26 September, 2013

3D Printing and Potential Intellectual Property Issues

Who would have thought that the day would ever come when a person could create a three-dimensional model on a computer of basically anything your mind can conjure up, and a machine would make a physical version of that item in hours. This was the stuff science fiction was made only a few decades ago, but has since become a reality. Not only that, but with the emergence of sub-100 dollar 3D printers this is clearly an option for any domestic printing aficionados to use without the bulk and expense of older versions of this technology. This progression does however raise the question in any legal professional's mind; can 3D printing infringe intellectual property laws?

3D Printing and Copyright

Rick was not happy with his real face
As most objects which are printed using the aforementioned technology are small  figurines or sculpture type objects, items which have no functional use but only serve as aesthetically pleasing or to fulfill the need to have a physical representation of a certain character or shape. Objects like this are protected under copyright as sculptures, or any equivalent, with most common law countries having provisions protecting them (Australia, UK, US and Canada). Clearly should a person endeavor to print a 3D object representing a character or object which is protected by copyright, they would be liable for infringement. One has to note that this is still subject to enforcement, and arguably no copyright holder would bother in enforcing their rights over individuals should they print a figurine or two for their own personal enjoyment. Where the issue changes into a viable one in terms of enforcement is when the technology is used for the production and selling of such items, with a recent example being 3D figurines from the popular video game franchise Final Fantasy. In such instances there is incentive to protect the rights that are given to copyright owners, and rightfully so.

This protection can potentially be avoided however, as in the UK afford all artistic works (which includes sculptures) protection for a term of 25 years from its initial exploitation, after which their copying would be wholly legal. This period ends on the last calendar day after the period has ended, starting from the day it was first marketed. Looking at this any artistic works which have been marketed, figurines and such, after 1988 would be okay to print. No such provisions exist in other common law countries.

3D Printing and Trademarks

In Australia and the UK for example trademark legislation largely deals with the use of trademarks and not their creation per say. This use refers to its use in conjunction with different goods or services from the original, and not just their creation for personal enjoyment. This 'personal use' of trademarks has not been directly argued in court; however the rejection of commercial use has been noted in the creation of any registered trademarks. In the judgment of Arsenal v Reed, mentioned above, the Advocate General took the position that trademarks could be used for the creation of items where the person gains no material advantage in their creation. Clearly therefore the printing of any trademarked object for personal use would not infringe trademark legislation, at least in such instances.


3D Printing even enables the creation of cars
Although discussed very briefly above, one can note that 3D printing does pose a challenge to both the judiciary and the legislature in the protection of intellectual property. At the time of their creation no legislature would have conceived that 3D printing would ever become a reality, and rightfully so; even today this seems like complete science fiction, at least to this writer. In addition to copyright and trademarks the technology does pose challenges to patents and designs, albeit more on the latter than the former, due to the possible creation of both unregistered and registered designs.

As the technology becomes more common and the quality of the goods it produces get better the judiciary will eventually have to deal with the subject matter more extensively. Arguably some level of personal 'creation' should be allowed without it infringing intellectual property rights, but that does still undermine the economical interests of parties wishing to benefit from the sale of such items. Will 3D printing ever become a household commonality? Arguably this will take years, even decades, but as it stands today the technology is more of a niche curiosity than a prevalent tool for domestic replication. Until then the need for extensive judicial consideration remains minor.

21 September, 2013

Killing the Copyright Monopoly - A Counter-Argument

Recently I stumbled upon Rick Falkvinge's article titled "At What Point Will The Next Generation Kill The Copyright Monopoly Altogether?", which raised some thoughts I wanted to express due to the article's incredibly one-sided nature. Although the title screams hyperbole, I had to address some points made by Mr. Falkvinge from the perspective of someone who has been dealing with copyright for several years, yet has grown up as a part of the generation which was engulfed in the opportunities given by both analog technologies, and finally the Internet, in copying and enjoying a variety of media.

Mr. Falkvinge introduces the subject matter through the emergence of the compact cassette, and the possibilities it presented for copying through tape decks. This prompted a campaign by the music industry against this new wave of activity, calling for the end of copying music onto tapes. In summarizing this new activity on part of the record industries, Mr. Falkvinge states that "...this was the start of the war against ordinary people copying, something that has only escalated to ridiculous levels today." In further expanding on this point, Mr. Falkvinge argues that "...[t]oday, people’s homes are raided at dawn by police with drawn weapons for listening to music and watching movies from unauthorized sources... Activists’ voices are being silenced using the copyright monopoly as a censorship mechanism. Secondary and tertiary liability is introduced using extortionate methods, further removing any rights to due process for mere freedom of speech. All while people in general share knowledge and culture as they have always done."

Mr. Falkvinge presents these scenarios as a common occurrence, whereas one can argue that instances of home raids are rare bar the few instances that are more openly reported on, for example a recent one which happened in Finland. This writer could not find any legitimate sources with statistics as to the amounts of home raids conducted in a year over copyright infringement, but one can imagine this is not something that happens often due to the sheer costs and public image issues relating to the raids. Whether copyright is used in order to curb peoples' freedom of speech is something which this writer has not heard of either; however should any injunctions be placed on individuals or organizations one can argue this was done through the right avenues and under the rule of law.

The mere sharing of knowledge and culture wholly changes the purpose for which copyright legislation exists: the promotion of creation and sustaining those who choose to make it their livelihood. Copyright in itself as a monetary incentive is imperative for the enablement of authors, artists and musicians, without which their output would be severely hindered in today's society. Storytellers and artists hundreds of years ago did not need for themselves to be supported by the income given to them through a system like copyright, but were paid through what was referred to as "arts patronage". One could argue that copyright is a modern incarnation of patronage.

In Mr. Falkvinge's mind copyright has "...turned from something arcane that people didn’t care about into a downright oppressive and abusive construct that affects everybody in a way they strongly disapprove of. Laws must have the consent of the governed to be respected; the copyright monopoly today enjoys considerably less respect than speed limits, and that’s in a country where speeding is considered a national sport." What needs to be said is the existence of the rule of law, as I mentioned above. Not all people agree with all laws, and such they are compromises as viewed by modern representative democracies in their various versions. Whether a person agreed with a law or not should not be the determining factor for when laws should be abolished. The lack of respect for laws should not serve as a platform from which to further encourage their disregard, but as a platform from which to encourage reform and development using the right methods and pathways to achieve this change.

Copyright laws have not failed consumers or become a "weapon" of sorts, but merely are a painful reminder as to the lack of adaptation on part of copyright holders and content providers. Services like Spotify and Netflix have caused piracy rates to plummet in the countries where they have been introduced, showing a clear way to mitigate this issue; convenience and pricing. Consumers today wish for a convenient way to enjoy their entertainment without having to pay exorbitant amounts for that content. When the needs of the consumer meet with the provision of the content via reasonable means, the underlying cause for piracy is gone. There is no way for piracy to be eliminated completely, either through legislative means (both the reduction or increase of penalties and restrictions) or through availability. There will always be those who do not respect the framework of copyright.

Mr. Falkvinge does promote copyright reform on his own part, and this writer for one does agree to a certain extent. Fair dealing (or fair use in the US) needs to be broadened and better accommodate modern uses of content. Steps are being taken in the UK and Australia for example, to improve and bring copyright to the modern world, attempting to introduce changes that have been needed for a long time. Canada has also taken strides in modernizing its copyright laws, both through the hands of the legislature and the judiciary. The United States has yet to take similar steps, but calls have been made and reform should happen in the future.

The world of copyright is not, and should not be viewed as, merely black and white; a world where only abusers and the abused exist. Copyright has enabled great things and helps to further usher new creative minds into all spheres of arts. Is the system perfect? By no means, and reform will happen depending on the influence the people of various countries assert on their legislature. Anarchy does not bring about change, but harbors a culture of further restriction and stricter enforcement.

Source: TorrentFreak

17 September, 2013

Music Playlists and Copyright

Services like Spotify and Pandora have become huge in the last few years, allowing for users to listen to music on-the-go, sorting it according to the type of music they like and even allowing for the creation of custom playlists. Before the era of digital music becoming the predominant format, there were music compilation albums (which still exist believe it or not); an old analog format of a playlist if you will. Collections like Now That's What I Call Music! have been around for decades, selling millions upon millions of copies of albums with a collection of recent (or old) hits put into a convenient playlist on the album. As such there is very little correlation between the old compilation albums and modern digital music services and their playlists, but could playlists actually infringe copyright?

In a recent filing Ministry of Sound have alleged that Spotify have infringed their copyright in their creation of custom playlists which contained the same songs in the same order as what can be found in their compilation albums. These playlists are freely available on Spotify's service and even labeled as "Ministry of Sound". In Ministry of Sound's argument their playlists are protected under copyright as argued by CEO Lohan Presencer: "What we do is a lot more than putting playlists together: a lot of research goes into creating our compilation albums, and the intellectual property involved in that".

Not to be confused with the Ministry of Sound
What some of the readers of this blog, and intellectual property law enthusiasts in general, should notice is that this rationale goes against what has been long since argued in Feist (more of which can be found on this very blog here); effort does not necessarily equal copyright, and copyright does not protect ideas, merely their expression. Although Feist is an American case, this position has been adopted in a similar fashion by the European Court of Justice in Football Dataco and Others, thus applying in the UK.

So should a list of songs be protected under copyright? Arguably no, as the mere presentation of information in a list should not garner protection. Admittedly Ministry of Sounds probably do spend time in the arrangement and selection of the particular songs in any given compilation album, but this is only a collection of information. Each song individually will garner protection, but the listing of those arguably would not. Whether Ministry of Sound are successful is yet to be seen, but this writer in particular does not see their argument going very far.

Source: Digital Music News

14 September, 2013

Retrospective - What is Original?

Much like novelty in patents (discussed more in depth on this very blog here), copyright only protects works which can be considered 'original'. If you merely copy another person's work by adding nothing new to it, it can be said to not be original and therefore not merit protection. After all, copyright endeavors to enable further creation and protect the interests of those who dare to do so. The bigger question at the heart of all of this then is a very simple one: what is originality?

Math - the bane of many students' existence
One of the milestone cases in the history of copyright, University of London Press Ltd v University Tutorial Press Ltd, came about in the early part of the 1990s where the United Kingdom courts had to tackle the question of what can be considered an original work within the then in force Copyright Act 1911. The case dealt with examination papers which were written for the University of London back in 1915. Under the University of London's senate's decision all examination papers created by appointed examiners would belong to the University, aside from drawings, and the University reserved all rights to reproduce those exams without any extra compensation to the examiners who had written them. Subsequently examiners were appointed for the exam period held in September of that year, among which were Mr. Jackson and Professor Lodge who were in charge of creating the exam papers for mathematics. After the exam papers had been created, the University entered into a contract with University of London Press, assigning it the copyrights and rights of publication to any specific exams for a fixed period of 6 years. University of London Press were then issued the rights to publish the exams written in the previous year, which were then published by University of London Press in early 1916. In the same month University Tutorial Press published exam from the previous year as well, containing 16 out of 42 exams from January 1916, which were attained from students rather than the published copies made by the University Press. Among the 16 exams were three which were written by Mr. Jackson and Professor Lodge. Along with the published exams University Tutorial Press also published the answers to some of the questions in those exams, including some critique of those particular questions as well. Subsequently University of London Press sued University Tutorial Press for copyright infringement over the published exams.

In his assessment of what an original literary work would be, Justice Peterson stated that "[t]he word "original" does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought". As one can see from his Honor's view, copyright protects expression, not ideas (more of which was discussed in this blog here). One can copy ideas, yet how those ideas are conveyed has to be different. This is where arguably the layman's perception of what original is differs from that of the legal view of originality.

In further consideration Justice Peterson saw that "...the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work - that it should originate from the author". Albeit seemingly obvious when thinking of originality, this point by Justice Peterson is imperative with regards to originality. For a work to be considered original it has to originate from the author themselves. What this is is an assessment on a case-by-case basis as to whether the work which is being contended did in fact originate from the author. In the case the authors of the exam questions, Mr. Jackson and Professor Lodge, had thought of the questions themselves, only drawing from the stock of knowledge in mathematics which existed at the time. It was seen by Justice Peterson that these works were indeed original. In his final thoughts Justice Peterson laid out a rough test for originality, which has fallen under some critique in modern times: "...what is worth copying is prima facie worth protecting". In the decision University Tutorial Press were found to have infringed the University of London Press' copyright.

What 'originality' boils down to is independent creative effort. If the work which is sought to be protected was the result of independent creation, it most likely will fall under copyright and be protected. Ideas themselves are not protected, but the expression of those ideas through individual creative effort would be. Although seemingly a given when presented as such, it is still a core tenant that needs to be understood and applied when dealing with potential copyright infringement.

11 September, 2013

Tattoos and Copyright

Tattoos have been a part of culture and expression since as far as 5200 years ago, showcasing the importance of self-expression through various markings and its transcendence through cultures and time. Tattoos vary from simple pictures, such as small birds or flowers, to hugely intricate large tattoos covering most, if not all, of a person's visible skin. Although arguably having become more of a diluted vehicle of expression in modern times, tattoos are still seen as an important way to express one's heritage or culture for people's such as the Maori - but could tattoos infringe copyright?

The pinnacle of tattoo originality
Currently there is no concrete precedent as to tattoos and copyright; however there are instances which might argue that tattoos could potentially fall under copyright. Cases relating to Mike Tyson's (in)famous face tattoo depicted in the Hangover 2 and a lawsuit over Ricky Williams' tattoos which were depicted on the cover of an NFL game in 2004, have all been settled prior to litigation, showcasing a clear reluctance for taking the matter to court. These two cases are by no means the only ones of their kind, but clearly indicate there is value in protecting tattoos. In a recent turn of events the NFL Player's Association has brought up the possibility that players' tattoos could bring copyright infringement lawsuits, further highlighting this potential issue.

Most countries in the common law, such as Australia, the UK and Canada do allow for 'artistic works' to fall under copyright, often encompassing drawings which potentially could contain tattoos within them. With the NFLPA and others raising possible issues relating to tattoos, one can easily argue that a case over tattoos and copyright could carry merit and would be worth consideration by the judiciary. Clearly the power is in the hands of the tattoo artists and their discretion as to whether to sue for copyright infringement in the event that their work is displayed in television, movies or even video games.

Some countries do prescribe provisions which offer protection from copyright infringement in incidental inclusion in television and movies. Australia and the UK for example have such provisions, clearly avoiding copyright infringement should any tattoos be displayed in a television show or a movie purely through their incidental inclusion. This is not to say it offers full indemnity, as in the case of the Hangover 2 the inclusion of the tattoo design was clearly intentional and a vocal point of the plot, possibly not falling under such protection provisions. In addition to this the provisions do not mention the possibility of incidental inclusion in video games, opening up any claims for instances in that particular medium.

Is this original anymore?
What has to also be said are possible hurdles relating to tattoos and originality when claiming for copyright infringement. Cases relating to arguably generic designs, a good example of which is case which dealt with an anchor design on Kate Moss' hand in an advertisement, raise questions whether these designs could actually be protected by copyright. If a design shows no clear ingenuity or inventive spark, one could argue that these designs would not be protected; however more intricate, individual designs could be protected.

Tattoos do present an interesting dilemma when it comes to copyright, and are a subject matter which has not been considered by either the legislature or the judiciary specifically. Whether these issues will ever be taken to court is a long-shot, as the cost of settling is clearly less than litigation, and materials such as tattoos can easily be edited out of pictures, videos and other content which might contain them, therefore avoiding any infringement claims. This writer personally would love to see the matter argued at court, but this seems like an unlikely event at best.

Source: Bloomberg Businessweek

07 September, 2013

New Zealand Bans Software Patents - Or Did They?

As we have turned towards an ever-more computerized world, software has arguably become almost as valuable as the hardware it runs on. Without effective protection through patents for innovative software products, the field would be a free-for-all of copying, using others' methods and creating an environment where innovation would not persist. Some have argued, and rightfully so to an extent, that the field has lead to a culture of abuse and 'patent trolls' where software patents are merely a conduit for quick cash-in schemes for companies who have no intention of ever using the patented software. Due to this clear misuse there have been calls for reform or the full fledged abolishing of software patents in the common law, and finally those calls have been answered by the far-away land of New Zealand.

Software engineers' collective disappointment
In mid-2008 the New Zealand Parliament had the Patents Bill introduced, which sought to "...update the New Zealand patent regime to ensure that it continues to provide an appropriate balance between providing adequate incentives for innovation and technology transfer". The Bill introduces a cavalcade of changes to the old Patents Act 1953, being one of the biggest modifications of the New Zealand patent legislation in 60 years. The Bill introduces an exception to patentability for computer programs in very express terms. Although the exclusion provision states that computer programs are not patentable, this is not the case entirely. 

Under a Supplementary Order Paper to the Patents Bill computer programs are not patentable "...as such if the actual contribution made by the alleged invention lies solely in it being a computer program" (emphasis added). The first two words highlighted in the quote above prove integral to the interpretation of this new provision; software patents are not allowed as such, but should they be a way to implement a patentable process, they can be patentable. The SOP provides an example of a chip in a washing machine, through which a computer program in the chip improves the washing machine's operation. In such instances the software in the chip could be patentable. What is important is the interconnection between the software and the improved process.

In interpreting this the new provision employs a similar approach to that of the European Union and the United Kingdom. This approach was set out in the case of Aerotel Ltd v Telco Holdings Ltd (and others) and Macrossan's Application, intepreting section 1(2) of the UK Patents Act 1977 dealing with the subject matter of what is not an invention. The New Zealand provision's wording, albeit slightly different, still encompasses the heart of the Aerotel considerations, while adding specifics pertaining to their own legislation, and arguably using the Aerotel test would prove beneficial for the New Zealand judiciary.
Kiwis are very apt with technology

In assessing a patent and whether it is excluded from patentability under the Aerotel approach, the courts would have to properly construe the claim; identify its actual contribution; ask whether it falls solely within the excluded subject matter; and check whether the actual or alleged contribution is technical in nature. The first factor is purely a standard assessment of the patent claim, deciding what the monopoly would be before considering its possible exclusion. The second factor is deciding whether the inventor has really added anything to the stock of human knowledge, emphasizing the substance of the invention (what it actually contributes) above the form of the claim itself (what is argued it contributes). The third factor is assessing whether the contribution is solely an unpatentable subject matter. Should the invention be a patentable subject matter, the final consideration is if it is of a technical nature. 

The New Zealand approach is assessing the substance of the claim (rather than its form and the contribution alleged by the applicant) and the actual contribution it makes; what problem or other issue is to be solved or addressed; how the relevant product or process solves or addresses the problem or other issue; the advantages or benefits of solving or addressing the problem or other issue in that manner; and any other matters the Commissioner or the court thinks relevant. Clearly this echoes the approach given above, and would be served well should the New Zealand judiciary consider the Aerotel test.

So as one can see New Zealand has effectively banned software patents, but only to the extent that they exist independently. Calling this a blanket ban is merely hyperbolic, but the potential abuses that have been experienced with pure software patents have been remedied, and it remains to be seen whether the rest of the world will follow suit. Calls have been made for the US to do the same, but with vast amounts of money being tied into software innovation in the US, it can be argued that a ban over software patents in the US is still well behind the horizon.

Source: ZDNet

03 September, 2013

Retrospective - Novelty in Patents

Invention is often building on older inventions or techniques, adding, changing or modifying it to suit a new application. As Isaac Newton poignantly pointed out in his thoughts about his progress in many fields: "If I have seen a little further it is by standing on the shoulders of Giants." As said, invention often needs a springboard to be able to jump to new heights, although this should not enable the abuse of older inventions and claiming it as your own. A preventative measure in the world of patents is the requirement of 'novelty' which mandates that the invention one is seeking to patent has to not have existed in any prior art; to put it bluntly it has to be new. Different countries in the common law take different approaches to novelty, which merit some explanation.

An inventor's motto
In Australia novelty is a requirement under the Patents Act 1990, which sets out that any patentable invention has to be novel when compared to prior art that existed before the invention was being patented. It will only be compared to publicly available information, although legislation pertaining to trade secrets might still apply. This is determined through the 'reverse infringement' test, formulated in Meyers Taylor Pty Ltd v Vicarr Industries Ltd. In the judgment Justice Aickin saw that "[t]he basic test for anticipation or want of novelty is the same as that for infringement and generally one can properly ask oneself whether the alleged anticipation would, if the patent were valid, constitute an infringement". This would have to be assessed based on all of the integers of any one of the patent claims and whether they would infringe any existing patents. If none of the claims infringe any existing patents, it can be deemed to be novel and therefore patentable. Should all, or the essential, features of the invention which the patent is sought for be disclosed in any prior art which is publically accessible, the invention would be deemed to not being novel and would not be patentable.

In Canada the test for novelty is set out in the Canadian Patent Act, where an invention is defined as "any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter". As stated in the Act, the invention cannot have been disclosed to the public in Canada or anywhere else. This requirement is essentially the same as the one relating to prior art in Australia. As said above, this does not mean the invention has to be wholly new, but can be built on older inventions should it fill the other requirements for patentability. 

Necessity is the mother of all invention
In the United Kingdom the concept of novelty is set out in the Patents Act 1977. Under the 1977 Act an invention is new "...if it does not form part of the state of the art". This, again, would be the case should the invention be made available to the public prior to the lodging date of the patent application. The case of Synthon BV v Smithkline Beecham plc set out the test for novelty, distinguishing between two requirements which have been accepted by the judiciary; prior disclosure and enablement. These two requirements were treated as a single matter, however were separated by Lord Hoffman in Synthon. Prior disclosure echoes the same principle as Australia's approach to novelty, being an assessment of potential infringement due to any possible prior disclosures to the public. In Lord Hoffman's mind however, this could not merely be a matter of possibilities  but infringement would have to be entiled; or in other words, the invention would be an infringement. If other possibilities exist, for example an accident as to the same invention, infringement would not be entiled. Enablement, in Lord Hoffman's assessment, meant that if any ordinary skilled person could create the invention which has been disclosed prior. If the invention does not fall into either, the invention can be seen as novel under the 1977 Act.

In the United States novelty is defined under 35 USC § 102. The American approach is much akin to the Australian and British approach; one which relies on prior art. If your invention has not been patented before, published in a printed publication, in use or sale, or made available otherwise, the invention is eligible for a patent and considered novel. Since the introduction of the America Invents Act, the US has moved from a first-to-invent system to a first-to-file system, This in itself does not change how novelty is assessed in patents in the US, but has changed the dynamic significantly within the system regarding new inventions.

As one can clearly ascertain, novelty is not a simple concept, and can be a time consuming consideration for any given patent handling body. The novelty of any patent can be contested if it is later found out prior art existed, even if the patent is given after the patent body's assessment. From a common sense perspective it is completely sensible, and does protect the legitimate interests of all inventors in attempting to keep all new inventors from merely rehashing old inventions in the guise of novelty.