29 December, 2015

A Rosey Future Ahead? - EU Commission Addresses Copyright for 2016

As the year is nearly coming to a close, this writer thought it would be pertinent to set our sights for the coming year. 2016 will hopefully be one of further advancement, change and full of cases detailing the law in more intricate, nuanced and better ways. It is always interesting to get perspectives on future changes from the legislature, and such thoughts were shared by the EU Commission and its initiatives on copyright for copyright.

A more modern, more European copyright framework

The framework where copyright operates has gone through a massive sea of changes, not only in terms of the media covered and people's interaction with that media, but also the technological advancements that have effectively redefined human interaction, media consumption and our perception of the world. With this change a strong, but malleable approach to reform would need to be adopted, and as countries have taken their steps towards a newer copyright regime, a EU-centric change was also needed. The EU Commission, as stated above, has brought forth several points of reform, introduced in their press release only a handful of days ago, aiming to modernise the copyright rules in the Union.

Widening access to content across the EU

The Commission envisions the enablement of EU citizens to take their paid-for (or subscribed-to) content with them in the Union, or as the press release states: "[the] aim[] [is] to allow a better circulation of content, offer more choice to Europeans, to strengthen cultural diversity and provide more opportunities for the creative sector". Arguably this would be a tremendous improvement and a move for the harmonization of copyright within the EU, accessibility to content, and to expand the markets beyond their respective national borders.

This, per the proposal released some time ago, would be achieved through an obligation on Member States to enable their citizens to access online content services (defined the same as in Directive 2010/13/EU or as a service, both paid for or not, whose main feature is the provision of access and use of copyright works) when they are temporarily out of the country the service originally is provided.

How this is implemented in each Member State, and whether any restrictions will be added to post-proposal, will remain to be seen, but this writer believes this would be a huge leap forward in harmonizing the internal market, and to enable paying customers to access the services and/or content they have duly paid for.

Exceptions to copyright and creating a fairer marketplace

The Commission also sets out an intent to assess the exceptions that apply to copyright protected works, specifically in relation to education, research (data mining, specifically) and the use of such works by disabled individuals. They also aim to provide further clarity to the legal standing of images uploaded by internet users of monuments (this issue discussed more here).

It was the day that Sally had foreseen, and was dreading, all along
It is hard to say what the Commission is set to change or clarify, but this writer will express his concern for the latter point on images featuring monuments and their possible status as infringing or non-infringing works. The spread and dissemination of information is important, as well as individual expression through photographical works, and the dissuasion or illegality of such expression would be worrisome.

The Commission also wants to tackle the remuneration of content creators in the online sphere, specifically in relation to news aggregators, and will "...analyse whether solutions are needed at EU level to increase legal certainty, transparency and balance in the system that governs the remuneration of authors and performers in the EU, taking EU and national competences into account".

This was addressed in more detail in their communication as an examination of "...whether action is needed on the definition of the rights of ‘communication to the public’ and of ‘making available’... [and] whether any action specific to news aggregators is needed, including intervening on rights". This area of the law is still quite murky, and further clarification and potential legislation might be needed to balance the current arguable free-for-all in the online space regarding news aggregation.

Fighting piracy

Finally, the Commission wants to go further in the enforcement of copyright against possible pirates, engaging in a public consultation on the matter with all stake-holders (focusing on the efficacy of Directive 2004/48/EC). Additionally it will include considerations on "...how to make the removal of illegal content by online intermediaries more efficient".

Their objective is clearly a 'follow-the-money' approach, however a strict, DMCA style weaponry could leave legitimate entities and/or fair dealing without proper protection. As their communication states: "...the Commission will assess options and consider by autumn 2016 the need to amend the legal framework focussing on commercial-scale infringements, inter alia to clarify, as appropriate, the rules for identifying infringers, the application of provisional and precautionary measures and injunctions and their cross-border effect, the calculation and allocation of damages and legal costs".

This writer hopes that the review process proposed by the Commission above remains fair and balanced, and remains hopeful things will be fine down the line. Nevertheless, 2016 should be an exciting time for copyright, and we will all undoubtedly stay interested in the proposed regulations that will be put forth.

Source: IPKat  

08 December, 2015

The Origin of IP - Historical Protection of Intellectual Property

The protection of your rights through intellectual property law is not by any means a modern-day quirk, stemming from hundreds of years of (varying levels of) protection or acknowledgement. Many of us who work with IP within the common law are more than familiar with the Statute of Anne in 1709, which offered the predecessor to today's protection of copyright, and the 'renaissance' of monopolizing intellectual efforts outside of pure monetary exclusion, and the Statute of Monopolies a few decades before it. Even so, one could imagine that there would be more historical, potentially ancient considerations containing IP protection, which begs the question: where are the historical origins of IP protection?


As said above, the Statute of Anne was truly the first manifestation of the modern regime of copyright protection in the UK, and subsequently all over the common law, due to its wide-spread adoption within England's (former) colonies. However, the Statute was not the only incarnation of copyright protection in the world up till that date.

According to historical records, one of the first forms of protection for copyright works (as one could argue they were) was in 500 BC when chefs in Sybaris, a Greek colony in Italy, were afforded a monopoly for a year on the creation of specific recipes. Although, indirectly at least, copyright works, this suggests that it could be one of the first instances of copyright protection (more on which can be read here in a modern context). Similarly a few hundred years later, Vitruvius, a Roman author, successfully convicted some poets who had copied and passed off others' works as their own.

Some ancient thinkers were ahead of their time
Both the Romans and the Greeks, especially in the context of comedies, distinguished the appropriation and copying of works by other authors as theft ('furtum'). However, they still allowed for the compilation of two or more plays into one, and even criticism of other works, which were seen as corner-stones of the betterment of knowledge, science and overall the retention of intellectual output.

These examples do not showcase a concrete systematic protection of copyright during ancient times, but illustrates that, even though not protected by law, the unique expression of authors was seen as highly valuable and thus something worth protecting. One can imagine the roots of our current system stemming from ideologies that the Greeks and Romans held dear, and this writer, for one, would like to think this was one of the first steps into the foray of IP in human history.


Trademarks, as many of you will be aware, serve as an indicator of the origin and quality of goods and services, providing an observant consumer the goods and services they have duly paid for. The history of registered trademarks in the UK dates back to the 1800s, with Bass Brewery's iconic triangle being the very first one to be registered under the Trade Marks Registration Act 1875. Even so, our historical predecessors had already used trademarks to great effect before the Act's introduction.

In Ancient Egypt, Greece and Rome, potters often marked their pottery with distinctive signs (referred to as 'potter's marks'), showing who had made it, and undoubtedly, signalling the craftsmanship associated with that particular item and its maker (examples can be seen here). Although these marks did not serve the same purpose as modern trademarks do, one could argue that, even though they were not a legally protected badge of origin, they were akin to their modern counterparts. Seemingly these marks were never enforced, but one can imagine they potentially were a deciding factor for those who would purchase the items.


The more modern concept of patents derives itself from the 1470s, when the Italian City State of Venice granted 10 year patents to anyone who would make a new and ingenious contrivance in the city of Venice, and notified the State Judicial Office of their invention. The Statute of Monopolies 1623 followed some 150 years later, but the Venetian initiative paved the way for patents as we know it today.

The UK, however, was not entirely outdone by their Italian counterparts, and patents did exist before the enactment of the Statute of Monopolies. Letters of patents could be issued, and duly were, by the Monarchy, and one of the first recorded instances was in 1331. Although not only a way to protect inventions, also conveying monopolies in corporations, titles and other royal grants, they still illustrate the importance of inventions even over 100 years before the enactment of the Venetian patent law.


IP clearly has a long and colorful history, and this only highlights its importance not only in today's world, but for years to come. Whether you are a believer in the common ownership and free dissemination of information, or the protector of the monetary incentives many aspiring (and successful) artists, musicians, inventors and creators often need, you have to appreciate the value that IP gives to all of us. Without our Greek, Roman and Venetian predecessors, who knows what IP laws would look like today.