IPRs and Digital Copyright

LEGIS 2007

Philip Leith

What is Intellectual Property?

Best thought of as ‘information’ which has a property interest – and, of course, information is intangible, unlike land, houses, paintings etc.

Information is central to the new digital economy and thus IP rights, too, have become central.

IP covers – in part – patents which protect inventions, design rights which protect how goods look, and trademarks which protect the goodwill of a business.

For example: What is a Trademark?

“A trade mark is any sign which can distinguish the goods and services of one trader from those of another. A sign includes, for example, words, logos, pictures, or a combination of these.

Basically, a trade mark is a badge of origin, used so that customers can recognize the product of a particular trader.

To be registrable your trade mark must be:– distinctive for the goods or services which you are applying to

register it for, and – not deceptive, or contrary to law or morality, and– not similar or identical to any earlier marks for the same or similar

goods or services.” (UK Patent Office, Web site – my emphasis).

Hairdressing “Marks” – which are trademarks?

Why provide intellectual property rights?

Usually involve some creativity and are considered by government to deserve support. For example:

“To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” US Const., Art. 1, Sec 8.

Bangemann Report highlighted IPRs

“The Group believes that intellectual property protection must rise to the new challenges of globalisation and multimedia and must continue to have a high priority at both European and international levels.

In this global information market place, common rules must be agreed and enforced by everyone. Europe has a vested interest in ensuring that protection of IPRs receives full attention and that a high level of protection is maintained. Moreover, as the technology advances, regular world-wide consultation with all interested parties, both the suppliers and the user communities, will be required. …

In particular, the ease with which digitised information can be transmitted, manipulated and adapted requires solutions protecting the content providers. But, at the same time, flexibility and efficiency in obtaining authorisation for the exploitation of works will be a prerequisite for a dynamic European multimedia industry.”

The Information Society

Sees ‘creativity’ and ‘innovation’ as the commercial foundation for the new information society.

Wants to protect this to encourage more creativity. How can you do this?

– Grants for Innovators?– Pay musicians welfare benefits to stay at home and practise?– Tax free incomes for writers?

Of course not – the Information Society is not about state centred support, but about creating the environment for business to compete.

See - http://ec.europa.eu/information_society

Thus the importance of IPRs to the Information Society

Intellectual Property Rights thus become central to the digital economy since they are the only means of protecting creativity and innovation which is available to the legislator.

In order to fine tune the system, new rights may be required (e.g. ‘database rights’, ‘artists resale right’, etc.)

Sees harmonisation as essential – not just in Europe for the internal market, but globally

Copyright

We will focus on copyright

Because copyright law is a highly important means of protecting commercial information.

It is a right which has become highly controversial in the digital age.

And – it is relatively easy for lawyers to grasp in a short one-day workshop.

History of copyright

Originally an author wrote the texts and these were sold to the publisher, who effectively owned the work.

Other works (the bible, for example) were held by individual purchasers under (in England) the Stationers Company and competition was discouraged.

The publisher was central to the process, and held the ‘intellectual property’ of the works being printed.

‘Copyright’ was a publishers right, partly because it allowed easier censorship of what was being printed.

Authors and other publishers became unhappy:

Pressure from a number of sources led to first copyright statute, the Statute of Anne of 1709.

Brought new rights for authors and limited the term of copyright.

But as an industrial process (requiring capital and expertise) the publisher is still vital to the process.

Copyright …

lasts for life of the author + 70 years (in Europe); allows you to stop others copying your work; allows you to sell or license your copyright to

another; allows you (through moral rights) to have that piece

of work clearly stated as being yours and to protect it from being altered.

See www.intellectual-property.gov.uk/index.htm for an easy to understand overview of copyright.

What is actually protected depends upon national law

UK Law requires “skill, judgment, experience and work” (Ladbroke v Wm Hill (1964) 1 WLR 273), not ‘creativity’:

– The ‘content’ if it is of sufficient originality;– The typography;– Photographs (if of sufficient originality);– All films and parts of films (no need for originality here – see

CDPA 1998 s.1. UK is viewed as being ‘out of step’ with most other

European countries.

COPYRIGHT, DESIGN AND PATENTS ACT 1988 (C. 48)

Copyright and copyright works. 1. —(1) Copyright is a property right which subsists in accordance

with this Part in the following descriptions of work(a) original literary, dramatic, musical or artistic works, (b) sound recordings, films, broadcasts or cable programmes, and (c) the typographical arrangement of published editions.

(2) In this Part "copyright work" means a work of any of those descriptions in which copyright subsists.

(3) Copyright does not subsist in a work unless the requirements of this Part with respect to qualification for copyright protection are met (see section 153 and the provisions referred to there).

Think of a copyrighted work as having two aspects:

The medium upon which the work is passed from publisher to user (CDs, DVDs, books, newspapers, broadcasts).

The medium can usually be sold by one person to another: you can purchase 2nd hand books and CDs.

This part is the property of the purchaser, not the copyright owner.

The ‘work itself’ which is the music, the recorded television program, the text of the article in the newspaper.

This is the intellectual property and remains the property of the owner no matter how often it is passed on or sold to others.

For example:

You write a letter to a friend. The letter is composed of the medium (which becomes the property of your friend) and the work (the text) which remains your property.

Your friend can sell the letter, but can’t republish your text since that is your property (your copyright) and no-one can copy it without your permission. Copying, of course, includes republishing it.

Which of these are in copyright?

Complete works of ShakespearePhotograph of Chicago Club, 1892.

And Edvard Munch (Died Jan. 23, 1944)?

Self Portrait 1942The Scream, 1893

Is my use of these in this lecture slide an infringing act?

Self Portrait 1942The Scream, 1893

What might be protected here?

Possible elements:– Copying the painting

(owned by The Wallace Collection, London)

– Copying a photograph of the painting (e.g. downloading from web).

– Including elements in another painting.

– Using the pose and dress so that viewers make a link between two paintings.

Franz Hals died in 1666.

And Google’s compressed images?

“LOS ANGELES (AP) -- A federal court judge has concluded that an image search service run by Google Inc. infringes on the copyrights of adult entertainment company Perfect 10 Inc. by displaying small versions of its images in search results.

But U.S. District Court Judge Howard Matz said that based on evidence submitted at a preliminary injunction hearing, Google could not be held responsible when viewers click on the images and are directed to third-party sites that contain full-size images stolen from Perfect 10's Web site.

Matz ordered both sides to craft a narrow preliminary injunction that would respect Perfect 10's copyrights but not curtail Google's broader right to catalog and display online images.

The order was issued Friday and made public Tuesday. A trial in the case has not been scheduled. Mountain View-based Google said it would appeal any injunction ordered by the court.”

What is your view …

Google scans images and stores them, then reproduces these (in reduced format) to users.

Google doesn’t pay image owners a fee, nor ask their permission. Neither does it make sure that the images it points to are not infringing.

In your view:– Is it an infringment? – Would it be an infringement in Europe? – Should it be allowed?

Google Appealed

Google succeeded at appeal, when the Court of Appeal suggested that what Google was doing was something which was considered ‘fair use’.

This highlights that there are some exceptions to copyright which are allowable.

For a critical view of Google, see: Search Engines Score Another Perfect 10: The Continued Misuse of Copyrighted Images on the Internet 7 N.C. J.L. & Tech. 367 (2006)

How do you get copyright?

No need to register anything - copyright is automatically given (no need for © symbol).

The work (literature, art, etc.) must be fixated – that is ‘recorded’ in some form.

It needs to be original or creative (depending upon country) – but this is a low level.

We can see because of the ease of protection that there is a huge amount of copyrighted work in the world ….

Who is the copyright owner?

The first owner is the author, except when that author is an employee carrying out the work for the employer. The employer is considered to be the author of the work.

The author is entitled to sell, license, refuse to allow copies to be made etc.. It is thus a monopoly of that particular work.

Example authors:

Microsoft, rather than its programmers. The transcriber (or employer) in a courtroom. The camera operator (or employer) rather

than the goal scoring football player. The writer of a letter rather than the receiver. The choreographer rather than the dancer

(presuming the dance moves are fixated). The designer of a new typeface. The artist rather than the model.

Are these authors?

User of a photocopy machine. Writer of a shopping list. Writer of a two word song title Child producing artwork for school. Someone paying a photographer to have

their photograph taken. A judge writing a judgment. Poet writing poetry using cut and paste with

newspapers. The CCTV owner.

Moral rights

The author continues to have rights in the work, even if ownership has passed onto a new owner - “moral rights”.

Moral rights allow the author to stop others interfering with the work when these negatively affect the work.

Moral rights are recent and ‘European’ in origin.

Attribution & integrity

Moral rights are granted to the authors of literary, dramatic, musical and artistic works and to film directors:– The right of attribution: the author of a work has the right to be

identified as such. (last 70 years after death).– The right of integrity: The author / creator / director has a right to

object to derogatory treatment of their work, e.g. alterations, additions, deletions etc. which might be judged distort or mutilate it

– False attribution: Any person has the right not to have not to have work knowingly falsely attributed to them as author / creator / director. (20 years after death).

But no right of attribution for computer programs, where ownership of a work originally vested in an author's employer, where material is used in newspapers or magazines, reference works such as encyclopedias or dictionaries

What problems might moral rights give in the information age do you think?

To authors? To publishers? In a gobal publishing world?

After copyright?

When copyright ends:– the material moves into the public domain and

can be used freely by anyone. Moral rights will remain since these are inalienable and pass to the deceased’s estate (for ever).

Clever owners try to find other ways of protecting the materials, e.g.:– galleries refuse photographs/copies of artwork;– Disney uses trademark law to protect Mickey

Mouse.

US Trade Mark Office …

And copyright was extended, too

US Extended Copyright from 50 to 70 years under the Sonny Bono Copyright Term Extension Act 1988.

Disney had strongly supported this legislative drive since Mickey Mouse was about (2004) to go into the public domain.

What might have happened to the Disney business if that occurred?

How does Mickey Mouse feel about this …

Q: How does it feel to have your sentence extended by two decades?

A: How do you think it feels? For almost 70 years, I've only been allowed to do what the Disney people say I can do. Sometimes someone comes up with a new idea, and I think to myself, "Great! Here's a chance to stretch myself!" But of course they won't let me leave the reservation. If I do, they send out their lawyers to bring me home.

In 1971, for instance, Dan O'Neill got me a part in something called Air Pirates Funnies. It was great: I got to have sex, I got to use drugs, I got to explore the whole underground comix scene. It was liberating.

Well, of course Disney complained. They said—this is a direct quote—that O'Neill's parody was tarnishing my "image of innocent delight." After two issues of the comic book, they issued a summons and took us all to court for trademark violation and copyright infringement.

Q: And they never published another issue?

A: Of course not.

… (more at http://www.reason.com/links/links011703.shtml)

The idea and the expression

Copyright protects ‘expression’ – thus the fixation requirement.

Much value, though, can be placed in an idea (for a script or novel perhaps).

If an idea is not recorded (in a reasonably detailed manner) then it is not protected.

Much litigation over what is an idea and what is expression. Best to see this as depending up the facts in each situation. Recent case in London relates to the ‘Da Vinci Code’.

Is copyright ‘total’ protection

No, there are some things which the user can do:– He can sell the product after use (CD, book etc.)– Can make use of it for parody purposes;– He is allowed certain copying – for educational

use, research etc..– In some countries (e.g. US) a developed part of

the law is that of ‘fair use’ (as discussed above).

Fair Use in the US

“the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the

copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the

copyrighted work.” s107 US copyright Law (Title 17)

No Fair Use in UK – ‘Fair Dealing’ instead

Much more limited:– Research or private study;– Criticism, review;– Reporting current events (this is narrower than just

reporting any news).

These fair dealing exceptions are only allowable when they do not compete with the owner’s rights.

Thus not ‘fair’ as in a child’s ‘that’s not fair’. See Copyright Designs Patents Act s. 29 & 30

Is copying without permission a crime?

Not for most incidences – intellectual property law is a civil offence heard in the civil courts. However the commercial infringement of copyright is usually a criminal offence.

US Law: § 506. Criminal offenses(a) Criminal Infringement. — Any person who infringes a

copyright willfully either — (1) for purposes of commercial advantage or private financial gain, or (2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000,

UK Law

 107.—(1) A person commits an offence who, without the licence of the copyright owner—

 (a) makes for sale or hire, or (b) imports into the United Kingdom otherwise than for his private and

domestic use, or (c) possesses in the course of a business with a view to committing any act

infringing the copyright, or (d) in the course of a business —

 (i) sells or lets for hire, or (ii) offers or exposes for sale or hire, or (iii) exhibits in public, or (iv) distributes, or

  (e) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright, an article which is, and which he knows or has reason to believe is, an infringing copy of a copyright work.   

And, aids copyright infringement by technical means …

107 (2) A person commits an offence who—

 (a) makes an article specifically designed or adapted for making copies of a particular copyright work, or

 (b) has such an article in his possession, knowing or having reason to believe that it is to be used to make infringing copies for sale or hire or for use in the course of a business.    

Exercise 1

You are part of the digital age ..

When I was young, music was hardly portable. You take music with you.

Me

Her father

Split into groups and consider …

… something you do with music which is dependant upon current technology.

Consider whether:– What you do is infringing/non-infringing;– Might it impact upon anyone else’s commercial

interests;– If it is infringing and constitutes a criminal offence

in UK or US, do you consider yourselves as ‘criminals’?

Copyright in a Digital World

Why is copyright a ‘problem’ in the digital environment?

Traditionally, the product was a physical object (book e.g.). The product in the digital age is a series of 0s and 1s.

Copying the book meant having access to expensive means of reproduction.

In the digital world, this is no longer the case … the copy is a perfect copy of the original and done easily and cheaply.

The copy is not a ‘copy’ but the same as the original.

This is a problem for copyright owners

Their work can be easily and cheaply copied and there are few methods of stopping this.

Large scale ‘theft’ (piracy) is possible and lucrative for certain works (new movies).

As copying technologies develop (CD-rom, DVD) copying becomes easier.

As communication channels improve (internet, home broadband) the ease of transmission of copyrighted materials improves.

Example problems

CDs produced in China and piracy often by same companies who produce legitimate copies.

Music sharing over the internet – often without guilt (peer to peer file sharing).

‘Sampling’ and derivative usage without permission.

Use of videos/music/broadcasts in commercial locations.

Copying/Making BSkyB access cards.

What can IPR Holders do?

Cultural – change the nature of how people view intellectual property to reduce copying.

Technical – use technology to try to protect their works from copying.

Legislative – lobby to have legislation passed which helps enforce/extend their rights.

Litigational – use enforcement (civil and criminal) to make infringement potentially more costly.

Cultural – redefining ‘theft’

Organisations have spent much money redefining copyright infringement as theft - see www.fact-uk.org.uk. Theft can be seen very widely indeed:

“Jamie Kellner, CEO of Turner Broadcasting, says that skipping commercials, even if you're in the bathroom, is stealing. In the April 29, 2002, issue of "Cableworld" magazine, Kellner describes personal video recorders (PVRs) like TiVo and ReplayTV as devices designed to "steal" programming because they allow consumers to skip programming in 30 second intervals. Kellner states:

– "JK: Because of the ad skips.... It's theft. Your contract with the network when you get the show is you're going to watch the spots. Otherwise you couldn't get the show on an ad-supported basis. Any time you skip a commercial or watch the button you're actually stealing the programming.

– CW: What if you have to go to the bathroom or get up to get a Coke? – JK: I guess there's a certain amount of tolerance for going to the bathroom. But if you

formalize it and you create a device that skips certain second increments, you've got that only for one reason, unless you go to the bathroom for 30 seconds. They've done that just to make it easy for someone to skip a commercial."

– Despite what Mr. Kellner thinks, television viewers have no "contract" with broadcasters. While it may seem laughable that a powerful industry executive such as Mr. Kellner holds this belief, it's no laughing matter -- Mr. Kellner's colleagues in the television industry are suing electronics manufacturers to keep PVRs off the market. “ [www.eff.org]

And ‘Parallel Importing’ becomes ‘a crime’ too …

“The BPI issued legal proceedings against the retailer in December 2003, after it emerged that play.com had been sourcing their product from areas outside Europe – an illegal practice known as parallel importing when undertaken without the consent of the controller of the rights in the UK.

Though the products sourced by play.com were not counterfeits, they had been cleared for sale outside Europe only, and making them available for sale in the UK without the consent of the controller of the rights in the UK contravenes UK Copyright Law.

As part of the settlement, play.com has agreed to a Court Order that provides that it will only sell CDs that have been sourced from Europe.

BPI Chairman Peter Jamieson said:“All British-based record companies and all retailers - offline or online - are

adversely affected when product specifically designated for markets outside of Europe flows back into the UK. It is impossible to invest in, develop and market new British talent if we do not protect our legal rights to prevent parallel importing.””

www.bpi.co.uk

In the EU Parallel Importing is outlawed.

Trademark law is interpreted by the European CoJ to allow trademark owners to control the importation of goods into Europe.

For example, Levis and luxury goods cost much more in Europe than outside Europe.

See, for example, Decision of 16 July 1998, C-355/96, Silhouette International Schmied GmbH & Co.KG versus Hartlauer Handelgesellschaft mbH.

Technical – digital rights management

Allows a business to be set up where each work can be produced, communicated and utilised.

Costs can be applied according to usage.

Individual works can be treated in different ways.

Security (ant-copying) is a primary part of the process.

www.dcita.gov.au/drm

Features of DRM

Encryption – automatic encryption so that only system approved devices can participate.

Copyright protection technology – information is associated with each ‘work’ specifying author, owner, licensing etc..

Rights Management Information – information is attached which allows the

system to charge for the work and to ensure that the fees are allocated to the correct rights holder.•Digital watermarking and signatures – each work is marked so that if copied the source can be found.

New DRM Business opportunities

Access control – rather than control copying alone, DRM allows control of access to materials. This gives wider charging potential.

Personalization – the works can be produced in ways which appeal to the user (individual CD tracks rather than a CD as a whole).

Granularity – allows other business users to build products based upon ‘granules’ rather than whole works.

Interoperability – only systems approved can be linked in, giving possibility of control of both the message and the medium.

Bangemann’s Report:

“Electronic protection (encryption), legal protection and security

Encryption is going to become increasingly important in assuring the development of the pay services. Encryption will ensure that only those who pay will receive the service. It will also provide protection against personal data falling into the public domain.

International harmonisation would assist the market if it were to lead to a standard system of scrambling. Conditional access should ensure fair and open competition in the interests of consumers and service providers.

Encryption is particularly important for telecommerce, which requires absolute guarantees in areas such as the integrity of signatures and text, irrevocable time and date stamping and international legal recognition.

However, the increased use of encryption and the development of a single encryption system will increase the returns from hacking into the system to avoid payment or privacy restrictions. Without a legal framework that would secure service providers against piracy of their encryption system, there is the risk that they will not get involved in the development of these new services.

The Group recommends acceleration of work at European level on electronic and legal protection as well as security.”

See Commision Report on DRM at http://www.politechbot.com/docs/european.commission.drm.030202.pdf

Legislative – beefing up rights

Organisations representing industry lobby for various rights:– BPI - www.bpi.co.uk/legal/content_file_97.shtml– MPAA - mpaa.org/home.htm– RIAA - www.riaa.com

But also governmental/inter-governmental IP organisations pursue development of IP rights:– WIPO - wipo.int

Legislation – protecting DRMs

DRM technology is technical and thus can be technically overcome by programmers. This undermines the whole project.

Thus anti-circumvention legislation becomes vital to protect DRM usage.

Legislation now common – in US Digital Millennium Copyright Act (DMCA) but also in UK and Europe.

Copyright Directive deals with digital environment:

Article 6 Obligations as to technological measures1. Member States shall provide adequate legal protection against the

circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.

2. Member States shall provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which:

(a) are promoted, advertised or marketed for the purpose of circumvention of, or(b) have only a limited commercially significant purpose or use other than to

circumvent, or(c) are primarily designed, produced, adapted or performed for the purpose of

enabling or facilitating the circumvention of, any effective technological measures.

Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society

The EU Rises to the Database Challenge

The problem which the EU saw was that there existed a number of different copyright regimes with respect to compilations.

This was seen as hindering the internal market. But also, the EU has been keen to promote the

information industries in Europe and saw this as a way to promote and harmonise.

Result: the Database Directive (DIRECTIVE 96/9/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 March 1996 on the legal protection of databases).

Database Protection

Databases:– Are seen to need protection (though no evidence

for this was really provided);– That there needs to be harmonisation;– That elements which don’t affect harmonisation

can be left to national differences. But note that this attempt to protect

databases was novel: a new IPR was introduced to the world.

Copyright protection for databases

Thus, the protection for databases was not to affect protection via the copyright system.

Copyright still has its place in the system, but this is to be extended and harmonised across EU member states.

What is a database?

Art 1

2. For the purposes of this Directive, 'database` shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.

3. Protection under this Directive shall not apply to computer programs used in the making or operation of databases accessible by electronic means.

Litigational - Hunting down ‘thieves’ …

“The bot employed by BPI identifies users by their IP addresses and that information could theoretically be used as evidence in future lawsuits. However, Phillips said that the industry association is currently in the warning portion of the antipiracy campaign and legal tactics have yet to be hammered out.

"At this stage we haven't made any decisions on legal action but we are saying to those who upload a massive amount of files that what they are doing is illegal," he said. "And those people are very easy to find."

And, according to BPI's latest research, it's in the interest of the record companies to find these infringers. Some 8 million people in the U.K. download music and 92 percent of them, or 7.4 million, use illegal sites, BPI said. There are "no excuses" for this illegal activity, it added, since there are hundreds of thousands of tracks available from legal Internet services in the U.K.”

www.thestandard.com

Litigation – collecting information

Building upon redefining infringement as ‘illegal’, FAST and other agencies encourage provision of information.

EU’s Litigational Programme

Criminalising much of what was civil matters. For example, Directive 2004/48/EC of the

European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights.

This Directive took much from the UK’s approach to enforcement of IP rights – e.g. rights of parties to enter premises without police presence to seize evidence.

In UK, this procedure ‘Anton Piller order’ is contraversial. Why?

“… Such measures may include the detailed description, with orwithout the taking of samples, or the physical seizure of the infringing goods, and, in appropriate cases, the materials andimplements used in the production and/or distribution of thesegoods and the documents relating thereto. Those measures shallbe taken, if necessary without the other party having been heard,in particular where any delay is likely to cause irreparable harmto the rightholder or where there is a demonstrable risk of evidence being destroyed.”Art 7.1

Criticism of Directive

“The law on `intellectual property' - copyrights, patents and trademarks - has always been a difficult balance between protecting incumbent companies and fostering competition. The Directive seeks to shift the balance strongly in favour of the incumbents and against competitors. This will create winners and losers. The winners will mostly be large companies, such as Microsoft and Disney; the losers will include some large companies (such as phone companies) but also a lot of small firms and civil society interests.”

- http://www.fipr.org/copyright/draft-ipr-enforce.html

Exercise 2

Split into groups and …

… Consider the music example from Exercise 1.

Would the existence of a DRM technology (e.g. ITunes) which you could use – at a price – change your behaviour and ways of using music.

Copyright is supposed to offer a balance between user and author. Do you think that DRM offers the opportunity of a balance?

Realistic alternatives to copyright?

Putting things into the public domain

This is the easiest way for rights owners and gives users significant rights, but:– The owners give up all rights (except moral where

appropriate);– There can be no income stream from the work;

However, it is done. For example ‘Danny Boy” words were by Edward Weatherley.

Danny Boy

Weatherly died in 1929, so copyright lasted until 1999 (life + 70 years) but royalties were never collected.

1913 US music sheet stated: “This song may be sung in public without fee or license. The public performance of any parodied version, however, is strictly prohibited.

Could the users right to parody be denied?

scriptorium.lib.duke.edu/sheetmusic/a/a23/a2303

From Copyright to Copyleft and other licenses.

‘Copyleft’ is based on copyright.

Owner keeps rights but allows all non-commercial usage and development so long as copyleft license is attached to all derivative works.

Hence copyleft derivate works cannot become ‘copyright’ in future in any meaningful sense.

Best know of these is the GNU General Public License (GPL) which is used for software development. See:www.fsf.org/licenses/licenses.html

Creative Commons?

Creative Commons is another way of attempting to redress balance – copyright kept, but licenses allow others ‘certain uses of your work’ – and the rights holder sets the terms.

creativecommons.org

CC licenses

Rights owners can specify whether work can be used with three simple choices:

– Require attribution? – Allow commercial uses of

your work? – Allow modifications of your

work?

But has it worked in reality?

The International Context

International Copyright?

Basic concept of protection for literary and artistic works which is at core of Berne Convention

National differences – for example fair use, term of protection, etc. which leads to different protections in practice.

Berne gives ‘national treatment’: each country must protect works from another country to the same degree that it protects it’s own national's works.

Why not harmonise internationally?

Some have suggested that a better system would be one which had no national differences – that is, all countries operated the same system.

Why did the US take so long to sign up to Berne? It only signed in 1989 – UK signed in 1887. US objected to need to revise its national law re:

– moral rights, – removal of general requirement for registration– elimination of mandatory copyright notice.

But also, in 19th Century, US wanted to reprint books freely without paying license fees. (Charles Dicken’s ‘blood boiled’ to see his works copied without license in the US).

International Harmonisation

Benefits:– A ‘level playing field’ for all industries across all

fields (publishing, broadcasting, film etc.)– Everyone would know what rights were available

in every other country. Disadvantages:

– National policy requirements would be ignored;– Who decides which rules should be part of law?

Large developed countries or smaller non-developed ones?

Berne has been core of internationalisation

National Treatment & basic common view of what copyright is:– “The expression "literary and artistic works" shall include every

production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.” (Art 2(1))

But …

Allowed national variations. Many countries have not been signatories to

the Berne Convention. This has meant that Berne has not brought in

strict harmonisation. Some countries – especially the US -

required a more formal system which would protect their member’s IP rights.

Thus TRIPS was borne

TRIPS – Agreement on Trade-Related Aspects of Intellectual Property.

TRIPS is part of the GATT trade agreements and thus non-Berne signatories are brought into the fold and must ‘respect IP rights’ of trading nations.

TRIPS’ motivation is entirely economic – driven by the needs of the US and other industrial nations.

Effect of TRIPS

“By linking TRIPS to GATT, and so thereby bringing all signatory states under the auspices of the WTO, the relevant politicians and governments in control have been able to establish a system which is almost impossible to resist/ No state in the modern world can develop without international trade, and so tight is the hold on the regime though GATT, that no state can fail to sign up, and thereby become obliged, in turn, to comply with TRIPS.” [MacQueen, Waelde and Laurie, p27]

But what of WIPO?

WIPO is the World Intellectual Property Organisation.

It too, has attempted to resolve harmonisation issues – e.g. WIPO Copyright Treaty of 1996.

This attempted to focus on digital aspects and supported technical protection system which underpinned US DMCA and European law.

Database rights, too, are part of this Treaty.

Is WIPO too biased towards the developed-world?

The WIPO Copyright Treaty has implications for poorer countries:– “Developing countries should think very carefully

before joining the WIPO Copyright treaty. Countries should also not follow the lead of the US and the EU by implementing legislation on the lines of the DMCA or the Database Directive.”

– [Integrating Intellectual Property Rights and Development Policy, UK Commission on IP Rights, 2002, p22]

Workshop Exercise

The international IP debate, therefore, is about how to produce a system which balances the rights of producer countries but does not impinge too heavily upon developing countries.

Our exercise will be to consider the Nigerian Film Industry and what Nigerian politicians should do to protect this industry but also increase educational facilities.

Useful readings/web sites

Copyright Issues facing Galleries and Museums - ww.freshfields.com/practice/ipit/publications/wotherspoon.pdf

American libraries association - www.ala.org Int. Fed. Of Library Associations and Institutions - www.ifla.org/II/cpyright.htm Berkeley Technology Law Journal edition on DRM

-www.law.berkeley.edu/journals/btlj/articles/vol18/index.htm US Fair Use site - fairuse.stanford.edu fairuse.stanford.edu / File sharing - www.zeropaid.com/ Free Software Foundation - www.fsf.org Electronic Frontier Foundation - www.eff.org IPRs and Irish Music - www.beyondthecommons.com Federation Against Copyright Theft - www.fact-uk.org.uk RIAA - www.riaa.com Useful digital ‘definition’ site - www.digital-copyright.ca/copyright_jargon.shtml