looks to me as if the application that was originally made (dated 2007) was for a PDO and has resulted in the registration of a PGI. (It's not as if a PDO has been cancelled: the distinction of being the only UK registration to be cancelled is the Newcastle Brown Ale PGI, which became necessary when brewing was moved to what might be called the wrong side of the Tyne, though having been born in County Durham and raised there until the implication of the Redcliffe-Maud Report I would never use that expression). So they went for the more exclusive right and settled for the weaker one.

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