Non-Fungible Tokens (NFTs) are All the Rage - It Is Not Copyright and is Ripe for Misunderstanding and Misuse

Anyone who works in the sphere of intellectual property in the law will have come accustomed to misunderstandings in how various IP rights work, what they mean in real terms and how they can be utilized by both people and businesses. Recently I have come across a new world of "copyright" (even though it is not copyright in any form) that seems to be speculated over, which is Non-Fungible Tokens or NFTs that are used to sell "rights" in digital art. 

For the uninitiated, NFTs are a part of the Ethereum cryptocurrency blockchain, allowing for the distribution and/or sale of unique (i.e. non-fungible) tokens that are separate from the cryptocurrency itself. NFTs themselves can be anything that is digital, and identified as unique through the token (proving that the piece is indeed the original), and can be sold much like a physical piece of art, but in the digital world. What has made things surprising to this writer is the misunderstanding and mixing up of NFTs with copyright, so it might be worth discussing the differences between these and the implications of copyright on the sale of NFTs. 

As a brief primer, copyright is an IP rights that protects the expression of ideas, but not the ideas themselves. This means that you will have copyright in e.g. a piece of art you draw, a photo you take or a video you create, and can utilize copyright to prevent others from copying that work. This also enables the licensing of these rights to others, allowing them to copy the works under the terms of the license; however, copyright does not really impact the sale of a physical item such as a painting. Often the latter point leads to confusion as to the application of copyright to the sale of works, but it undoubtedly will impact the sale of digital copies of works. 

The potential problem with how NFTs are portrayed seems to equate them to the world of copyright, meaning the NFT gives you some sort of rights over the digital art you've purchased the token for. In fact, this is not the case, since NFTs don't give anyone any rights over the digital art, but simply act as provenance to the fact that you "own" the original digital piece. Even though you "own" the art, the ultimate copyright holder retains the rights over the distribution of the art piece. 

With that in mind, do you actually own anything? Yes and no. You own the 'receipt' for the digital art piece in the form of the NFT, but this doesn't give you any further rights, especially under copyright. The artist keeps those rights unless they sell it to you along with the NFT (and in most instances they will not do so). 

One issue that can be overlooked here is individuals or companies could conceivably claim an NFT on works that are not their own and take away monetary gains from artists who don't know, or haven't cared to, do so themselves. This could then lead to a wider sharing of works through these "authenticated" copies that negatively impacts the artist, including the aforementioned monetary loss through a missed opportunity to sell a genuine NFT to your works. Artists will have claims under copyright to challenge the sale of any NFTs (and the potential distribution of their works). 

It seems that NFTs are riding the craze of cryptocurrency, and one should be careful and understand what NFTs actually mean in terms of ownership, and what implications there are in the light of copyright. There will be issues that artists, sellers and purchasers will have to keep in mind, and while it might be cool to "own" a 'signed' copy of a piece of digital art when you buy an NFT, its limits are simply that; it's a way to prove that you have potentially purchased the genuine article, but that's it. 

Radio Musings - My Contribution to BBC Radio on IP and the Right to Repair Movement

This writer recently had the honor and privilege of being interviewed by the BBC World Service for their Business Daily program on the business implications regarding IP on the right to repair movement and its future.

You can find the piece here: https://www.bbc.co.uk/programmes/w3cswgrc

The right to repair movement is incredibly interesting, and undoubtedly something that will impact companies and consumers in the near future. While the exact IP implications of any future legislation is still unclear, you can bet that it will have some effect, potentially even dramatic, on companies' IP and potential innovation.

A Fortine at the PUBG - Can You Protect a Video Game Format?

Video games have effectively become mainstream entertainment during this writer's lifetime, and with that increased popularity their value to companies has also gone up. If one video game becomes popular, other developers often jump at the chance of taking advantage of the popularity with their own spin. An example of a recent explosion in video game types are battle royale games, where several players fight for survival with limited resources, with the last person standing winning that particular session. The two most popular ones are PUBG (PlayerUnknown's Battlegrounds) and Fortnite, developed by PUBG Corporation and Epic Games respectively. As the two battle royale titans battle it out for popularity, there is a risk of lawsuits going either way to protect their interests.

According to the Korean Times, PUBG have filed a lawsuit against Epic Games for copyright infringement in Korea, alleging that "…Fortnite was copied from… PlayerUnknown's Battlegrounds", including replicating the 'experience' for which PUBG is known, including the game's 'core elements' and user interface. PUBG have raised concerns over replication as early as September 2017, when Fortnite's battle royal mode was announced, including over Fortnite's "…User Interface, gameplay and structural replication in the battle royale mode". PUBG are, however, licensees of Epic Games' Unreal Engine 4, which adds yet another layer of complications into the mix, and a potential pitfall for PUBG in their claim.

While it is unclear, at least to this writer, how the Korean courts will deal with a claim concerning the claims on video game formats (any readers with further knowledge should let me know!), how do other jurisdictions deal with these questions?



PUBG's lawyers had a dream
about the wording of the court ruling

There has been very little video game related litigation in the UK. The most recent one, Nova Productions Ltd v Mazooma Games Ltd, dates back to 2006. In the case the UK Court of Appeal saw that "…Not all of the skill which goes into a copyright work is protected... An idea consisting of a combination of ideas is still just an idea. That is as true for ideas in a computer program as for any other copyright work". The court's emphasis was on the lack of protection for the ideas surrounding a game, which could, at least in this writer's view, preclude the protection of video game formats like battle royale.

In the US the situation is slightly different. In Tetris Holding LLC v Xio Interactive the New York District Court found that a Tetris clone had infringed the copyright in the work, although protection was largely extended only due to the similarities in aesthetics between the games. The underlying rules of the game (i.e. format, one could argue) can be protected only if the expression of those rules is somehow limited, or isn't part of scènes à faire. Similarly, in DaVinci Editrice SRL v Ziko Games LLC, the District Court of Texas decided that "…the rules, procedures, and limits that make up the game play are not protectable expression". To add more fuel to this fire, the US Copyright Office has set out that "…Copyright does not protect the idea for a game… or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game". One can appreciate that the American system protects the aesthetic expression of a video game (and arguably rightfully so), rather than the rules under which it operates.

Clearly the protection of a video game format, i.e. the rules that underpin the game itself, are very difficult to protect, particularly under copyright. While this writer does not know what the Korean regime is for copyright in this area, it seems very doubtful that it would be very different from the above. As both PUBG and Fortnite differ dramatically in their aesthetics (although a more detailed analysis of all elements of each game could yield some infringing elements), it would seem that PUBG have more to lose than just a copyright lawsuit should things go badly.

Problem Fixed - CJEU Decides on IP and the Right to Repair Goods

Tinkering with old gadgets or cars is a beloved pastime for many, and often prolongs the life of the goods you own even beyond their warranty periods. Many manufacturers are making it increasingly difficult to repair items, particularly high-end electronics, and with discussions heating up relating to Apple's slow-down of their devices due to hardware aging, it is conceivable even more important for people to fix their old items. We've discussed IP issues relating to repairing or tinkering with tractors, but there has been very little judicial consideration around it. In that vein, what are the limits of IP and peoples' right to repair their goods? The CJEU took this question on late last year.

The case of Acacia Srl v Pneusgarda Srl and Audi AG concerned the sale of alloy rims for cars, for which Audi owns several registered community designs (e.g. RCD 132899 and 207667). Acacia manufactured rims under the brand WSP Italy, sold on their website, which are identical to the rims registered by Audi. The rims made by Acacia were clearly stamped as not made by the OEM, and were sold exclusively as replacement parts for the purpose of making repairs. Audi took Acacia to court over design infringement, with the matter ending up with the CJEU. Porsche had a similar matter joined with the Audi case against Acacia.

The Court joined the questions from both matters, which, essentially inquired about EU law in relation to repairs and design infringement.

The first combined question dealt by the Court asked whether "…Article 110(1) of Regulation No 6/2002 must be interpreted as meaning that the ‘repair’ clause in it makes the exclusion of protection as a Community design for a design which constitutes a component part of a complex product which is used for the purpose of the repair of that complex product so as to restore its original appearance subject to the condition that the protected design is dependent upon the appearance of the complex product".

The restoration of a vehicle's appearance is important, especially in a crash situation, and without the exception this wouldn't be possible. The Article 110 exception allows for this, and the CJEU had to therefore consider the provision's remit.

The CJEU rejected the condition that the exception only operates where the design is dependent upon the appearance of the complex product due to the absence of this phraseology in the legislation. The provision also protects against captive markets, where only the design holder can produce certain spare parts, allowing for consumers to purchase less expensive alternatives and not be tied to one particular provider. The Court therefore set out that "…Article 110(1)… must be interpreted as meaning that the ‘repair’ clause in it does not make the exclusion of protection as a Community design for a design which constitutes a component part of a complex product which is used for the purpose of the repair of that complex product so as to restore its original appearance subject to the condition that the protected design is dependent upon the appearance of the complex product".

The Court then moved onto the second combined question, which asked "…to which conditions the ‘repair’ clause in Article 110(1)… subjects the exclusion of protection as a Community design for a design which constitutes a component part of a complex product which is used for the purpose of the repair of a complex product so as to restore its original appearance".

The CJEU quickly set out that the provision is subject to three conditions: (i) the existence of a Community design; (ii) the presence of a ‘component part of a complex product’; and (iii) to the need for ‘[use] within the meaning of Article 19(1) for the purpose of the repair of that complex product so as to restore its original appearance’.

It's not just sellers who struggle with auto repairs

In specifying these conditions, the Court first observed that the second condition (as rights exist in the wheel rims) covers "…multiple components, intended to be assembled into a complex industrial or handicraft item, which can be replaced permitting disassembly and re-assembly of such an item, without which the complex product could not be subject to normal use", and that a wheel rim would indeed fall under this definition.

With regards to the third condition, the CJEU saw that 'use' of that product for the purpose of repairing that product includes making, offering, putting on the market, importing, exporting or using of a product in which the design is incorporated or to which it is applied, or stocking such a product for those purposes. This use, however, has to be with the aim to 'permitting the repair of the product', which encompasses the situation where, if that part were faulty or missing, this would prevent the product's normal use.

In short, the 'use' of the product, set out above, needs to be necessary for the repairing of that product if it has become defective through damage or lack of original parts. Purely aesthetic repairs wouldn't be covered by the provision, as it's only for convenience. Even still, the repairing would have to be done ‘so as to restore its original appearance’.

What this amounts to is that "…the component part must be used so as to restore the complex product to the appearance it had when it was placed on the market". The CJEU also added that the clause only applies to component parts of a complex product that are visually identical to the original parts.

In short, the CJEU saw that "…the ‘repair’ clause in it makes the exclusion of protection as a [RCD] for a design which constitutes a component part of a complex product which is used for the purpose of the repair of that complex product so as to restore its original appearance subject to the condition that the replacement part must have an identical visual appearance to that of the part which was originally incorporated into the complex product when it was placed on the market".

The Court then moved onto the final combined question, which asked "…whether Article 110(1)... must be interpreted as meaning that, in order to rely on the ‘repair’ clause in that provision, the manufacturer or seller of a component part of a complex product must ensure and, in that case, how it must ensure, that the component part can be purchased exclusively for repair purposes".

As detailed above, the repair clause is subject to a number of conditions, and in particular ones that emphasises a genuine need for repairs. This imposes compliance on part of the downstream user, not just the seller. This means that the seller needs to inform the buyer that "…the component part concerned incorporates a design of which they are not the holder and, on the other, that the part is intended exclusively to be used for the purpose of the repair of the complex product so as to restore its original appearance". Similarly, this needs to be ensured and enforced through contractual means with the buyer. Finally, "…the manufacturer or seller must refrain from selling such a component part where they know or, in the light of all the relevant circumstances, ought reasonably to know that the part in question will not be used in accordance with the conditions laid down in Article 110(1)".

In summary, the CJEU stated that "…Article 110(1)… must be interpreted as meaning that, in order to rely on the ‘repair’ clause contained in that provision, the manufacturer or seller of a component part of a complex product are under a duty of diligence as regards compliance by downstream users with the conditions laid down in that provision".

The case is a very important one, and clarifies the provisions surrounding the repairing of vehicles or goods owned by an individual and in particular the sale of those goods for repair. The onus is clearly on the seller, which makes sense, as they are the ones likely to benefit from the sales of the goods for repair, rather than the rightsholder.

Source: D Young

IP Iustitia is Looking for Guest Writers!

This writer started his 'career' as a blogger as a guest writer for various IP blogs, and with that being said I thought it would be high-time to extend the same courtesy to my readers who might be interested in contributing to the IP blogosphere, or just to share their own knowledge, passion and enthusiasm for IP law!

Who can be a guest writer?

There really is no template here, but working knowledge or just an interest in IP law is pretty much essential. Whether you're a student, lawyer or anything in between, as long as you know something about IP and want to share your thoughts on current events or just answer a question posed for yourself, then you're a perfect fit.

What can I write about?

What ever you want, so long as it pertains to IP law in some way and is within good taste. Current (or past) cases, new laws passed in your jurisdiction, commentary on current events; the IP world is your oyster here. The more interesting or thought provoking the better!

The only thing we don't publish is merely for the sake of advertising yourself, your firm or business, without much substance bar the bare minimum. IP Iustitia is not a commercial endeavour, but a blog to share knowledge and insight. You and your firm/business will be shared as a part of the article, so long as your article itself speaks more than the tagline at the bottom.

All posts will of course be attributed to the person, including links to your website, LinkedIn profile, social media account or blog.

How do I get in touch?

Email jani.ihalainen@gmail.com or send me a message on Twitter at @IPIustitia and tell a little bit about yourself, your education and/or your profession, and why you want to write for the blog. This is not a popularity contest, and most people's content will be published, but some base knowledge is always nice.

Also, share an idea or two about what you would want to write about. No need to have a sample, but just to brainstorm and share your vision so that I can get a better idea on fit and content. If you have any questions, do let me know as well.

If your article is good, pending editorial discretion, it will be published on the blog. If you have interest to write more than just one article (and your content is good enough), recurring guest writers will be considered happily.

IP Iustitia Turns 3!

Yet another year has passed, and IP Iustitia takes a moment to celebrates its 3rd anniversary! Both the year 2015 and early 2016 have been very eventful in the IP space, and this writer for one does enjoy taking a breather to commemorate this great occasion, if only briefly.

In its inception in early 2013, I never imagined this blog being this popular and drawing in this much interest in the IP community as it has today. Through the blog I have gotten to meet some amazing people (virtually or physically) and to share my meager musings with thousands of people; something which I do not take for granted! It has been a thrilling ride, and one that I aim to keep going for years to come.

As in earlier anniversary editions, here are some details on the blog's current numbers, figures and statistics, should you be interested in knowing what three years of active blogging might entail.

• The blog has been visited by over 110,000 people from dozens of different countries, with the US, UK and other English speaking countries forming the bulk of the visitors. 

• The blog's Twitter account, @IPIustitia, has amassed an amazing 767 followers (as of today) over these three short years, including a great deal of retweets, likes and discussion surrounding posted articles.

• The blog also hosts nearly 200 articles discussing a myriad of topics and cases. Should you find that a topic or case that you would want has not been discussed, please email me at jani.ihalainen(a)gmail.com and suggest it.

• The blog's most read articles are Can You Own a Recipe? When Food Meets Intellectual Property Law and Retrospective - What is Original?, both of which have been viewed well over 2000 times. 

• The blog has over 200 subscribers via its Feedburner RSS service, with more subscribing via other services as well. 

But, as always, the reason why I keep writing these articles is above all else you, the reader. Although the blog's beginnings were mainly as a platform to indulge my own academic curiosity (and still is), the feedback, thoughts and connections I have made through it have been what keeps me writing and sharing my thoughts with you all. Whether you are a loyal reader, or merely a casual passer-by, I wanted to say from the bottom of my heart: Thank you! The IP community is a great one, and I am incredibly proud to be a part of it, and to share this topic with many of you who are truly passionate and incredibly knowledgable about IP.

Please keep sending me your thoughts, questions and feedback via email, and do subscribe to the above services if you do enjoy what IP Iustitia has to offer.

Here's to a great 4th year!

Rights Resurrected - The Use of Abandoned IP Rights

Intellectual property, much like many other forms of property, can become either useless or worthless to a rights holder, even if that would not be the case as it stands when the rights are let go or forgotten. A good example of this is the recent re-emergence of Crystal Pepsi; a clear Pepsi cola drink that was sold during the 1990s. Pepsi had registered the name Crystal Pepsi as a trademark, which it promptly abandoned when the drink failed to become popular. Due to a surge in demand, Pepsi reintroduced the product, and would, arguably, use the previous goodwill associated with the product to protect it (and they did successfully register the trademark again late last year). This begs the question, can you use any abandoned rights you may have in your goods or services, or any other works?

Copyright

Copyright, by its nature, is automatic, and requires no real action on part of the copyright holder. This means that a lack of use does not impact the rights given to the author of any given work, and thus copyright cannot be 'abandoned' through inactivity. In the US the situation is slightly different, and although rights are afforded through common law, one should still register their copyright in order to fully benefit from the federal protection afforded to authors (although a lack of registration does not lead to an 'abandonment' of rights).

In the UK there is no express provision for the abandonment of copyright, and therefore there is no real case of copyright revival, but one could argue that the copyright holder, in ignoring his rights and allowing for the free use and sharing of his works, could be 'abandoning' their rights to the works. One still has to appreciate that the copyright holder can at any time reassert their rights, and thus the copyright in the works is newly resurrected (although, as evident from the above, was never gone to begin with).

Our cousins in the United States do accept the abandonment of copyrights in works. The current law was explained in Capitol Records, Inc v Naxos of America, Inc, where the Court of Appeals set out that "...[the] abandonment of copyright requires (1) an intent by the copyright holder to surrender rights in the work; and (2) an overt act evidencing that intent". Arguably this could be achieved through a statement or the issuance of a public domain licence, or even through another act that shows a clear intent to abandon the rights you have in any given work (although inaction as to the works' protection would not necessarily be enough). It is unclear whether the rights holder could relinquish their rights post-abandonment, but arguably the parties who have used those works during the period of abandonment would clearly be protected.

Trademarks

As illustrated by the above example involving Pepsi, it is very possible to abandon a trademark and re-apply for it (i.e. an alternative), potentially re-appropriating that mark. What is more relevant in the context of trademarks is the potential loss of goodwill, especially in relation to passing off as a common law right, rather than a right under the Trade Marks Act 1994.

Rodney refused to abandon any invention (Source: Gunshow)

In the case of Star Industrial Co Limited v Yap Kwee Kor the Privy Council considered this question, and reiterated the existing tangible connection between a company and its goodwill; however, the latter cannot exist in a vacuum outside of the company's business activities. If a company, with intention, abandons the goodwill in a given product or company, it cannot use it after the fact. This is not as clear as that, however, as in Maslyukov v Diageo Distilling Limited Justice Arnold saw that "...the test is whether the relevant business has been abandoned so as to destroy the goodwill. Mere cessation of business is not enough... [a] cessation of production of goods or provision of services does not necessarily mean that there has been a cessation of business capable of sustaining goodwill". What his judgment seems to illustrate is a need for an active component of abandonment, rather than just a mere stoppage in trading or production, indicating clearly and without a doubt the company wished to abandon all goodwill in the relevant goods or services.

One can 're-appropriate' goodwill in goods even after the end of their production, provided that some actions have been taken to preserve that goodwill (e.g. conducting business in the area of commerce, retention of the subsidiary or corporate entity that held those rights etc.) and no active efforts have been made to truly abandon those rights. This would enable the party to assert those rights under common law in passing off, as if those rights had never been 'abandoned'.

Patents

One can abandon a patent, or an application for a patent, at any time. This would entail either not paying the requisite maintenance fees on the patent (automatically lapsing the patent), or otherwise surrendering the rights to the invention. This is not, however, the end, as it is possible to seek the restoration of the patent within 13 months of it lapsing, although only in the case of 'unintentional' lack of payment of fees. Once the patent has fully lapsed the rights to the patent expire, and there is no way to reclaim those rights (unlike in copyright or under passing off).

As is clear abandoning the rights in your intellectual property might not pay dividends, although does give the rights holder the flexibility to avoid additional legal costs or fees associated with the rights and asserting them. Nevertheless, it still might be possible to relinquish the rights you have abandoned, in very limited circumstances. This writer is a staunch believer in the retention of ones rights, but has to concede that this might not be the best option for every rights holder.

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?

Copyright

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

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.

Patents

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.

Conclusion

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.

Retrospective - Groundless Threats in Intellectual Property Law

A big aspect of intellectual property law is the possible threat of infringement, even when you might not know it. With strong legal protective measures comes a great deal of responsibility in wielding that capability, especially in the light of competition. IP can be used to stifle those aiming to compete with you, as well as those who blatantly want to benefit from your hard-work and intellectual output. A balance has to therefore be struck, and certain legal tethers have been placed to restrict the unwarranted use of IP rights without due cause. Groundless threat provisions exist in relation to all registrable IP rights (trademarks, patents and designs) under the Patents Act 1977, Trade Marks Act 1994, Registered Designs Act 1949 and Copyright, Designs and Patents Act 1988. What amounts to a groundless threat is not entirely clear under all of the provisions above (which act fairly similarly to each other), however the High Court endeavored to answer this at the cusp of the 21st century.

The case of Brain v Ingledew Brown Bennington & Garrett (No 3), decided in 1997, dealt with Patrick John Brain, who, in the early 90s, set up a consulting business in an effort to exploit new technologies and inventions all over the world, particularly in the Far East. Upon meeting Jørgen Jensen, the Head of Chemistry at Risø National Labratory (the second defendant), a Danish research company, the pair struck a deal to utilize a patented technology developed at Risø by a number of individuals called "Wet Oxdiation" (e.g. patents US5053142A and EP0284754) in foreign markets. The pair started a company called Intox Corporation Limited, and successfully marketed the process to a company in Canada, which included passing on technical documents attained by Mr. Jensen. Risø found out about Intox Corporations' activities, and initiated court proceedings against Mr. Jensen in Denmark. During the proceedings Risø also instructed UK lawyers, Ingledew Brown Bennington & Garrett, to pursue Intox Corporation. Mr. Brain argued that, in correspondence between him and lawyers at Ingledew, several threats were included, and as a result, the projects incorporating the above technology did not come to fruition, causing him a great deal of monetary loss. He then initiated proceedings for groundless threats under the Patents Act 1977.

Under the above Act, in section 70: "...a person (whether or not the proprietor of, or entitled to any right in, a patent) by circulars, advertisements or otherwise threatens another person with proceedings for any infringement of a patent, a person aggrieved by the threats (whether or not he is the person to whom the threats are made) may... bring proceedings in the court against the person making the threats".

Rory was aggrieved by threats made in relation to his cap

Justice Laddie, handing down the judgment of the High Court, had to therefore first determine whether Mr. Brain was a 'person aggrieved', allowing him to bring forth his claim. For a person to be considered as such there has to be clear damage, not just hurt feelings. As Justice Laddie described it: "...a trader's chosen route to exploitation of his product or process is interfered with by the threat, that is damage in the broad sense and makes him a person aggrieved". Reliance on the threat, and subsequent action causing detriment, is key, not just annoyance or mere displeasure. Even if loss is prevented or mitigated in the event of a threat does not mean the person cannot be seen as a person aggrieved. What the person has to show is "...that his commercial interests are or are likely to be adversely affected in a real as opposed to a fanciful or minimal way". The Court saw that, as the threats were made to Mr. Brain directly, that he would fall under the definition of a 'person aggrieved'.

Justice Laddie then had to assess what the meaning of the letters were, and whether they actually constituted a threat. This assessment has to be done "...in accordance with how they would be understood by an ordinary reader", and what the initial impression would be to a reasonable addressee. In the light of the three letters discussed as a whole, Justice Laddie saw that their purpose would be reasonably understood as a threat to initiate patent proceedings.

Arguments as to the available defence under section 70(4), preventing any proceedings under section 70 for "...a threat to bring proceedings for an infringement alleged to consist of making or importing
a product for disposal or of using a process" (defined in section 60), failed, as the correspondence targets a much broader base of infringement, not just the ones exempted under section 60. Justice Laddie found that the defendants had made groundless threats against Mr. Brain, and ordered an inquiry into damages.

The law in relation to groundless threats has since moved on, and more leeway has been given in terms of bringing information as to any existing IP rights to the attention of the potentially infringing party. The Patents Act 2004 made significant changes to section 70, however the above does still apply to all groundless threat cases, giving the courts the basis for their determination for a cause of action under these provisions.

IP Iustitia Turns 2 Years Old!

I almost didn't realize that it already has been a year since our very first full year of blogging, but here it is: IP Iustitia has turned a respectable 2 years since its inception in the early days of 2013. This writer for one is humbled and quite surprised how things have developed over the last two years, with the blog steadily growing and garnering some momentum amongst the IP law sphere.

The blog's very inception was just to do one thing and one thing only; to further my own intellectual curiosity within IP, and to allow for myself to express that very curiosity in my own way within that area, while trying to educate (to what extent a blog can do this) and to, hopefully at least, entertain the ones who read my blog both regularly and irregularly. The response I've gotten over these two years has been very positive, and if they're any indication, will push me to improve even more in the coming years.

So far the blog has had 60,000 visitors, and even though it might not seem like a lot to the casual observer, to me personally it is more than I ever expected. The blog is also very near to reach its 500th Twitter follower, allowing for one and all to take part in the conversation, and to share/favorite any and all posts that I might send the Internet's way. I've had some great interactions with people and organizations on Twitter, and hope things will get even better in year #3!

There isn't a great deal else to say, but a big thank you to all of whom who've read my articles, commented, emailed or Tweeted my way, and hopefully you will all stick around for the years to come! The more you engage, the better it is for me to write and to participate in our lovely IP community; one which is without a doubt the most welcoming and friendly group of people I've ever had the pleasure of being associated with. IP Iustitia will continue to grow and to keep you updated on select topics within IP law, and bring about a healthy conversation on topics that might interest you or others.

Thank you again, and here's to a great 2015!

IP Iustitia's First Anniversary!

For those who might have glimpsed at the very beginnings of IP Iustitia, the blog has evolved quite a bit after a full year of operation. Who would have thought things would grow to what they are today, and for one the success the blog has had only spurs this humble writer to go further and improve. From the bottom of my heart I would like to thank all of my readers, both casual and subscribed, and hope the following years will be as great as they have been for the very first one.

I would also like to thank those who have given me feedback through comments on the blog itself or via email, and those who have either favorited the blog's articles on Twitter or retweeted them onward. I have always wished for my readers to participate and to help the blog grow and want to encourage you all to keep doing so as we go forward!

If you have not done so yet, subscribe to the blog via RSS or email (with a convenient box to do so on the sidebar of the blog), and you will receive all new articles directly to your favorite RSS reader or email address. The site's Twitter profile also posts all new content automatically, and can be used to share and interact with the blog directly!

As a final note, I would like to thank you, the reader, again. It is you who I do this for and I would have never believed things would get to this point in only a mere year. As said I will endeavor to make things even better and to produce even more high quality articles on current and past topics in the IP law sphere. If you have any questions or suggestions about the blog's future or its content, please email me, as I would love to hear your thoughts after a year more than ever!

Here's to an even better 2nd year!

Video Games and Copyright - 21st Century Art

Video games have surged to become the new pass-time of choice for millions of people, with sales of new titles like Grand Theft Auto V reaching a billion dollars in sales in its first three days alone. This clearly demonstrates just how important video games are in the sphere of commerce, and therefore the sphere of intellectual property. Even with its immense popularity video games have still been largely left out, at least in terms of specific protection, in most jurisdictions. In addition to this the sheer complexity of video games as copyrighted works presents some issues.

A recent study prepared for the World Intellectual Property Organization attempted to shed some more light on this matter by looking at a variety of jurisdictions and the protection they offer for video games. The study clearly is weighted towards civil law countries (included were for example Denmark, Germany, China and Russia), but common law countries such as Canada and the United States were included in the study.

Super Mario - a modern literary hero?

Copyright protected subject matter in video games shows exactly just broad the category itself is when dealt with under copyright. Three distinct elements can be found in video games, along with their sub-categories respectively; audio elements (e.g. speech, music, sound effects), video elements (e.g. images, animation, text), and computer code (e.g. game engines, ancillary code, plug-ins). In addition to the above any  literary works would be covered as well, including scripts, maps and characters. However the study does point out that "...the real issue, and one of the objects of this study, involves analyzing the legal protection of video games as single, unique works of authorship, since it is irrefutable that the individual elements included in video games can deserve independent copyright protection". The objective of the study is not to introduce possible legal reform or frameworks to protect video games, but to increase awareness to all possible stakeholders, through which potentially exact change or better protection for video games.

In Canada video games are not protected by themselves under the Canadian Copyright Act, but predominantly as a computer program. This would still include all the other copyrighted parts individually, and potentially as a literary work as well. In addition video games could be protected as a 'collective work' as a sum of several distinct parts by different authors. In the US video games would fall under 17 USC § 102, although not expressly mentioned, should it fulfill its specific requirements. Video games have shown some problems to the American judiciary, as is pointed out by the study, but can be said to fall under the protection of copyright.

Always pointing fingers

So this begs the question: why should there be specific protection for video games? Arguably the protection offered to them as it stands can be said to cause some uncertainty. If a video game is not protected as a whole, if individual elements are not deemed protectable the entire game's integrity as an artistic work would clearly be undermined, as the pieces making the game arguably constitute that very artistic expression as a part of a whole. Even in the case of Brown v EMA, the US Supreme Court saw that "[l]ike the protected books, plays, and movies that preceded them, video games communicate ideas-and even social messages-through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world)..."; clearly demonstrating this very point. Video games as a whole are a work which should be protected, not merely a collection of pieces which only merit protection by themselves.

The study is an intriguing and wide-scoped view of the sphere where video games currently reside, and do highlight some issues in a variety of jurisdictions, not to mention their protection in the world as a whole through inconsistencies in approaches. As the medium has become very prevalent, this matter should be addressed further and provided with explicit protection not as a mere collection of different forms of expression, but as a viable form in itself.

Rethinking The Role of Intellectual Property

The role of IP laws and the framework it currently resides in has been debated for decades, and with changes looming in both Australia and the UK, this discussion has been further highlighted. In a recent lecture (a transcript of which can be found here) at the University of Melbourne, Dr. Francis Gurry, the Director of WIPO presented his thoughts on the future of IP.

Dr. Gurry's opening statement set the stage for the topic well, presenting the volatile changes intellectual property has gone in recent years: "...the context in which intellectual property operates in the contemporary world is vastly different from that in which IP was born and that new context has changed the position of intellectual property in the economy and it’s changed it in society, and I think it should cause us to rethink the role that we give to intellectual property." This change has manifested in many ways, such as the digitization of media, the emergence of the Internet and recently the Cloud.

The role IP has played was laid out well by Dr. Gurry. According to him IP is both a private good, where information and knowledge serve as a vehicle for personal gain, but they are also a public good in consumption. In the case of the latter, information and knowledge can be enjoyed and used by others without lessening the value of the information or knowledge itself for the producer of it. The current IP framework serves as a way to protect commercial interests by limiting its public consumption, in order to recuperate the costs that were incurred through its creation, or as was incredibly eloquently put by Dr. Gurry: "It thereby creates an economic incentive to investment in knowledge creation and provides a safe passage through hostile terrain for the long and often lonely march of an idea from conception to commercial implementation as a new product, service or process." This aspect is important, as it creates the possibility of the creation of that information or knowledge to begin with, especially in a modern society where basic human needs are only met through the acquisition of money.

IP does provide another interesting benefit, one which most undoubtedly overlook as a result of the heavy emphasis on the commercial aspect of IP. This is the opening up of knowledge, and the ability to build on old information; more specifically relating to patents. Dr. Gurry expanded on this with an example of the patent relating to the saxophone, one which was subsequently built on, used to create something new and to arguably improve the initial patent itself. Contrasting this is the loss of knowledge in how old masters made violins, such as Stradivari and Guarneri, as without any open and accessibly information to their specifics their methods still allude even modern manufacturers. The patent system has also created an amazing database of human invention, both past and present, for future generations to use and study. This availability of information clearly can be argued to counter-balance any commercial interests relating to patents themselves, showcasing the amazing things that proper IP schemes can create.

The status quo aside, Dr. Gurry does point out that "...much has changed in the world... [and the changes] should cause us to add certain other responsibilities to the job description of IP in order to reflect better the position of IP in the contemporary economy and society". This is caused by the ever-growing intangible nature of new IP, a shift in the economic marketplace from the West to the East, and the empowerment of non-State factors through the Internet. These affect how and why companies invest in certain types of IP and how they engage with the information they already own, such as shifting towards a more knowledge-based investment plan, providing a competitive edge, whereas some decades ago physical capital was king. Also the shift from West to East has, for the first time, presented a world where the East is slowly catching up with the West in the production and creation of both information and knowledge. Finally non-State factors play a huge part in the impact that individuals and collectives can have on all types of IP, more notably the denial of SOPA (Stop Online Piracy Act) in the US. How and why new networks impact this framework is new and presents and interesting paradigm of interaction.

So how should this change be addressed in the field of IP? Some geographical and geopolitical issues have to be tackled, according to Dr. Gurry. The impact IP has on any country's economy harbors a culture where countries attempt to attract talent, and even conduct espionage to attain secrets relating to new developments. This culture would have to be addressed before it becomes a problem, potentially through international agreements relating to the acquisition of talent and the limiting of any illicit activities. What IP will encompass, and does currently, might also need addressing. This means that, according to Dr. Gurry, "[t]he boundary between science and technology, or discovery and invention, is more and more difficult to draw, especially for lawyers" -  creating uncertainty over what subject matter IP would cover, as shown by the recent battle over gene patents. Dr Gurry also raises some concerns should any given legislature or judiciary overlook the public's opinion in this matter: "If IP, whether through the legislature or the judiciary, takes decisions about 'appropriability' that are not in consonance with the sentiment of the general public, it will lose the social credibility on which all good regulation depends". Some signs of detachment can be noted, especially with some opinions pointing to even the abolishment of the current copyright regime. This can lead to problems in the long-run.

Finally access to IP has to be addressed, where Dr. Gurry points out two competing interests: "For policy-makers, the challenge will be to try to orchestrate an informed and reasonable public debate [over access to IP]. For corporations, the challenge will be to balance being competitive and getting a financial return on investment, on the one hand, with management of a potentially hostile public response, on the other hand". A balance between the two would be incredibly challenging to create, and it would have to periodically be addressed, as one can see from the current imbalance in especially copyright relating to fair dealing for example.

At the end of the lecture Dr. Gurry does leave us with something to think about:

"If you were in the 18th or the early 19th century, new wealth was being created, in new ways and on a rather massive scale, by physical capital and the process of industrialization. Industrialization spawned the great ideological debates and cleavages that shaped the world for the next 200 years – capitalism, Marxism, communism, socialism – and they all centered on property, the control of property and its use by the State and citizens. Now, in the early 21st century, new wealth is being created, in new ways and on a rather massive scale, by intellectual capital and virtualization. This is what we are seeing in what I have described – the contours of the new ideological battle lines that will shape our world for the foreseeable future."

Source: IP Australia

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.

IP Laws Amendment Bill 2013

A new Bill was recently introduced to the Australian Parliament, dubbed the "IP Laws Amendments Bill 2013". The aim of the Bill would be to amend current legislation pertaining to patents and plant breeder's rights, and to introduce some changes to the all-new Intellectual Property Amendments (Raising The Bar) Act 2012 (discussed on this blog some time ago).

The first amendment relates to the Crown's use of patents, further clearing up the existing provisions on the use of patents for services funded by the Federal, State or Territorial Governments of Australia. The aim of this is to reduce uncertainty as to when the power can be used. It also adds more levels of accountability over the use of patents for those purposes, forcing the Government agencies to negotiate with the patent owner prior to invoking the Crown's use on that patent - earlier legislation required absolutely no notice to the patent owner prior to use or negotiation over its use. If the negotiations are unsuccessful, Ministerial authorization can be sought to use this power. The amendments would lastly include proper guidelines as to remuneration over the use of patents by the Crown.

Australian Bills lack the pizzazz of their American cousins

The second amendment would implement the TRIPS protocol into Australian law, which would enable the issuance of compulsory licenses by the Courts for the manufacturing and exportation of patented medication to third-world countries. This would enable the importation of much cheaper drugs to countries suffering from diseases such as HIV, malaria or tuberculosis which would otherwise have very limited resources to attain these drugs.

The third amendment gives owners of Plant Breeder's Rights a course of redress against possible infringers of those rights in the Federal Circuit Court. The aim for this is to allow for a much quicker, more cost-effective and less formal way to handle these disputes when compared to taking it to the Federal Court.

The fourth amendment deals with the creation of a single trans-Tasman (Australia & New Zealand) patent attorney regime, with common qualification requirements, an IP Attorneys Board and a Disciplinary Tribunal. The amendment also creates a single patent application and examination process, lessening the amount of administration in these processes which currently exist.

The other more minor amendments deal with document retention requirements in patents, trade marks and registered designs, removing them completely from all related acts. This brings all document retention requirements under the Archives Act 1983, removing redundant copies. As said above, there are also some amendments dealing with the Raising The Bar Act 2012, fixing some oversights in its drafting.

Overall the Bill does propose some welcome changes, especially relating to the implementation of the TRIPS protocol which Australia accepted in 2007 and the faster and easier way of dealing with possible infringements of PBRs. The Bill has only passed its first reading, so its content is still subject to change over the course of its road to assent, but the given form of the Bill does inspire faith in its efficacy.

The Explanatory Memorandum for the Bill can be found here.

Raising the Bar

Legislation not endorsed by the TV show

Tomorrow, on the 15th of April, a new piece of legislation will come into force here in Australia regarding patents, trade marks and designs, although the main emphasis is on the former two. The Intellectual Property Laws Amendment (Raising the Bar) Act 2012 will make some changes into existing laws, mainly amending the Patents Act 1990, the Trade Marks Act 1995 and the Designs Act 2003. 

As explained by IP Australia, the legislation makes some key changes, including:

- Raising the quality of granted patents by implementing changes to the key tests for patentability and more closely aligning these with international standards.

- Reducing delays in the resolution of opposition proceedings concerning patents and trade marks.

- Implementing changes to the regulation of patent and trade marks attorney professions and the increasing the ways in which they can operate.

- Implementing procedures for dealing with imports suspected of infringing IP rights and making it harder for importers of counterfeit goods to evade an IP right holder.

- Providing access to a simplified and more effective IP system.

The Act seems to amend some practical aspects, as well as attempt to speed up some of the processes, which no doubt are all welcome changes to all patent practitioners. However, as I lack the direct knowledge of patents in practice, whether these changes will actually impact the field will be left for someone to clarify for me.

A more comprehensive guide to the IP Reforms is provided for all to read, and gives more insight into the changes brought in via the Act.

Retrospective - Stop your downloading! The liability of ISPs in Australia

The advent of fast Internet connections and the abundance of copyrighted material on offer through various channels and consumer's taking full advantage of both in getting their media fix. Content is available through legitimate means, for example iTunes or other online distributors, or through streaming services such as Netflix. However the flip-side of the coin is thought to be darker; downloading of music illegally, the streaming of movies and TV, all presenting an issue in themselves. The question often raised by both rights holders and the legislature is; "who is responsible for all of this?!" At the core of it, the choice to illegally download material is one which the consumer (yes, you) makes, and supervision is purely on the legislature to ensure it stays on top of the alleged infringements. But what if responsibility is passed on, not to the person infringing, but the entity providing them the service? To understand the relationship between an infringer and an ISP (Internet Service Provider) when it comes to copyright, let me give you an analogy. Should the entity providing the roads where we drive on be responsible for the misuses of those roads (owned by a company in this example)? The roads would presumable be intended for all who follow the laws and rules related to driving on the road, yet there still are people who drive over the speed limit or under the influence of substances. Should the company providing the roads be liable for the drivers’ potential infringement of those rules? The issue of responsibility came up in the High Court of Australia in the Roadshow Films Pty Ltd & Others v iiNet Ltd case back in 2012.

"Can't see any infringements here, Dave"

Under the Copyright Act 1968 in Australia, section 101 sets out that an entity 'authorizing' an infringement of copyright would be liable in their own right, depending on a number of variables. The degree of control they have over the user in preventing their act; the nature of their relationship; and whether they took any action to stop or avoid the infringement by the user. Purely looking at the legislation you could imagine ISPs being in hot water. Due to ISPs controlling an individual's access to the Internet, you could imagine shutting down their illegal use of that service would be simple? Not so much. The sheer amount of subscribers makes monitoring the network usage a massive endeavor, and from the get-go, should ISPs even control what we do on the Internet? After all, that could be an infringement of their freedom of speech. No laws state any liability for ISPs currently, making their responsibility for our actions farfetched at best. Also with a lack of any guidelines adopted by all ISPs, the user could simply switch to another provider without any ramifications, avoiding his ban on his illegal use.

The High Court quickly dismissed iiNet's liability, due to the nature of their relationship with their subscribers. An ISP hardly can control the decisions its subscribers make, nor can they change or control the software which they use to attain or upload any infringing material. The Court also agreed with my earlier notion of the amount of subscribers, as overseeing thousands of users on a daily basis would be near impossible. One judge however did not see it the way the majority did (Justice Jagot) and stated in her opinion that iiNet's effectively approved the infringements of their users through their indifference. I for one cannot understand how her Honor could equate the relationship between an ISP and a single user of its network from thousands to effectively that of a parent ignoring its child's bad behavior. The High Court subsequently dismissed Roadshow Films' appeal.

Post-iiNet reaction from a network administrator

When wondering how the dynamic of an ISP and a user would have changed, if the High Court would have seen things much like Justice Jagot, the nature of the Internet could have been completely changed in Australia. Presuming ISPs would need to monitor and control all of their users’ traffic and web activities would have turned the Internet from a bastion of freedom of sharing, expression and connectivity, to an ultra-controlled authoritarian network, much like that in China where information is filtered and fully controlled. The freedom of the Internet is built on the ability to utilize it as one sees fit, and pay for any consequences that might come from their use. There have been talks about imposing further liability, yet with the European Union stepping back from such legislation, the Internet should remain the same, at least for now.

Grumpy Cat frowns at a possible trademark

Paris Fashion Week anyone?

As it has been said on this blog many times, the Internet has shaped the sphere where people can reproduce material easily as they see fit, regardless of its legality or not. There are websites dedicated to printing images onto t-shirts, coffee cups, plates and pretty much anything you can think of that just "needs" an image of something to make it worth your honest dollar. Merchandising often is a huge part of a brand's profits, after all, who doesn't find a Winnie the Pooh onesie an essential part of their wardrobe? Trademarks more often than not prevent people from profiting from the misuse of their trademarked image in the making and selling of products such as the above. But where does the line of what can be trademarked end?

Trademarks can be awarded to a potentially any image, and the latest and the greatest seeking one is the Internet's favorite upset kitty, Grumpy Cat. For the less informed, the cat oddly named Tardar Sauce, rose to fame over a year ago due to its constant look of disappointment at anything it might be in contact with. Its owners, rightfully so, launched a website dedicated to their aggravated feline companion, selling a number of items adorning its famous face. Without a trademark, others could potentially use the cat's image, create their own merchandise to sell, and thus benefit from the rise to fame that the cat has so thoroughly "enjoyed".

What the cat's owners are seeking is protection for both the name "Grumpy Cat" and its likeness for use in a very wide array of things, even kitchen utensils (why anyone would want to see the look of disappointment when eating their goulash, I don't know). The application is still pending, having been lodged in late January, we will have to wait and see whether the trademark is awarded. In this writer's opinion this will be an interesting result. Would the face of a cat be distinct enough for it to be trademarked? Surely cats' fur color and other details are fairly 'random', albeit controlled by genetics - however in this case the cat's facial features are incredibly uncommon (this writer has never seen a cat much like this one in his life), and might because of that be trademarkable. Come what may, Tardar Sauce will surely be unhappy with the outcome.

Grumpy Cat didn't approve of this blog post

The application in itself is not very important, but goes to show just how widely trademarks can be, and are, used in today's marketable world. Does it have worth in merchandising or otherwise? It might just be worth trademarking.

The Register’s Call for Updates to US Copyright Law

Not to be confused with a copyrighted seal

Being one of the biggest producers of copyrighted material in the World, the United States and its laws have clout all over, regardless of jurisdictions, through either free-trade agreements, or sheer market power. In a society where more material is accessed outside of the domestic market of a nation than ever, legislatures in all countries have to try and keep up with the constant change that we experience in the consumption of said material. In a call for copyright law reform, as reported by the Creative Commons blog, Maria Pallante of the US Register of Copyrights seeks to close the rift that exists between the consumer and the copyright holder's rights in the United States today.

In her statement Ms. Pallante says that:

"The law is showing the strain of its age... authors do not have effective protections, good faith businesses do not have clear roadmaps, courts do not have sufficient direction, and consumers and other private citizens are increasingly frustrated."

This can be applied, not only in the US, but in Europe as well. With a clear lack of proper guidelines and laws to govern both personal use by consumers, be it copying or sharing, and the courts stretch existing laws to cover areas which they were not meant to cover. Copyright laws in most common law jurisdictions are lagging behind, and there seem to be no efforts in trying to pull them towards a new era. Even in the United Kingdom there have been calls for reform, yet they seem to have fallen on deaf ears.

Orphaned works are a perfect example of the law failing to accommodate the needs and wishes of today's public. Orphaned works are effectively works which are still under copyright, where the author(s) or other copyright holders cannot be located or contacted. Google started the mass digitization of orphaned works, and faced litigation because of this, showcasing the clash of the interests of those holding the rights to the works and not utilizing them, going against the greater good through free access to these works. Should copyright prevent access to information not being used, or move towards an avenue more akin to that of trade marks, where the rights holder should actively use the work being protected? The current legal framework does not address this issue.

Ms. Pallante further expands that:

"...it is time for Congress to think about the next great copyright act, which will need
to be more forward thinking and flexible than before... A central equation for Congress to consider is what does and does not belong under a copyright owner’s control in the digital age. I do not believe that the control of copyright owners should be absolute, but it needs to be meaningful."

Flexibility is what the modern age requires. When technology moves at such a pace that it does these days, the new law would have to be flexible and maneuverable, both to protect the interests of copyright holders, and to help consumers use the content they have legally acquired. The path modern laws have taken in a variety of nations has been increasingly draconian, and in this writer's opinion, this trend needs to end.

The new law needs to be worded in anticipation of the ever more digital world, with the old laws concentrating on the physical mediums of copyright, the new law has to look forward to the intangible. The wording has to be open enough for the judiciary to easily apply it in a variety of situations, while being specific enough to protect the interests of rights holders. I will admit this will be a challenge for any legislature, but one where consultation needs to be sought from both sides, not merely from the ones with a clear monetary interest.

Ms. Pallante also brought up the main question that needs addressing in the new law:

"If Congress considers copyright revision, a primary challenge will be keeping the public interest at the forefront, including how to define the public interest and who may speak for it... Congress should look to the equities of the statute as a whole, and strive for balance in the overall framework. It is both possible and necessary to have a copyright law that combines safeguards for free expression, guarantees of due process, mechanisms for access, and respect for intellectual property."

Rounding up her argument, Ms. Pallante points out that:

"The issues of authors are intertwined with the interests of the public. As the first beneficiaries of the copyright law, they are not a counterweight to the public interest but instead are at the very center of the equation."

The Harlem Shake, an example of "proper" free use of copyrighted material

This writer fully agrees with Ms. Pallante in her call for reform - not just in the US, but all over the common law. The interests of the public, and rights holders, are of equal standing, and the shift towards a more common and level playing field for both parties needs to be taken. The consumer has to have rights in using the material they have rightfully acquired, yet still keeping them from freely copying and sharing that content to provide an illegal way for others to get that material. Whether this call for reform will result in any changes remains to be seen, but this writer will remain hopeful.