New Waves of Copyright - Reform Proposed in the EU

In the last couple of years it seems that copyright has not been willing to stop in its transformation and moulding to its new home in a digital world. With recent reforms enacted in the UK, Australia and Ireland, among others, this writer for one has been waiting to see where things go in the coming years. In that vein, discussion has yet again been brought up on copyright, its efficacy and whether things should be changed entirely by European Parliament member Julia Reda in mid-January. Although this recent discussion seems very unlikely to yield any results as to change (says this writer in his ever-present cynicism); however it merits discussion, or at least addressing.

The draft report itself is quite brief, and shall be broken down into its respective headings.

Exclusive Rights

Ms. Reda, although a supported notion by many, does not want to eradicate copyright altogether. Copyright is an important decide to incentivize and reward independent, original creation, and this writer for one would never want to see it wholly removed from the world's IP scheme. Ms. Reda does, however, bring an interesting addition to this existing regime: "...[she] calls for improvements to the contractual position of authors and performers in relation to other rightholders and intermediaries". One can try to envision how, through law, the relationship between creator and funder could be improved, seeing as the relationship is (often) quite unbalanced by its nature. In the UK the freedom of contract is a corner-stone of contract law, and should be upheld, even if/when it has the capability to produce unbalanced contractual relations. This, by no means, should lead to unfair contractual terms, but it does not present a need for legal intervention in the scheme of copyright in itself.

A big point of contention within copyright has been fair dealing, and the allowance of using copyrighted material for the purposes of creating new, original works, or simply for the reporting or discussion of current events. Ms. Reda proposes that "...the EU legislator should further lower the barriers for re-use of public sector information by exempting works produced by the public sector - within the political, legal and administrative process - from copyright protection". In the UK at least, under the Re-use of Public Sector Information Regulations 2005, the use of such information is allowed under certain circumstances, and only through the consent of relevant governmental bodies. Although by no means perfect, it aims to safeguard potentially sensitive information from public viewing, even if requested through the Freedom of Information Act 2000. Ms. Reda's objective clearly is one of openness and freedom of publication for all; however this would present challenges if implemented with little or no restrictions.

When piracy failed politics was what was left for Captain Hook

Her final argument relating to exclusive rights is one which piqued this writer's interest: "[she] [c]alls on the Commission to safeguard public domain works, which are by definition not subject to copyright protection, and therefore should be used and re-used without technical or contractual barriers; also calls on the Commission to recognise the freedom of rightholders to voluntarily relinquish their rights and dedicate their works to the public domain". Arguably, her initial point seems like quite the obvious one, but, as the Sherlock Holmes saga (discussed here and here) has shown us, even if a work or works are in the public domain it doesn't necessarily mean they are there as firmly as one would believe. The public domain should, indeed, be the public domain, and all works within should be free to be used. Copyright protects specific expression, not ideas (as has been discussed prior in more detail), and once the expression is within the public domain (e.g. a specific story relating to Sherlock Holmes), it should be free to be used - even encompassing ideas within that expression. As for Ms. Reda's proposed right to relinquish any and all copyright interests in works voluntarily, a right could be recognized; however seems highly unnecessary given the function of copyright. Should the copyright holder of the original work just simply not pursue any claims of infringement, the rights are rendered effectively useless, albeit not void. Allowing for the relinquishing of rights does protect any subsequent derivative works from future malicious attacks from new rights holders, and would seem a great device to expand on copyright and the powers of rights holders on self-governance of their works.

Exceptions and Limitations

Exceptions, especially when it comes to private use of copyrighted content, have been a sore subject for a lot of parties involved. Too little allowance of use restricts the freedom to use your legally purchased materials, yet too few restrictions can lead to mass abuse of said content. In that vein, Ms. Reda has proposed major changes in this area, which should be addressed alongside the above.

Ms. Reda proposes that "...exceptions and limitations should be enjoyed in the digital environment without any unequal treatment compared to those granted in the analogue world". Arguably, this approach is very sensible, and this writer for one cannot think of an instance off the top of his head where digital would be excluded from exceptions when compared to its analogue counterpart. Nevertheless, this is something that should be enshrined in the back of any law pertaining to modern copyright, and defended to ensure the comfortable transition from the physical to the digital in the years to come.

She further proposes that "...all exceptions and limitations referred to in Directive 2001/29/EC [should be made mandatory], to allow equal access to cultural diversity across borders within the internal market and to improve legal security". This writer would argue that the introduction of exceptions is less about diversity, but more about the promotion of communication and the creation of new, potentially copyrightable, works. Whether all exceptions should be made mandatory is a question one cannot easily answer; however, quoting many parents, too much too quick can be bad, and a gradual introduction would be beneficial in the long run. Ms. Reda also wants to add more flexibility to the aforementioned exceptions, and her argument echoes that of US and Canadian fair use where the exceptions are less à la carte, and more malleable to a different assortment of uses based on the use and their impact on the original works.

Hyperlinking is currently the topic of choice at the ECJ, and Ms. Reda also proposes its protection, due to a lack of communication to a new public through hyperlinking. As has been discussed in both Svensson and BestWater, the ECJ seems to quite firmly protect this notion in Europe, and with the forthcoming decision in C More hopefully even further clarifying this, this write does not fret for the sake of hyperlinking in the near future.

Ms. Reda also suggests that "...the exception for caricature, parody and pastiche should apply regardless of the purpose of the parodic use" - something that this writer will wholly disagree with. Deckmyn was the most recent instance where parody was assessed on an EU-wide basis, and the purpose of use in terms of parody is an important consideration and should not be omitted. A borderless approach to parody will only create abuse and infringing works created under the veil of parody when no parody was intended. When using copyrighted works the use should be a genuine, bona fide parody use, which both protects expression and encourages it through creativity in parody and thus, potentially new protectable works.

Ms. Reda goes further into other exceptions, but for the sake of brevity, those will be left out, although still remain important considerations for the future.

Conclusion

The response at large to the proposal has been varied, and that's no surprise. What Ms. Reda is proposing is by no means revolutionary, and a lot of what is brought up, from an IP person's stand-point is worth protecting and/or extending copyright to in its little realm. Yet, what Ms. Reda's undoing is, is her affiliation with the Pirate Party. The image evoked to anyone involved in IP, especially rights holders, will be one of dismantlement, and a fear of the allowance of piracy and losing the very structure your livelihood depends on. Ms. Reda does not propose this; however she inevitably loses out on that one simple aspect: public relations.

This writer commends a lot of what she has put forth, and seeing how copyright has started to evolve in the last couple of years yields a tremendous amount of promise. Nevertheless, there are doubts as to the proposals and their efficacy in the future, but from an end-user perspective, Ms. Reda gives a glimmer of hope for a more open (i.e. less restrictive) copyright regime, which still aims to support the content creators out there and protect their works.

Source: IPKat

IP Iustitia Turns 2 Years Old!

I almost didn't realize that it already has been a year since our very first full year of blogging, but here it is: IP Iustitia has turned a respectable 2 years since its inception in the early days of 2013. This writer for one is humbled and quite surprised how things have developed over the last two years, with the blog steadily growing and garnering some momentum amongst the IP law sphere.

The blog's very inception was just to do one thing and one thing only; to further my own intellectual curiosity within IP, and to allow for myself to express that very curiosity in my own way within that area, while trying to educate (to what extent a blog can do this) and to, hopefully at least, entertain the ones who read my blog both regularly and irregularly. The response I've gotten over these two years has been very positive, and if they're any indication, will push me to improve even more in the coming years.

So far the blog has had 60,000 visitors, and even though it might not seem like a lot to the casual observer, to me personally it is more than I ever expected. The blog is also very near to reach its 500th Twitter follower, allowing for one and all to take part in the conversation, and to share/favorite any and all posts that I might send the Internet's way. I've had some great interactions with people and organizations on Twitter, and hope things will get even better in year #3!

There isn't a great deal else to say, but a big thank you to all of whom who've read my articles, commented, emailed or Tweeted my way, and hopefully you will all stick around for the years to come! The more you engage, the better it is for me to write and to participate in our lovely IP community; one which is without a doubt the most welcoming and friendly group of people I've ever had the pleasure of being associated with. IP Iustitia will continue to grow and to keep you updated on select topics within IP law, and bring about a healthy conversation on topics that might interest you or others.

Thank you again, and here's to a great 2015!

Lawyers Without Borders - Copyright Infringement Jurisdiction in the EU

With a globally interconnected web of information, and the (relatively) free exchange of information comes a great deal of questions alongside the masses of benefits it presents to the 21st century world. Discussion, the exchange of ideas, and the sharing of content has never been easier and more readily available, and admittedly, the infringement of intellectual property rights has also never been easier and "normal" (this writer, for one, has heard many conversations confirming the normality of especially copyright infringement). One can simply download a song, movie or a TV show with a few clicks of their mouse, irrespective of the rights holders' location, time or even the medium of the content (in some instances). This presents many challenges to the modern IP practitioner, amongst which is the conundrum that is jurisdiction. Can an entity or an individual enforce their rights even beyond their own borders, and if so, who has the jurisdiction over this infringement? Luckily, the highest court in the European Union has, yet again, graciously stepped up to the challenge to answer this question.

The case in question was Pez Hejduk v EnergieAgentur.NRW GmbH, decided only a bit over a month ago. What was at issue in the case were various pictures of architecture displaying works by Georg W. Reinberg, taken by the plaintiff in the case Pez Hejduk; a professional photographer of the aforementioned subject matter in her own right. A conference was organized by the defendants, EnergieAgentur, in 2004, during which Mr. Reinberg illustrated his works through Ms. Hejduk's photographs, which were wholly allowed by Ms. Hejduk to be used for. Afterwards, with no permission by Ms. Hejduk, the defendants then made the pictures available on their website for visitors to both view and download as they pleased, subsequently leading to Ms. Hejduk suing for copyright infringement (and a wallet-busting 4050 euros), ultimately leading to the European Court of Justice.

The question posed to the ECJ was, prima facie, a simple one: "Is Article 5(3) of [Regulation No 44/2001] to be interpreted as meaning that, in a dispute concerning an infringement of rights related to copyright which is alleged to have been committed by keeping a photograph accessible on a website, the website being operated under the top-level domain of a Member State other than that in which the proprietor of the right is domiciled, there is jurisdiction only: in the Member State in which the alleged perpetrator of the infringement is established; and in the Member State(s) to which the website, according to its content, is directed?"

What was asked effectively boils down to where the content lies, and whether jurisdiction lies within that country of origin (in the case the top-level domain, for example .co.uk) or in every Member State to which the content is directed. This was explained quite well in the judgment in different terms: "...whether Article 5(3)... must be interpreted as meaning that, in the event of an allegation of infringement of rights related to copyright which are guaranteed by the Member State of the court seised, that court has jurisdiction to hear an action for damages in respect of an infringement of those rights resulting from the placing of protected photographs online on a website accessible in its territorial jurisdiction".

Gregory asserted his jurisdiction no matter where he went

The Court's initial consideration related to the wording of the Article itself, i.e. where the harmful even occurred or may have occurred, deciding that, under established case law, it can be both the source of the infringement (where the website resides) or where the infringement or harm is caused (where the infringement occurs). Even though the defendant's action causing the potential damage was localized only to where their seat is (Germany), this does not prevent jurisdiction from the country in which the case was seised (i.e. filed, as Ms. Hejduk did so in Austria and not Germany). Lastly, the Court saw that there was no need for the infringement to have been directed to the jurisdiction in which the damage was caused, allowing for infringing content on foreign Member State website's to be brought into courts in different Member States where damage might have or did occur.

The Court finally summarized its position regarding the above question: "...Article 5(3) of Regulation No 44/2001 must be interpreted as meaning that, in the event of an allegation of infringement of copyright and rights related to copyright guaranteed by the Member State of the court seised, that court has jurisdiction, on the basis of the place where the damage occurred, to hear an action for damages in respect of an infringement of those rights resulting from the placing of protected photographs online on a website accessible in its territorial jurisdiction. That court has jurisdiction only to rule on the damage caused in the Member State within which the court is situated".

This case is an important statement of jurisdictional consideration, and allows for much more flexibility and freedom within the EU to bring forth claims of copyright infringement, even if that infringement occurs outside of your Member State. Any Member State's court can act as the judicator for damages, even if the court seised is different to the seat of the act of infringement. In an online world this is vastly important, and protects the interests of copyright holders much more effectively than through limitations allowing for claims only within the Member States where an alleged infringement has occurred.

Source: JDSupra

Retrospective - IP Infringement and Free Speech

Almost as holy as expression in its many forms, is the fact that, in most countries at least, expression is largely free of limitations, and that even dissenting opinions can, and should be voiced. With this vast freedom, especially in the United States, one can argue that the freedom of expression can be misused and utilized for nefarious means, or to harm others or their more intangible assets such as reputation or notoriety. In any instances where one's reputation is harmed through the freedom of expression (assuming that expression falls within the letter of the law), those parties would clearly want to prevent that speech through any means necessary; even more questionable ones. The attempted curtailment of speech has been discussed on this blog before, but that still leaves the question of can intellectual property rights be used to prevent freedom of expression? A case in the US Court of Appeals attempted to face this very question some decades ago.

The case in question was Rogers v Grimaldi, decided in the late 80s, which concerned a movie made by Frederico Fellini for the defendants in 1986. The subject matter of the movie, wonderfully titled as "Ginger and Fred", were two fictional cabaret dancers, Pippo and Amelia, who were known for their imitation of both Ginger Rogers (an Academy Award winning actress in the 1940s, and the plaintiff in the case), and Fred Astaire, who Ms. Rogers often co-starred with in various productions. The cabaret dancers were known as "Ginger and Fred" to their viewers in Italy, and the movie's title, and subsequent plot, refers to their reunion after years of retirement. After distribution within Europe and the US the movie was received rather negatively, and undoubtedly in the wake of this negative publicity, Ms. Rogers sued and claimed false designation of origin under 15 USC section 1125 and a violation of her common law rights to publicity.

Effectively what the case is assessing is a balance between free speech and the protection of an individual's (or entity's) rights in their trademarks, albeit more in the context of passing off than registered trademarks (more on which can be found here). Justice Newman presented the question well in the majority's opinion: "Poetic license is not without limits. The purchaser of a book, like the purchaser of a can of peas, has a right not to be misled as to the source of the product. Thus, it is well established that where the title of a movie or a book has acquired secondary meaning — that is, where the title is sufficiently well known that consumers associate it with a particular author's work — the holder of the rights to that title may prevent the use of the same or confusingly similar titles by other authors".

Frank was worried he would not be heard

In answering this question, the Court of Appeal approached the matter through a balance of public interest and those of any affected parties: "We believe that in general [15 USC 1125] should be construed to apply to artistic works only where the public interest in avoiding consumer confusion outweighs the public interest in free expression. In the context of allegedly misleading titles using a celebrity's name, that balance will normally not support application of the Act unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work". What Justice Newman's opinion states, is that the potentially misleading title has to apply to the work it represents, or in other words, has to showcase or illustrate the work somehow, and not merely mislead a person to pay for the work thinking it is connected to a potentially affected party such as Ms. Rogers. Arguably this approach is sensible, as the use of IP rights to protect those rights has to be legitimate, just as much as the use of those rights in conjunction with newer works is. Free speech should be promoted through legitimate use, and not stifled merely to further shallow interests such as fame.

The Court of Appeal lengthily discuss the nuances of this approaches application, yet, what remains relevant is the use and applicability of those rights to the underlying work, and the legitimacy of that use. Ms. Rogers relied heavily on survey and anecdotal evidence in establishing a claim of false advertising of designation of origin; however this was dismissed handily by the Court: "...the title "Ginger and Fred" surpasses the minimum threshold of artistic relevance to the film's content. The central characters in the film are nicknamed "Ginger" and "Fred," and these names are not arbitrarily chosen just to exploit the publicity value of their real life counterparts but instead have genuine relevance to the film's story". No amount of confusion, arguably at least, will counteract freedom of speech, so long as the use of a name or names is relevant to the underlying work. As such the Court of Appeal dismissed Ms. Rogers' appeal.

Freedom of expression poses an interesting balancing act of human rights and commercial interests (or even other human's rights against said expression). The European Court of Human Rights weighed on the issue of copyright interfering with freedom of expression in the case of Ashby Donald and Others v France (case text only in French), and deemed that "...a conviction based on copyright law for illegally reproducing or publicly communicating copyright protected material can be regarded as an interference with the right of freedom of expression and information under Article 10 of the European Convention". Even so, the case saw that the copyright interests asserted did trump the appellants' human rights, as their interests were purely commercial and did not contribute to a specific expression or discussion of opinion. As such, the case can be seen to align with the view that intellectual property rights should not hinder legitimate expression, but can, and should, be used to protect commercial interests.

Overall one can appreciate that freedom of speech is seen as a valuable tool for discussion and a strong point of public interest, yet it should not overshadow the protection of some rights, at least in some instances. A blatant use of copyrighted material, or trademarks, for the purposes of making a quick buck should be dissuaded; however one man's folly should not silence a nation.