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There is nothing, absolutely nothing whatsoever, which is new about branding or logos. The only difference lies in the terminology. In the olden days before we had words such as “brand” or “logo”, the matter of identity was often displayed by means of Coats of Arms. The origins of heraldry are rather murky but one plausible theory is that it originates in Central Europe and arose from the need to identify both friend and foe in battles. The best way to do this, in an age before uniforms, was for the protagonists to paint symbols on their shields or helmets. But whatever the origins, it is clear that, by the 14th Century, heraldry was the established means by which individuals, houses, clans, tribes and monarchs identified themselves, regardless of whether they were at war or not. Nor was this custom free of dispute. For example, in the late 1300’s, one William Carminow (then Sheriff of Cornwall) sued one Richard le Scope for the exclusive right to use a coat of arms consisting of a blue shield with a gold diagonal bar. It was certainly not a unique event. Now, in the modern age, heraldry has given way to brands and logos that are protected (and squabbled over) by means of a Trade Mark or, some cases, by the law of copyright. After all, business is war of a sort, and these are merely the latest manifestations of a time-honoured need for identification. It is often argued by its opponents that IP is a creature of the state. Well, I say that that is demonstrably untrue. IP arises because of the need for a recognisable identity which itself is necessary is just about every field of human endeavour. Anyway, now that the year is drawing to a close, all that remains
if for me to wish all of our readers a very merry ‘ye olde Christmas’. Get cooking While saluting her sense of adventure and general entrepreneurial spirit, I had to deflate her somewhat by advising her that she could not claim copyright over a recipe – a mere list of ingredients is not capable of copyright protection (although, a book of recipes might well be). However, she perked up when I added that she might able to apply for a patent to protect her recipe. Although I have never made such an application myself, I see no reason why the principle that already applies to compositions of matter should not be extended to the compositions of food products. Nor am I alone in this opinion. I added that the US Patent office would be more likely that its UK counterpart to entertain any such an application. Well, her eyes lit up but lest I enthuse this poor woman into penury, I also warned her about the cost of making such an application, particularly because, although a recipe may be patentable in theory, any such application would have to pass the two crucial tests of novelty and non-obviousness. The vast majority of recipes for food products will fail one or possibly both of these tests, rendering the application an expensive waste of time. As for the salad dressing itself, I can make no comment as to its
originality or quality. Perhaps she will invite me over to dinner
sometime so that I can sample this marvellous creation first hand.
However, I will reserve any public comment on it until such time
as the CNE starts a food blog. Striking a chord A couple of weeks ago, I wrote about the current attempt to get the copyright mechanical royalties protection period extended to 95 years. I concluded that the case for doing so had not been adequately made. Now, lo and behold, we have a contrary view, delivered by none other than Mick Hucknall, lead singer of the British band ‘Simply Red’. Mr. Hucknall sets out on a sterling defence of the whole principle of copyright and goes on to argue very much in favour of the extension on the basis that it would enable lesser known and (for want of a better term) ‘smaller’ artists to establish a direct commercial relationship with the public without having to subject themselves to the exploitation (as he sees it) of the major music industry corporations. Several points need to be raised: first, Mr. Hucknall is himself a successful artist so I suppose it can be argued that he has a vested interest (not that that fact, per se, means he is necessarily wrong). Secondly, he argues that the whole idea of copyright is fundamentally socialist. Now I certainly would take serious issue with him on that utterly bizarre assertion but, for the moment, I am willing to let it slide on the basis that he is writing for a left-wing newspaper and, perhaps unsurprisingly, he has decided to couch his argument in terms with which he feels the readers would sympathise. Nonetheless, Mr. Hucknall sets out a persuasive case for the principle
of property rights in the form of copyright. However, he fails (in
my view) to present any good reasons for the extension of the current
protection period. While he is assuredly on the side of the ‘little
guy’ (as am I) there is nothing in his screed to convince that the
little guy (or any guy) needs 95 years of protection as opposed
to a mere 50. Louis Vuitton handbagged However, this past week, Louis Vuitton has failed in its legal bid to wrest control of the internet domain ‘lv.com’ which is currently owned by a company called Manifest Information Services. A US National Arbitration Forum (using principles established by ICANN) found in favour of the existing owners because Louis Vuitton had failed to establish that said owners had registered or were using the domain name in bad faith (and despite that fact that, as confirmed by the link above, the lv.com domain is currently ‘parked’). Further, the initials ‘lv’ could refer to a lot of things and not just the famous French company (Lovely Vineyards? Laughing Vicars? Lemon Velvet?) What is interesting about this case as far as I am concerned is the significance it plays in helping to develop the shape of internet IP law. Anyone who owns a website will attest to just how important domain names are and, in fact, many commercial organisations now regard domain names as being more important than Trade Marks; a development that is hardly surprising given the global scope and importance of the internet. What we are seeing now is the emergence of a real body of recognisable ‘common law’ to govern this process and settle the rules of ownership. I find this exciting because it blows away the argument that IP law is entirely a creature of state and would not exist without government implementation. Governments have played no (or no significant) part in the emergence of this new IP regime. Instead, it has evolved with internet commerce itself in a rather organic process. Anyway, I am sure that Louis Vuitton will live to fight another
day. I note that they do possess the louisvuitton.com
domain after all. Ownership, not censorship For example, I believe should be able to take action against an intruder: lethal action if necessary. However, that does not mean that I think that the homeowner is justified in pre-emptively going around with a gun taking pot shots at anyone and everyone who might know or have met the intruder. It’s a crude analogy, but it is sort of how I feel about this decision of a Court in Beijing to find against a consortium of music industry heavyweights including EMI, Sony BMG and Universal) who were suing the owners of China’s leading search engine on the basis that the latter was pointing to sites containing illegal music downloads. There appears to be no suggestion that the search engine site (Baidu.com) were themselves offering illegal copies for download. Let’s make something quite clear: the right to enforce property rights, and to claim damages for infringements of the same, is a far cry from the right to censor or (in internet terms) put a straightjacket around search engines or any other type of activity. What next? Nobody must even talk about illegally copying music? I daresay that the music industry consortium would argue that by including the miscreant sites in search results, the owners of Baidu.com are encouraging others to illegally download music. But really this is feeble. One might as well argue that real estate agents are inciting burglary by advertising properties for sale (and, yes I know that I just set up a strawman argument but I do not have access to the case transcript and I needed a point for illustration purposes only). So, in conclusion, I think the Court was right and that’s enough
tub-thumping from me this week. Half century, not out That said, one does not have to regard them as gospel in order to find something of interest or, at least, something worthy of further discussion. Such is the case with the results of a poll conducted by the Yougov organisation which apparently found that some 62% of respondents were in favour of extending the period of mechanical royalties from the current limit of 50 years up to the US limit of 95 years. I have to say that this is ringing my scepticism bells rather loudly. Most people of my acquaintance have no opinion on this matter at all and I do find it rather hard to believe that nearly two-thirds of the public is actively in favour of such an increase. It does make me wonder how the question was framed. Anyway, leaving aside the issue of public opinion (or lack thereof), is there a sustainable, credible case for increasing the limit? The argument so far appears to be straddling the musicians on one side, who claim that an increase would provide them with a pension and organisation such as the British Library on the other wise, arguing that it would prevent them from making archive copies of old music in order to preserve them (older media being more inclined to decay over time). My own view is that I am not persuaded by the case for an extension
to UK copyright law. In the USA, the entertainment industry has
a much stronger political voice and the extension to 95 years was
only agreed to after some fierce lobbying. I do believe that musicians
should be rewarded for their work but I am not convinced that a
desire for a better pension is sufficient justification for the
extension they are demanding. A reasonable request Consequently, I find myself expressing some sympathy with the view of the Institute for Public Policy Research who have made a public call for a change in the law to allow people to make back-up copies of their CD-based music onto things like MP3 players. The Institute reinforce their call with claims that millions of people already make copies of their own music CDs but in doing so, they are actually breaking the law. I don’t have any ready, reliable research at hand with which to either corroborate or rebut the claim but it does appear likely from my personal knowledge that the claim is, at least, somewhat right. Furthermore, we all know that CDs, regardless of their quality, are vulnerable. They get scratched, corroded, wear out or break leaving their owners with nothing to show for their money. It therefore seems entirely reasonable to me that the law should accommodate a bone fide consumer who makes a back-up copy of the music they have bought in order to listen to it on other widely available media and/or protect their investment. There is also another argument which relates to enforcement: if it is true that there are millions of people who are already committing millions of petty IP infringements then that it because it is either impossible or highly impractical to seek to enforce the law at that level and, as Brian Micklethwait has said on a number of occasions, laws that cannot be enforced, cannot stand. While the music industry is understandably wary of anything that
might be seen (by anyone) as opening the floodgates, I do think
that some reasonable legal accommodation of legitimate personal
copying can and should be found. Soft going for software patents The news is that a serious attempt to patent a software application has been rejected by the UK Court of Appeal. The applicant, a Mr. Neal Macrossan, was seeking patent protection for his software which is designed to fill in company forms online. However, the Court referred to the terms of the European Patent Convention which does not allow patents to be granted for "schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers". The Court held that Mr. Macrossan’s ingenious invention was a business method and a computer programme and, therefore, not eligible for patent protection. I don’t suppose the ruling will have gone unnoticed, especially with organisation such as the ‘Open Source’ movement, who will, doubtless, be jubilant (their long-standing opposition to the idea of software patents being a matter of some record). However, I rather think that the ruling was only to be expected. The terms of the European Patent Convention (which, incidentally, are enacted into UK law by The Patents Act 1977) make it quite clear that computer programmes cannot be protected by patents and I rather think that claims that this is about to change are somewhat overwrought. This Court of Appeal decision has drawn a clear line of distinction
and, to the extent that it has clarified matters, it is to be welcomed.
For the time being (and probably for the foreseeable future) software
patents are not going to make an appearance in either the UK or
Europe and so the anti-software patent crowd can relax. There was
never much to get excited over in the first place. It's not Youtube when it's Mytube
Take broadband technology, for instance. This true wonder of the modern world makes all sorts of things not just possible, but commonplace; such as listening to music on your home computer and, more recently, watching videos. Oh the unbridled joy of limitless entertainment at the mere click of a mouse. Except that it is all very much bridled by the law of copyright. No sooner has the ‘Great File-sharing War’ over music reached a somewhat shambolic conclusion, than a new battlefront opens over video content and the casualties are already beginning to mount. Just this week, a blog called 101greatgoals.blogspot.com was warned by the English Premier League to stop uploading video footage of Premier League goals, the same being copyright material. This news comes hot on the heels of Youtube.com being forced to wipe thousands of files from its site after being threatened with action by The Japan Society for Rights of Authors, Composers and Publishers in respect of copyright video material being published without permission by the former. Yet, we are still in the early stages here. As broadband technology spreads, so does the capability of downloading big videos files. And with the capability comes the demand. Of course, this will, hopefully, spawn a generation of original video producers who will distribute by means of the internet but, along with them, there will also be a legion of distributors ready to feed the public demand for popular material to which they have no right to distribute. However, the difference with this stage of the war is that ‘Big
Media’ has learned its lessons from the music debacle which caught
them off-guard. They have had plenty of catch-up time and experience
and I suspect that they will need to employ every shred of it. The Continent of Europe is so wide, Mein
Herr In fact, this is not the case. Anyone seeking patent protection across the European continent is obliged to register their patent separately in each jurisdiction – a painstaking process. However, there are possible changes afoot. Just last week, a compromise text for a European Patent Litigation Agreement won the support of the major parties in the European Parliament. These are the first steps in the creation of a Pan European patent system. Despite the fact that there is a still a long road to travel before that reality comes to pass, there are already voices of opposition. Some argue that a Pan European system will make software patents more likely (and where have we heard that one before?) and other argue that it could increase the costs of patent administration to the point where it becomes a barrier (or, at the very least, a significant disincentive) to small companies and individuals. It is the latter objection which, in my view, has some merit and with which I sympathise. I strongly believe that patent protection greatly benefits small and medium enterprises and I baulk at any suggestion of making it less accessible. However, there is an important flipside to consider and that is the considerable costs facing small players who, up to now and for the foreseeable future, must find the funds to make patent applications in so many separate jurisdictions. Even if the Pan European system does prove expensive it could, nonetheless, be less ruinous than the present situation and, ergo, be more accessible. Still, it is very early days yet and we shall have to see how this
one unfolds (assuming it gets a chance to unfold at all). Warlords 'R' Us But what I can do is refer to this intriguing story about Genghis Khan. The Khan (which means ‘King’) earned himself worldwide notoriety in the 12th and 13th Centuries by leading his Mongol hoards to the conquest of an empire which stretched from the heart of Asia right into the centre of Europe, accompanied by much slaughter, destruction, rape and pillage along the way. Now, if it were down to me, I would prefer to distance myself from such a character. But not so the Mongolian government which is now actively seeking to ‘register’ the name and image of the Khan as a sort of national Trade Mark. Leaving aside the question of precisely how and where they intend to register this Mark, the motive behind it is unquestionably proprietary. "Foreigners are attempting to use the Genghis Khan name", one parliamentarian said, claiming that businesses in Russia, China and Kazakhstan were all portraying him as a native of their countries. To what end I wonder? Are the Russians using his image to promote tourism? Are the Chinese stamping his image on their electronic components? The mind does boggle just a bit. It seems that the Mongolians are attempting to utilise their most infamous historical figure as a means of establishing some identity for themselves on the world stage. Being a demographically small country stuck between the populous giants of Russia and China, I can sort of see their point. However, it rather reinforces the view that questions of identity
are quite intimately bound up with concepts of ownership and I would
submit that an attempt to convert history into IP is more controversial
than anything Western corporations might be doing in the commercial
arena. Meanwhile, behind the scenes... However, there is another side of the coin. Or, rather, a whole series of ‘backend’ disputes over copyright that rage away behind the scenes and which the public rarely, if ever, gets to hear about. One such dispute has been raging away between artists, publishers, their representatives and a whole slew of representatives and now appears to have been resolved. Well, mostly. The brou-haha blew up as a result of the increasing sales of music by digital download. In fact, so much music is now being sold by these means that the artists and publishers decided that they wanted a bigger share of the cake. Cue, a whole round of fevered negotiations between, on the one hand, the British Phonographic Industry, the MCPS, the PRS (an alliance representing songwriters, composers and publishers) and, on the other hand, industry giants like Apple iTunes, Vodafone, O2 and T-Mobile. Between them, these behemoths have hammered out a deal whereby composers and songwriters will get 8% of all gross revenue from downloaded music and 6.5% of all gross revenue from ‘streamed’ music. So, next time you download that catchy song to your mobile telephone (the one that you think is so cool but just annoys the hell out of everyone else) you can calculate the proportion of the fee you paid that is going to the artist who wrote the song. More broadly though it raised the issue again of artist’s livings.
The opponents of IP believe that digital content should be free
for the world to share and while that sentiment may bring a warm,
fuzzy glow to many, they have still not solved the problem of how
artists get rewarded for their work. Software patents ride again Anyway, the prior to the vote on the Directive, there was huge kerfuffle between supporters and opponents, with the latter frightening the bejesus out of everyone with claims that the Directive was going to enable big corporations to patent their software. Not true, the purpose of the Directive was to harmonise applications procedures in the European Patent Office. But you know how these things go. The scary mob whipped enough of a frenzy to spook the skittish politicians and the Directive was voted down. I predicted then that it would be back and I was right. It is back. So will it provoke a similar ding-dong battle? Well, possibly, as some of last year’s protagonists (e.g. Greens, Socialists etc) appear to be mobilising in opposition again. However, and mindful of the passions this subject seems to ignite, I do hope that the debate surrounding the Directive can be conducted with a bit more reason and calm. There is a very good case for reforming the European patent applications system as the present mess means that companies doing business across Europe face a much higher burden of costs in protecting their IP than they would face if the system was at least somewhat harmonised. Ironically, the cost represents a particular barrier to the small, independent companies that opponents of the Directive claim to be concerned about. We shall see. The complaints are already piling up and the problem
is that both sides seem very entrenched. This attempt to get the
Directive passed may also fail under a sustained assault from the
antis but even so there must be some serious attempt to address
the problem of European patents in this sector. It's all about image One of these million-dollar moppets is Suri Cruise, infant daughter of Hollywood stars Tom Cruise and Katie Holmes. In fact, no sooner has she been sent home from the maternity ward than she is appearing on the front cover of Vanity Fair magazine. See, people who value celebrity photographs also value the photographs of their offspring and that means that celebrity babies (as well as being adorable) are big business. This, in turn, leads to a media bunfight to decide who gets the lucrative rights to publish them. So do these babies have ‘image rights’ that can be licensed much as any other IP right? Well, in theory, no. However, as was decided in the case or Irvine .v. Talksport, famous people (in this case Irish racing driver, Eddie Irvine) can prevent others from using their image without consent. Yet again, there is no actual law specifically granting celebrities (or anyone else for that matter) rights in their own image. So, where is the line? Well, nobody seems sure and the only verdict at this stage is that it is a big grey area. Delving into it, though, is Edinburgh-based lecturer, Gillian Black who has launched an online survey to canvass public opinion about this issue. Ms. Black wants to research whether or not legal reform is needed
in this area. While I am not convinced that appealing to the vox
populi is the best way of going about this, I think the interest
is welcome and I look forward to seeing where it goes. Like Hollywood, only smaller Apparently, the new service will be made available through ‘iTunes’ portal and will be accompanied by a new ‘iPod’ music player which will (presumably) have been upgraded to carry movies as well. Well, it all sounds jolly impressive to me even if the thought of straining to watch a movie on the confines of a tiny screen no bigger than a matchbox, while being jostled on a crowded London underground train, does somewhat temper my personal enthusiasm. Nor is the new service without a catch: the catch is that the downloads will come complete with DRM (that’s Digital Rights Management) systems that mean the user will be unable to burn a copy of the film to watch on their TV screens or even transfer the movie file to a different computer. Expect a hailstorm of complaints about this. The price for the downloads in the USA is expected to range from $10 to $15 which may make them slightly cheaper than DVDs (for new releases at least). However, the portability of the DVD (i.e. you can play it on your TV screen and your computer) may mean that the latter is still more attractive to the market. However, my congratulations still go out to Apple for making this
important breakthrough. Despite the difficulties they are sure to
encounter, they will (assuming the reports are correct) have set
the benchmark that competitors will surely try to beat and one of
the few ways they will be able to do that (in the short term anyway)
is to offer more flexible licenses to the consumer. Behind the digital curtain The story concerns the British Phonographic Industry (BPI) and its prosecution of a website called ‘allofMP3’ which (as the name suggests) offers music downloads to its users but (and hence the BPI attack) without taking the trouble to account to the copyright owners for royalties. So the BPI has obtained a judgement against in a UK Court. However, the ‘allofMP3’ website is owned and run by Russians in Russia and, consequently, the BPI cannot enforce said judgement because the Russian State has no treaty with the UK in this regard. So, despite the judgement, ‘allofMP3’ can carry on regardless. The BPI do have the option of pursuing users of the site both in the UK and in countries where mutual treaty obligations exist. But (and I suppose for publicity reasons) the BPI have declined to take this route, leaving them fulminating over their rather toothless judgement. Time may solve the problem. Russia, in common with many other countries, is still emerging from a long, dark age of communism and so has yet to establish a thriving creative industry of its own. As and when it does, the pressure on the Russian State to enforce copyright within its borders (and enter into various mutual treaty obligations) will grow, if only because it will benefit Russian rights-owners who want their rights enforced outside of Russia. But that process could take many years and perhaps even decades.
In the meantime, the BPI finds itself coming to terms with the prospect
of having to suck up to the Russian authorities and gently persuading
them to do the right thing. I don’t envy them one little bit. The You Tube Revolution Such is the ease of access and universal appeal of You Tube that the casual ramblings of a British pensioner became a global hit and turned said pensioner into a worldwide star, worthy of mainstream TV news coverage. Still, not content with 100 million viewers a day (and growing) the owners of You Tube have even bigger ambitions. They have now announced that they intend to publish copies of every single music video ever made. Well, that’s what they say. Furthermore, they intend to make these videos available to the public free of charge, with revenue coming from advertising rather than viewer subscription or download fees. According to business analysts, Jupiter Research, You Tube’s project could seriously damage the market shares of current music giant, iTunes and even sales of the iconic iPod (which is unable to play videos). All very dramatic stuff, but I will quietly reserve my judgement. I think You Tube should be applauded for their sense of adventure and innovation and I do wish them luck but it remains to be seen if advertising revenue alone is sufficient to cover the costs of this huge project together with all the mechanical and other royalties they will have to pay. Also, let us not forget that there are vast swathes of music for which a video is not available. Even if You Tube’s plans were to succeed, there will still be a substantial market for non-video music. But, reservations aside, it is all very interesting and, dare
I say, exciting. If it were not such a shopworn cliché I would say
“watch this space”. Let the Bragg-ing begin Not only has this matter raised its head again sooner than I had anticipated, it also appears that Mr. Bragg has scored a quick and decisive victory. After kicking up a sufficient stink to have the noses of Board level executives wrinkling in disgust, MySpace (which, in turn is owned by Rupert Murdoch’s News Corporation) have decided to radically change their licence terms. Whereas, they used to say that a MySpace user would “hereby grant to MySpace.com a non-exclusive, fully-paid and royalty-free, worldwide license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, modify, adapt, translate, publicly perform, publicly display, store, reproduce, transmit, and distribute such Content on and through the Services,” they now say, “MySpace.com does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, or any other materials (collectively, 'Content') that you post to the MySpace Services. After posting your Content to the MySpace Services, you continue to retain all ownership rights in such Content, and you continue to have the right to use your Content in any way you choose.” Quite a material change there, by any standard. Doubtless Mr. Bragg is feeling somewhat pleased with himself for his successful defence of his property rights. My question is whether is will be seen as a precedent? Social networking
sites seem to be the latest fashionable chapter in the internet
saga and they appear to be springing up all over the place. Will
other networking sites now feel obliged to follow the MySpace suit?
Or will it be the latest battleground in the ongoing war between
the established music industry and the net? Royalties not taxes This month a group representing the UK music industry (which, significantly, did not include the BPI) met in London and agreed that ISP’s should be forced to pay a blanket licence fee to compensate rights-holders for the file-sharing infringements of ISP customers. This is not the first time the idea has been floated here and, indeed, it is already the practice in some European countries. However, I am against it because it seeks recompense from the innocent for the sins of the guilty. The group state quite clearly that they do not want to target the individuals who infringe copyright in this way. Instead, they want to target the intermediaries. This is completely the wrong way around. While I support the pursuit of those who infringe on copyrights, I suppose the difficulty and expense of doing so is what makes some rights-owners look for an easier solution. Still, easier does not mean better or right. Fortunately, they are likely to come up against some stiff opposition from the ISPs, as personified by my friend Malcolm Hutty of LINX who says: "We don't accept that ISPs should be responsible for paying for all the value that our customers acquire as a result of using the network. There are already very effective procedures in place which rights holders can use to pursue cases of copyright infringement and ISPs co-operate fully with such investigations, but beyond that, it's nothing to do with the ISP. There is no need for an ISP tax, and it is absolutely inappropriate that the ISP industry should be forced to seek a licence from the music industry in order to operate". Quite right and let me say right here that I sincerely hope that
these proposals fall flat on their face. An ISP tax would represent
a wholly unwarranted penalisation of legitimate ISP customers and
a further extension of the twisted idea of punishing the enabler
instead of the actual doer. iPod killed the radio star? However, for the proper iPod-owning humans, and more particularly the UK variety, there is good news. From next year they will be able to buy a complementary gadget called an ‘iTrip’ which will enable said iPod owners to transmit the contents of their iPods over FM radio, thus enabling every iPod owner to start up their own mini-radio station. The reason that the iTrip will not be available in the UK until next year is because it has, hitherto, been regarded as illegal under the terms of the Wireless Telegraphy Act 1949 which, among other things, makes it illegal to possess a low-power FM transmitter without a special licence. Nonetheless, the UK communications regulator, Ofcom, has declared that the iTrip can be sold in the UK from next year. While iPodders will no doubt snap them up in droves, my mind turns
to the potential plight of established FM radio stations who have
to pay hefty royalty licence fees to organisation like PRS
and PPL. Will the
new wave of ‘iPod-Jocks’ (I have just invented that term, please
note) be similarly encumbered? Or will there be so many of them
that this mass invasion of the FM airways will prove impossible
to police? If so, that could prove a sever hardship and disadvantage
to the established broadcasters. Perhaps a wide-scale renegotiation
of the terms of those licences is in the offing. Take to the high seas, me hearties!
This week, a new ripple in the fabric of French (and perhaps even European) political life with the formation a new political party. Unlike other political parties, they don’t have much to say about things like the economy, health, education or foreign affairs. That’s because this is a ‘Pirate Party’ (the link is to an English version of their website). Apparently inspired by the Swedish ‘Pirate Party’ it lists its aims as:
But despite elements of muddled, whimsical thinking, I think the
broad phenomenon is still interesting and, indeed, predictable in
view of the various IP legislative sledgehammers brought down on
Europe (not to mention the USA) at the end of last millennium. I
had a feeling at the time that the scope and ferocity of the anti-piracy
laws might well lead to some sort of ill-thought out but populist
backlash. Maybe we are seeing the start of it. Sheer Gall However, according to Apple it is ‘state-sponsored piracy’. I tend to agree. Apple have also hinted at a possible withdrawal from the French market as a result of this law and I do sort of hope that they see that threat through as it would teach the French government a lesson in adverse consequences. That said, the law does apparently allow artists to sign exclusive deals with particular companies and, presumably, the French government would honour that contractual relationship. Nonetheless, this is still a full-frontal attack on the principle of property rights. In effect, it is nationalisation by the backdoor. It is as if the French government has forced homeowners to open up their rooms to lodgers. I am sure that the law has been drafted in on the back of all sorts of altruistic-sounding arguments about caring and sharing. However, I suspect that the true motivation is strategic. That is to say that, from now on, French companies might find it a lot easier to get access to hitherto unavailable American technology. Unable to compete in terms of innovation, the better-connected ones may well have solicited official assistance. The French have a long history of industrial spying for national
strategic reasons. Despite the rubrics, this sounds like it could
be simply the latest chapter. Blockbuster battle And who supplies me with my DVD movie? Well, I don’t really care much. What I care about is how easy, cheap and convenient it will be to get my movie and, naturally, the content of the movie itself. This is probably why there is an ongoing legal war between two giants of the home rental market, namely Blockbuster and Netflix. The significant difference between these two is that Netflix is an online operation while Blockbuster has retail outlet stores. However, Blockbuster also has an online facility and this is causing the problems because the former is claiming that the latter is infringing the various patents it has relating to online movie hire. Blockbuster have struck back by filing an anti-trust lawsuit in the USA together with claims that the various Netflix patents are spurious and should not stand. According to Blockbusters lawyers, Netflix claiming exclusive rights over subscription movie rentals "is like a fast-food restaurant trying to patent selling hamburgers through a drive-through window". And so it rages on. But the problem here stems from the fact that neither protagonist is actually a producer. Both are distributors of product made by other people. Hence, they have to try to nail down a protected market share by means of trying to patent absurd sounding ‘business methods’ that do not truly involve any innovation in the generally understood sense of the word. The whole issue could be settled by a rigorous redefinition of
what is and what is not ‘patentable’ that could and should exclude
‘business methods’. That would leave distributors having to compete
on things like price and standards of service. However, I am not
expecting this to happen any time soon. No need to take squatting lying down
The problem is intelligently discussed here in relation to the new .eu suffix. While sales of the new .eu suffix have apparently been a roaring success, the article points out that this figure is misleading because, in fact, cybersquatters who are hoovering up loads of .eu domains simply for the purpose of squatting on them. However, brand owners are not without recourse. Organisations like the World Intellectual Property Organisation and the Internet Corporation for Assigned Names and Numbers have the power to order the transfer of domain names that are being squatted. But neither organisation has any power to impose damages or other sanctions on the squatter, hence the squatter has nothing to lose and therefore remains undeterred. This has led to a situation where many companies simply buy up as many conceivable domain name variations of their brand name as a cheaper alternative to having the pay the substantial legal costs of wresting them from cybersquatters. The author of the linked article suggests that the solution might lie in giving organisations like WIPO and ICANN the power to make the loser pay the legal costs of the winner but that is only going to work in cases where the squatter has the means to pay (and can be found). There is an alternative. Many squatters use the ‘hostage’ domains as advertising portals, thereby generating a healthy income. What if the advertisers could be sued for knowingly advertising on a ‘squatted’ site? That way, legitimate brand owners can put the advertisers ‘on notice’ (i.e. warn them in advance) that they might be sued. Since they have a lot to lose, they might well pull their plugs on the squatters, hence leaving said squatters with no way to make money from their activity. Yes, I know it’s all very messy but squatters should not be allowed
to simply get away with it. Bragg-ing rights In common with quite a few other artists, Mr. Bragg made some of his songs available on the ‘Myspace.com’ website from where it could be downloaded by other users of the now-famous ‘social software’ website. When artists like Mr. Bragg agree to let myspace.com host their music the terms they are bound to are as follows: “……grant to Myspace.com a non-exclusive, fully-paid and royalty-free, worldwide licence (with the rights to sublicense through unlimited levels of sub licensees) to use, copy, modify, adapt, translate, publicly perform, publicly display, store, reproduce, transmit and distribute such content on and through the services". Now that seems like a pretty widely-drafted licence to me but, according to the myspace.com people the copyright to the music remains vested in the artist concerned and that the licence does not confer a right upon myspace.com to make money from the music. I might argue that the terms of the licence to permit them to do just that but, in any event, what if myspace.com refrained from actually charging users for downloads but, nonetheless, charged subscription fees for using (or membership) of the whole site? Would that not be commercialisation of the music by indirect means? It would certainly make for an interesting (and probably quite
protracted) lawyerly argument. However, it is not an argument that
Mr. Bragg will have any stake in for he has now decided to withdraw
his content. Maybe he is savvy enough to see the argument ahead
of time or maybe he had other considerations. Either way, I expect
that the issue is going to land on somebody’s head sooner or later. Beating the rap "Your Honour, the Defendants clearly and flagrantly use the words ‘slap my ho’ and ‘boff my bitch’ and ‘I popped a cap in the motherf***ers ass’ and I submit that those words were expressly used by my client in his songs". Alright, I jest but, really, isn’t there something more than a little ridiculous about rappers going to law with claims that they are being copied? Most of the genre that has reached my ears (and, hard though it may be to believe, I actually quite like rap and hip-hop) is indiscernible in terms of beat and melody and indecipherable in terms of lyrics. Unsurprisingly, Messrs. West and Bridges were acquitted of copyright
theft by the New York jury and I expect both of them rushed off
to pen some new songs about ‘stickin’ it to de man’. But while the
whole affair does reek of absurdity, there is, perhaps, a serious
motive behind it. If the so-little-known-that-they-don’t-even-have-a-website
IOF were wondering about ways to make a splash then maybe taking
some more famous rappers to court was a comparatively cost-effective
way of doing it? I am sure their lawyer’s bill will be hefty but
perhaps not quite as ruinous as a nationwide marketing campaign?
Ya'll see what I’m saying, motherf***er? Copyright is right The driver behind this rapid change is, of course, the dear old internet – condemned by some as the harbinger of death for the music industry and heralded by others (including me, if I might smugly remind you) as a playground of new opportunities for the music industry among others. With nearly every day that passes, that latter prognosis proves ever more accurate and I have been goaded into highlighting this again by the appearance of a new on-line music shop. This latest recruit is called ‘Indiestore.com’ and the difference between them and the existing on-line outlets is that ‘Indiestore’ affords independent and unsigned artists the opportunity to set up their own web page and charge users for downloading their music. Furthermore, instead of abandoning the idea of copyright, the owners of ‘Indiestore’ have recognised that the ‘file-sharing’ models simply fail to provide any (or any adequate) reward for the artists. Hence, there is a charge to download music from the store and the artists get up to 80% of that revenue. Also, and significantly, it appears that artists still need to release a physical single if they are to make any significant return, thus confirming that, far from killing music, a properly managed music portal acts more as a kind of mass marketing tool, i.e. word spreads among fans who download the tracks who then go out to buy the CD. Pleasingly, it seems that the lessons of the recent past have
been learned and another ‘tragedy-of-the-commons’ sensibly avoided.
The people who believed that abandoning property rights would mean
more music were (and are) wrong. The need for and respect for enforceable
IP rights means more opportunities, more content and (I predict
again) yet another ‘golden age’ of music creativity. 1-click and you're dead The ‘David’ in this case is New Zealander Peter Calveley who, as a ‘motion capture performer’ (whatever that is) contributed to the action scenes in the Lord of the Rings movies. But as well as a talent for swashbuckling, Mr. Calveley is also a qualified Patent Attorney and, strange as it may sound, it is this latter skill which appears more likely to make him famous. Out of what he insists is nothing more than curiosity, Mr. Calveley began delving into the technicalities of Amazon’s notorious 1-click shopping patent. His curiosity appears to have paid off for he claims to have found a similar patent belonging to a company called ‘Digicash’ which also allows on-line customers to execute repeat purchases with just one action. More importantly, perhaps, the Digicash patent pre-dates the Amazon patent by a year. Mr. Calveley raised some money to file the appropriate claim with the US Patent Office who are now re-examining the Amazon patent. It is unlikely that the Amazon patent will be overturned in its entirety but it is perfectly possible, depending on the amount of overlap with the Digicash patent, that its scope could be narrowed. And if that happens it could not only prise open the floodgates for competitors but it could also spark a firestorm of litigation against Amazon. “I have no ideological axe to grind; I just thought, 'this is interesting; I can have some fun here”, quoth Mr. Calveley who may well be having fun while Amazon’s executive glance nervously over their shoulders following the odd sleepless night. Looks like Mr. Calveley’s involvement in the battle for Middle
Earth has certainly imbued him with a sense of romance and adventure. There's a lot of holes in that dyke
Who tries to measure these things? Well, the National Consumer Council have had a go. According to an on-line poll conducted through YouGov some 55% of the 200 or so adults who took part admitted that they copied CDs onto their iPods, MP3 players, computers and other equipment. Most of these respondents did not, apparently, realise that such 'domestic' copying was an illegal breach of copyright. Some, I suspect, knew full well that it was illegal but went ahead and did it anyway. The NCC have made much hay from this sunshine, using the survey results to bolster their campaign for what they call a "shake up"in the copyright laws. Said "shake up" will include the right to copy for what the NCC calls 'private use'. Yes, it sounds reasonable and, given the evidence of the extent of illegal domestic copying, maybe it would be a case of simply accepting the de facto as de jure. However, I am of the opinion that creating a legal exception for 'private use' will not solve any problems because of the difficulty of defining and placing limits on that concept. Drawing the lines anywhere will still leave plenty of room for misinterpretations, absurdities and outraged consumers. A rather eminent British IP lawyer is once reputed to have remarked
that copyright law is only tolerated at all because trivial infringements
were not enforced. I think there is a great deal of merit in that
view. I also think that the least worst solution to the problem
of 'private use' may just be to carry on in that vein. IP to make you smile But, I wonder how many people would find the ubiquitous ‘smiley’ quite so charming if they knew that it was the property of Wal-mart? Yes, indeed, and oh-horror of horrors, the US retailing giant is seriously making a bid to claim the Trade Mark on the smiley symbol that it currently uses in its otherwise soulless outlets. However, and before the blood of any anti-IP campaigners begins to boil over, this is not a case of Wal-mart .v. the public domain because unbeknownst to many (including me, I might add) the Trade Mark of the smiley is already claimed by a London-based French businessman called Franklin Loufrani. Mr. Loufrani claims to have invented the smiley symbol as a feelgood exercise in the wake of the student riots in France in 1968. His company, SmileyWorld, collects royalties on the sale of smiley merchandise. However, Mr. Loufrani failed in his attempt to register the Trade Mark in the USA and thus the door is open for the Wal-mart gambit. Wal-mart have apparently confirmed that they will not seek to prohibit anybody using the smiley in their e-mails but they will (assuming their application succeeds) stop any commercial use of the symbol. Potentially bad news for anyone who is (or is considering) using
the smiley icon in their business. Perhaps they could use a ‘frownie’
instead? This is a blog-type article simulator
In pursuit of this, may I direct your weary and flagging attention to the Patently Silly website. Well, actually it’s a blog the entire purpose of which is to unearth and poke fun at some of the sillier and more ludicrous devices which have been patented by the US Patent and Trademark Office. Among the leading contenders in this Impossible-To-Keep-A-Straight-Face special category has to be the ‘Process for the Utilisation of Ruminant Animal Methane Emissions’, inspired, apparently, by the urgent need to save our planet from these reckless, polluting cows. Equally hilarious (and designed to tackle a similar problem) is the ‘Receptacle Assembly For Receiving Canine Fecal Matter’. Yes, someone really has invented dog diapers! There are also ‘Magic Bean Wishes’ (which must be read to be believed) and, possibly, the least marketable of all is the ‘Water Skipping Article Incorporating Elliptical Outline and Hollowed Interior Core’. How does the inventor imagine that he is going to get people to cough up for a plastic widget that can only be used once in replacement for an absolutely free pebble? Oblivion awaits, methinks. But there we have it. Some patents earn fortunes for their owners
but, in the scheme of things, very few really. Of course, those
money-spinners get all the publicity (both good and bad). However,
most patents never make it to the market, instead they spend their
lives gathering dust in the patent office archives and failing to
earn their inventors so much as a bean (or even a magic bean). Highly inscrutable Take Research In Motion, producers of the highly popular and successful ‘Blackberry’ range of mobile telephones. After years of struggling to try to break into the expansive and lucrative Chinese market without much success, they have now been hit with the news that China Unicom is about to launch the ‘Redberry’ onto their home market. Whether, and to what extent, the Redberry replicates the functions or design of the Blackberry, I cannot say but it is pretty clear that the name has been chosen in order to cash in on Blackberry’s success. Since the name Blackberry is the Trade Mark property of Research In Motion (RIM), they have every right to seek enforcement and, in most of the developed world, their efforts would prove fruitful. |
