Copyright Usurped - EU Proposal for a New Copyright Directive

This article was kindly drafted by Axel Beelen, who writes the blog IP News (focusing on EU and Belgian IP developments). He can also be found on Twitter here. He is also a data protection specialist.

In September 2016, the European Commission published a proposal on a new EU Copyright Directive. This new proposed Directive follows the InfoSoc Directive, drafted in the wake of the European Commission's review on the modernization of the EU copyright rules. The European Commission has presented legislative proposals to make sure that consumers and creators can make the most of the digital world, and will aim to help European copyright industries to flourish in a new Digital Single Market and authors to reach new audiences. The proposal is still fiercely discussed at the European Parliament, with plenary vote set for late 2017 or early 2018.

This article aims to set out the key points of the proposed Directive, and to discuss its impacts in the EU legal landscape.

1. The EC Proposal

1.1 A new publishers' right (Art. 11 of the proposal)

Because press publishers are facing difficulties in licensing their publications online and obtaining a fair share of the value they generate (which could ultimately affect citizens' access to information), the EC wants to provide publishers with the same reproduction and communication to the public rights that the InfoSoc Directive provide for authors. 

These new rights for publishers (so-called "neighboring rights" or an "ancillary copyright") would apply for 20 years after each publication.

Some fear that these provisions would generate more income for European publishers by allowing them to charge internet platforms for displaying snippets of their content to users. In fact, anyone using snippets of online content would first have to get a license from the publisher responsible for the content. 

The new neighboring right has been sharply criticised by Google and other businesses sharing online content. News aggregators argue that they provide online publishers more visitors on their websites (in turn increasing revenues from, for example, ads), and are not substituting the publication of the original works.

Sometimes it's easier to not bother with copyright

The EC's proposal is a clear response to uncertain and temporary national solutions to tackle this phenomenon, resulting in either the conclusion of agreements between Google and local press publishers (Belgium, France, Italy) or the adoption of legislative initiatives (Germany, Spain) in relation to news content forcing news aggregators to pay publishers when their headlines and news snippets appear in the news aggregators services. In Germany and Spain, right after the adoption of the regulation, Google Inc. stopped its local Google News tool. As a result, German and Spanish publishers said they lost significant traffic.

1.2 The value gap (Art. 13 of the proposal)

As legal access to streaming movies, music and literary works has become more ubiquitous and easy for consumers in recent times, there still is a clear gap in the remuneration (or the lack of increase thereof) of rightsholders through these services. 

The gap is between what service providers like YouTube, DailyMotion, Vimeo and others are willing to pay for e.g. music licenses and their real market value. The difference between rightholders' income and YouTube revenue is profoundly immense and the latter have limited appetite to properly or sufficiently remunerate rightsholders for copyright-protected content online. 

In place of talking about a “value gap”, we should focus more on the big 'transfer of value' between the value that certain digital platforms extract from music, movies and other works and the smaller value that is returned to related rightsholders. These digital platforms are clearly under-licensed or not licensed at all. 

Following Article 13 of the proposal, internet platforms hosting “large amounts” of user-uploaded content must monitor user behavior to identify and prevent copyright infringement. It will mean that intermediaries will have to attain proper licences and will have to implement filtering technologies to proactively prevent infringing activities. As raised by many, one of the most concerning aspects of the EC’s proposed legislation is the complete lack of detail provided on how the suggested policies would be implemented.

Note that, beside the use of not defined terms (e.g. what qualifies as “large amounts” of content), this part of the proposal could be in breach of existing EU law. Indeed, the safe-harbor provisions of the E-Commerce Directive forbid general monitoring obligations that Article 13 would establish, which was confirmed by the CJEU in SABAM v Netlog.

1.3 A limited text and data mining exception (Art. 3 of the proposal)

Article 3 of the EC Proposal (“Text and data mining”) aims to establish a new EU-wide copyright exception for the modern research method of text and data mining, but only for “research institutions” and “for the purposes of scientific research”, and only when the research institutions “have lawful access for the purposes of scientific research”. 'Text and data mining' means any automated analytical technique aiming to analyse text and data in digital form in order to generate information such as patterns, trends and correlations. 

One can criticize the limits of this new exception, in that why should “data mining' not be permitted for research conducted in a commercial context, for purposes of journalism and for any other purpose? 

2. Publishers' right to disappear and be replaced by a presumption of representation

The adoption of the Directive requires several European Parliament (EP) Committees to draft opinions that will then need to be taken into account in the Report by the lead Committee of the EP on this matter, namely the Legal Affairs (JURI) Committee.

The draft report of the JURI Committee written by rapporteur MEP Comodini (EPP) was published in March 2017. 

It does not mention the publisher neighboring right anymore as discussed above on point 1.1. The report rejects the Commission’s premise and clarifies that using snippets to make news discoverable is not necessarily harmful to publishers’ financial interests, and thus shouldn’t be subject to licensing. 

The paper proposes to replace the neighboring right with a right that "…provide[s] publishers of press publications with a presumption of representation of authors of literary works contained in those publications and the legal capacity to sue in their own name when defending the rights of such authors for the digital use of their press publications". It has to be seen if this would also mean that publishers can still sue for non-licensing.  

Moreover, the draft report proposes to remove the obligation for automated monitoring for online service providers, leaving electronic platforms to ensure the functioning of agreements with rightholders without prescribing how to do so. Only information society service providers that are actively and directly involved in the making available of user uploaded content to the public should take appropriate and proportionate measures to ensure protection of works or other subject-matter.

Those measures, such as the use of effective content recognition technologies, have to be appropriate and proportionate. The service providers have to provide rightholders with adequate information on the functioning and the deployment of these measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other subject-matter on their platforms.

The Legal Affairs Committee also wants to extend the text and data mining exception to all people considering that if you have the right to access/read content, you also have the right to mine it.

3. Deadline

Amendments to the draft report were accepted until 12 April 2017, after which the report and the amendments will be debated again and voted on in June 2017. The plenary vote at the European Parliament on the Directive text is expected at the end of 2017 of at the beginning of 2018.

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  

The EU Single Digital Market - 16 Initiatives to Success?

As diligent readers of this blog have probably noted, the last 12 months have been vary favorable to those who are inclined to law reforms, especially in the field of copyright. This writer, for one, enjoys the rapid changes being introduced, and has awaited the next step of the reform process, which was leaked not long ago; the European Union Single Digital Market strategy. The strategy encompasses much more than just IP within it in attempts to combat the issues plaguing the internal digital market, and this post shall endeavor to touch upon the most relevant parts, divided by the "pillars" they're under.

Pillar I - Better Access For Consumers and Businesses to Online Goods and Services Across Europe

Along with the introduction of changes to e-commerce regulation, delivery systems and VAT within the European Digital Economy, the strategy also proposes some key changes into the landscape in which copyright resides.

Geo-blocking has, and will be, a contentious issue, especially in this global world where not all consumers are created equal in their access to media. The strategy states that: "[b]y limiting consumer opportunities and choice, geo-blocking is a significant cause of consumer dissatisfaction and of fragmentation of the Internal Market", and while arguably true to a certain extent, the statement does not reflect the commercial nature of geo-blocking. Often it is used to ensure either the locking in of content to regions, or to secure proper negotiations for wider, more lucrative licensing agreements (whether you agree with this notion or not is an entirely different matter). The strategy discusses 'unjustified' geo-blocking, but as to what amounts to an unjustified use remains unclear. Nevertheless the strategy proposes that "[a]ction could include targeted change to the e-Commerce framework and the framework set out by Article 20 of the Services Directive". Arguably a relaxing of geo-blocking within the EU would harmonize the market, especially with the emergence of prominent internet based media services; however, it still leaves the abuse of cheaper pricing (or conversely, the pricing out of poorer regions) in the market in the light of this potential change.

The first pillar also includes a proposal to allow for a more fluid, easier access to content within the EU in terms of its legislative base. The strategy notes that "[b]arriers to cross-border access to copyright-protected content services and their portability are still common, particularly for audiovisual programmes. As regards portability, when consumers cross an internal EU border they are often prevented, on grounds of copyright, from using the content services (e.g. video services) which they have acquired in their home country". This can be argued to relate to the point above quite heavily, with copyright ensuring the effective enforcement of geo-blocking, or any curtailment thereof. Some issues to persist, such as the inaccessibility to content for which you have rightfully paid for outside of some jurisdictions, as has been noted in the strategy as well, but these issues, at least in this writer's anecdotal experience, don't seem to be too prevalent.

The strategy also discusses a lack of clarity within copyright in the EU, but does not state as to what is unclear and how it is proposed to be remedied. Ending the first pillar, it is suggested that "...the Commission will propose solutions which maximise the offers available to users and open up new opportunities for content creators, while preserving the financing of EU media and innovative content". While this is all well and good, no actual legislative measures are proposed, and the aim of the strategy in relation to copyright seems foggy at best.

The first pillar clearly envisions a freer, more affordable digital market within the EU, but omits the actual regulatory structures, or changes thereto, leaving the strategy with more questions than have been answered.

Pillar II - Creating the Right Conditions for Digital Networks and Services to Flourish

The second pillar builds on the first, with the proposal of a more robust, free and functional network, with basic rights and the assurance of content enforcement, especially in relation to third party operators such as ISPs. After discussions on the introduction of wider rules for telecoms, and the potential expansion of the Audiovisual Media Services Directive, the strategy moved onto discussions on improving the online environment.

Some pillars hold more than others

The strategy brings up the restriction of certain players in the online world, such as search engines (Google, anyone?) and media services. Issues raised "...include a lack of transparency as to how they use the information they acquire, their strong bargaining power compared to that of their clients, which may be reflected in their terms and conditions (particularly for SMEs), promotion of their own services to the disadvantage of competitors, and non-transparent pricing policies, or restrictions on pricing and sale conditions". In this regard one has to agree to a certain extent, as e-commerce and other online giants become even bigger, their monopolies become harder to detect, and has the ability to curtail competition. How and when these issues would be tackled was also left out of the strategy, allowing for nothing but mere speculation at this point.

Illegal content online has been, and will be, a contentious issue, and the strategy does not leave it out either. Discrepancies with online enforcement of the removal of infringing content, and the blocking of such sources, can be said to be a thorn on the EU's side, and as the strategy points out: "[d]ifferences in national practices can impede enforcement (with a detrimental effect on the fight against online crime) and undermine confidence in the online world". For the first time the strategy does bring up concrete steps as to how to deal with the issue of infringing content online: "In tandem with its assessment of online platforms, the Commission will analyse the need for new measures to tackle illegal content on the Internet, with due regard to their impact on the fundamental right to freedom of expression and information, such as rigorous procedures for removing illegal content while avoiding the take down of legal content, and whether to require intermediaries to exercise greater responsibility and due diligence in the way they manage their networks and systems - a duty of care". Again, although more clear in its intent, the measures proposed have been left quite convoluted, a 'duty of care' on ISPs (and other third parties, possibly) could become too onerous, especially with more and more infringing content popping up online daily. With a sufficient allowance for flexibility, yet robustness, a duty of care system, or something akin or related to, could allow for the better enforcement of intellectual property rights online, while still allowing for its dissemination, sharing and other uses that fall within the scope of any exceptions.

All in all the EU digital environment, at least prima facie, would seem to have a bright future, but with a substantially sized caveat included. How intermediaries are treated in this new environment, with the expansion of rules on telecoms, could hinder the sharing and dissemination of content online, as has been seen with the DMCA in the US, if left too broad. This means any legislative initiatives would have to take both interests, being end-users' and commercial interests, into account when moving forward with any new legislative frameworks.

Pillar III - Maximising the Growth Potential of our European Digital Economy

Finally, the third pillar aims to add the last piece to the puzzle built on the two other pillars by creating more standardized platforms and technologies within the EU, and the improvement of digital skills and e-governance in the internal market. While largely irrelevant to a IP-heavy discussion, they still seem to add to the strategy in allowing for a more developed online network where these rules can operate. This article won't delve into the third pillar much, as it mostly does not relate directly to IP, but it is worth a read for anyone interested in the more practical aspects of the digital market.

Conclusion

While this writer can air nothing but his disappointment in the content of the strategy above, he is left to wonder why the proposal lacks so much in substance when the earlier leak seemed to offer more concrete terms of operation and improvement. With so much uncertainty in its future application, the Digital Single Market leaves with a whimper, and it remains to be seen how its final incarnation will impact on the EU and its legal (and practical) framework. The removal of barriers to enjoyment, and the possible harmonization of pricing and/or licensing in the EU seems, at least from a very superficial interpretation, a very welcomed change, how and when this would be done is still a big question as well.

As said, the strategy left much to be desired, but this writer remains hopeful.

New Waves of Copyright - Reform Proposed in the EU

In the last couple of years it seems that copyright has not been willing to stop in its transformation and moulding to its new home in a digital world. With recent reforms enacted in the UK, Australia and Ireland, among others, this writer for one has been waiting to see where things go in the coming years. In that vein, discussion has yet again been brought up on copyright, its efficacy and whether things should be changed entirely by European Parliament member Julia Reda in mid-January. Although this recent discussion seems very unlikely to yield any results as to change (says this writer in his ever-present cynicism); however it merits discussion, or at least addressing.

The draft report itself is quite brief, and shall be broken down into its respective headings.

Exclusive Rights

Ms. Reda, although a supported notion by many, does not want to eradicate copyright altogether. Copyright is an important decide to incentivize and reward independent, original creation, and this writer for one would never want to see it wholly removed from the world's IP scheme. Ms. Reda does, however, bring an interesting addition to this existing regime: "...[she] calls for improvements to the contractual position of authors and performers in relation to other rightholders and intermediaries". One can try to envision how, through law, the relationship between creator and funder could be improved, seeing as the relationship is (often) quite unbalanced by its nature. In the UK the freedom of contract is a corner-stone of contract law, and should be upheld, even if/when it has the capability to produce unbalanced contractual relations. This, by no means, should lead to unfair contractual terms, but it does not present a need for legal intervention in the scheme of copyright in itself.

A big point of contention within copyright has been fair dealing, and the allowance of using copyrighted material for the purposes of creating new, original works, or simply for the reporting or discussion of current events. Ms. Reda proposes that "...the EU legislator should further lower the barriers for re-use of public sector information by exempting works produced by the public sector - within the political, legal and administrative process - from copyright protection". In the UK at least, under the Re-use of Public Sector Information Regulations 2005, the use of such information is allowed under certain circumstances, and only through the consent of relevant governmental bodies. Although by no means perfect, it aims to safeguard potentially sensitive information from public viewing, even if requested through the Freedom of Information Act 2000. Ms. Reda's objective clearly is one of openness and freedom of publication for all; however this would present challenges if implemented with little or no restrictions.

When piracy failed politics was what was left for Captain Hook

Her final argument relating to exclusive rights is one which piqued this writer's interest: "[she] [c]alls on the Commission to safeguard public domain works, which are by definition not subject to copyright protection, and therefore should be used and re-used without technical or contractual barriers; also calls on the Commission to recognise the freedom of rightholders to voluntarily relinquish their rights and dedicate their works to the public domain". Arguably, her initial point seems like quite the obvious one, but, as the Sherlock Holmes saga (discussed here and here) has shown us, even if a work or works are in the public domain it doesn't necessarily mean they are there as firmly as one would believe. The public domain should, indeed, be the public domain, and all works within should be free to be used. Copyright protects specific expression, not ideas (as has been discussed prior in more detail), and once the expression is within the public domain (e.g. a specific story relating to Sherlock Holmes), it should be free to be used - even encompassing ideas within that expression. As for Ms. Reda's proposed right to relinquish any and all copyright interests in works voluntarily, a right could be recognized; however seems highly unnecessary given the function of copyright. Should the copyright holder of the original work just simply not pursue any claims of infringement, the rights are rendered effectively useless, albeit not void. Allowing for the relinquishing of rights does protect any subsequent derivative works from future malicious attacks from new rights holders, and would seem a great device to expand on copyright and the powers of rights holders on self-governance of their works.

Exceptions and Limitations

Exceptions, especially when it comes to private use of copyrighted content, have been a sore subject for a lot of parties involved. Too little allowance of use restricts the freedom to use your legally purchased materials, yet too few restrictions can lead to mass abuse of said content. In that vein, Ms. Reda has proposed major changes in this area, which should be addressed alongside the above.

Ms. Reda proposes that "...exceptions and limitations should be enjoyed in the digital environment without any unequal treatment compared to those granted in the analogue world". Arguably, this approach is very sensible, and this writer for one cannot think of an instance off the top of his head where digital would be excluded from exceptions when compared to its analogue counterpart. Nevertheless, this is something that should be enshrined in the back of any law pertaining to modern copyright, and defended to ensure the comfortable transition from the physical to the digital in the years to come.

She further proposes that "...all exceptions and limitations referred to in Directive 2001/29/EC [should be made mandatory], to allow equal access to cultural diversity across borders within the internal market and to improve legal security". This writer would argue that the introduction of exceptions is less about diversity, but more about the promotion of communication and the creation of new, potentially copyrightable, works. Whether all exceptions should be made mandatory is a question one cannot easily answer; however, quoting many parents, too much too quick can be bad, and a gradual introduction would be beneficial in the long run. Ms. Reda also wants to add more flexibility to the aforementioned exceptions, and her argument echoes that of US and Canadian fair use where the exceptions are less à la carte, and more malleable to a different assortment of uses based on the use and their impact on the original works.

Hyperlinking is currently the topic of choice at the ECJ, and Ms. Reda also proposes its protection, due to a lack of communication to a new public through hyperlinking. As has been discussed in both Svensson and BestWater, the ECJ seems to quite firmly protect this notion in Europe, and with the forthcoming decision in C More hopefully even further clarifying this, this write does not fret for the sake of hyperlinking in the near future.

Ms. Reda also suggests that "...the exception for caricature, parody and pastiche should apply regardless of the purpose of the parodic use" - something that this writer will wholly disagree with. Deckmyn was the most recent instance where parody was assessed on an EU-wide basis, and the purpose of use in terms of parody is an important consideration and should not be omitted. A borderless approach to parody will only create abuse and infringing works created under the veil of parody when no parody was intended. When using copyrighted works the use should be a genuine, bona fide parody use, which both protects expression and encourages it through creativity in parody and thus, potentially new protectable works.

Ms. Reda goes further into other exceptions, but for the sake of brevity, those will be left out, although still remain important considerations for the future.

Conclusion

The response at large to the proposal has been varied, and that's no surprise. What Ms. Reda is proposing is by no means revolutionary, and a lot of what is brought up, from an IP person's stand-point is worth protecting and/or extending copyright to in its little realm. Yet, what Ms. Reda's undoing is, is her affiliation with the Pirate Party. The image evoked to anyone involved in IP, especially rights holders, will be one of dismantlement, and a fear of the allowance of piracy and losing the very structure your livelihood depends on. Ms. Reda does not propose this; however she inevitably loses out on that one simple aspect: public relations.

This writer commends a lot of what she has put forth, and seeing how copyright has started to evolve in the last couple of years yields a tremendous amount of promise. Nevertheless, there are doubts as to the proposals and their efficacy in the future, but from an end-user perspective, Ms. Reda gives a glimmer of hope for a more open (i.e. less restrictive) copyright regime, which still aims to support the content creators out there and protect their works.

Source: IPKat

Patenting Drugs - The Case of Marijuana

Drugs are very much a sensitive subject, especially when the law is concerned. Yet, with the ever-growing movement to legalize marijuana, which is gaining a lot of head-wind in the United States, the topic has to be considered from the perspective of business much rather than the perspective of disdain. This would entail revisiting the patentability of at least some sub-sets of drugs in the name of protecting the legitimate business interests of marijuana growers. Would such a change be desirable, and is it possible under today's laws?

In the States of Colorado, where marijuana was legalized in February of this year, sales have been incredible, with the business raking in over 20 million dollars in the first 6 months alone and some estimates seeing it grow to over 100 million dollars in the full year of 2014. Clearly business is booming, and could be argued to only grow if more States enact similar laws. In the market right now there are at least dozens of different strains of cannabis, and much like other commercial products with distinct features of their own, could merit protecting to ensure their viability in the marketplace.

Under 35 USC 161: "Whoever invents or discovers and asexually reproduces any distinct and new variety of plant... may obtain a patent [for that plant]". On the face of it, one could easily argue that cannabis plants could be patentable subject matter. This is overshadowed by the fact that marijuana still remains a controlled substance federally under 21 USC 812. It is because of this a federal patent cannot be issued over marijuana plants, effectively making them unpatentable. As the public perception and acceptance of cannabis and its use change, the laws might allow for the patenting of cannabis plants and plant varieties; however this change seems unlikely in the immediate future.

Alan was confused why the police asked about his bag of oregano

Plant varieties could be protected through trademarks, albeit only in name. The USPTO briefly added a category for marijuana in 2010, promptly removing it stating it was "...a mistake". Nevertheless marijuana strains could potentially be protected under trademark legislation, which was well explained by Kal Raustiala: "...trademark protection under both state and federal law does not require registration of the trademark with the government, but merely that the mark actually be used in commerce to identify the source of a particular product or service". Simply put protection is possible, but whether protection would be afforded by the courts is a question that will remain to be answered. One still has to note that trademark protection does not protect the plant strain itself, but merely the name as a badge of origin for that particular product. Trademarks will not necessarily prevent a competitor from using the plant strain and selling it, as long as they use a different name for the product.

As one can see, cannabis is, and will be, a hot-button issue in IP for years to come, and it'll be truly interesting to see where the law will go especially when considering the movement to legalize the substances gains more momentum. From a purely pragmatic, business point of view, the law should accommodate the change and allow for such plant variations to be protected. Whether this will happen will remain to be seen, but this writer for one sees it as almost an inevitability.

Source: Bloomberg

The Future of Copyright by Lawrence Lessig - Thoughts on His Views

Recently this writer posed a question to Lawrence Lessig, a current lecturer at Harvard and a person of much acclaim in the copyright field, on the website Six Question as to the future of copyright in his mind. More specifically the question posed was: "What do you think is the future of copyright, especially in light of recent developments in other common law countries such as the UK and Australia?" This clearly relates to the avalanche of copyright reviews being conducted in the common law countries such as Australia, the United Kingdom and Ireland. To this writer's pleasant surprise the question was thought to merit an answer, and one was provided by Mr. Lessig a few days ago. Albeit brief, his thoughts do merit some discussion.

In Mr. Lessig's mind "...the future of copyright is up for grabs"; and this can be said to be very true. Where copyright will be taken, and how evolving technologies will both impact and potentially necessitate the possible change, is wholly up for grabs. A certain desire for change can be felt in the public mindset, and rightfully so, as how we consume media has changed radically since the enactment of most copyright laws in the past 30 years. Much like was noted in the preliminary thoughts over the UK copyright modernization, it aims to "...align the law with behaviour most people consider to be reasonable", at least in the context of evolving media. This matches well with Mr. Lessig's thoughts as well: "...[the US] regime needs to be radically updated to the 21st century to digital technologies".

But the future of copyright is not without its uncertainty according to Mr. Lessig: "The biggest problem we have now is that nobody in government, at least in America, is interested in having that conversation [about copyright reform]". What this can be argued to relate to is a reluctance to expand or extend fair use. The current wave of reform clearly is focusing on a change for much more free and flexible approach to the consumption of copyrighted media. Extending those rights could diminish the profits of copyright holders, or at least extinguish secondary avenues of revenue through the restriction of fair use. Corporate lobbyists have fought over the current change in Canada, which quite heavily is beginning to endorse fair use, showcasing a possible rationale for the restriction over the discussion about copyright reform in the US.

Finally, Mr. Lessig notes that "...the battles here are really as much battles about how to open up a conversation about what the right answer is". How would one initiate such a conversation? Quite frankly, there is no clear answer as to how this could be done. The change a lot of common law countries are facing, and the discussion around the reform, will undoubtedly put pressure on the review of US copyright legislation, at least on an international setting. The more people use media as they see as "proper", the more it also merits discussion on the fact. What can be said as a counter-acting interest is one which Mr. Lessig also points out: "...[the legislature] see[s] copyright as an opportunity to produce incredible wealth for campaigns". The acquisition of campaign funds is highly important in the US system, and clearly inhibits the proper function of the legislature as the protector of its peoples' interests, rather than those who fund their campaigns.

The future of copyright is uncertain, but in that uncertainty one can have hope and optimism. With the change that is occurring all over the copyright world, US change seems all but inevitable. Where that change will take copyright within our American friends' regime is very unclear, and the competing interests on both sides seem to have their position firmly entrenched. This writer, much like Mr. Lessig, is optimistic as to the future.

I would like to thank Lawrence for taking the time to answer my question, and hope this can inspire some more discussion around copyright in the near future.

Public Consultation on EU Copyright Law

Copyright reform seems to be on everyone's mind, with reviews being or having been undertaken in the United Kingdom, Australia and Ireland in the past year. Even in this writer's mind copyright has been in dire reform in many jurisdictions, and the calls for change are a welcome change of pace. In conjunction with the aforementioned two EU common law jurisdictions' reform thoughts, the Union itself has set up consultations on the review of its copyright rules. The harmonization of copyright across the EU is something that is desired, especially in the current copyright climate, which is seeking to fit the laws with modern uses of copyrighted material.

According to the European Union's press release this is in response to "...the completion of its on-going efforts to review and modernise the EU copyright legislative framework as announced in the Intellectual Property Strategy "A Single Market for Intellectual Property Rights", while facilitating practical industry-led solutions through the stakeholder dialogue Licences for Europe to issues on which rapid progress was deemed necessary and possible". What this revision will change will ultimately be left to the EU; however the consultation does indicate certain desired changes or directions which the Union may take in the future.

In setting out the reasons for the consultation, the EU was very clear in the background and needs for reform:

"Over the last two decades, digital technology and the Internet have reshaped the ways in which content is created, distributed, and accessed. New opportunities have materialised for those that create and produce content... for new and existing distribution platforms, for institutions such as libraries, for activities such as research and for citizens who now expect to be able to access content... regardless of geographical borders... This new environment also presents challenges. One of them is for the market to continue to adapt to new forms of distribution and use. Another one is for the legislator to ensure that the system of rights, limitations to rights and enforcement remains appropriate and is adapted to the new environment."

Indeed the changes in the environment where copyright functions on a day-to-day basis have drastically changed since the emergence of the Internet and a heavier emphasis on the consumption of digital goods as opposed to their physical counterparts. How the aforementioned issues will be tackled leaves a lot of room for discussion in submissions; however this writer will endeavor to give his insight on some of the solutions or questions posed by the Union.

The EU in this process would want to unify the approach to copyright within all of its territories; which currently is a process which takes place in each nation individually, hindering licencing or forcing partial or separate EU-whole licences to be created. Arguably such a licencing scheme would be desirable, but whether this requires legislative action is questionable. The Union should offer an easy way to licence content all over Europe, providing all of its citizens access to the same or most of the content others have access to. The Single Market in this regard needs to be encouraged, not necessarily further legislated on.

The EU also wants to further clarify the position the law holds with digital content; more specifically the making available of content and what that entails; the rights relating to the making available of content (its reproduction and the right to make it available) and their split nature between different parties; the complexity of linking on the Internet and browsing content on it (and issues that might arise relating to temporary copies thereof); and the ownership of downloaded content. Some of these questions, as pointed out by the consultation paper, have been referred to the Court of Justice of the European Union, and those decisions will undoubtedly influence the changes that might be needed after, if at all.

The paper also seeks to further clarify, and potentially unify, the approaches taken by Member States to exceptions in relation to copyrighted content and their use. Although several a Directive has been issued pertaining to exceptions particularly, for example in terms of research and teaching, there is a clear need for uniformity and the extension of new exceptions in this regard, at least in this writer's opinion. A clear and concise regime of legitimate use of copyrighted content all over the EU would be beneficial to users, and enable the Single Market to function more consistently and easier. As the paper points out, user-generated content is an important consideration, which is yet to be legislated on, among a few other exceptions. As said, this is one area where the EU should step up and give further guidance and unification, purely due to the international nature of digital content especially, easing the modern markets and unifying their approaches within the Union.

The consultation paper contains much more than what has been discussed above, and all parties which can participate in this process should voice their opinions. Although the EU has been far from complacent in recent years in terms of copyright review, this process gives the ability for others to directly influence this process, and therefore improve the current Single Market. Copyright has been a hot-button topic, and seems to keep as such for the foreseeable future.

Source: TorrentFreak

Irish Copyright Review: Modernizing Copyright

A wave of copyright modernization seems to be sweeping the common law system, with reviews being undertaken in both the United Kingdom and Australia at the moment. Not to be outdone by its common law brethren, Ireland launched its review of its copyright legislation in 2011, with the final report having been released late last month after almost a year's delay in its release. Although arguably a lesser force within the common law system, Ireland's review of copyright does still serve as an indication of where copyright will be potentially headed in the future; both in the common law and elsewhere. As the report's first sentence aptly states: "Copyright reform is in the air".

The report is very extensive, touching upon most contentious areas of copyright and attempting to suggest changes to the currently in-force Irish Copyright and Related Rights Act 2000. While all of the topics discussed merit further evaluation and offer much to the current discourse of copyright not just in Ireland, but also globally, discussion will be left to only parts of the report by this writer.

Fair Dealing

One of the biggest questions in copyright globally is the line where fair dealing (or fair use) should be drawn, and Ireland is no exception to this. Under the current Act Ireland has a very limited fair dealing scheme which allows for the use of copyrighted materials in research and private study and in criticism or review. The report does recognize the incredibly limited nature of the current regime and attempts to remedy its shortcomings under the recommendation "...that the existing exceptions be regarded as examples of fair use, that they must be exhausted before analysis reaches the question of fair use, and that the question of whether a use is fair on any given set of facts turns on the application of up to eight separate factors". These factors would include a very wide scope of consideration, varying from the purpose and nature of the copying to the possibility of obtaining the work legally; a lot of which resemble considerations already used in a number of other common law countries.

The report actively tried to distinguish its approach to fair use from the often used US fair use doctrine, which has been adopted in a number of nations even outside of the common law, but the suggested regime does not differ largely from its US counterpart as presented. It does go further in its considerations and presents Irish courts with more specific factors to use, but one can clearly see the connection with the American provisions. All in all the suggested changes are incredibly welcome, and showcase the importance of fair dealing in copyright; something which this author and others have advocated on a number of occasions. In addition very similar considerations were put forth in the Australian submissions for reform; however their final form is still pending the release of the final report by the Australian Law Review Commission.

Intermediaries

The report also deals with the role of intermediaries in potential infringement situations, considering more clear immunity provisions to the ones already provided under Irish law. The report proposes changes which would bring these immunities better in line with the European Union Copyright Directive.

After the tightening up of already existing provisions the report also suggests further protection of potential secondary infringers, especially as "...in the current regime, intermediaries bear a significant burden in implementing monitoring or “notice-and-action” procedures, and there are arguments as to whether this burden is a legitimate cost of doing business as an intermediary or an unjust cost of protecting rightsowners’ rights". This would be a EU matter to further legislate on and provide clarity, as the provisions relating to this are largely of EU origin.

In addition the report suggest a potentially more proactive approach by the Irish legislature to introduce immunity provisions specifically relating to search engines, immunity as a result of the sophistication of internet browsers (in other words, the displaying and caching of copyrighted content, causing the browser to being the primary infringer), and immunity provisions relating to cloud computing. As the report states: "...Irish law should await whatever legislative proposals emerge from the EU consultation. If nothing comes of it, then it may be appropriate at that stage to return to the question of Irish legislative immunities". Immunities over linking to content were also discussed, raising the recent UK Supreme Court decision of Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd as an example of taking these immunities in an express direction.

Users

The extent to which you can use your legally acquired content has been a contested issue in copyright for decades. The report poignantly raises the heart of the issue: "...the centrality of rightsowners in copyright law, but the law recognises other interests as well, and seeks to balance the interests of rightsowners in protecting their monopoly against other legitimate interests in diversity and expression". The balance between expression and creation by the end-user against the rightsowners' interests is paramount, but clearly there have been issues on the balance being swayed towards the rightsowners in recent years.

In addition to the aforementioned fair dealing considerations the report raises the potential to add new exceptions for private use. Private copying is largely supported by both sides, and in itself supports "...users’ reasonable assumptions and basic expectations" relating to the use of their legally acquired content. This has been suggested in the above EU Directive, and the report endorses its introduction into Irish law. Certain reproduction rights relating to different formats and back-ups were endorsed, again reflecting the reasonable assumptions made by users over their material.

An exception for parody, caricature and satire was also suggested, reflecting a much larger introduction of this exception in the common law; one which has been introduced in Australia a while ago. Following the recent changes in Canada the report also suggests the creation of a non-commercial user generated content exception. Although not expressly mentioned in the above EU Directive, the report still recognizes its inclusion in spirit and supports its express introduction into Irish law.

Conclusion

Even though the report is far more extensive than what is discussed above, it showcases a wave of change in copyright globally. This change has been late in its introduction, with still years till the potential changes would even be implemented, but shows a willingness to adapt and mold the law to modern users and spheres. This writer endorses this and highly awaits the final report here in Australia late this month in further assessing where things will go. Right now Ireland is paving the way in the wake of the change in the common law.

Killing the Copyright Monopoly - A Counter-Argument

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

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

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

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

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

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

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

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

Source: TorrentFreak

The Future of Copyright in Australia?

With the release of the Australian Law Review Commission's Discussion Paper on Copyright and the Digital Economy just a mere few days ago, I thought it'd be a good vehicle through which to look at the prospects of Australian fair dealing. The Paper is merely a discussion of the points brought up by the ALRC and invites other parties to submit their opinions on the points brought forth, but nonetheless provides some great insight as to the possible changes in the Australian law in the coming years.

The Future of Fair Dealing

The ALRC frames the need for change in fair dealing as a part of the new digital economy, where consumers and companies alike are going progressively more and more digital. People consume less physical goods as opposed to their digital counterparts every year. With improvements in Internet speeds and availability in most countries (notably the NBN here in Australia in coming years), this does make sense. Old laws which applied predominantly to physical goods don't relate to this sphere anymore. Users also want to be able to disseminate that content, and with services like YouTube being an avenue to showcase your creativity to the masses, the law should adapt (a great TED Talk by Lawrence Lessig spoke about this some 6 years ago). The Canadians have shown the way forward, but other nations are still trailing. Even the ALRC admits that "there is now more of an appetite for a broad, flexible exception to copyright".

Fair dealing should be flexible, adaptable and mold according to the needs and wishes of the changing environment we live in. Technology is changing at a hugely rapid rate, and fair dealing has failed to change with it. As many have pointed out in their early submissions to the ALRC, the law should be an open-ended list, not merely a short hand-down list of very specific categorical possibilities with no amount of leeway. As was so eloquently said in the submissions, the law should "respond to future technologies, economies and circumstances that don’t yet exist, or haven’t yet been foreseen". Should Australia go the way of the United States? I wouldn't argue to opt for a carbon copy, but some elements have to be taken from the US approach, possibly allowing for a more open catch-all provision for fair dealing should an act fall outside of the permitted exceptions today. This would allow flexibility, yet still retaining the fair dealing we have today.

Submission also dealt with the possible impact of proper fair dealing provisions and how they would allow for more innovation and create space for creative industries to blossom more. Arguably this is completely true, as the possible use of a few seconds of a film or even a few chords from a song can potentially amount to infringement. The attitude seems to have shifted from a defensive position to an offensive position, changing copyright legislation from a shield to a sword. My argument would be for strong fair dealing provisions, allowing for a balance between creators and rights owners, taking the position back to the legitimate protection of content, not the pure 'cashing-in' on the popularity of something through litigation. Submissions to the ALRC also seem to agree that proper fair dealing provisions "counterbalances what would otherwise be an unreasonably broad grant of rights to authors and unduly narrow set of negotiated exceptions and limitations". 

One has to also point out a disconnect between what consumers think they can do and what they actually can do by law. Also the ambiguity as to the extent of the existing provisions does not aid this. Submissions point out that there is a "growing mismatch between what is allowed under
copyright exceptions, and the reasonable expectations and behaviour of most people as a significant problem". When thinking about this one can understand that the rift between what people want to be able to do with their content and what they can do has been growing for some time. This again is attributed to the inability for the law to change and evolve according to the needs of the people, and due to the pendulum of protection firmly swaying towards the rights owners. In the words of Google's submission: "flexible and technology-neutral exceptions permitting consumers to make personal uses of legitimately purchased content would greatly restore people’s faith that the law makes sense"

As there were calls for the improvement of fair dealing, so were there calls for its adequacy and the lack of a need for change. Some submissions stated that "the existing exceptions are adequate and appropriate... [and] the common law was capable of addressing the needs of promoting innovation". I would personally wholly disagree with this. Current fair dealing provisions do offer ways for the use of copyrighted materials, but their limited scope and the absence of proper user-generated content provisions shows a lack of adaptability to the digital world. Also some submit that it "has not been shown that the Australian common law system is incapable of addressing the needs of promoting innovation through case law development". Again, I would disagree, as this distorts the separation of powers; the courts are there to apply the law, not to make it. It should not be up to judges to have to adapt the law - the law should adapt before for the need for the judiciary to do so through interpretation.

Some submissions also call against more open-ended fair dealing provisions, as through their opinion, this would create expense and uncertainty as to the law through the lack of clear-cut rules or categorized exceptions. I will partially agree with this position, although purely for the possibly ambiguity of the law. More relaxed or undefined fair dealing provisions would initially lead to a lack of clear borders as to their application, but as has been shown by the US, the judiciary will in time set its boundaries and a standard of 'fairness' would be set. What this initial confusion allows for is the better future adaptability of the law, giving the judiciary the power and ability to change existing standards according to new wishes by consumers or technological changes. The costs for possible litigation could potentially go up, but as I personally lack the knowledge in this area I cannot say exactly whether this would hold true.

Proposals for Reform

The ALRC seems to agree with the position that flexibility is desired and that it would assist innovation. A possible "fair use regime will: employ technology neutral legislative drafting; assist predictability in application; minimise unnecessary obstacles to an efficient market; and reduce transaction costs".

The 'fair use' provision suggested by the ALRC would be determined through four factors (however the list of factors would be left open-ended): the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect upon the market for or value of the copyrighted work. These factors would be the same as what is used in the US at the moment, and don't differ much from the existing factors used in Australia (specifically related to research and study). This approach would be substantially very similar to the current standard employed by the Canadians through CCH. Arguably this would be the best position to go from, as standards could be applied through the use of US and Canadian decisions to help establish an Australian standard much quicker, causing less ambiguity in the provision's extent.

The Commission also suggests a non-exhaustive list approach, including current provisions and adding ones dealing with for example non-consumptive uses, quotation and education. Providing a list of possible exceptions would also take some amount of uncertainty away from any fair use provisions as then there would be clear situations when the use would be fair, yet still allowing for that provision to grow and change should it need to. How far should the list go will ultimately be up to the legislature and it will surely develop through the courts once unknown or unforeseen uses arise.

Should no fair use provision be enacted, the ALRC has submitted that there should be a right for private and domestic use. The current law does allow for format-shifting, time-shifting and space-shifting, however a more open and technology-neutral approach should be taken. Some submit that "expanding the private and domestic use permitted under copyright law would simply legalize what consumers are already doing". One could easily argue that this is both sensible and would reduce the instances of unnecessary litigation. As said, how people use their legally bought content has changed and attitudes towards the use of your own purchased content should change accordingly, with the law reflecting that change. The ALRC argues that "fair use and fair dealing exceptions with fairness factors considered, are likely to be able to better account for the differences in markets and technologies between types of copyright material and different types of uses", and I would personally agree. A wider fair use provision would not only account for existing uses, but would accommodate future uses better such as cloud computing.

The Future?

To conclude, you have to ask the question, what will be the changes implemented, or whether they will be implemented at all. At this point things are uncertain, but the ALRC's work seems to bode well for the potential changes in copyright law and fair dealing. The final draft of the report due to be published at the end of November this year. Whether Parliament takes the initiative and makes changes to the current legislation will remain to be seen, and we shouldn't expect any changes immediately. Calls for change have been loud and abundant, and should the Australian Parliament not act on this, the nation could be held back when compared to the rest of the world. With the implementation of the NBN in the coming years, this would act as even more of an incentive to amend the law before the nation is set to be able to access the Internet through faster and more reliable means. If the law takes the leap before this, Australia would be fully able to utilize this new avenue and take a step forward in the world of copyright.

The Enterprise and Regulatory Reform Act 2013

A piece of legislation having incited a lot of conversation among the copyright law community in recent times is the Enterprise and Regulatory Reform Act 2013 in the United Kingdom, having been given assent last month, and finally having its final draft released early this month. The discussions around the Act have been largely focused on its approach to orphaned works, especially relating to photographs, but what could the impact of the legislation potentially be?

The Act mainly deals with amendments relating to corporations, mergers and markets, but the inclusion of copyright provisions seems to have fallen into the spotlight more than the rest. Section 77 adds a licensing scheme to works, which after a diligent search, have become orphaned as the owner of the copyright has not been found or cannot be contacted to attain a license to their work. Once this has been established, regulations passed by the Secretary of State could allow for that work to be  licensed to the party or parties seeking to use it for their own purposes for a fee.

Photographers should never resort to drastic measures

What causes the most concern to owners of copyright works, especially photographers, is the lack of definition for what a 'diligent search' would entail, as it isn't defined in the Act, and the nature of the environment where their works currently reside for the most part; the Internet. Looking at the former, what potentially could amount to a diligent search remains quite open, and will without a doubt be looked at by the judiciary in coming years once the Act has come into force. On the face of it one could imagine it encompassing would be proper investigation, through the means of Internet searches for similar imagery and trying to attain who the real author is, or by the use of other means of identification, such as watermarks or digital signatures in copyright works. What makes this issue difficult is the nature of the Internet, where information (including copyright works) is passed on and on, used and copied, diluting or even eradicating the underlying metadata from works, possibly rendering the identification of the copyright owner near impossible. Also the lack of clarity as to what amounts to a diligent search further adds to the ambiguity, since if a lower threshold is introduced amounting to a diligent search, the Act could potentially create a loophole through which works could be abused by those wishing to use them for their own benefit.

One thing I also have to note is a lack of a way of redress for those whose works have been licensed under the Act. There is no provision enabling the original copyright owners from enforcing their copyright once the license has been granted, even after they have identified the work or works as their own, clearly opening the provision up for possible abuse without repercussions. Surely such an omission is one which could harm the creative industry, however as I've stated this is purely speculative and whether this will cause any abuse or harm remains to be seen. The Act has already ruffled some feathers within the creative community, so its potential impact seems to be real and threatens those within the industry.

The Government has posted a list of Facts and Myths about the Act, and also provided some clarifications as to its effects and implementations.

Independent third party;  Sherlock Holmes

The IPO never addresses the matter of what a diligent search is, even in its notes mentioned above, but it does give some indication as to the process, where a diligent search will be "...verified by the independent authorising body which the Government will appoint before a work can be used". What this means is that the process will be an evidentiary process, so there will be no automatic scheme implemented, and all licenses should go through a more rigorous process before being granted. Not only will this provide a minimum threshold, but also an independent body whose sole job it will be to wade through the sea of applications.

The Act does not remove any automatic rights in works, nor does it allow for them to be 'stripped' from them, contrary to the belief of some parties. What it does is introduce a potentially harmful scheme, but as said, it will remain to be seen how or whether this will impact authors of copyright works. The IPO also indicates that authors will have a say in the final draft of the Rules, giving them more say in the process coming down to its finalization and establishment.

Also the licensing fees paid will be held for the copyright owner to claim, allowing for some amount of compensation should the works' owner or owners come to light, but it still does not address the possible financial loss incurred from a very successful use of a copyright work.

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.