Free to Sing - 'Happy Birthday to You' In Public Domain After Settlement

The recent saga dealing with the song 'Happy Birthday to You' has been discussed at length by many intellectual property commentators, including in this very blog here and here. The ownership of the copyright in the song, and the licencing practices surrounding it handled by Warner/Chappell, have been a big point of contention, with a recent ruling by the District Court of Central California declaring the copyright in the works to not reside with Warner/Chappell due to a lack of proper transfer of the rights to the ultimate entity. Warner/Chappell undoubtedly would have appealed the earlier decision, but the matter has since come to an abrupt end after a settlement between the relevant parties.

Per the Settlement Agreement, accessible here on Scribd, there are some terms of interest that must be mentioned.

The Settlement was a bitter-sweet end for Lisa

Section 2.1 of the Agreement mandates the establishment of a Settlement Fund, aimed at remunerating those who have paid licencing fees for the use of the song 'Happy Birthday to You'. The maximum amount allocated to the fund, if needed, would be $14 million, clearly demonstrating the understanding that there will be a considerable amount of entities with the relevant Settlement Class (considering that each licence is roughly $1500). This would include all persons who have paid such licencing fees since the 3rd of September 1949 (including, among others, to collecting societies or direct licences to Warner/Chappell). Even so, the realistic periods and sums of payment are set for two specific groups: payments made on or after the 13th of June 2009, or payments made before that date. The former group is entitled to all of their payments, but the latter only a share of 15% of what they have paid out. The difference, according to the claimant's lawyers, is due to the Statute of Limitations, enabling them to recoup some of their costs even in the absence of a proper claim due to the limitation period.

Additionally, section 2.2 sets out an express relinquishment of all claims of ownership over the song, and a requirement to no longer pursue any fee payments over the use of the song. Furthermore, the parties agree that the song is (under all likelihood, outside of any third-party claims in rights) in the public domain after the 8th of February 2016. However, Warner/Chappell did expressly defend their position in the settlement, and retained their position as the holders of the rights in the song. This seems to be mainly a point of principle, as the settlement does dictate that the song is in the public domain.

The Agreement also stipulates certain actions that need to be taken, such as the creation of a website and other administrative duties involved with the settlement and the payment of the settlement fees.

Arguably, the settlement is not much to write home about, but is an important illustration of the importance of challenging even the oldest, most well-known rights, when needed. The first instance decision set the tone for the settlement, and it shows in the one-sidedness of the Agreement, especially in the financial side of things. Nevertheless, the Happy Birthday saga has been an interesting one, and this writer, although underwhelmed by a settlement rather than a prolonged legal battle, is happy that we can all once again sing the song where ever and when ever we want.

Source: Ars Technica

Retrospective - What is a 'Work' in Copyright?

Lawyers and the legal profession love their words and their singular interpretations, which can be quite odd from the perspective of the layman, especially when the interpretation seems quite obvious from the very beginning. Even so, we have learned to embrace this tradition, and understand that the nuanced meanings of words can have a huge impact on cases and their outcomes, and have no shame in jostling over the meanings of even the most basic of words. Intellectual property in this regard is no exception, and a word that is very important in terms of copyright is what is a 'work' protectable by copyright? As said, the answer may seem obvious and the discussion of what is a work seem a bit frivolous, but the reason why is incredibly important. What constitutes a 'work' under copyright sets up boundaries for the laws and expands or limits its application to both old and new artistic endeavors, making it one of the most important parts of interpretation when discussing the scope of copyright. Although discussed for for as long as copyright has existed, the modern definition of what a 'work' is came about in the 1960s through the hands of the House of Lords in the United Kingdom.

The case in question was Ladbroke (Football) Ltd v William Hill, which dealt with two competing companies in the sphere of bookmaking. The respondents to the appeal, William Hill, were firmly established in the marketplace, sending out weekly football odds to their customers during the season. The appellants, Ladbroke, have also been well-established players in the world of bookies, and entered the football bookmaking scene in the late 1950s, sending out coupons which looked very much like the ones William Hill sent to their customers. As a result William Hill sued Ladbroke for copyright infringement, with the case culminating in the highest court of the UK in 1964.

Sisyphus, for some reason, thought his work was for naught.

The coupons which the case concerned were very simple in their design, consisting of a list of the games that week along with boxes next to each match, allowing for the person to indicate the games' outcomes and therefore to change the odds of winning, as each bet would have to be successful for the individual to win. Some of the lists provided contained all of the games that week, whereas some only contained a selection of games. William Hill's coupons contained 16 lists, while Ladbroke's coupons contained 15 lists of games. The latter lists were almost identical to William Hill's ones, with only some slight deviations in terms of headers or different odds. What was allegedly copied were the possible wagers to be made and, to a large extent at least, the layout and headers of the lists. The big question that remained was whether such lists would be a work protectable under copyright.

Under the Copyright, Designs and Patents Act 1988 a 'work' is defined as "...a work of any of those descriptions in which copyright subsists", which include musical, literary and artistic works, among others. That definition alone seems like not much help, but it's an important statement of what can be considered as obvious, which can be expanded upon. Although the wording differs from the Copyright Act 1956 which was at issue in the case, the considerations can be argued to applying equally to the newer 1988 Act.

The discussion in the case pertained mostly to whether such a work could be considered as an original work (more on which can be found here); however whether the sheer compilation of information into tables and lists would be a work is also quite important under this consideration. After all, even if a work is 'original', but does not qualify as a genuine 'work' (in most cases quite hard as the two are more or less intertwined), the piece would not attract copyright protection. In the end this is a determination by assessing the "...skill, judgment or labour" put into the creation of the work; or in other words, did the author of the work do anything more than the bare minimum in the creation of the work in question. Many have mentioned the very scattered approach to this question, as often judges will take into account expense, knowledge and even literary skill employed into the creation of the work; leaving the question without a definitive judicial consideration. This has been seen different in the United States, as under the Feist Publications v Rural Telephone Service decision (more on which can be found here) effort alone won't give a work protectability under copyright. In the end the appeal was dismissed by the House of Lords, and William Hill's coupons and lists were indeed protected by copyright.

As one can see what a 'work' is is quite ambiguous, and the consideration of judgment, skill and labor leaves it even more in the mist, as plain effort might not be the most accurate description or factor in deciding what truly amounts to a work or not. This uncertainty leaves short pieces and low-effort works potentially in the fringes of copyright, and can cause issues to those authors as a result. Clearly this is something which copyright should not cause, and might be a reason why the definition of a 'work' should be revisited by either the judiciary or the legislature in the future.

Retrospective - Interpretation of Patent Claims

Patents can be, and more often than not, are incredibly complex and technical. In such complexity accuracy is paramount, especially to guarantee proper protection for the rights you wish to protect. When a patent is applied for the person or entity registering the patent has to specify the claims relating to the patent, or in other words, what the person or entity endeavors to protect with their patent. The wording used when writing claims will create the remit in which protection is awarded for that patent. As such the claims of patents are hugely important, and should things get to litigation, what the wording used protects can be equally, or even more important than what is thought it protects. How these claims are interpreted therefore needs to be expanded on, and the United Kingdom House of Lords did so in the 1980s.

A modern use of angles

The decision in question is Catnic Components Ltd v Hill & Smith Ltd. The case concerned the production of steel lintels, which the plaintiff owned the patent for and manufactured. The lintels had a very specific rear support member, which under one of their claims was described as a "...second rigid support member extending vertically from or from near the rear edge of the first horizontal plate or part adjacent its rear edge". The defendant in question made a similar lintel, but one where the rear support member had an inclination between 6 to 8 degrees; something which deviated only that much from the plaintiff's vertical rear support member. This affected the load-bearing capabilities of the lintels, making the defendant's lintels approximately 0,6 to 1,2 percent weaker than the plaintiff's lintels. The plaintiff sued the defendant for patent infringement, ultimately ending up in the House of Lords.

Due to the slight deviation of the defendant's lintels' construction, the House of Lords had to decide whether this would still infringe the patent owned by the plaintiff. In more simple terms: whether the claim described above could be interpreted as such to include a slight deviation, or whether its express term of verticality would prevent the defendant from infringing the patent. This would have to be assessed based on the 'pith and marrow' of the claim; something which the Lords would have to consider in their judgment. What this encompasses was expressed well by Lord Diplock: "...a patent specification is a unilateral statement by the patentee, in words of his own choosing, addressed to those likely to have a practical interest in the subject matter of his invention (i.e. "skilled in the art"), by which he informs them what he claims to be the essential features of the new product or process for which the letters patent grant him a monopoly". How one would interpret claims based on their 'pith and marrow' was finally expressed by his Lordship:

"A patent specification should be given a purposive construction rather than a purely literal one derived from applying to it the kind of meticulous verbal analysis in which lawyers are too often tempted by their training to indulge. The question in each case is: whether persons with practical knowledge and experience of the kind of work in which the invention was intended to be used, would understand that strict compliance with a particular descriptive word or phrase appearing in a claim was intended by the patentee to be an essential requirement of the invention so that any variant would fall outside the monopoly claimed, even though it could have no material effect upon the way the invention worked."

This would indicate that patent claims should not purely be interpreted literally, but given a more of a purpose based assessment. Under this one could easily include slight deviations in the use of patented inventions, should the deviation still be within the purpose of the patent. A much larger change could clearly not fall under a claim, even under a purpose based assessment.

Under their Lordships' deliberation, the defendant had infringed the plaintiff's patent. Even though their construction was different, the claim was thought to have included these small variants. Clearly their Lordships intended to not limit the scope in which patent claims would be interpreted as being all too literal, and allowed for potential differences to still be included. Should strict compliance be an essential part of the patent, for more technical or functional reasons, one would have to interpret the claim more literally.

Even though the case pertained to the old Patents Act 1949, it is still accepted to apply to the current Patents Act 1977 equally. Lord Diplock's reasoning has also been utilized in several other common law countries; making the decision an important one even in today's patent litigation.