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But what about this? In Europe at least, ‘Big Media’ appears to be in direct conflict with ‘Big Sport’ over the latter’s IP ambitions. ‘Big Sport’ (for want of a better term) generates big money which, in turn and inevitably, generates a desire to protect those huge income streams. Consequently, ‘Big Sport’ has been intensively lobbying the European Parliament for new laws to which would extend IP protection to cover every aspect of modern sport from club kit designs and logos to names and media rights. The incentives are obvious. The more ‘Big Sport’ can control its interface with the public, the more profit it can generate. However, the European Parliament has declined to give them everything they want, at least for the moment. I am sure it will come as good news to all those people who think that sportsmen in general, and footballers in particular, are already vastly overpaid. Instead, they made a rather pointed recommendation to both the Commission and member states to strengthen IP laws in respect of things like club logos, brand names and media communications. The stated reason for refusing to go further was a concern that too much IP power in the hands of ‘Big Sport’ might impinge on press freedom. So who’s the bogeyman now? But, as per usual, I rather think that this is far from the end of the matter. The lobbying will continue at both European and national level where the stakes make the struggle worthwhile (and I thinking here in particular about the hugely globally-popular English Premier League). How funny to think that the media may, for once, find itself lobbying
against more IP laws. The never-ending session Session musicians are the ‘hired hands’ of the music industry. They are often highly respected within the industry but are seldom known or heard of outside of it. They turn up at the recording sessions of the music stars, play their instruments, charge their fee and go home again. However, could that now change as a result of Mr. McCreevy’s proposals? It occurs to me that it could represent a very major change in the current business model of the recording industry. For example, there may be some session musicians willing to forego their fee (or accept a lower fee) in return for a larger share of the royalties. This would result in lower production costs and make it easier for struggling or lesser-known artists to get their music made and distributed. But, in turn, that would mean that the session musicians would have to carefully judge which songs were likely to be hits in order to make their return. In effect, they become investors in the product. So, will working with royalties make session musicians more entrepreneurial? Well, perhaps but I must admit that I am probably reaching a bit here. After all, the royalty proposal is, at this stage, just a proposal and I should think that quite a lot has to be done before it becomes a reality. Secondly, even if it does become a reality, session players may still elect to take both fees and royalty. I suppose I would. But speculation over the future shape of business models is fun
and I just could not resist the temptation to take a run at this
one. Put that guillotine down, Monseiur My tentative predictions were borne out rather more quickly than even I had anticipated with the UK government, among others, seemingly picking up the idea and seriously toying with it. However, plans for similar measures here were somewhat setback by resistance from the net industry which refused (rightly in my opinion) the policing role. Now the ‘guillotine’ movement (for want of a better term) has been dealt another blow, this time by the European Parliament which has – only narrowly, mind you – voted against the proposal of a implementing this measure Europe-wide. But this does not mean that the idea is dead in the water. Far from it. The European Parliament vote does not have force of law, which means that the various national governments now have it within their gift to legislate for it domestically. However, this ‘no’ vote does have the effect of knocking some of the moral impetus out of the idea. This is not to say that it won’t spread, but I do think it makes the spreading more of an uphill task. I don’t think that the French government will be deterred and I also think that the music industry will lobby intensively to keep the idea afloat in the UK as well. Other countries may or may not follow suit. But, and overall, I think that the music industry will not get the kind of global, universal approach they want with this idea and, even in countries that do implement the ‘guillotine law’, it still remains to be seen as to whether or not it actually works. The war drags on. Intelligent use of fair use? Yoko Ono is suing a company called ’Premise Media’ who have made a documentary called ‘No intelligence allowed’ wherein they question Darwinian theories of evolution. The problem has been caused by the film-maker’s use of the famous John Lennon song ‘Imagine’ in the soundtrack of the film. Ms. Ono claims that this is copyright infringement and Premise Media, in turn, claim protection under the doctrine of ‘Fair Use’ (they having employed no more than an excerpt from the song, apparently). Now the difficulty with the ‘Fair Use’ doctrine is that it is very difficult to define what actually constitutes ‘fair’. It all depends on circumstances and must, therefore, be judged on a case-by-case basis. So, who can say in advance how this one will turn out? For my part, I am pleased to see that the ‘Fair Use’ doctrine is still alive and well in the USA. Contrast this with the UK where the principle has been circumscribed into near-extinction (insensibly in my view) by the Copyright, Designs and Patents Act 1988 and subsequent amendments. Of course, I have no idea as to whether Ms. Ono’s claim will be vindicated by the courts. But I do suspect that there may be a political subtext here. After all, John Lennon implored his listeners to “imagine no religion” and, while the film-makers may not exactly be religious-types themselves, the whole idea of ‘intelligent design’ is much more borne of religious philosophy than scientific inquiry. I am looking forward to seeing how this one turns out. But I am
not expecting any divine interventions. Don't go to jail The move comes shortly after the ‘IP crime Directive’ which was enacted last year and seeks to impose criminal penalties on illegal file-sharers (to add to the civil penalties they may face). Supporters of the IP crime Directive insist that criminal sanctions would only be employed against persistent, industrial offenders, i.e. criminal gangs looking to make profits from copyright theft, as opposed to the solitary, doing-it-for-fun consumers who just want to listen to music. So how does the latest European Parliament announcement make any difference? It seems, on the face of things at least, that everyone is agreed that only the professional, organised copyright thieves should be punished. The various factions just appear to have come to this conclusion from different directions. But, as is often the case, perceptions are more important that the actuality. By taking the stand they have, the European Parliament members have sent out a pretty clear message that they do want the net to flow in Europe. That is the real concern behind the criminalisation of file-sharing; not that some serious counterfeit gangs face justice (they should) but that, in the process of pursuing them and shutting them down, a whole lot of other people are simply intimidated off of the net. This has been, and may still yet be, a long and winding road but
I think I can see some signs that a broad consensus is emerging
as to where the lines of legitimacy should be drawn. My own private Leicestershire The actual answer lies in the protected IP status of both. Yes, indeed, the Melton Mowbray Pork Pie has been granted Protected Geographical Status under European Union law. Henceforth, only pork pies produced in the Melton Mowbray region (in the English county of Leicestershire) can be branded as ‘Melton Mowbray Pork Pies’. Of course, sparkling wine produced in the Champagne region of France has enjoyed this status for many years. So now that the Melton Mowbray pork pie (which is distinguished by its being made with uncured instead of cured pork) enjoys IP protection in Europe, it does remain to be seen what protection it enjoys outside of Europe. While I believe that US law does extend some recognition of the PGS status to products, I am still not sure whether the Melton Mowbray brand could be as easily enforced there. The same applies to, say, Australia or Japan or South Africa or anywhere else that is not subject to European law. The thing about this PGS status (or the similar Protected Designation of Origin) is that it seems to be entirely a European creature, borne, I think, from the time-honoured Bonapartist tendency towards protectionism. I cannot imagine that such a concept would ever have emerged from the Anglo-Saxon world. However, that has not stopped this particular group of British
producers from taking advantage of it. Doubtless, one needs every
advantage one can get in the cut-throat world of pork pie making
(no Sweeney Todd jokes, please). The rights to Armageddon As if all that wasn’t enough of a disincentive, you may well have to cope with the additional hurdle of patent protection. No, I am not making this up. It seems that the atom bomb is subject to no less than 2000 patents. To make matters even more forbidding, they are all owned by the US government which (presumably) has no shortage of financial muscle to enforce them. However, this does give rise to some other possibilities when it comes to dealing with the subject of nuclear non-proliferation, the process whereby big countries with nuclear weapons seek to prevent smaller countries from developing nuclear weapons. Instead of using the current combination of bribes and threats, the US government could just threaten to sue them for patent infringement. That would surely make them think twice. On the other hand, there is the risk that the bluff will be called and then some sort of court case would have to ensue, during which the US government would have to disclose its patents, thereby leaking these highly sensitive details to the entire world. I suppose that would rather defeat the object. It’s all a bit too much for me. I think I will ditch my plans
to build an atom bomb (not that I ever had any to begin with). Better,
I think, to stick to putting up shelves in my study. Yes, I accept...what? Now, a question for you; how many of you know and understand the terms of your software licence? How many of you even bothered to read the terms of your licence? How many of you are even aware that such a licence exists? I am going to hazard that the answer to the first two questions is "none" and that the answer to the third question is "very few". See, in most cases, when people purchase software programmes for their hardware, they just click through the necessary steps including the one that asks them to accept or reject the terms of the licence without bothering to take the time to read it or even glance at it. It's all just part of the process and what most people want from their computers is speed and efficiency not headache-inducing small print. So, when the National Consumer Council complains that software licences are "obscure, unfair and unbalanced" who is in a position to argue with them? Certainly not the consumers, who seldom bother to read the wretched things. The complaint, which has been filed with the Office of Fair Trading, calls for licences to be written in plain English and for consumers to be given proper notice of them. I wholly sympathise with any lay person who is trying to pick some sense out of the gobbledegook that passes for most IP licences. That job is hard enough for seasoned lawyers. However, I am less inclined to blame the software vendors for the alleged 'lack of notice'. In most cases, the licences are available to peruse prior to completing purchase and the vendors are likely to act accordingly if their customers take the time and trouble to read them and, consequently, refuse to purchase the software. It always takes two to make a bargain. But, for as long as consumers
cherish speed and convenience over greater rights, I cannot see
things changing. Public domain or private space? I say this because of the increasing awareness of the growing issue of who, precisely, owns private data that is available from the ostensible public domain. For example, if I have a profile up at, say, MySpace or Facebook then surely the information it contains is in the public domain? If so, does that include information such as my e-mail address and telephone number? The PCC consultation will actually focus on the very important question of privacy but, of course, the issue of copyright is intimately linked in with this. Some help on this issue can be gleaned from the social networking sites themselves. Facebook’s terms of use have a section devoted to User Content which is licensed to Facebook for as long it is posted, although ownership is retained by the User in question. The licence terminates automatically and immediately when the User withdraws the content from the site. So where does that leave a third party (say, a newspaper or a blogger) who wishes to copy some or all of that content. Can Facebook grant them a sub-licence? And, if so, on what terms? If the User subsequently withdraws the information from the site, then does the sub-licence expire? If a third party has copied the information without authorisation, then who has a right of action? The site? The User? So many questions and so few answers. Or so few clear answers, at any rate. I suppose that, at some point, somebody take legal action against someone else based on exactly this issue and, assuming we get a decision, then we may get some clarification. In the meantime, expect a lot of beard-stroking and uncertainty. Music industry with Chinese characteristics There has been a lot of press coverage about the effect of this on Western companies who, on the one hand, relish the opportunity to peddle their digital goodies in the world’s largest market but, on the hand, are reluctant to do so in case they find that their digital goodies are all being stolen out from under their noses. But what is China's response to this? Rather sanguine, it seems. Chinese performers, unable to earn royalties because of extensive illegal file-sharing are, instead, making their money from performing at commercial gigs. And rather than follow the course taken by their Western counterparts (i.e. hire an army of lawyers to sue the pants of illegal file-sharers), Chinese companies seem to have given up on what they regard as a lost cause. This is evidenced by the China’s largest independent music company ‘Modern Sky’ who have made their entire collection available for free on Baidu.com, the country’s largest search engine. So it seems that the sheer inability to collect royalties has forced the Chinese record industry into adopting a different business model from that of their Western counterparts. Assuming it proves successful, will the Westerners follow suit? Not in the short-term at least. The Western companies are having some degree of success at shutting down the pirates and while that success continues, I think they will make the effort to trudge down it. However, there are now at least two different music industry models
strutting the world stage and that is quite interesting. A matter of time If you haven’t guessed already then we are talking about copyright term limits, specifically those for recorded music which currently stand at 50 years after first public broadcast. Following some intense lobbying by such pop luminaries as Sir Cliff Richard, the EU Commission has finally caved-in and proposed an extension of the copyright protection to 95 years. Assuming this makes its way into law (and there is no reason to believe that it won’t) then it will follow the standard set by the USA a few years ago, where a similar extension was enacted into law courtesy of Congressman Sonny Bono. Of course, the American precedent was not mentioned as the reason for the Commission decision. Instead, the justification given is that artists who perform the song should be treated similarly to the artist who writes the song (and who currently enjoys copyright protection which extends to 70 years after death). Personally, I am not sure about the IP regime being used to reflect these kinds of value judgements. But there we have it. The Commission proposal will, I am sure, be music to the ears
(pun intended) of ageing stars such as Sir Cliff and Roger Daltry
who would otherwise be facing the prospect of their hit records
from the late 1950’s and early 1960’s dropping off the end of the
IP protection sphere. Still, it does bear out the time-honoured
axiom that old rock stars never die, they just go on collecting
royalties. Take me out to the ballpark The case in point is that of the New England Patriots who, having been on a straight winning run of 18 games, got to the Superbowl final confidently expecting it to be their 19th consecutive win. In fact, so confident were they that the applied for Trade Mark protection for the term '19-0'. I cannot begin to tell you how far-fetched and exotic that sounds from the point of view of an English football (read soccer) fan like me. It conjures up visions of cheerleaders who claim copyright over their dance routines. But, and joking aside, there is a serious point to their claim. It may be emotionally satisfying to wave the record triumphantly at the rivals but the real value to the team lies in the merchandising potential which can net them millions and for which Trade Mark protection is advisable. However, there is a cruel sting in this tale; namely that the Patriots failed to win that 19th game. Consequently, they now have Trade Mark protection for a record score that they do not (and may never) possess. I suppose they could hang on to their Trade Mark for long enough
to build up a 19-game winning streak again. But, given that this
appears unlikely, maybe they could sell the Trade Mark to one of
their rival teams who do manage such a feat. I daresay, it would
cause some rancour and no small degree of embarrassment, but at
least the Patriots would make some of their money back. Here be treasure, me hearties But, such is the case with the guys who run The Pirate Bay, based in normally conscientious, law-abiding Sweden of all places. For some time now, they have been providing their customers with links to places where they can download illegal copies of movies while providing them all the necessary BitTorrent software tools to enable them to download away with abandon. However, their swashbuckling days may soon be drawing to a close. The guys who run the operation have now been charged with conspiracy to break copyright law; a criminal charge which, upon conviction, could see the gang face jail terms of up to two years. I suspect that they will attempt to defend themselves by pointing out that they do not actually store any illegal files on their servers. They merely link to places where the illegal files can be found. Just pointing to something does not constitute doing that something. However, it may not work for them. It is obvious from the whole nature of their operation that they do a lot more than merely link. They encourage, abet and facilitate in full knowledge that their customers are helping themselves to illegal copies. I would be a little surprised if the owners do end up doing prison
time but I would be equally surprised if they remain unmolested
to carry on business as usual. These pirates may just be forced
to hang up their cutlasses. Match of the day The home side, the Football Association Premier League, is on the pitch and limbering up for a full-frontal attack on the visiting teams, QC Leisure and others. The stake? Monopoly rights to the broadcasting on English premier league football. Each side has set out its tactics. The FA has deployed the argument that visitors distribution of special decoder cards which enable football fans all over Europe to watch live premier league games for free and without having to pay subscription fees to either Sky TV or Setanta (the licensed broadcasters). The FA is crying 'foul' by claiming that distribution of the decoders is a deliberate breach of the Copyright, Designs and Patents Act. For their part, the visitors are undeterred. They say that they have not committed any breach of copyright law and they go to say that any attempt to stop them distributing this equipment amounts to a breach of European competition law. This has all the hallmarks of a classic European encounter, with the winner able to claim bragging rights for some time to come from the high-octane clash of IP .v. Competition Laws. The first leg ended in stalemate, when the FA was held to a draw in an attempt to stop the visitors at the English High Court. But that just leaves the way open for a showdown decider on appeal. Whatever the eventual outcome, everyone expects an exciting, full-throttle
encounter with no shortage of goals (and perhaps a few own-goals)
from each side. The echo of Eco-patents The jauntiness comes as a result of reading about a new project, launched only a few days ago, and called 'Eco-patents commons'. The idea is that big companies, such as IBM and Nokia donate their intellectual property to a sort of 'common pool' to help the environment. Apparently, 31 patents have already been donated into this 'green' public domain, including patents for a recyclable protective packaging material for electronic components from IBM, and mobile phones recycled into calculators and personal digital assistants from Nokia. The project has been established by the Geneva-based World Business Council for Sustainable Development and, according to their website blurb, they appear to have been at least partially inspired by the success of open source software. It all sounds very neat but (as per usual) I see another side to this. Patents are not money in the bank. In fact, most of the time they represent a lot of money going out of the bank in terms of development and commercialisation costs which, even if they are feasible at all, can run into the millions. Of course, those millions are a lot easier to find if you happen to be IBM or Nokia but I reckon that even those behemoths quite like the idea of getting the development costs off of their balance sheets in return for some very positive 'green' PR. And that raises the question of who, precisely, is going to fund the development/commercialisation costs now? Since, presumably, no-one can claim ownership of the donated patents, how will any investor realise a return? Maybe, as with open source, the patents will simply serve to inspire
other related ideas. Who can say? But, at the moment, there is a
danger that patents will go into the pool and simply stay there. Some light relief But, and against all odds, some sensibleness has emerged in the shape of a UK government proposal to amend UK copyright legislation to allow for the private copying of films and music. The proposal would also allow similar copying for schools and libraries. Although welcome, the proposal to relax the current legal regime is not actually that surprising as the government is merely implementing some of the recommendations set out in the 2006 Gowers Review of Intellectual Property. The changes will not be dramatic or sweeping but they will enable consumers to ‘format shift’, i.e. copy a purchased CD onto an MP3 player. This will solve the problem of consumers who fume (justifiably) over the fact that making a simple back-up copy of their purchased music or movie is currently illegal and sometimes physically impossible (due to built-in anti-copying mechanisms). I really do think that this is the right thing to do. While IP rights must be protected I feel that the law has been far too draconian in this respect and, like all such overkill laws, tends to undermine the principle it purports to uphold. But what about the industry
response? Usually, they can be relied upon to hit the roof whenever
some relaxation of the copyright laws is even hinted at. So far,
nothing. Is this because they are still girding their loins to enjoin
battle? Or is it because they actually take the same view as Mr.
Gowers? The latter is more likely, I think. Possibly they realise
that their interests are not best served by being seen as the enemy
of their customers so digging their heels in would not be sensible.
Let’s increase the sensibleness, people. Season of goodwill From his home at the North Pole, Santa has finally moved to crack down against what he calls 'grotto pirates' who, he claims, have been making a handsome profit through the unauthorised and illegal use of Santa's intellectual property. A spokesman for Santa's lawyers said "Year after year, these grotto pirates line their pockets by copying Santa's costume, Santa's image and Santa's idea of giving presents to children. They even have the nerve to copy his trademark "Ho Ho Ho" while they're doing it! This is totally unacceptable." However, the British Retailers Consortium has vowed to resist Santa's claims which they have labelled as 'spurious and uncharitable'. The consortium has issued a formal statement condemning the action and offering legal advice to any affected members. They say that 'Santa's grottos' are a time-honoured tradition in British department stores and shopping malls and belong in the public domain. Nonetheless, Santa's action is already beginning to bite. Mr. Ted Grumby, who has been playing Santa in the grotto at the Victoria Shopping Centre in Nottingham for the past 11 years, has already received a 'cease and desist' letter from Santa's lawyers. "It's totally unfair", said Mr. Grumby. "They are asking for some astronomical licence fee for me to go on playing Santa. I can't afford it. It will drive me out of the business. And whatever shall I do with my costume and fake beard? I will have to sell them. Is this what you call 'Christmas spirit'? So the row rumbles on and, whatever the eventual outcome, it seems
that a lot of children are not going to get the chance to sit on
Santa's knee this Christmas. Is DRM dying? Of course, consumer groups and activists have always been bitterly opposed to DRM, claiming (with some justification) that it puts unfair restrictions on media product consumers by preventing them from doing perfectly reasonable things such as make back-up copies of the CDs they have purchased. Although they may have been a bit shrill, it looks like those activists may have had a point because consumers are, as the saying goes, voting with their feet by declining to buy DRM-protected products. This, in turn, is depressing sales of such products and, therefore, hitting the profits of retailers such as Amazon and Wal-Mart. The pressure on DRM is now, in turn, coming from those retailers who are urging manufacturers to drop DRM or, in some cases, launching sales drives of non-DRM products. Compared to the lonely voice-in-the-wilderness activist, these retail giants can bellow the house down and that is exactly what they now appear to be doing. Can the manufacturers really afford to ignore the titanic financial clout of the latter? I am reminded of a saying that they have in the media industry: "content is king, but distribution is King Kong". When you add that kind of clamour to the persistent problem of grossly expensive (in terms of development) DRM technologies being conquered by hobbyists in their bedrooms, things start to look rather bleak for them. I am not sure if 2008 will see the end of DRM but it does look
as if it will mark the beginning of the end for DRM. Amazon grace Well, it appears that David has slain his Goliath, because Amazon have now proposed changes to their application which would restrict their patent (if granted) only to cover websites that also offer a shopping cart model. Full details of the changes can be read here. I think that this is a truly remarkable saga, made even more remarkable by the fact that the protagonist, Mr. Calveley, claims that he embarked upon his seemingly quixotic crusade out of nothing more than sheer boredom. As I opined back in October, a challenge like this may force big players like Amazon to put a lot more thought into their future applications, lest some annoying mouse scurry along and upset all their best-laid plans. Now that some annoying mouse has done exactly that and successfully, my opinion is resultantly doubled in certainty. In other words, I think that other campaigns such as this may well follow. Whether he likes it or not, and regardless of whether he intended it or not, Mr. Calveley has opened up a front with his pioneer spirit. While patent law has always been (rightly) regarded as complex and often opaque, it has also been seen as the preserve of the wealthy and powerful. It is that latter aspect of the reputation which may well have taken a telling hit, the result of which that lots more Peter Calveleys will now fancy their chances. Of course, their motivations might not be boredom but something altogether less amusing. Peter Calveley has his own blog, so potential copycats can learn first-hand from the pioneer
himself how he did it and how they might do it in the future. Sacre Bleu! The same holds true for illegal file-sharing. Instead of following the US example of suing perpetrators to kingdom come, the French have decided that the way to clamp down on them is to throw them offline. This process will be policed by a new anti-piracy body which has been specifically established for the purpose and whose job it will be to trawl the internet seeking out the disseminators of unauthorised content. When identified, offenders will receive a warning and then, if they persist, they will have their internet access terminated or suspended. The response (as always with these developments) is mixed. The International Federation of the Phonographic Industry has welcomed the new regime, whereas French consumer group UFC Que Choisir has denounced it as "anti-economic and against digital history". I have to admit that, on the face of it, the proposals do sound draconian but, on the hand, is it any worse for a music-mad teenager to have their internet access denied than it is for them to get slapped around the chops by a multi-million dollar lawsuit? And, bearing in mind that what they are doing is actually a criminal offence, should they not count themselves lucky not be fined or even imprisoned? I expect that this will be implemented without problems, such
as claims of injustice, widespread protest and technical difficulties.
It is all pretty much par for the course with any type on enforcement
online. But will it work? If it does genuinely curb the level of
internet piracy then maybe this 'French model' will catch on elsewhere.
It's early days yet, mon ami. Kindle for fire We agreed that it was only a matter of time before somebody or other produced such a thing and now they have. Amazon have today unveiled their electronic book which they call 'Kindle'. The Kindle does pretty much everything my friend and I speculated that such an invention would do. More, in fact, as not only can the Kindle download books over a wireless network receiver, but it can also download newspaper and magazine subscriptions and evens blogs. For the moment, however, the Kindle is only on sale in the USA. It also raises lots of very interesting IP questions. For example, if I pay to download a book to my Kindle, will I be able to then pass the book onto my friend's Kindle? And, if not, why note? Surely, the 'first-sale doctrine' will apply? And, if not, why not? And what about the publishing industry? Will it co-operate? Will authors and agents? How does the business model work? Since Amazon are in the business, I think I am safe in assuming that they have already thought through a lot of this and perhaps even worked most of it out. It will be interesting to see how it develops from an IP point of view. Just as interesting, for me at any rate, is whether the Kindle
(or the rival models which are likely to follow) will ever replace
'hard' books? The friend that I referred to above reckoned that
'hard' books would be difficult to replace with virtual versions
because of the sensually satisfying tactile 'feel' of a real book.
Well, now I have an opportunity to see whether or not he was right. Fit for a Prince Like all such armies they have infested with internet with fan sites such as this one, where they swap stories, post up fan photos, gossip and do whatever else it is that such smitten people do in these circumstances. Now, if I were a recording artist, I would be royally chuffed about this. After all, fame and fan-worship are my lifeblood and living respectively. But, apparently, Mr. Prince has adopted quite the contrary posture and such is the degree of his objection to all of this adulation that he has hired a host of legal heavies to weigh in on the hapless fans and force them to remove all photographs of said star from their various websites. The argument, of course, is that the photographs are the copyright of Prince and, hence, cannot be used with his express permission. The fans have countered by claiming that the majority of the photographs were snapped by fans who attended Prince concerts and, therefore, copyright vests in them and not Prince. Battle has been joined to such a degree that the various fan clubs have now got together and formed a united front against their own idol. How strange is that? I don't know, but if I was the one who needed fame in order to make a living, I wouldn't be too fussy about protecting my copyright from people who, while they may or may not be infringing it, are doing their level best to keep me in the spotlight. I would cheerfully let them get on with it. However, I am not Prince and he is not me. I just hope he doesn't
start whining if he wakes up one morning soon and finds that nobody
loves him anymore. Until the music stops And the key words here are "public domain" because the site was not built on illegal file-sharing or unauthorised copying. The site owner was scrupulous about respecting IP rights and only allowed scores in which copyright had expired to be uploaded onto the site. Things were going swimmingly until October of this year, when they were contacted by an Austrian publishing company called 'Universal Edition' who demanded that they block access to the site by European users. But how could this be when the site owners were respecting copyright? Well, the problem is that, in Canada, copyright in musical scores expires 50 years after the death of the composer but in EU countries that time limit is 70 years. Rather than face a possible legal battle, the entire IMSLP site has now been taken down (as you will see if you follow the link above). According to Universal Edition, businesses must comply both with their local laws and with the requirements of any other jurisdiction where their site is accessible, i.e. the entire world. If that assertion is established at law, then it is doubtful that any but the very largest organisations could cope with have to cater to so many different legal jurisdictions. On the other hand, if Universal Edition did sue then an Austrian Court might well conclude that it has no jurisdiction in Canada and even if it did, then it is unlikely that any Canadian court would enforce that judgment. To date, Universal Edition have not issued proceedings but the
consequences if they do would be interesting and potentially quite
dramatic. Gutted I shall clarify that rather cryptic opening. Mr. Calveley is a performance artist from New Zealand who, for reasons which are not entirely clear, but don't need to be, decided to fight a solo battle against Amazon's application for a 1-click shopping patent. After an 18-month long struggle, Mr. Calveley has managed to persuade the US Patent Office that some 21 out of the 26 claims filed as part of the application for patent status ought to be struck down as being prior art. The US Patent Office have now virtually gutted Amazon's application as a direct result. Actually, the application is not entirely defunct but Amazon will have a serious fight on their hands if they want to get anything resembling what they bargained for. So why did Mr. Calveley do it? What was in it for him? From all reports, he wasn't motivated by the prospect of riches (and even if he was, how would he earn them from challenging Amazon's patent?). Nor was he driven by any antipathy towards Amazon. He also denies being in any way anti-IP. In fact, he has denied any ideological motive for his actions, claiming only that he did it because he was bored and that there is not much else to do in New Zealand. I though they were all rugby-obsessed but perhaps Mr. Calveley doesn't possess the physique. But I think he has done us all a favour. I think that for patent
law to have a secure future it must be, and be seen to be, fair
and reasonable. By opposing the Amazon application, Mr. Calveley
has made it much more likely that huge companies like Amazon think
twice before trying to siphon up big chunks of technology and ideas
knowing that a challenge could come from anyone anywhere. If that
means that they are more scrupulous about their own processes in
future then that is a good thing. Altogether now The project appears to have two elements. The first element is the drawing up of a set of universally agreed online copyright principles relating to user-generated content, a sort of ‘copyright constitution’ for the internet. The principle are listed here. The second element of the project appears to consist of ganging up on Google. To date, Google has resisted joining the ‘big beast’ project and although the general prediction is that they will at some point, perhaps their minds are being somewhat concentrated by the current $1 billion lawsuit they are fighting with Viacom. Maybe the Google people feel they are being strong-armed into signing up for something they do not entirely like or agree with? Who knows? But further problems for the ‘constitution’ are mounting with another ‘beast’, namely YouTube, snubbing the project with the claim that such projects are "generally a bad idea". They may have a point. Consitutions may (or may not) work for nations but then nations have definable boundaries. The internet does not. I, too, have my doubts about the ‘constitution’. It is not that I think rules and laws are a bad idea, quite the opposite. It is more due to the fact that monitoring and enforcement is still such a patchy and difficult business in this rapidly evolving medium. A ‘constitution’ is a cure that may prove worse than the disease. On the other hand, this may be nothing more than an exercise in
corporate jockeying-for-market-position, in which case, it may have
already failed and, in that case, this may be the last we will hear
of the ‘constitution’. Let’s see. Harry Potter and the Doomed Lawsuit
What has Harry Potter got to do with India? Or with the Hindu religion? Nothing, but that is what the marketing people call 'penetration' but to a very serious degree. And one would think that the people whose job it is to make money out of the Harry Potter brand would be delighted. What could possibly be better the global cultural icon status? But, no, not even a bit delighted. In fact, Warner Bros promptly sued the festival organisers claiming copyright infringement. The case was rejected by an Indian Court in what seems like a sensible decision. The structure (a replica of the Hogwarts School for Wizards) is only temporary anyway. But I daresay that most people would regard the decision to actually sue a group of Indian Villagers over what amounts to a homage, to be ludicrously petty and rather ungrateful. While I can certainly see that point of view and certainly understand why Warner Bros emerge as the villains of the piece (despite losing) I also understand why they took the action they as they did. It is all to do with the way IP law works and, in particular, the principle that if you fail to enforce your IP rights then you can lose the right to do so. The 'damoclean sword' that hangs over IP rights holders concentrates their minds but forces them into highly defensive position that look for all the world like sheer bloody-mindedness but is, in fact, not. So I reckon that Warner Bros will not be concerned about losing.
The result matters little. But, as Harry Potter thrusts onwards
and upwards to conquer the universe, Warner Bros will able to enforce
their IP when it matters a lot. My Life Anyway, the “we” is actually a DNA genome scientist called Craig Venter who claims to have created artificial life. Okay, calm down those of you with visions of Frankenstein’s monster lurching forth from the castle laboratory to terrorise the local peasantry. The life created is by Mr. Venter is far less conspicuous, consisting of a synthetic chromosome built out of chemicals. The chromosome may not be lurching anywhere yet or terrorising any peasants but it is potentially the source of new energy sources and who knows what else could be developed from it. To me, it all seems jolly exciting and while I hate to play the part of spectre at the feast, it does occur to me that no-one seems to have mentioned the IP angle. Well, not yet any way. But I do predict that it will come up and quite soon and when it does it will cause feathers to fly in all directions. Remember the political controversy caused by companies like Monsanto claiming patents of genetically-modified food? I have no idea whether or not Mr. Venter intends to patent his creation but even if he does not, others will, sooner rather than later, enter this field of endeavour for fun and profit and some of them are bound to seek patents their creations. I can see the headlines now: “What price life?” If life itself can be owned (and I see no reason why it should not) then think just how much stink that is going to cause among the anti-everything activists. Ironically, it may be the controversy of IP rights to living organisms
that will actually force the whole issue out of the science press
and into the public arena. Flickr fluttr The nub of the problem seems to be a photograph of a sixteen year-old girl from Texas taken by her youth counsellor and subsequently posted on the internet photo-sharing site flickr.com. The photo (in which the girl was making the 'peace' sign) was considered so affecting that it was chosen by Virgin Mobile as the star of a global advertising campaign. So is this a straightforward case of copyright infringement? Well, not exactly. When the youth counsellor, Mr. Wong, uploaded the photograph onto flicker.com he was directed to chose an appropriate Creative Commons licence and he chose an 'Attribution' licence which means anyone else in the world can copy the work provided they give an appropriate attribution to the creator. Instead, Mr. Wong's lawsuit claims two things. First, that the use of the photograph constituted 'unauthorised and exploitative use' and, secondly, (and this is the part which is aimed at Creative Commons) that he was not provided with sufficient instruction as to the meaning and consequences of the licence he chose. The first claim is not unsurprising (which is not the same as saying that it has any merit). But the second claim is the one I find staggering. Unlike, it seems, every other lawyer in the world I do believe in personal responsibility and on that basis alone I have to say that I am rather cynical (to say the least) about Mr. Wong's claim. Of course, this is early days yet and more may come out (or drop
out) in the wash. But I hope the result does not adversely affect
Creative Commons which I have long regarded as worthwhile player
in the new internet/IP scene. Stubborn as a mule The problem with E-Donkey (from the industry point of view) has been its shifting and decentralised nature. Unlike file-sharing sites such as Grokster or Napster, E-Donkey is not owned by any identifiable person or company. Instead, it is run by a loose association of programmers who are constantly updating its protocols and shifting its location. Consequently, it has been a very tough nut to crack. But cracked it now has been, apparently. Thanks to the determined efforts of the International Federation of Phonographic Industries (the IFPI), who successfully applied for a series of injunctions in Germany, France and Holland, the E-Donkey network has been so disrupted as to effectively shut it down. Indeed, clicking on the link above to the website merely results in a terse message advising the browser that stealing music is illegal and that their IP number has been logged (at least, that is the case as of the time of typing this). So has E-Donkey finally been put down? Has internet music piracy now made its last stand? Well, in respect of the first question, we shall have to wait and see. On the one hand, a bunch of people who are clearly very skilled at staying elusive are likely to be skilled enough to find different pathways through which to continue their activities. On the other hand, there really is a lot of heat on them now and perhaps the main players, whoever they are, might feel that the cake is no longer worth the candle. As for the second question, my feeling is that the answer is no.
The internet is till a very big place and I think that somewhere,
somehow some piracy will persist. The question is degree. If the
music industry can whittle it down to nothing more than trifling
annoyance, they may well leave it that, having secured victory against
the major sources of revenue damage? Not lost at sea The answer is, by selling its name. Yes, that is exactly how the tiny Pacific atoll called 'Tokelau' reaped the dividends of the digital age and turned itself into an internet player. The facilitator of this remarkable little revolution is Dutchman Joost Zuurbier who, having spotted an investment opportunity in an as-yet untaken country level domain, opted for one of the few such domains remaining and thereby founded 'Dot.TK'. There are now some 1.6 million .tk customers who enjoy free registration as long as they agree to accept targeted banner and text advertising. A proportion of this revenue goes to Tokelau and this revenue has enabled this micro-state to increase its economy by 10%. As well as this greater prosperity, its citizens now enjoy broadband connections, internet cafes and VoIP services. All that from merely selling the name of their |
