26 May 2011

Response to Hargreaves Review

The first real 'disappointed' response was from the Association of Photographers (http://www.bjp-online.com/british-journal-of-photography/news/2073469/association-photographers-disappointed-hargreaves-review). Gwen Thomas, while agreeing that the rejection of fair use is welcomed feels that the lack of strengthening of moral rights in copyright is detrimental and therefore any extended licensing will not be as effective. Thomas also mentioned the lack of copyright reform.

However, the Orphan works problem would not be aided by contract law reform but hindered. to enforce all IPR's as contractual matters would mean not only that there is discord and uncertainty amongst the various consumers and creators, with some receiving better deals than others, but it would lead to unfair competition and further court based solutions to the problem of copyright infringement. Whenever there is a dependency on contract law, there is also the danger that those who can afford it will enforce will vigour and those smaller creators and businesses would be left to fend for themselves.

Michael Ware, PLMP (http://bulletin.sciencebusiness.net/news/75097/New-intellectual-property-laws-are-needed-to-drive-economic-growth), acknowledges that the digital media and ICT sectors will welcome the changes more than other industries because of the fast paced change which is not accounted for in our current copyright regime. He also states that the European Patent is something which many would struggle to contest, given that it would be a progression that makes sense and would reduce the need for individual applications across all member states (as it is currently).

There seems to be an overall feeling (particularly in the music industry) of victory regarding the rejection of the fair use concept, whether it is a pyrrhic victory remains to be seen.

25 May 2011

Copyright Cops EU Proposal

Michael Barnier of the Internal Market Commission has called for copyright infringements to be prevented 'at source'. Any proposals involving ISP's as an authority against intellectual property rights does not sit well with me. Similar ideas have been implemented via the Digital Economy Act in the UK and while the concept of the idea is understandable the practicalities of it are questionable. Should boot sale/music fair organisers be forced to police what is being sold at the stalls? Should charity shops refuse to accept books or CD's (because to re-sell them is breaching copyright)? Should Royal Mail/couriers be held liable for counterfeit goods being posted in the mail?

ISP's are providers of a service, they should not be legislatively charged with the burden of ensuring that all information transferred is of a legitimate nature. Progressive steps towards 'Internet Police' would be better placed with the correct authorities such as Trading Standards, the Police or another newly appointed body to ensure not only impartiality but correct and proper procedures for determining illegitimate use.

Idealistically, the concept that Internet Service Providers can police what is transmitted will work in a similar fashion to Youtube copyright infringments, whereby the copyright holder can inform them of any breaches. The volume of information which is being passed on the internet however could potentially open a massive can of worms.

Say I had a gallery of publically available pictures online, with no owner information provided - just pictures. Imagine a handful of people decided to use those pictures because not only were the pictures available to the public but the owner unidentifiable. The reasonable person would not assume that those handful of people had done anything drastically wrong. What is to stop me, the owner, then coming out of the shadows once the pictures had been copied and suing for copyright infringement while simultaneously contacted the 'copyright cops' (ISP's) to ask them to deal with the matter.

How many hundreds of people could claim copyright infringement when there is no actual monetary loss through the sharing of such material? How much strain would that put on the ISP as the police? Is it right that they are being held responsible for the information which is transferred amongst internet users?

Follow up to 'Copyright in Tattoo

Thankfully the judge hearing the case has decided that there should not be copyright over Mike Tyson's tattoo and the Hangover II has now been cleared to air as it should have done.

To rule in favour of the tattoo artist would lead to very difficult clearances before films or programmes could be aired. This is a welcome result, from the perspective of a film lover.

24 May 2011

Copyright in tattoo?

The Hangover II may be delayed due to a court case over the tattoo on Mike Tyson's face. While you can sympathise with 'creators' of photographs and tattoos there is a question of where to draw the line. If the tattoo is on a person, should that person be effectively covered by copyright where the artist will benefit? Should artists relinquish rights when its on the body or person of another? Or does the 'art' still belong to the creator?

Interesting questions are raised, although with the case being held in America it is still unknown how that will affect the release of Hangover II in the UK. Could an injunction be applicable worldwide? Its doubtful to say the least and while it may delay the release in USA, it will probably not affect the UK. What it does do is raise interesting points to consider regarding ownership of copyright and how far it extends.

My personal view is that personal outcomes such as photographs or tattoos should be owned by the subject, ie Mike Tyson in this case because to rule in favour of the artist creates an unfair hold over the people he has tattooed.

Maybe there will be a rise in self styled tattoos or commission based tattoos originally created on behalf of the person who will be tattooed?

Comments welcome.


What has come to be affectionately known as the 'Super Injunction' is currently a hot topic of debate. Following the recent leaks regarding a famous footballer and a not so famous reality TV star, the purpose and effectiveness of such injunctions has been called into question.

With instant access to information is it possible to ensure that the subject of the Super Injunction is never released. The latest 'scandal' has seen the name of the footballer, who we are not allowed to mention, plastered all over Twitter, a Scottish journalist and the Commons courtesy of our very own MP, John Hemming (relying on the principle of Parliamentary Privelege).

Whether privacy laws should even exist and the function of such an injunction is all very interesting but does it matter to those of us who are not in the public eye? I'm not so sure, firstly can the average person afford an injunction, costing thousands of pounds and secondly, is there anyone out there who would feel the need to spend that money making sure information does not fall into the public domain? Quite the opposite I would say, some would pay that kind of money to get their name INTO the public domain, with the advent of Big Brother, Facebook, MySpace, twitter and the like all aiming at getting average people (and more known folks obviously) into the public domain.

Apparently because the injunction does not relate to secrecy but to preventing harassment of the footballer by the press then it shall not be lifted - even after three attempts! "Lawyers for Giggs had previously obtained a High Court order asking Twitter to reveal details of users who had revealed his identity after thousands named him in recent days".(http://www.guardian.co.uk/law/2011/may/23/injunction-remains-high-court-rules). So not only does the law relating to privacy and protection from harassment (as claimed by the court in the injunction case) but should ordinary users of Twitter breach the provisions of the injunctions then they will face legal action. The lawyers have already obtained user details of Twitterers (? not sure what you officially call Twitter users and 'Twits' seems slightly harsh).

Problems remain however with age old problem of identifying users on the internet for purposes other than serious criminal offences, where the amount of investigating required would at least be justifiable. Do people put their true name and address on their Twitter registration? Is there a degree of anonymity for the users themselves? Should they be entitled to be free from harassment from speculative legal actions such as the obtaining of the users details? Should a court judge be given the ability to grant the information being obtained? Should users be allowed a degree of anonymity?

Ultimately, and here is the big question - do laws relating to the injunction translate well to the average person with little to lose and notoriety to gain? Maybe the law needs revamped or maybe, just maybe, the courts and parliament alike need to realise that not everything can be controlled from legal documentation and a harsh hand at enforcing documents such as the 'Super Injunction'.

As always, comments welcome.

18 May 2011

Copyright - "Digital Opportunity"

The final Hargreaves report starts out promising, addressing the various interested stakeholders while noting that these extend past authors and publishers but also other interested parties. There is also an explicit statement about the need for 'evidence based IP policy' and not lobbynomics - a voice of reason in a sea of chaos. It would seem that Hargreaves has identified the lobbying as skewing the previous reviews. The need to adapt evidence based policies rather than adhering to the lobbying of powerful interests (such as the music industry) is not only a bold introductory statement but a very accurate one.

The main proposal is the 'Digital Copyright Exchange' which will allow easier licensing of material thereby reducing transaction costs. Another major proposal is to allow the use of 'format shifting' (allowed by the EU but not adopted by the UK). Sensible proposals such as reducing transaction costs and enabling licensing of work to ensure revenue streams for creators whilst allowing consumers and businesses to use work protected by copyright seems like a governmental epiphany, so simple and straightforward yet so effective.

Licensing however, will bring its own problems and those should be monitored and adapted where necessary. The huge task of centralising a copyright exchange should not be understated or rushed through in an attempt to be seen as proactive.

The government response to the review so far only extends to Vince Cable who has been supportive of the recommendations. Further commentary and parliamentary discussion will now be interesting. Will the lobbyists continue to lobby so forcefully in light of Hargreaves' opening comments? Will consumers have a new-found respect for the copyright regime in the UK?

Personally, I think it will take some time for the information to sink in and seep through to the general public but for those who have been following the copyright debate - the review will come as welcome common sense. This may be affected by the fact that the Gowers review had a similar impact, yet many of the recommendations were subsequently shelved - will that happen with the Hargreaves review?

Overall the review is well laid out and although my aim is to critique - is it wrong to actually agree with much of the content?

Copyright - robust or weak?

The Hargreaves review raises some interesting points about the strength of copyright protection in the UK. Strong IP rights have created a world class IP regime in the past but recently, due to technological changes, there has been an ever increasing strain on the legitimacy of copyright in particular.

Patent rights have its own issues which will be addressed in later posts, but copyright has been the main victim to the changes in technology. There are however, distinct advantages to the very same technological changes such as digital technology and the Internet. iTunes, Spotify and LOVEFiLM have clearly spotted the niche in the digital market and grasped it with both hands, creating viable and successful businesses using the 'root cause of piracy' - the Internet and MP3 players. Amazon has also successfully managed to tap into the digital market by promoting e-books and the Kindle.

Individuals now have access to various sources of information, many requiring little or no effort to access. The information is susceptible to unauthorised copying, not least because it is available to more people but due to misconceptions amongst the general internet using public. Misconceptions such as unauthorised copying CD' to MP3's breaching copyright in the UK, as well as other innocent uses of information protected by copyright like copying parts of news articles for discussion amongst friends and copying pictures found on the internet.

What the review will do is highlight these misconceptions and re-iterate the legislative stance on each particular matter. Whether the private copying exception is introduced or not is still unknown, its introduction however may reinforce what is legitimate copying and what is not.

The two main opposing arguments are:

  • Robust copyright - called for by publishers, record industries, some authors: copyright should be robust as a financial incentive to create more material. If the investment dries up because of a lack of faith in returns of said investment, the quality of material will be reduced.
  • Weak copyright - open rights organisations, individuals (consumers) and some authors: copyright should be weak because its entry threshold is so low. Permitted uses of material enables further creation of material because it can be easily accessed and shared amongst creators.

The arguments are both valid and finding the balance will never be a simple task, not only because of difficulties in deciding who should benefit most from copyright but because the boundaries of such are always changing. Previously it may have been suitable to have broad copyright protection because enforcing those rights were largely easier, now with the amount of individual activity (as opposed to organised crime - bootlegging) those same rights are more difficult to administer and also to justify.

The justification for copyright changes through time depending on the needs of the government, authors/creators, competitors and consumers. Currently those needs are all equal as there are no preferred interested stakeholders. The review may strike that balance perfectly, while failing to recognise the practical constraints on the recommendations and therefore transferring these recommendations into legislative provisions may prove more difficult.

Easy entry into the copyright protection realm should mean that the resulting protection that copyright offers is equal to and representative of that entry. Unlike patents, which are extremely difficult to obtain and worthy of the robust protection that IP rights give, copyright protection should be relatively weaker than the patent protection.

Privacy - The EU debate

After the Max Mosley privacy debate played out for the European Court, there has been some clarification on the status of privacy within the UK. The Court confirmed that journalists do not need to check with the subject of the story before publishing, although Mosley made a compelling case.

The fact that the damage has already been done post publication leaves the remedy for such a breach of privacy rather useless. Damages do not change public opinion and the injunction is too late to be effective.

Super-injunctions have been used, where the recipient of the injunction is also shrouded in secrecy but there was a growing feeling that these were only being used by the rich and famous. Financially less well off people's reputations' are clearly not as important to the justice system was the impression that the general public were receiving.

The fact that the European Court has now clarified the use of privacy laws, as far as compatibility with EU goes, has been a welcome addition to the landscape of debate surrounding the current privacy laws.

17 May 2011

Copyright Review - Hargreaves (May 2011)

The Hargreaves review is due to be made public tomorrow following a comprehensive review into intellectual property. Whether the review aims to clarify the current copyright laws to be more in tune with current needs, is as yet unknown. It would seem unlikely that the 'Google Review' will take place, not only because of the implications it may have for the impartiality of the review following David Camerons remarks but mainly because of the 'groans and sighs' from publishers and content providers (note - not the actual authors per se!).

While certain organisations have already been made privy to the information contained within the review, its contents will be available for public consumption tomorrow. Privileged bodies afforded early readings were not OFCOM, ISP's, the police nor Trading Standards I hasten to add, but major record labels.

Whether the review will have any impact other than opposition to the subsequent recommendations leaves an air of trepidation amongst the interested stakeholders but not earth moving for the UK's overall copyright regime. The main changes proposed are thought to be the introduction of central digital clearing houses (similar to the way in which PRS operates), a new private copying exception (for personal use, such as copying a CD onto an MP3 player) and the 'Google review' would appear to be shelved.

If the review does indeed include more relaxed fair use provisions, by way of implementing the private copying exception then the privileged bodies may not be so agreeable with the proposition that the review is the deciding factor on the 'copyright war' (expressed by the BBC new report: http://www.bbc.co.uk/news/technology-13422652 "Who has won the copyright wars?").

Without wanting to analyse too deeply before reading the actual recommendations, theorising about whether the copyright protection afforded to owners should be enhanced or decreased or whether the enforcement of licensing rights should be the main target is all just that... theory.
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