Copyright agency catches up with councils

That's the title of the story in the Local Government Chronicle  (registration required). But here, on the assumption that press releases are made to be re-used, is what the CLA themselves have to say:

Twenty new councils have taken a copyright licence following legal action by CLA against one of Britain’s largest city councils. 

 

Earlier this year (April 2013), Brighton & Hove City Council agreed to pay CLA an undisclosed sum to cover legal costs and retrospective licence fees as well as agreeing to take a licence for the future.

 

Lawyers acting for Brighton & Hove had originally told CLA that it was not at risk of copyright infringement as it operated a ‘no copying’ policy, but evidence gathered by CLA showed that the policy had not worked and infringement was taking place.

 

Following the settlement with Brighton & Hove, 5 councils that had previously cancelled their licence have contacted CLA following internal reviews that showed they were at risk of copyright infringement – and consequential legal action. 

 

Martin Delaney, CLA’s Legal Director said: “I am pleased to see that councils are recognising their legal requirement for a CLA licence. This will help us to protect the UK creative industries, worth more than £36.2 billion to the UK economy .”

 

Mr. Delaney emphasised CLA’s continuing determination to investigate reports of copyright infringement and pursue councils that do not have a licence, but should have one:

 

“All of CLA’s licensed councils are surveyed on a rolling program and our data shows that copying is widespread during the course of day-to-day activities. There is no reason to doubt that these practices occur in all of the remaining unlicensed local authorities as well.”

 

CLA monitors councils where it is believed that copyright infringement is taking place and investigates reports of copyright infringement in the workplace provided by individuals. If a council is found to be infringing copyright, then in some cases, its officers and employees can be held individually liable.  

 

140 of 450 UK councils remain unlicensed when it is likely they are copying from digital and print publications covered by CLA.

I would have thought that it was patently obvious by now that there's really no way to get round the need for a licence. It's easy to think of the CLA as avaricious and unnecessary, if you are a user of photocopiers, and a burden on taxpayers, if the user is a public body: but from the point of view of an author whose work may be photocopied rather than bought, it's a godsend.

Second-hand software

There's a lot of it around, but is it legal? Can the licence be transferred to a buyer? That was the issue in  Vernor v. Autodesk, in which Mr Vernor offered unopened, authentic, copies of AutoCAD for sale on eBay. When challenged he applied to the District Court for the Western District of Washington for declaratory relief (that link takes you to a piece published by Foley Hoag) and he got summary judgment. On appeal from the District Court, the Court of Appeals for the Ninth Circuit held that Autodesk's customers were licensees and not owners so the sale of the AutoCAD software to Vernor, which was prohibited by the AutoCAD license, was invalid. Mr Vernor was neither a licensee nor an owner and the first sale doctrine was of no assistance to him.

On 3 October the US Supreme Court declined a request to grant certiorari. This means that the Ninth Circuit's three-prong test for determining whether a software user is a licensee or an owner is the law, at least in the Ninth Circuit. This raises the intriguing and very US question whether other circuits will follow the Ninth, and if differences emerge the Supreme Court might well have to take the matter on. Meanwhile, the original claim is back with the District Court, and at the same time an expedition to Luxembourg is under way (from the Bundesgerichthof) in Case C-128/11 Oracle International Corporation v usedSoft GmbH, which might of course produce a completely different answer ... Given that the terms of the licence are crucial in these cases, that might be quite possible and perfectly correct. In any event, it's an interesting area.

The Hargreaves Review in detail: Copyright exchange

The Review concluded that there were too many patents about - it didn't say there was also too much copyright, but I see this as a big problem. And the solution is a higher standard of originality, as promulgated by the Court of Justice in the Infopaq case - applying the "author's own intellectual creation" test across a far wider range of copyright works than we ever thought it was supposed to apply to.

That, however, does not feature in the Review, although it might provide a solution to the Google Problem that lies at the heart of the Review. Instead, it addresses the problem that the "creative industries" face by proposing a mechanism for granting licences - a copyright clearance centre.

First, though, what is this rubbish about "creative industries"? A company cannot be creative: only a human being can do that. Still less can industries be creative. Our copyright law properly gives protection to the commercial interests that turn one or more persons' creative work into a paying proposition - record companies, publishers, film studios, broadcasters - but in no way are they creative, and for that reason their rights are defined differently and protected for a shorter time. Computer game companies, web technology companies, app developers - they take the work of creative people and commercialise them. They are engaged in publishing. They might bring together teams of talented people who together will be more creative than they would be alone, but that does not shift the centre of creativity - that remains, unchangeably, with the individuals.

That said, the prospect of a Digital Copyright Exchange is exciting and inventive - a creative solution to the problem. However, it is not entirely novel, as the last Government tried to encourage industry to form a comparable Digital Rights Agency. Given the jealous way in which IP owners guard their rights, it might be like asking turkeys to support bringing Christmas forward, but if implemented properly the idea could provide a robust and reliable means of identifying, clearing and enforcing rights in digital content. I can't see it working well without an element of compulsion - well, without a lot of compulsion - though that could come from the market rather than from the law. It means that copyright will become less of an exclusive right, more a right to receive remuneration for the use of one's work It might also be a step towards a copyright registration system - which could be another useful device for cutting back the excesses of a system that is simply protecting too much. Another matter that fell outside the Review's terms of reference.