31 July, 2013

The Law of the People - Finland Tackles "Crowdsourced" Copyright Legislation

Representative democracies in the western world often suffer from voter apathy, or a feeling that a single citizen has absolutely no control over the laws that are created and govern them. This brings about a thought; could citizens directly contribute or shape legislation, and would that be a good idea? One very unlikely nation in the cold North has seen a movement regarding its copyright legislation in the last few months, potentially having a significant impact on that particular legislation.

Finland - Copyright by the people, for the people
To give the process that the Finns are going through some exposition, all Finnish nationals have a right to start a petition of sorts to either their local government or national government to act in a certain way, or to even create laws themselves. If such a petition garners over 50,000 supporters in six months, it is passed on to Parliament to be dealt with. The petitions themselves are not binding on Parliament to act on, but function as a potential basis for debate, further legislative measures, or at the very least an indicator as to the will of the people.

The measure in question, roughly translated as "Bring sense into copyright laws" (the contents of which can be found here), was sent to the Finnish Parliament on the 23rd of July, having gathered over 53,000 signatures supporting the drafted piece of legislation. The petition is an amendment to the current copyright law, wholly drafted by Finnish citizens - a first of its kind in the world. The aim of the amendment is stated clearly in its beginning, voicing the will of the people (roughly translated):
"The main goal of the measyre is to fix the existing legislation's overshooting with regards to web surveillance and damages in copyright infringement cases. The petition's purpose is not to legalize downloading of content governed by the law, but to treat an individual's copyright infringement as a non-criminal act. A more severe charge under criminal sanctions enables domestic searches, confiscation of personalty and very large damages. Such acts in a commercial scale would still be charged as a criminal act with such sanctions. 
 A secondary goal is to improve the position of artists', other content creators' and developers using new web technologies.
The most important effect of this petition is to get rid of the position where it is the consumers against the artists, and to enable constructive conversations for the further development of copyright legislation."
Projected celebrations should the law be passed
The measure also wants for the current legislation to be clarified so individuals with no legal education can understand them. This has been an issue, as the legislation has been built on through a number of amendments, leaving it very complicated and hard to understand. It also seeks to amend specific provisions such as relating to domestic copying and fair dealing.

Overall what the people seek is for fairness and clarity when it comes to copyright. With more and more emphasis being put on content creators and their rights, while at the same time detracting from consumers' rights, it is clear that such calls for change are needed. While the UK and Australia are taking steps in improving their fair dealing provisions (both of which have been discussed on this blog: UK here and Australia here), it still leaves room for improvement.

So can citizens impact the laws that directly affect them? It will remain to be seen what the Finnish Parliament will do with this petition and the issues it brings up. One cannot think that it will be ignored, but its efficacy in actually creating concrete legislation can be questioned. If it generates discussion surrounding such issues, it will have done at least something, but should the Finnish people not react to instigate change if it is largely ignored, the attempt will fall flat. Parliament will deal with the measure soon, the results of which this writer cannot wait to see.

Source: TorrentFreak

27 July, 2013

Grey Hair and L'Oreal's Fix

There aren't many words that strike fear into the hearts of people today quite like 'aging'. With every imaginable cream, solution and treatment being sold to people in the vein of preventing or even reversing aging, owning something which could revolutionize a part of that market could potentially yield huge amounts of revenue, as the market is being projected to be worth over 270 million dollars in 2013.

Not all men need hair color apparently
L'Oreal are currently own one such 'fix', as they have applied for a patent in 2004 for a treatment for grey hair. In their own words, this would be a permanent fix for the aging process regarding hair and their discoloration. The treatment would prevent hair from turning grey by mimicking an enzyme in the body by using a specific fruit extract. This enzyme, TRP-2, makes specific cells which give hair its distinct color called melanocytes. In theory therefore the treatment would prevent people's hair from going grey through natural means.

The efficacy of the treatment is still unknown, but one could argue that should the company be successful with the product, it's value could be immense. The treatment is an on-going one, potentially something one would have to take for the rest of their life should they want to retain their hair color, but the market for hair dyes could potentially be replaced from the older generations. The solution has been openly criticized for the compounds in contains, such as ones which are present in rotting fish and bad breath, but it can be argued that people would not mind so long as they can retain their lush blonde hair till their golden days.

Source: MSN

23 July, 2013

Retrospective - Parody and Fair Use

Imitation is the greatest form of flattery. A phrase that resonates even today, despite being written by Charles Colton as far as the early 1800s, yet where does one draw the line between mere imitation and copying of another's work? This line is often tread when dealing with parody and copyright, as distinguishing when a work is copied for the sake of utilizing it as a basis for humor, and when it is used as a means for personal gain or notoriety. The issue was brought back into the court's determination in 1994, after the Court of Appeals did not rule on the matter due to division within the bench in Benny v Loew's.

The case of Campbell v Acuff-Rose Music dealt with a song by 2 Live Crew, a rap group, titled "Pretty Woman" which was claimed to being parody of the iconic 1960s song "Oh Pretty Woman" by Roy Orbison. Prior to releasing the song the members of 2 Live Crew sought permission from the publisher of the original to release their version of the song, which was promptly refused by the publisher. Regardless of the denial for permission 2 Live Crew released the song as a part of their album in 1989, still identifying Mr. Orbison and Acuff-Rose in the materials provided with the album. After over 250,000 copies were sold of their new album almost a year later, Acuff-Rose sued the band and their publisher for copyright infringement. The case went all the way to the US Supreme Court after several years of litigation.

What the court had to assess was whether 2 Live Crew's use of the song fell under fair use. The vocal point of the matter was well condensed by the court: "...the need simultaneously to protect copyrighted material and to allow others to build upon it". In this the court had to look at the four factors relating to fair use: the purpose and character of the use; the nature of the copyrighted work; the amount used; and the effect the use had on the potential market value of the original work.

The purpose and character of a work is essentially determining whether the new work adds anything new or substantial to the original, with a further purpose or difference character by altering the first; often mentioned as a 'transformative' work. The more transformative the new work is, the less likely it is that other factors, such as commercialism in this instance, would weigh against in. The court accepted that parody is indeed a transformative function in the creation of new works, and that it could fall under fair use. 

2 Live Crew showcasing just how amazing the 1990s were
The second factor was the assessment of the nature of the original work, meaning whether the original should be protected by copyright. The less 'value' a song has, the more likely it is that the work has not been infringed should it be parodied. The court accepted that Mr. Orbison's original song had value to it and thus could be infringed by 2 Live Crew should their infringement be significant enough. However the court did express that the factor "...is not much help in this case, or ever likely to help much in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works". The core of parody is the use of the original work as a means to deliver the humorous approach to the work itself. 

The third factor is one where the amount used, often referred to as substantiality, has to be looked at. Better expressed by Justice Story: "...the quantity and value of the materials used"; the quantity and quality of the material which was used in the creation of the parody. The court tried to approach the issue in recognizing its uniqueness to other instances of fair use: "Parody's humor, or in any event its comment, necessarily springs from recognizable allusion to its object through distorted imitation. Its art lies in the tension between a known original and its parodic twin. When parody takes aim at a particular original work, the parody must be able to "conjure up" at least enough of that original to make the object of its critical wit recognizable". The court laid down the foundations for a test to be used in future cases in determining instances of parody, where the original song should be recognizable in the parody, however not too much of the original can be copied. The court saw that 2 Live Crew had not taken a substantial amount of the song, having only used the recognizable bass riff from the beginning of the song and then creating something of their own through the rest of the song. Had they copied Mr. Orbison's song completely, both musically and lyrically, to a degree where it would be hard to distinguish the two, the copying could have been substantial.

Roy forgot he was indoors
The fourth and final factor is the potential impact on the original work's market. This effect has to be a negative one for there to be infringement, for example detracting from the sales of the original song or the image of the song through adverse conduct. The court did finally decide that 2 Live Crew's rap version of the song did not harm the market of the original, due to them belonging to completely different markets to begin with; the original to a more rock-oriented market, and the latter to a rap market. The court did however mention that a parody could potentially still cause harm to the original's market should the right circumstances befall it. A possible example of this is a similar song parodying another in a similar style, in this instance had 2 Live Crew made a rock version it could potentially cause harm. Any effects to that market would then count against finding the use as one that falls under fair use. 

Through Campbell v Acuff-Rose the court unanimously said that parody is a fully accepted form of fair use, should the actual copying of the work be done for a legitimate parody purpose. An artist cannot copy another's work merely in the guise of parodying the song, while still attempting to profit from the potential confusion as to the original song. As stated by Justice Kennedy in his separate opinion:

"Fair use is an affirmative defense, so doubts about whether a given use is fair should not be resolved in favor of the self proclaimed parodist.We should not make it easy for musicians to exploit existing works and then later claim that their rendition was a valuable commentary on the original... If we allow any weak transformation to qualify as parody, however, we weaken the protection of copyright. And underprotection of copyright disserves the goals of copyright just as much as overprotection, by reducing the financial incentive to create".

19 July, 2013

Star Jumps and Trademarks

Marketing is an incredibly powerful tool for a brand, and its protection can often be the difference between a successful promotion of your goods, distinguishing them in a favorable way from others. Trademarks offer such protection, with a variety of things being included as possible trademarks in Australia. The issue in a recent dispute over a trademark being sought by Jetstar (a subsidiary of Qantas Airways) was something potentially worth jumping to arms for.

Elephants don't see why you'd ever need to jump
In a recent promotional campaign Jetstar used people doing a star jump as an expression of the joys that travel can give you when using their services when flying to a destination, having started the campaign in 2004. Toyota have been running a campaign featuring a similar jump since the 1980s, and applied for trademarks for over 30 different variations of the star jump in 2012. A few of these applications were contested by Jetstar, who in turn filed several applications for a number of variations of the jump in the last few months. Clearly there was an issue over who has the trademark for the particular jump.

In a recent development Jetstar's representative indicated that they were only concerned with the straight-legged star jump, and would not be concerned with Toyota's bent-knee versions of the jump. With both parties having successfully registered a number of variations, they have equal claim to the trademark should things be litigated. Toyota's history of using it in advertising should work in their favor, however successfully retaining motion marks is a difficult matter. Whether the parties choose to litigate on the matter or opt to settle will remain to be seen, but the situation goes to show just how varied trademarks can be and how important something simple as a jump can be when it comes to a company's image.

Source: Sydney Morning Herald

14 July, 2013

App Store Struggles End

Yet another chapter in the Apple litigation era came to an end roughly a week ago. The fight over the trademarked phrase "App Store" has raged between Apple and Amazon since early 2011,  having had its ups and downs during the two years. The matter ended once Apple approached Amazon with an agreement to end all current and possible future disputes over the term, effectively allowing both parties to use the phrase as they please. The case, set to have a hearing in August of this year, was subsequently dismissed by Judge Hamilton in the Oakland District Court.

A cavalcade of time-wasting apptastic action
For a bit further exposition in where the situation stood prior to this settlement, Apple own the trademark for the name "App Store", having applied for it in 2008. The name was contended as being too generic, covered under 15 USC § 1064, where the registration of a trademark can be cancelled should it stop from distinguishing the goods of the original registrar from others which are similar. Arguably with other companies such as Amazon and Microsoft using similar names in similar services offering applications for their respective operating systems, the term has indeed become generic and purely descriptive of a digital store-front for applications. As in their statement to Reuters, Apple will now have to distinguish its services from the rest of the pack purely on merit, not by the protection of a specific name to those services.

Only a few months ago in Australia the same trademark was rejected by the Australian Trade Marks Office due to it being merely descriptive and didn't distinguish Apple's services from their competitors. The application was rejected under the Trade Marks Act 1995. Instead of the name being considered generic, as was contended in the US, the mark was seen to only descriptive a store where applications were sold, and only functioned in conjunction with other well-known marks such as "iPod" or "iPhone"; the name itself didn't sufficiently stand on its own to distinguish Apple's store from others.

What this does is close the contention over the mark so dearly held on by Apple. From a legal stand-point Apple's decision to end the legal process was a sensible one, with a very high probability their mark would have been invalidated by the courts. Prolonging the process would have cost both parties more and yielded little or no reward in the long run. After all, a simple name change would probably have not pushed customers away from Amazon's services to use Apple's instead.

Source: Reuters

10 July, 2013

Retrospective - IP Addresses and Identification of Copyright Infringers

One of the more controversial aspects of the Internet is often thought of being the anonymity it offers to users. With nothing to particularly identify you as an individual, unless you provide specific information pertaining to who you are, the Internet often brings out both the good and bad in people; "Surely I can download this album or tell this person off, seeing as no one will know I did it?" There are methods of identifying someone, but as they stand today they are ineffective in pin-pointing exactly who did what, only giving an indication as to who might have been the infringer. The more predominant of those is the use of Internet Protocol addresses, or as they're more commonly known as; IP addresses.

"No Dale, you don't need to wear a balaclava on the Internet"
An IP address when put into simple terms is an indicator of a network and a device connected to that network. This is represented in a numerical fashion, such as 123.456.78.9. The numbers themselves represent the host network used and the location of that network. This information can be used to locate a person who has for example infringed copyright or done other things online which are deemed illegal. The problem with this method of identification is that it does not exactly tell us who has committed the infringement, but merely the location of the act. This essentially means that if Child A downloads music using his home Internet connection, shared by his Parents and Child B, the authorities will not be necessarily able to tell who in that household has committed that offense. This rough information can potentially be used in more questionable litigation processes, but has been used successfully in the prosecution and identification of individual in such proceedings.

"Sshh, I'm hunting infringers"
A case which dealt with the usability of IP addresses as a method of identification happened in early 2012 in the United States. K-Beech v John Does dealt with anonymous users (80 in total) who downloaded several videos of a not-so-family-friendly variety using BitTorrent technology, a work which was owned by K-Beech Ltd. In their application K-Beech alleged that the John Does had infringed their copyright by making an illegal copy of the work. These users were only identified through their IP addresses, and the court in its judgment deliberated whether it could be an accepted form of identification in such cases. Judge Brown made an interesting analogy in the matter: "An IP address provides only the location at which one of any number of computer devices may be deployed, much like a telephone number can be used for any number of telephones... it is no more likely that the subscriber to an IP address carried out a particular computer function – here the purported illegal downloading of a single pornographic film – than to say an individual who pays the telephone bill made a specific telephone call." This brings to light the point made above as to the ambiguity to who committed the given infringement in an Internet network. Judge Brown further expanded that with the ever-growing popularity of wireless connections the accuracy is fading even more, due to the even wider access to any given network by a larger number of individuals. In evidence to this the court drew on a previous judgment where it was noted that in 30% of cases the names which were given as the identified users were incorrect as to the infringing person.

What is important in the final observations of the case is the acceptance by the judiciary that an IP address can no longer effectively identify a user committing an infringement. Along with this proxy servers (a method where all network use is routed through a third-party server somewhere else, even on the other side of the globe) have even further blurred the line of actual user and who can be identified based on IP addresses alone. Judge Brown perfectly summarized this point in his conclusion relating to this point:
"In sum, although the complaints state that IP addresses are assigned to “devices” and thus by discovering the individual associated with that IP address will reveal “defendants’ true identity,” this is unlikely to be the case. Most, if not all, of the IP addresses will actually reflect a wireless router or other networking device, meaning that while the ISPs will provide the name of its subscriber, the alleged infringer could be the subscriber, a member of his or her family, an employee, invitee, neighbor or interloper."
Since the case there have been other instances where the courts have further affirmed this point and can be seen as to have closed this avenue of identification for good, at least in the US. What can be said is that this is a positive development, since the ambiguity of the true user can lead to problems for people who have absolutely nothing to do with the matter. Of course one has to emphasize individual responsibility and the need for measures to prevent such uses, but with evidentiary standards being much higher in criminal proceedings for example, it would seem odd that such an inaccurate method of identification could have been accepted.

07 July, 2013

Chinese Intellectual Property Law (Part 3) - Patents

(Part 1 discussing Copyright can be found here and Part 2 discussing Trademarks can be found here)

The final third installment of my short introductory series into Chinese intellectual property law will discuss the final big area of intellectual property: patents. The current legislation in force in China dealing with patents in the Patent Law of the People's Republic of China (English translation can be found here, Chinese text here), having been enacted in 1984. The legislation has seen several amendments in the last few decades, with the last having been made in late 2008.

Much like the previous two subject matters discussed, copyright and trademarks, much of the content in the Chinese legislation is dictated by international treaties and conventions, making the legislation similar to those found in other signatory nations. Even though the content of the legislation would seem to afford protection much like in other nations, there are issues which still linger, which shall be discussed later in this piece.

As has been the case in the previous two instances dealing with other intellectual property topics, the Chinese law provides us with a great explanation of its goals:
"This Law is enacted for the purpose of protecting the lawful rights and interests of patentees, encouraging invention-creation, promoting the application of invention-creation, enhancing innovation capability, promoting the advancement of science and technology and the economic and social development".
Your friendly neighborhood patent troll
Patents are often thought of as purely a method of seeking out an easy pay-out due to patent trolls (entities or people who merely hold patents to sue if they're infringed, not to actually use and sell that particular invention) being an issue in the industry, but the Chinese legislation does endeavor to protect the interests of patent holders and to encourage new developments in technologies or science. Although high-minded and completely rational in its aims, much like with other countries, patent legislation can be abused in practice.

The Chinese legislation sets out patentable subject matter as "...inventions, utility models and designs". All three are defined even further in the provision. Often left as merely an 'invention' in other jurisdictions, such as Australia, all three should cover any and all patentable content accepted in other nations with similar legislation. The law however does not allow the patenting of inventions which violate the law, social ethics or harms public interest. What would constitute as violating 'social ethics' seems to be incredibly vague, but arguably could pertain to human experiments for example.

The law also sets out when a patent is the property of an employer. Should the invention be created "...in the course of performing the duties of an employee, or mainly by using the material and technical conditions of an employer" the employer has the right to apply for the patent, not the inventor. The latter part of the provisions grants the right even when just using the equipment provided by an employer and does not require an explicit agreement as to the transfer of the patent to the employer, which is a relationship defined in a much stricter sense in other jurisdictions. Is the ability to apply for the patent given automatically, what is the degree of use required? Clearly the provision could give the employer an upper-hand and could be abused to strip inventors of their patents. The provision does however expressly state that any contract giving the rights to the inventor shall prevail over the mere use of the technical conditions or equipment.

Basic requirements for an invention to be patentable are very much like ones found in Canada or Australia for example; an invention has to be novel, creative and of practical use. Although worded slightly differently, one can equate the terms in the Chinese provision with terms often used in the common law jurisdictions: novelty requiring the technology being something entirely new; creativity pertaining to a requirement of improvements to any possible prior art (i.e. inventive step); and practical use requiring a possible manner of manufacture or production, with positive results, in other words, is useful. Excluded subject matters are, again, much like in other jurisdictions, including plant and animal varieties, scientific discoveries and methods of diagnosis or treatment of diseases. The Chinese legislation saw some big changes in its third Amendment, one creating a 'absolute' requirement of novelty, which prohibits the patenting of something already published or disclosed either in China or internationally. This is a transition from the old 'relative' novelty in prior provisions, where the use or publication of something outside of China would not prevent its patenting in China.

Siri faced patent litigation in China
The standard term for an invention patent is 20 years and for a utility model or a design patent 10 years from the date of filing. The durations are similar to those used in Australia or the UK for example. In a patent application claims have to be submitted relating to the scope of protection sought for the patent, again being very similar to the requirements set in common law jurisdictions.

What plagues the Chinese patent system is not the process itself, it being much the same as in a plethora of countries, but in the enforcement of the patents and their protection. An extensive report on the matter written by the USPTO details much of the downfalls of the Chinese system, but still showing the improvements being made. The biggest issues noted of in the report relate to the rule of law (transparency, certainty, fairness, impartiality and consistency of judgments); efficacy of remedies and their enforcement; and short-comings in certain types of patents in China, such as pharmaceutical and utility model patents.

For the previous two installments, please refer to the links offered at the top of the article. As these articles are merely meant to be overviews of Chinese law, should any glaring omissions exist please do let me know in the comments of the given article (or this one) and any possible mistakes shall be corrected posthaste. Chinese legislation and its application contains more intricacies than I have even begun to discuss, so some aspects have been left untouched due to lack of knowledge on the writer's part.

03 July, 2013

Retrospective - Betamax and Copyright Infringement

When copyright is concerned there has always been a struggle between two competing interests; copyright owners who wish to benefit from the fruits of their labor, and the consumers who want to utilize copyrighted material, sometimes to the potential detriment of the former party. As new methods have emerged in the consumption of copyrighted works, so have the wishes of the owners to protect their material gotten louder. At the end of that path to equilibrium lies a simple albeit still complex question: do people have the right to use copyrighted material in manners which the owner's object to?

One of the most influential cases of the past few decades, Sony Corporation of America v Universal City Studios, endeavored to tackle that issue in relation to a wholly new piece of technology; Betamax tapes. For those born after the 70s (this writer included), Betamax tapes were akin to VHS cassettes which were used to both view and record movies and TV shows, much like DVDs today. This technology enable the recording and re-watching of content on TV at a later date outside of the broadcast times or releases of commercial copies of those programs. Universal Studios and Disney objected to this new technology as it clashed with their interest in re-releasing content to be sold to consumers, which they clearly would not buy should they have recorded the programs once they were broadcast on TV. Subsequently Universal Studios took Sony to court, eventually ending up in the US Supreme Court.

"What is this 'video cassette' you speak of..?"
What the court had to assess was whether the users of Betamax, who recorded content broadcast on TV, were infringing copyright and whether Sony could be held responsible for that infringement. In essence what was being decided was whether Sony was making the infringement of copyright possible by providing the users with this capability through their Betamax recorders, thus being liable for their infringement. What makes this argument is that at the time no such express provision existed in copyright, however Universal argued that Sony was liable for contributory infringement, a principle relating to patents and not copyright. The court put forth that this would come down to assessing whether "...the product is widely used for legitimate, unobjectionable purposes". What this means is just looking at whether the recorder would be used for recording TV programs for a legitimate, unobjectionable purpose, such as for later viewing for the sake of convenience, and not for example used for commercial copying of content. Clearly one could argue that domestic copying of content in that fashion is a non-objectionable use and wholly legitimate, and at the time was one of the primary uses for the device. There always has to be a balance between the legitimate interests of users and the protection afforded to copyright owners.

For Sony to be deemed to be liable under contributory infringement, the court had to decide whether Betamax recorders are capable of commercially significant non-infringing uses. This could be seen as whether the non-infringing uses would impact Universal Studios, or others, commercially through those uses. The court stated that it would be a matter of exploring all possible uses for the machines and determining whether those uses would be infringing or not, and what amount of uses would be commercially significant. The court did decide that Betamax recorders could be capable of commercially significant non-infringing uses, but for Sony to be liable there still remained the factor of whether those uses would be infringing ones.
How teenagers view older generations and themselves

The court drew its attention to the US fair use provision in deciding whether domestic time-shifting would be an infringing act. The court accepted the District Court's findings and saw that domestic time-shifting of content would fall under fair use. This was due to Sony's evidence as to the licensing of content for broadcasting on free TV, and content providers not objecting to its recording for viewing at a later time, and Universal could not show any actual damage caused due to time-shifting.

The decision swayed 5-4 in favor of Sony, but the dissenting opinion given by Justice Blackmun could've shaped copyright in a wholly different manner should it have been the majority opinion. The dissenting view was one which emphasized the exclusive rights given to copyright owners, noting that in their opinion expanding fair use would take away control for the copyright owners and deprive them of their incentive to create. Justice Blackmun also noted that fair use should apply mainly to 'productive' uses of works, such as for criticism and review, and prohibit their uses for 'unproductive' purposes such as time-shifting. Arguably Justice Blackmun's views come from a wrong approach, one which protects the copyright holder's rights but completely ignores the evolving needs and uses by ordinary consumers, thus creating an imbalance. Justice Blackmun also criticized the majority's approach in deciding contributory infringement through the capability of commercially significant non-infringing uses in stating that "[s]uch a definition essentially eviscerates the concept of contributory infringement. Only the most unimaginative manufacturer would be unable to demonstrate that a image-duplicating product is "capable" of substantial noninfringing uses. Surely Congress desired to prevent the sale of products that are used almost exclusively to infringe copyrights; the fact that noninfringing uses exist presumably would have little bearing on that desire".

All-in-all Sony v Universal Studios made an important mark on copyright and fair use, and has helped in formulating current principles in both. Should Sony have been found liable for contributory infringement, how we record or enjoy media today could be totally different. Manufacturers would have to either pay hefty licensing fees for any recording devices, the cost of which would have been undoubtedly transferred onto the end-consumer, or the manufacturers would have refrained from producing such devices completely. As someone who grew up using VHS recorders to watch content, I can't imagine a World without such a capability.