17 April, 2015

Stifled Words - The DMCA and Censoring Free Speech

Since its enactment at the cusp of the 21st century, the Digital Millennium Copyright Act in the United States has been the subject of discussion within the IP community, practitioners and even the public in general. With its inception being in the early days of the internet, back when our full understanding of the scale and complexity it will achieve later in its life was all but naught, the provisions in the DMCA can be seen as being quite broad and outdated in their application to the Internet as we know it today. The Electronic Frontier Foundation published a white paper some 2 years ago, detailing very thoroughly the potential abuse of the DMCA and its provisions, and this writer can agree that the DMCA has its issues and needs to be addressed by the US legislature. That being said, a lot of laws have their negative applications (some IP related discussion can be found here and here), but could the DMCA be used to stifle free speech, even abroad?

For the uninitiated, under the DMCA a noticed can be issued to a service provider to request the taking down of copyright infringing works on that provider's services, for example, on a website, under 17 USC section 512. After a sufficient amount of information is provided, the content has to be taken down, should the material alleged actually be infringed as described. While the provision purely affects intellectual property rights, there have been instances where the takedown notice has been abused, and more often than not, service providers will comply with the request just to cover their own backs.

Discussions can be odd at times (Source: HiJinks Ensue)
A recent instance, as discussed above, prompted this writer to look into a matter where the DMCA was clearly used for more nefarious purposes, and not to protect legitimate interests in one's intellectual property. The case in question was Automattic Inc and Oliver Hotham v Nick Steiner, for which summary judgment was passed early last month (PDF copy can be downloaded here), regarded a young journalist called Oliver Hotham. Mr. Hotham, in his journalistic endeavors, contacted an organization called Straight Pride UK, one which advocates their notion of current discrimination of heterosexual people in the light of emerging gay rights. In his email communication to Straight Pride UK Mr. Hotham identified himself as a 'freelance journalist' and asked the organization some questions relating to them and their agenda. They promptly answered a week later, attaching a document titled "Press Release", in which they detailed their answers to most of Mr. Hotham's questions. He subsequently cleaned up the answers, rearranged them and published them in his blog article "It's great to be straight... yeah" (quoted in full here), which garnered a great deal of traction. Due to the article painting Straight Pride UK in a less beneficial light, they threatened to, and did, issue a takedown notice under the DMCA if the article wasn't take off Mr. Hotham's blog. Wordpress did, however, take down the article, yet after some voicing out on Mr. Hotham's part as to his ordeal, Wordpress took action and sued Straight Pride UK (through their representative, Nick Steiner) for abuse of the DMCA.

Under section 512(f) a claim can be brought against a false DMCA notice that has been issued through materially misrepresenting that the activity in question infringes their rights, i.e. that you claim someone's post on a website infringes your copyright when it (potentially at least) doesn't. Wordpress asserted that, as Mr. Steiner represented that "[the] [u]ser http://oliverhotham.wordpress.com did not have my permission to reproduce this content, on Wordpress.com or twitter account or tweets, no mention of material being published was made in communications... [and that] [i]t is of good faith belief that use of the material in the manner complained of here is not authorized by me, the copyright holder, or the law". As Mr. Hotham had identified himself as a journalist, and the work sent had been titled as a press release, clearly Mr. Hotham did not infringe copyright in the US, or hypothetically even in the UK had the case been brought forth here. Wordpress firmly contested Mr. Steiner's assertion and the court agreed with their argument, issuing a summary judgment in their favor.

Although the case discussed nothing in terms of substantive arguments relating to section 512(f), it highlights an important issue regarding the potential abuse of DMCA when it comes to freedom of expression, and not only limiting it to the US (as the case was here, and wholly related to two UK entities and a US service provider). Had Mr. Hotham not been a journalist (says the writer, writing his own 'journalistic' blog) the nature of the case could have been very different. The DMCA, or any provisions regarding copyright, should protect legitimate interests, and not merely those aiming to stifle criticism or dissent in the veil of protecting copyright. However, as was stated by Paul Sieminski, Chief Legal Counsel for Automattic: "...[this] DMCA abuse may go unpunished this time. But, we're heartened that our case makes some good new law for future cases. There's very little case law in this area, and previously no case law about what damages were available if a plaintiff were to win". Arguably this is very true, and serves as an important milestone in the protection of free speech under the DMCA.

Source: The Guardian

07 April, 2015

Links Galore - Hyperlinking Faces Its Third Challenge

After the Svensson and BestWater decisions hyperlinking seemed to already be a matter, which has been dealt with extensively and thoroughly. Even so, a third decision loomed in the horizon, hopefully shedding the final bit of light needed into the question of hyperlinking and copyright infringement. After the Svensson decision the questions posed to the Court were reduced to all but one, leaving more significance to that final question and its potential impact on the issue.

The case in question was C More Entertainment AB v Linus Sandberg, which dealt with the broadcasting of ice hockey games, which were supplied by C More for a nominal fee for those wishing to view the games live online as opposed to on TV. Linus Sandberg created links on a website to allow access to two ice hockey games without having to pay C More for the pleasure of doing so, allowing for users to watch paid-for content beyond their paywall protection; however C More quickly put a stop to this, and Mr. Sandberg only was able to post links to two games. He was also taken to court in Sweden over copyright infringement.

As said above only one question was referred to the ECJ: "May the Member States give wider protection to the exclusive right of authors by enabling “communication to the public” to cover a greater range of acts than provided for in Article 3(2) of [Directive 2001/29]?" The question, prima facie at least, clearly requires guidance on whether Member States can extend the coverage of what constitutes a 'communication to the public' beyond what is expressly provided in the Directive, namely the posting on hyperlinks to paid-for content such as hockey games.

In light of the Directive (namely Article 3) and its Preamble, the Court swiftly determined that Member States' rights in extending coverage could potentially cover the posting of hyperlinks to live, paid-for content. This, however, only applies to on-demand services, which the above service is not, as live broadcasts are not watched by individuals at a time that is convenient to them, but rather, at a strict prescribed time. The Court dismissed its applicability to the current situation, at least in light of Article 3, deeming Mr. Sandberg's actions not an infringement of the right of communication to the public via his hyperlinks.

Hyperlinks can be enticing...
With this in mind, the Court did not oust the possibility that Member States could extend the coverage of the provision beyond what has been expressly set out in the Directive. The aim of the Directive is to harmonize copyright within the EU, but does not, as was seen by the Court, "...prevent or remove any differences between the national legislations as regards the extent of the protection which the Member States may grant to the holders of the rights referred to in Article 3[] with regard to certain acts, such as those at issue in the main proceedings, which are not expressly referred to in that provision".

Following their argument the Court saw that under Directive 2006/115 Member States had the ability to give more far-reaching protection in relation to copyright when it comes to broadcasts and communication to the public. Article 8 even includes content, which is restricted by payment, as well as wireless communication of such content, for example via the Internet.

The Court then summarized its judgment on the matter: "It follows that Article 3(2) of Directive 2001/29 must be interpreted as not affecting the option open to the Member States, set out in Article 8(3) of Directive 2006/115, read in conjunction with recital 16 to that directive to grant broadcasting organisations the exclusive right to authorise or prohibit acts of communication to the public of their transmissions provided that such protection does not undermine that of copyright... Having regard to all the foregoing considerations, the answer to the question referred is that Article 3(2) of Directive 2001/29 must be interpreted as not precluding national legislation extending the exclusive right of the broadcasting organisations referred to in Article 3(2)(d) as regards acts of communication to the public which broadcasts of sporting fixtures made live on internet, such as those at issue in the main proceedings, may constitute, provided that such an extension does not undermine the protection of copyright".

While the decision is by no means as influential, at least in this writer's opinion, as Svensson or BestWater, to an extent, it still sets a potentially influential precedent should Member States wish to enact more wider coverage in relation to the communication to the public right. It does still leave the question of hyperlinking in more doubt, as links to newspaper articles have been deemed to infringe copyright, when links to live broadcasts would not. What happens now after the myriad of hyperlinking decisions in Member States remains to be seen; however the law is begging for more correction in terms of national application.

Source: IPKat

26 March, 2015

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

24 March, 2015

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!

18 March, 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

04 March, 2015

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.

22 February, 2015

Art Anew - Fan Art and Copyright

A big aspect of the modern scene of artistic expression is fan art. This, to the uninitiated, is using prior existing art, be it movies, music or pictures, as inspiration for your own works, often using the same characters, themes or settings, and constructing your own take on the heroes and heroins of your favorite stories. Prima facie a very innocent activity, and potentially quite beneficial for both parties, fan art is an important part of the creator and audience interaction; a form of silent appreciation and discussion on different views and fantasies of said art works. Even with this in mind, fan art does have its greyer areas, especially when it comes to profitability and potentially gaining from the fame of a work, effectively riding its coattails to success. A great example of fan-art-turned-success is the current hit movie 50 Shades of Grey, which (by many accounts) started its humble life as fan fiction of the popular book/movie franchise Twilight under the moniker "Master of the Universe". Where there is money there are lawsuits to be had, which begs the question: does fan art infringe copyright?

As has been discussed on this blog many of times (for example here and here), copyright protects expression, not ideas. Therefore a fan is more than capable of writing a story using similar elements (putting things simplistically), and won't necessarily be infringing the copyright in the original work your fan fiction or art draws from, or even illustrate those stories, especially if no official illustrations exist. Even with major differences (but not enough to be able to distinguish the work completely), what usually draws the line is the commercial use of your derivative works, at least in the interest of the copyright holders, as for most instances fan works just aren't worth the hassle of taking down or demanding licences for; after all, it's free marketing for your works.

This writer's take on a popular movie character
In terms of fans' derivative works, fair use or fair dealing offer the best avenue of protection should you choose to create your own works from existing copyright protected material. In the UK, under the Copyright, Designs and Patents Act 1988, fair dealing protects a finite set of categories under which the use of copyrighted material can be used without infringing the rights given. These categories, including use for criticism and review and for the creation of personal copies, don't offer a category through which to create new, derivative works. A new exception for use in terms of parody or pastiche (discussed here) clearly would allow for the use of copyrighted material for legitimate parody purposes, however leaving a non-parody based use outside of its scope. Overall, the UK leaves fans in the dark, at least in the fair dealing side of the law. What fans can argue, however, is that their work is a new, original artistic work, meriting protection in itself, much like the original works they've branched out from. Again, this is a rough road to travel, as the characters, settings etc. would have to differ quite significantly from the original piece, or become a story wholly unto its own in its development; something, which would be much harder to prove.

There is hope for fans within the common law, as the scheme for fair use in the US and Canada (more on the newer fair use considerations in Canada can be found here), offers a much more robust and flexible approach to the use of copyrighted material. Fair use allows for the use of copyrighted material assessed through four criteria: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.

If the fan creation in question is created for the purpose of entertainment, i.e. to share with other like-minded fans, and isn't solely to gain from the popularity of the work in a commercial sense (although this, by itself, doesn't negate fair use, so works can be sold and fall under fair use), most likely the work will be fine under the first criterion. If the work where the fan piece derives from is a lesser known, even potentially a non-commercial piece, the more likely it is for the fan piece to not infringe it. The second criterion is hard to assess in itself, without having a concrete example, but offers an insight into an important part of protecting the copyrighted work; the more commercial and/or successful it is, the more likely it is that the potentially infringing fan piece actually is infringing on its copyright. The third criterion is a case-by-case assessment of just how much the fan piece takes from the original work, i.e. how substantial is its use of the work in question. The less elements you use, the less likely it is to infringe, at least prima facie. Finally, the last criterion looks at the effect on the original work. Again, this is much harder to assess without a concrete example; however one can argue that the more commercially successful the fan work is, the more likely it is to affect the value of the original work. It has to be noted that fan pieces existing outside of the remit of the commercialization of the work probably will not infringe the original work, i.e. a song written about Harry Potter, not having been used for the purposes of the films or books.

In Canada the Copyright Act also allows for the creation of non-commercial user-generated content (discussed here) giving fans a real avenue to use works for their own purposes so long as the use isn't commercial. Where the line of commercialization is drawn is hard to say yet, but this writer speculates that small commercial aspects of the works could be forgiven. Other than that, fans are welcome to create their own content in Canada without fear of being sued for copyright infringement - a fact that the UK sorely has missed in its copyright legislation.

Overall the US and Canadian schemes offer much more flexibility and use of copyrighted works for derivative fan works, so long as they comply with the above. This writer for one believes that fan participation should be encouraged by the legislature, yet still protecting the legitimate interests of the copyright holders by not allowing for those works to be overstepped by the (overt) commercialization of fan works, such as an unofficial knitted hat being sold on Etsy. A balance has to be struck between freedom of expression and the protection of legitimate commercial interests, even in the domain of derivative works.