Copyright

The UK goes for three strikes law

The UK is merrily going down the same yellow brick road as many other jurisdictions. This report is from Technollama:

The air of inevitability surrounding three strikes legislation in the UK came to its fruition yesterday with the announcement by Lord Mandelson that the government will seek to pass legislation that will force intermediaries to disconnect users involved in file-sharing. I hate to say “I told you so”, but I have been harping about three strikes for a while. The blogosphere is already replete with replies to the new development, so I will not add my voice to the overwhelming condemnation of this step by directing readers to ORG and PanGloss.

Posted on by mklang

Public Domain Calculators

Ever heard of Public Domain calculators? Well they have been part of by guilty conscience since May last year. The idea is to create a flowchart for calculating when works enter the public domain. And my guilty conscience? Well I still haven’t finished the Swedish version yet. I know, I know… Anyway the pressure is on again since there will be a Public Domain Calculator meeting organized by the Open Knowledge Foundation in Cambridge in November… High time to get to work, so where did I put my notes…

Public Domain Calculators

There is often a tendency to talk of ‘the public domain’ and of works falling out of copyright and ‘into the public domain’ – as though there is a single set of works which are out of copyright all over the world. In fact, of course, there are different national laws about the nature and duration of copyright in different types of works – and hence what is in the public domain is different in different countries.

We’re currently coordinating work to build a series of public domain calculators – which will help to determine whether or not a given work is in copyright in a given jurisdiction. At the time of writing we have been in touch with groups and individuals interested in helping to build the calculators in 17 jurisdictions.

In November, the Open Knowledge Foundation in association with the Centre for Intellectual Property and Information Law at the University of Cambridge are hosting a meeting of European experts on copyright and the digital public domain as part of the Communia project. The purpose of the workshop is to produce materials such as legal flow charts and public domain “algorithms” which will help with the representation of different national copyright laws and the determination of public domain status.

Details of the meeting are as follows:

  • Participate: Free but space is limited. If you are interested in coming, email the organizers at: info@okfn.org
    • Posted on by mklang

    Copyright in lectures

    Techdirt had an article that reminded me of an older discussion on the lecturers rights (copyright mainly) to their lectures. While on the face of it the question is easy. Of course lecturers have copyright in their own material. But the question becomes complex when discussing what lecturers with copyright should be allowed to do.

    But, it appears that copyright maximalism is seeping into the classrooms as well. In the last couple of years, we’ve seen a lawsuit over a note taking service — claiming lectures are covered by copyright — and a professor demanding that students destroy all their notes at the end of the year since the professor claims he holds the copyright.

    Michael Scott points us to a similar story, involving a Harvard grad who is running a non-profit notetaking service. While there’s no lawsuit or anything yet, there is a discussion on whether or not the professors’ lectures are covered by copyright

    In April 2008 I wrote about Professor Michael Moulton who was using copyright to prevent students from selling their notes.

    Standing and talking i.e. giving a lecture is not copyrightable per se, this is actually a good thing as most lectures tend to be the explanation of the works of many others (not all mentioned). A lecture on basic copyright law will include ideas and direct quotes from the law, courts and often other jurists. The nature of the lecture is to educate the audience on a certain issue and therefore cannot be only the ideas and opinions of the lecturer. This use of the ideas and texts of others is neither copyright infringement or plagiarism.

    The lecture becomes copyrightable when it is a derivative work of the lecture notes. In other words a lecture given without notes is not copyrightable, nor is a lecture given from notes taken from the public domain. If the non-copyrightable lecture is filmed or recorded then the copyright goes to the person recording (the director).

    The “right” of the lecturer to refuse the audience to record is actually not a question of copyright but more a question of labor law. For example, if I were to refuse to let my students record me the question would be one of my refusal to carry out my job as a lecturer. The ensuing discussion between my employer and me would be a re-negotiation of my contract to take into account the audiences’ desire to record my work. Many lecturers I have spoken to are not aware of this position and some react very strongly to being recorded while they work. The audience taking notes is a developed fair use but again the lecturer could theoretically refuse to talk if someone were holding a pen (as with a recording device) but it is doubtful that the academic employer would support this position.

    Posted on by mklang

    Olympics threaten photographer

    In what is an incredible attempt at Copyfraud and general corporate bullying the nasty International Olympic Committee once again attempts to use its power of intimidation to stamp on an individual photographer (via BoingBoing).

    On August 12, 2008 Richard Giles posted the photo Beijing Olympics Water Cube below onto his flickr account under a Creative Commons BY-NC license.

    The act of uploading a photo flickr is nothing in unusual since there are over 120 million Creative Commons licensed images on flickr.

    So imagine his surprised when he received a letter dated 6 October 2009 from the International Olympic Committee (IOC) in Lausanne Switzerland. This became even better when he read on and saw it was a Cease & Desist letter. Here are some excerpts from the letter

    [THE IOC] …has recently become aware that you are currently licensing pictures from the 2008 Beijing Games on you flickr account…

    …when entering any Olympic venue, you are subject to the terms and conditions mentioned on the back of the entry tickets, under which images of the Games taken by you may not be used for any purpose other than private, which does not include licensing of the pictures to third parties.

    In addition, please be advised that the Olympic identifications such as the Olmpic rings, the emblems and mascots of the Olympic Games, the word “Olympic” and images of the Olympic Games belong to the IOC and cannot be used without its prior consent.

    click to enlarge

    Ignoring the whole issue of fair use the IOC has a very strange idea of what they are trying to protect and the methods with which they attempt to defend what they believe to be their rights.

    First they argue that images can only be used privately and not be licensed. Displaying ones own images on flickr may not be exactly private but it is hardly a commercial activity. Also the fact that he licenses his photo’s under a Creative Commons license cannot be seen as a violation of “…does not include licensing of the pictures …” If he has copyright in the images his right to license them under a CC license cannot be limited.

    The next problem occurs (well actually its probably the biggest problem) in the words “…when entering any Olympic venue…” and the problem is… the photograph was taken from outside the the venue.

    UPDATE: So actually the IOC refers to all Richards photographs including those taken in the arena. The one’s taken in the arena make for a more complex legal discussion (the terms on the ticket and so on). But even here the main thing is that the IOC allows private use. Richards posting to flickr is included in such use. He is not commercializing his photographs he is displaying his life online.

    The last issue is one of trademark. Trademark law naturally can prevent competitors from using others marks. But trademark law cannot be used to prevent a photographer from describing his photo as being from the Olympics. Neither can it, nor does it, prevent us from talking or writing about the Olympics – even without the IOC’s prior consent.

    Searching Richards photostream with the search term Olympics gives 287 results. But if you do a general search on flickr you get 860 000 photographs that match the search term. There must be thousands more photographs with Olympic content but are not connected to the search term.  This is not an excuse or a defense but it does make me wonder what the IOC is going to do…

    Posted on by mklang

    Effective Copyright

    In March this year William Patry presented at the Society for Computers and Law

    William Patry went on to surprise many by his emphatic rejection of an approach to copyright which classified it as property. He sees it as a creature of a government programme, and believes that that should bring with it an approach akin to that applied to government housing or educational initiatives. In fact, the copyright debate is dominated by references to moral cases and what is right and just, with scant account taken of the public interest or economic realities.

    This is a very refreshing view of where copyright should be from one of the most important copyright figures in law today. Recently I ordered his book Moral Panics and the Copyright Wars which I hope (and believe) is as good as its hype so worth reading. You may want to check out William Patry’s blog.

    Posted on by mklang

    The three hurdles in the path of free culture

    Social advances (albeit unequally distributed) have granted people the leisure time to focus on the production of non-essential products and services. Advances in technology have radically reduced the costs for preserving and communicating these cultural artifacts beyond the boundaries of time and space. However it was not until the last 150 years where we have seen the technical and social advances necessary to enable widespread dispersion of the tools of cultural creation and communication to a wider group of users – the amateurs.
    The oldest of these technologies is the art of reading and writing which challenged the status of memory. Plato was aware of the conflict and wrote about the art of writing in Phaedrus:

    “…for this discovery of yours [writing] will create forgetfulness in the learners’ souls, because they will not use their memories; they will trust to the external written characters and not remember of themselves. The specific which you have discovered is an aid not to memory, but to reminiscence, and you give your disciples not truth, but only the semblance of truth; they will be hearers of many things and will have learned nothing; they will appear to be omniscient and will generally know nothing; they will be tiresome company, having the show of wisdom without the reality.”

    This criticism tends to repeat itself with each new technology that redresses the shift of power among those who create culture and those who create culture with the aid of new technology. Arguments similar to those presented by Plato were used in the discussions of the relationships between photography and copyright. Mediating culture with technology brings about discussions on which of the forms of culture are more valuable and deserve protection.

    In USA, after Congress amended the Copyright Act to include photography in 1865 the case of Burrow-Giles Lithographic Co. v. Sarony discussed whether the photographer Sarony could have sole rights to his portrait of Oscar Wilde. The United States Supreme Court ruled that photographs could be “representatives of original intellectual conceptions of an author.” While in the UK the courts stated in the Graves’ Case (1869) LR 4 QB 715 (a case under the Fine Arts Copyright Act 1862 dealing with a photograph of an engraving) that it was “…difficult to say what can be meant by an original photograph. All photographs are copies of some object.”

    From these illustrations it is my intention to show that the discussions of culture, technology, value and protection are under constant discussion and movement and therefore are neither fixed nor moving in a linear development from one stage to the next. With the widespread dissemination of a cheap and simple (both terms to be take relatively) technology of digitalization coupled with an open communications infrastructure further barriers to amateur production of culture were removed.

    This leads us up until today when the hurdles facing the individual wishing to become a cultural producer are no longer issues of time, economy or technical know-how. What are left are the two major barriers of creativity and copyright. Since it is beyond my ability to discuss the creativity of others I shall limit myself to developing what is meant by the limiting factor of copyright on the creativity of individuals by presenting the three main copyright related hurdles to free culture. The three hurdles are FUD, DRM & copyfraud. The common factor for these three hurdles is that they prevent the free use of cultural material in the development of new cultural artifacts and since our common cultural heritage provides the “raw material” in cultural production the means to develop new material is seriously curtailed.

    Fear Uncertainty & Doubt (FUD)
    The complexities of copyright have created a great deal of uncertainty among those actors attempting to create cultural artifacts while remaining within the limits of the law. The results of FUD favor inactivity since the perceived risks of violating copyright are seen as too great to risk. FUD is an important factor in different situations, for example: (1) where the creator intends to expose his/her product in a more formal setting e.g. a young film maker may easily add music or images to his/her film without permission but this will limit his/her ability to display the works to the public. (2) Orphaned works i.e. when the author of a work has been “lost” it becomes impossible to ask permission to reproduce and valuable cultural information is lost to the world. (3) The ability of museum and archives to reproduce or present their material to the world. At present the conflict between the National Gallery and Wikipedia provides an excellent illustration of this point. The latter is a great source of concern to many public cultural heritage institutions.

    Digital Restrictions Management (DRM)
    In an attempt to ensure control over intellectual property many organizations and individuals are implementing digital protection measures. The goal of these measures is to ensure that the copying and spreading of copyrightable material is prevented. However these digital measures tend to create rights for the owners that often go beyond the fair use rights of those attempting to consume the cultural artifacts. In addition to this, legislation intended to prevent users from circumventing digital protection measures have been enacted in most jurisdictions. The effect of such legislation is to make moot whether or not the user has fair use rights under copyright since he/she is illegally circumventing a digital protection measure.

    Copyfraud
    The general state of confusion surrounding the extent of protection granted by copyright is being used (intentionally and unintentionally) to claim copyright over material which either may not be copyrightable or material for which the period of copyright protection has passed. These illegitimate limitations to the public domain may of course be contested in court but such actions are costly, entail an element of risk and favor the party with better lawyers. Therefore material, which under copyright legislation is available to all, is prevented from becoming part of our common cultural raw material that may be freely used.

    Posted on by mklang

    Royalties and Rabbis

    Owners and managers of halls used for religious ceremonies in Israel have refused to pay copyright royalties since “…there is no halachic ruling requiring them to pay to play music at events such as weddings, bar mitzvahs and bris milahs.” (Vos iz Neias)
    Two of Israel’s prominent rabbis (HaRav Yosef Sholom Eliyashiv and HaRav Ovadiya Yosef) have ruled that wedding hall owners in that country’s religious communities must pay copyright royalties as required by law.

    “Since the hall owner receives a license to open the facility he is obligated to adhere to all legal requirements,” said HaRav Eliyashiv, “and if the law requires [paying royalties], he has to meet that obligation. If not his license is not a license.”
    Advertisement:

    HaRav Yosef responded to the question from a different angle. “Dina d’malchuta dina,” he explained. “Since the law in the State of Israel requires everybody to pay, those who fail to pay transgress the prohibition of gezel. This obligation applies even more to hall owners who keep Torah and mitzvahs, to ensure they do not cause chilul Hashem.”

    (via  At Last… the 1709 Copyright Blog)

    Posted on by mklang

    Another pro-copyright proposal

    Protecting old media, old school… an idea from the Becker Posner Blog:

    Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.

    Posner is an extremely influential American jurist with a intimidating pile of publications to his name. But that does not mean he is always right…  Using copyright to create protectionism is the opposite of creating and sustaining free markets.

    Posted on by mklang

    Disrespectful handling of digitalized cultural artifacts

    On several occasions I have had the opportunity to discuss digitalization of traditional media. In particular to images that are no longer covered by copyright. Those who act as caretakers and gatekeepers for these cultural treasures have long been positive to digitalization – but were quick to discover that digitalization alone is not enough. The turning point of public opinion occurred when the Library of Congress began its pilot project with Flickr in the Flickr Commons. Read more about it on the Library of Congress blog or the report from the pilot.

    Despite the anecdotal evidence, the gut feeling and the report some gatekeepers are still concerned about what will happen to “their” images if the plebeian mass can access them freely.

    At first I thought their fears stemmed from a loss of income from selling prints, but this seems not to be their main concern even if some do refer to this. There main concern is the way in which the images will be treated.

    They fear the disrespectful handling of digitalized cultural artifacts.

    Now you may well ask yourselves how a digitalized artifact may be manhandled? Obviously it is not about destruction but there are concerns about use. The legal protection is long gone. The photographs are long since in the public domain and can be used and abused at will. This is of concern to the caretakers/gatekeepers since they have been entrusted with the images in physical form. In almost all cases they have received the photographs with a promise that they are preserving a part of cultural heritage. They believe that in their role as cultural preservers lies a duty to ensure that the photographers honor is not sullied by disagreeable online use.

    And they know all too well that once digitalization and access has been granted there is no longer any control.

    While I am a copyright minimalist and I think our protection terms are way too long I do feel there is a point here. How can museums and archives fulfill their duty to preserve what they have received in trust while maintaining their duty to provide access to culture?

    Then I look at the work done by the Swedish National Heritage Board in relation to this question. They have put a small selection of their images on the Flickr Commons. A mere 274 photographs by Carl Curman (1833-1913).

    The photographs have been accessed over 200  000 time since 17 March this year, that’s less than four months! Or 50 000 views per month (K-Blogg).

    Besides pushing the almost unknown Carl Curman to a portion of internet fame the project at the Swedish National Heritage Board has brought back to life a set of dead photographs. Image how many times a photograph is seen in it’s lifetime. The average must be depressingly low. The most popular photograph in their project has been viewed 7805 times. Stop. Read the numbers and think. Seven thousand eight hundred and five times.

    Stockholm by Carl Curman now seen by one more person: You…

    Sure the photo will be ripped off. It will be posted on websites, stored on computers, used in presentations and the name of Carl Curman will be disassociated from the picture he took. Even more certain is that the Swedish Cultural Heritage Board will not be attributed enough for their thankless task of bringing this dead cultural artifact to life. But let us remember the old adage – no good dead goes unpunished.

    The role of the caretaker/gatekeeper is, not a they once believed it to be, to prevent access. In the real world, grubby fingers and clumsy handling destroy the real artifact and lose it to the whole world. That is why we should be kept away from the real thing. But in the digital world the same is not true. What the flickr commons shows beyond a doubt is that while digitalization is good, it is nothing without access.

    Ask Carl Curman.

    Posted on by mklang