31 December, 2013

Review of 2013

As the year of 2013 comes to a close, I thought it'd be time to give some information about IP Iustitia to my readers and anyone who might be interested in some figures. This blog has been a great way for me to engage in the IP law community, and I'm grateful for the moderate success I have had over the majority of the year.

In under a year of operation the blog has had over 10,000 visits, which went over and beyond any of my expectations. Thank you to those who've visited and enjoyed my work, and hopefully things will improve even more as we move forward. The site also migrated to its current domain (www.ipiustitia.com), which I hope you've firmly bookmarked!

Feedback about the blog and its contents has been almost unanimously positive, but do send me an email should you have any thoughts or even ideas on what to write about. Even though the blog is a one-man operation (for now), community participation is paramount and always appreciated.

The blog's Twitter account also has been a success, with 167 followers as of right now. If you have not followed the blog on Twitter, please do so and you'll receive direct links to all new articles the moment they're published. You can also use this as an alternate method to contact me with any questions, IP law related or not, should you want to do so.

In terms of developments in the area, the year has been eventful. The Myriad Genetics decision in the US Supreme Court was one which was anticipated by many, and one which this writer is awaiting to emerge from the Australian Full Federal Court. The Google Books decision, which barely fit into 2013, was monumental as well. In addition the year has been filled with law reviews galore, with the United Kingdom and Australia looking ahead, while Ireland flashed its copyright future in its released review. Many things have happened, and looking at 2014 one cannot be but hopeful as to the future of copyright especially.

I'd like to wish you all a great coming year, and hope that 2014 will be just as good, or even better, than 2013 has been for you! The blog will continue as usual once the new year comes along, firmly going towards it's first anniversary in March. A big thank you to all of my regular and sporadic readers - you are the ones I do this for at the end of the day.

25 December, 2013

Christmas and Intellectual Property Law

I'd like to personally wish everyone a very merry Christmas 2013, not forgetting those who don't celebrate this holiday, so happy Holidays to you too! In the spirit of the festivities I wanted to take a quick look at Christmas and its relation to intellectual property law. Even though the holiday is incredibly old (with further ties to pagan traditions aside from its religious connotation), it still ties in very deeply with modern intellectual property rights in a lot of ways.

The more notable image of Christmas these days is arguably the Coca-Cola campaigns which hit the scene every year. Some efforts have been made to thwart St. Nick's ties with the popular soda pop brand, with little or no damage done to the association between the two, especially during Christmas. The image of Santa in the Coca-Cola adverts is actually protected as a registered trademark; something which most people will not necessarily think of. The popular image was concocted by Haddon Sundblom in 1931 for the beverage company - having been used for almost a century. For a more Coca-Cola oriented history of old St. Nicholas, please refer to their 5 Things You Never Knew About Santa Claus and Coca-Cola article from 2012.

Some of St. Nick's weight could be attributed to his choice of beverage
Certain songs also evoke feelings of Christmases past, sitting around with your family and enjoying the season in the ways you had done for years, maybe even generations. Classics like "We Wish You a Merry Christmas", dating back to the 19th century, and "The Twelve Days of Christmas", dating all the way back to the 16th century, are a part of the holiday for most cultures which celebrate them all over the world. These songs have long since passed their copyright prime; however newer renditions of older songs or even modern creations still may remain under copyright. For example a very popular song in the US for the Spanish speaking community is the song "Feliz Navidad", and the song "Frosty the Snowman" both remain protected under copyright, limiting their use even during the season. This has very little impact on people overall, but still remains a notable thing for most. A selection of song remain very popular during Christmas, and showcase quite well how important the public domain is, and how profitable it also can be.

As one can see Christmas is still very entwined with intellectual property rights, even in the modern day. This should still not serve as a deterrent for your own personal celebrations. I hope you will all have a great break from work, enjoy some quality time with those who you love and remember, 'tis the season of giving. Have a happy end of the year!

21 December, 2013

Streams of Infringers - Germans Face Infringement Allegations over Adult Material

People's Internet browsing habits can be incredibly personal, especially when it relates to certain materials of an adult nature. As such pornographic materials have been used to coerce people into paying for alleged cases of copyright infringement, mostly because of the potentially embarrassing effect a publicly accessible litigation process would have on those individuals. Recent instances have been noted in Australia and more prominently in the US by Prenda Law (something which will be discussed on this blog very soon in more depth). Although seemingly a much rarer vehicle for short-term profits for some entities, recent times have shown an increase in behavior deemed as "copyright trolling"; much akin to patent trolling discussed on this blog prior.

The Germans are the current recipient of such claims, with thousands of Germans being targeted as alleged copyright infringers after visiting the streaming website RedTube (no affiliation with the more known YouTube I'm sure). With numbers having been reported as high as 30,000 Germans as recipients of these letters, the potential value sought by the firm U+C would be over 7,5 million euros.

As such web streaming has been deemed to not infringe copyright in many jurisdictions due to no copy being created in the process of streaming; however U+C argue that "...watching videos on sites such as Redtube can qualify as a proliferation of copyrighted material as a small copy of the file is created in the memory of the viewer’s computer", thus making a copy of the work and potentially infringing copyright. Commenting on behalf of RedTube Alex Taylor, their Vice-President. stated that "RedTube stands by its firm opinion that these letters are completely unfounded and that they violate the rights of those who received it in a very serious manner".

Many are unsure of how to pay the pizza delivery man, if some videos are any indication
Alongside the potential precedent that could be set by the case should it be taken further, potentially causing web streaming to be deemed to infringe copyright, the issue of whether this does infringe the privacy of German citizens can be raised. As stated by Christian Solmecke for the Guardian "...there was not only no legal basis for the fines, but that it was possible that the law firm behind the letters may have broken the law...[and] [i]t is hard to imagine how the IP addresses of the users could have been obtained on a legal basis". More notably this could be an infringement of the right to a private and family life under the European Convention on Human Rights, in addition to any specific German legislation.

The issue of the temporary copies has been argued by Tim Worstall as being potentially correct, stating that "If the original streaming site hasn’t been paying the right royalties it is possible that the viewers owe them. for that idea of a copy existing in the browser would not be, in at least some jurisdictions, be rejected out of hand". This writer for one can see the potential argument as being valid given the right line of argument or set of facts; however due to the current precedent surrounding web streaming it would be unlikely for it to be deemed a form of infringement.

As it stands the matter has not been taken to court, but due to the sheer visibility of the matter it seems unlikely it would avoid litigation entirely, assuming U+C have belief in their argument and are not simply trying to use peoples' embarrassment as a way to make a quick buck. Whether this will go further will remain to be seen, but this writer for one would love for U+C's argument to be tested in court.

Source: The Guardian

17 December, 2013

Pour Some Infringment On Me

Not often can you put the pop ensemble One Direction and the 1980s metal band Def Leppard in the same sentence. Even though the two styles of music differ vastly, a recent turn of events have placed both bands at odds over potential issues relating to the former's new music and possible similarities to Def Leppard's older productions.

One Direction's song called "Midnight Memories" has perked up the ears of Def Leppard and their legal team, allegedly containing parts which eerily match their 80s hit song "Pour Some Sugar On Me". Arguably as pop music has gone even more generic in recent years similarities to older song will occur even when not intended; however according to The Mirror's source: "...it’s clear the two songs sound alike".

Whether this will result in any legal action will remain to be seen, but others have noted the similarities as well. Nick Catucci mentioned this in his review of their album for Entertainment Weekly, stating that "The title track [Midnight Memories] sounds like Def Leppard's ''Pour Some Sugar on Me,'' criminally de-boogied". As such the similarities are much clearer to merely be one person's opinion, and present Def Leppard with an opportunity to get a piece of the boy band's recent success.

For any who might be interested in making their own conclusions as to any potential infringement on the youngster's part, a mash-up of both tracks can be found here. This writer for one believes this issue will not see the light of day in litigation, and will be settled outside of the courts. As One Direction has exploded in popularity since their rise to relevancy some time ago, surely Def Leppard will be interested in not letting this slide.

Source: MetalHammer

12 December, 2013

Retrospective - Passing Off in the United States

The tort of passing off has been discussed on this blog before, yet the tort primarily exists in that form in some common law countries, such as the United Kingdom and Australia, but takes a different form in the US. The term more commonly used in America is not 'passing off', but 'misappropriation'. Misappropriation falls under the tort of unfair competition in the US, made even more complex through the existence of varying laws in all US States pertaining to unfair competition. The common law origins of misappropriation stem from a decision in the early 20th century.

The milestone case concerning misappropriation was International News Service v Associated Press, decided in 1918 by the US Supreme Court. Both parties in the case dealt with the distribution of news in the US, both of which exist even today as independent news agencies or having merged with others. The Associated Press at the time of the case was a representative organization of 950 newspapers all over the US. News items were shared between its members through a bulletin boards, some of which were taken by the International News Services (in addition to news from early editions of newspapers), rewritten and published in different parts of the US for sale, fully utilizing the time differences in the vast country. The Associated Press did not take to this kindly and took the International News Services to court, finally reaching the US Supreme Court.

The Supreme Court had to look at whether International News Services infringed the Associated Press' property rights in their literary work, and whether this amount to unfair competitive practices in business. The Court shortly touched on the existence of copyright in news, and saw no breach of it in International News Services' practices; however what was paramount to the Supreme Court was whether this would be unfair competition. The Court admitted there was no breach of confidence, although it was speculated that some of the news published by International News Services was obtained through paying some of Associated Press' employees to obtain early copies of news articles.

The work put into news can sometimes be extraordinary
The Court's focus turned to the effort and expenditure used by the Associated Press to acquire their news, stated by Justice Pitney: "Not only do the acquisition and transmission of news require elaborate organization and a large expenditure of money, skill, and effort; not only has it an exchange value to the gatherer, dependent chiefly upon its novelty and freshness, the regularity of the service, its reputed reliability and thoroughness, and its adaptability to the public needs; but also, as is evident, the news has an exchange value to one who can misappropriate it". News as a copyrighted work has very little value, but its main value is in its initial delivery and punctuality; one which was clearly abused by International News Services by obtaining and publishing the Associated Press' news. Due to this expenditure and labor which has been placed into the collection of the current news, and without International News Services actually contributing to it and still using it, they are "...endeavoring to reap where it has not sown", which amounts to "...an unauthorized interference with the normal operation of [Associated Press'] legitimate business precisely at the point where the profit is to be reaped". To further his point, Justice Pitney saw that this was underpinned by the equitable consideration of consideration, or in other words: "...he who has fairly paid the price should have the beneficial use of the property". Clearly the Associated Press should be able to enjoy the fruits of their labor, whereas if International News Services were allowed to swoop in and utilize that work and benefit, it would undermine the Associated Press' equitable interest; making International News Services' actions unfair competition.

Although news in itself is not the property of anyone or any entity, the Court saw it akin to quasi-property through its use. Justice Pitney summarized this well:
"Regarding news matter as the mere material from which these two competing parties are endeavoring to make money, and treating it, therefore, as quasi property for the purposes of their business because they are both selling it as such, defendant's conduct differs from the ordinary case of unfair competition in trade principally in this that, instead of selling its own goods as those of complainant, it substitutes misappropriation in the place of misrepresentation, and sells complainant's goods as its own". 
As such International News Services, by using the quasi-property of the Associated Press, misappropriated that property, and although they did not show any misrepresentation, prevented the Associated Press from enjoying the benefits of their work. International News Services' appeal was therefore unsuccessful.

The current form of misappropriation is slightly more developed since its inception. The requirements were well set-out in the case of National Basketball Association v Motorola, where Circuit Judge Winter set them out as:
"(i) the plaintiff generates or collects information at some cost or expense; (ii) the value of the information is highly time-sensitive; (iii) the defendant's use of the information constitutes free-riding on the plaintiff's costly efforts to generate or collect it; (iv) the defendant's use of the information is in direct competition with a product or service offered by the plaintiff; (v) the ability of other parties to free-ride on the efforts of the plaintiff would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened... rend[ering] [the] publication profitless, or so little profitable as in effect to cut off the service by rendering the cost prohibitive in comparison with the return".
As one can observe, misappropriation is a much looser, more flexible doctrine than that of passing off. The attitude of both judiciaries is the same however, preventing others from using the work or labor of another for their own benefit.

04 December, 2013

Retrospective - Authorship

The expression of ideas is one of the cornerstones of copyright. The conveyance of ideas is more complex today through the use of various mediums, far from the more simple approaches in latter days. Who has written something can become exceedingly convoluted, especially in a sphere such as the Internet where anyone can claim authorship over others' works with relative ease. Although former expression mediums such as news papers and books provided a much more straightforward identification of the author on the face of it, some questions did remain as to who can be classed as the author of a work when it involves a person conveying their ideas to another for their expression of said ideas.

The more prominent case which deals with authorship is the case of Donoghue v Allied Newspapers Ltd, faced by the High Court in the United Kingdom in 1938. This case concerned a series of articles published in the News of the World newspaper about the then-famous jockey Stephen Donoghue and his experiences in the world of horse racing. Mr. Donoghue was interviewed about his adventures, which were subsequently used by a professional journalist S. T. Felstead. The series of articles published were called "Steve Donoghue’s Racing Secrets, Enthralling Stories of the Sport of Kings", and all articles were approved by Mr. Donoghue prior to publishing. Mr. Felstead wanted to further use the material which was published in these articles by writing a new piece titled "My Racing Secrets. By Steve Donoghue" to be published in the newspaper Guides and Ideas, which used condensed parts from the older articles, effectively creating a new work. Mr. Donoghue did not consent to the publication of new works, yet when the piece was published in the newspaper, Mr. Donoghue took action to prevent any further publications of such articles.

The question for the court was whether Mr. Donoghue could be seen as the author or co-author of the published articles in the News of the World under the then in-force Copyright Act 1911. Justice Farwell summarized the position of the law well as exposition to this question:
"...there is no copyright in an idea, or in ideas. A person may have a brilliant idea for a story, or for a picture, or for a play, and one which appears to him to be original; but if he communicates that idea to an author or an artist or a playwright, the production which is the result of the communication of the idea to the author or the artist or the playwright is the copyright of the person who has clothed the idea in a form, whether by means of a picture, a play, or a book, and the owner of the idea has no rights in that product."
What is important in the court's assessment is not the idea or ideas themselves, but their expression in a particular form. In the case at hand Mr. Donoghue essentially provided Mr. Felstead the ideas for his articles; ideas which were then conveyed through Mr. Felstead's expression. The language used in the articles was accepted to being that of Mr. Felstead's and not Mr. Donoghue's, even though some of the articles contained dialogue arguably taken verbatim from Mr. Donoghue's recollections.

Pete was a man of ideas, not action
Justice Farwell utilized precedent in his judgment, noting the judgment of Justice Tomlin in Evans v E Hulton & Co Ltd. Justice Tomlin expressed the need to produce the "...express matter which is the original literary work, the subject-matter of the copyright" in works to be the author of those works; something which was accepted by Justice Farwell in the case at hand. His Honor, in his mind, saw this as being the "...particular form of language in which the information is conveyed", and saw that although Mr. Donoghue influenced the substance of the works, the language used was Mr. Felstead's, making him the author of the works. Mr. Donoghue therefore failed in his action.

What can be taken away from the decision is yet again the line which authors and contributors tread; the divide between ideas and expression in copyright (something which has been discussed on this blog more extensively). Whether one contributes themes and ideas, as opposed to written material, can sway the pendulum towards either side, potentially impacting future claims should the material be abused by others. Clearly the world of copyright is not for men of pure ideas.