“The Wife” and rights of attribution: an intellectual property perspective

“The Wife” and rights of attribution: an intellectual property perspective

* * * CONTAINS SPOILERS * * *

In The Wife, Glenn Close plays Joan Castleman, the steadfast and amenable wife of celebrated novelist Joseph Castleman. But when Joe wins the Nobel Prize in Literature, things start to unravel between them. Is there more to Joan’s support than meets the eye? In this post, I consider the merits of a hypothetical intellectual property dispute between the couple, and an often-neglected right in particular.

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The Wife is a 2018 film from Swedish director Björn Runge, starring Glenn Close and Jonathan Pryce. The script by Jane Anderson is based on Meg Wolitzer’s novel of the same name.

 

We first meet Joan Castleman – The Wife – the evening before her husband, celebrated novelist Joseph Castleman, wins the Nobel Prize in Literature. Praise and adoration for Joe’s prolific and highly acclaimed body of work are subsequently lavished upon him, while Joan and their two children watch on. But when the family arrives in Stockholm for the award ceremony, we begin to realise that Joe Castleman’s success rests on secrets and sacrifices.

Through the use of flashbacks to the 1950s and 1960s, we learn that Joan was a promising writer. While at college, her then-professor Joe Castleman encourages her writing, and the two eventually become romantically involved. But Joe is not content with merely lecturing about novels: he seeks to prove himself in the literary world as an author himself.

During a heated argument about his poorly written first attempt at a novel, Joe threatens to leave Joan. Desperate to keep him happy and aware of his deep desire for publication, Joan offers to “fix” Joe’s draft. Her amended version of The Walnut is published under Joe’s name, and becomes a literary sensation. For the next forty years, Joan continues to write as Joe gets all of the credit.

In Stockholm, Joan revisits The Walnut and considers the personal sacrifices she’s made in her marriage.

What makes The Wife so delicious to watch is the way in which Joan’s character transforms and gains a sense of agency. Having grown up in the sexist environs of mid-century America, Joan at first appears to have dutifully accepted her fate as an ignored, pushed-aside woman whose only roles have been “wife” and “mother.” The announcement of “Joe’s” Nobel Prize in 1996 serves as a catalyst, and through a series of small events Joan eventually gathers momentum and power – like a storm – to unleash her torrential anger. The Roger Ebert review perhaps puts it best, noting that Glenn Close’s Joan “undergoes a quietly powerful transformation from self-deprecating spouse to fiery force of nature.” The film ends on an uncertain yet quietly optimistic note, and we get the sense that Joan will reveal the truth – not only to her family, but to the public – in due course.

As I left the cinema, I found myself ruminating over Joan’s legal position. As the author of the novels, would she stand a chance at winning a copyright lawsuit?

Copyright arises automatically in original works of authorship fixed in a tangible medium of expression. This means that from the moment an author expresses something unique in a tangible way – for example, by writing it down using a typewriter – the author obtains an intellectual property right in the work.

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A young Joan (played by Glenn Close’s daughter Annie Starke) supports her husband Joe in his literary ambitions (played by Henry Lloyd).

It’s pretty clear from the story that Joe did infringe Joan’s intellectual property. Unfortunately for Joan, even if she wanted to bring some sort of copyright lawsuit against her husband Joe, is is doubtful that she would win. Whereas a “negative defense” seeks to factually disprove an element of the plaintiff’s case, an “affirmative defense” defeats or mitigates the legal consequences of the defendant’s otherwise unlawful conduct.

Put simply, in my imagined Castleman copyright lawsuit scenario, Joe’s lawyers could admit that Joe stole Joan’s work, but argue that he’s innocent in the eyes of the law. Here are three ways in which this could be possible:

  • Firstly, a lawsuit for copyright infringement must typically be filed within the applicable limitation period. The US Copyright Act requires a civil lawsuit to be filed within three years after the infringing action occurred. As such, a copyright lawsuit concerning Joan’s older novels would be practically impossible.
  • Secondly, Joan’s conduct may evidence acquiescence, or consent. This means that Joan knowingly watched Joe infringe her IPRs, but failed to raise any objection to the infringement at the time. In some instances, silence or inaction can be a form of “inferred consent.”
  • Thirdly, if Joe can prove that he infringed Joan’s copyright believing in good faith that he was entitled to do so, estoppel could apply. “Estoppel” as a term might not known by many non-lawyers, but the fundamentals are rather straightforward: a court may prevent (estop) a person from making assertions or from going back on her word, thereby preventing unconscionable conduct.

 

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While working on a definitive biography of Joe Castleman, author Nathaniel Bone (played by Christian Slater) discovers some striking discrepancies in Joe’s writing style.

Nevertheless, Joan’s cause is not a hopeless one. As evidenced by Joan’s emotional attachment and identity tied to her novels, literary and artistic work often mean much more than just the economic value they can generate. The creations can be very special to the person who first produced them, and often speak to immense emotional and intellectual effort. As a result, copyright works can be protected in ways that are different to traditional forms of property.

Moral rights are a type of non-economic rights which are considered personal to an author, in that they are inalienable and fundamental to the individual. Even if an author assigns the intellectual property rights to her novels to a third party, she will still maintain the moral rights to the work.

Chief among the moral rights is the right of attribution, which is the right of an author to be credited as the author of a work in question. Moral rights have a long history in international copyright law, and are set out in the Berne Convention for the Protection of Literary and Artistic Works, which governs international copyright law:

(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to the said work, which would be prejudicial to his honor or reputation.

Moral rights are well established in European legal systems, especially in French and German law. By contrast, moral rights in the United States have been somewhat neglected, as American law traditionally puts more significance on protecting economic interests. This has been changing in recent years however. In 2017, the US Copyright Office commenced a study to review how existing American law, including provisions found in Title 17 of the U.S. Code and other federal and state laws, protects the moral rights of attribution and integrity.

The laws which govern intellectual property rights have been forced to change in the face of challenges posed by the internet, disruptive technologies and an increasingly mobile population. Might moral rights be next on the agenda for American copyright reform? For Joan Castleman at least – whose conflict focuses almost entirely upon her identity and recognition as a writer – it’s easy to see why moral rights could be so important.

TickBox sent packing as film studios and Netflix win $25 million lawsuit

TickBox sent packing as film studios and Netflix win $25 million lawsuit

This story was first published for the 1709 Blog, where I regularly write about copyright law in entertainment, technology and media. 

The Alliance for Creativity in Entertainment (ACE), an industry coalition of global entertainment companies and film studios, together with Netflix and Amazon, has secured a major legal victory against Tickbox, a type of so-called “Kodi Box” streaming device. As a result of the judgement and permanent injunction, which were handed down in Los Angeles, California on September 11th, Tickbox will pay $25m (£19m) in damages. Additionally, Tickbox will no longer provide software that allows users to access pirated content, and agrees to disable any such software within 24 hours.

In its coverage of the matter, Variety noted that in initial advertising, Tickbox promised customers that they could get “virtually the channels you get from your local cable company … without you having to worry about paying rental fees or monthly subscriptions.” Tickbox devices retailed for about $150 (£115).

Image result for tickbox cut the cord

In October of last year, ACE originally filed a lawsuit alleging that TickBox was promoting their streaming device as “a tool for mass infringement of copyrighted motion pictures and television shows”. By this point, TickBox had changed the advertising wording, and in its defence to the lawsuit attempted to feign innocence by “claiming that the device manufacturer could hardly be held accountable for what their customers chose to download” (nocable.org). Essentially, Tickbox’s fundamental argument was that it is merely a hardware company, and therefore no more responsible for copyright infringement than any other computer manufacturer.

Judge Fitzgerald disagreed with TickBox’s reasoning, explaining that “There is sufficient evidence that the Device can be and is used to access infringing content, and there is sufficient evidence of TickBox’s fault — primarily in the form of its advertisements and customer-support efforts. TickBox may be held responsible for the instances of infringement that would not have otherwise occurred in the absence of the Device.”

This successful action against TickBox is the first brought on by ACE that targeted a streaming device. Other similar “Kodi-Box” lawsuits remain pending, and the outcomes are likely to be similar now that this one against TickBox is on the books.

Worth noting is that one of Tickbox’s competitors, Dragon Box, was also sued earlier this year by Netflix, Amazon, and others for copyright infringement. Dragon Box then released the following statement: Instead of closing our doors and shutting down all boxes and riding off into the sunset we decided that it was in the best interest of you the customers and the company to change our business model and adapt to change and continue to try and bring you the best legal content we can and add in as many services we can to make Dragon Box the box that beats any competitors out there.

Chinese IPRs and Trade Wars

Chinese IPRs and Trade Wars

著作權 or Zhùzuòquán means “copyright” in Mandarin Chinese. Earlier this week, Chinese authorities kicked-off a campaign against online copyright infringement. Is this crackdown a response to increased pressure from foreign investors —and the Trump administration— for China to combat widespread piracy and counterfeiting?

The latest Jianwang Campaign Against Online Copyright Infringement was jointly launched by several government agencies including the National Copyright Administration of China, the Cyberspace Administration, and the Ministry of Public Security. It will target key areas for intellectual property rights (IPRs) including unauthorised republication of news and plagiarism on social media, broadcasting copyrighted content on video sharing apps, and setting up overseas servers to get around territorial restrictions. The campaign, which will last for at least four months, will also push internet service providers to enhance internal supervision systems.

Similar to the crackdown last September, the campaign is seen by many as an attempt to alleviate major concerns among foreign investors, including those in the United States. China’s lack of strong IPRs protection measures “frequently draw complaints from foreign investors and have been a long-standing focus of attention at annual talks with the US and Europe.”

The issue hit headlines again last autumn, when the Office of the United States Trade Representative led an official seven-month investigation into China’s intellectual property theft, under section 301 of the Trade Act of 1974. Bolstered by the USTR’s findings that “Chinese theft of American IP currently costs between $225 billion and $600 billion annually”, the Trump Administration imposed retaliatory tariffs on Chinese products in early July.

Pedestrians strolling past adverts for western companies in Shanghai. Photo: Tomohiro Ohsumi/Bloomberg

Considering 200 years of history: is “Chinese culture” to blame for copyright infringement?

According to the 2017 Situation Report on Counterfeiting and Piracy in the European Union, China has long been recognised as the engine of the global counterfeiting and piracy industry. Whereas software piracy rates for the European Union are 28 per cent, analysts at BSA | The Software Alliance believe nearly 70 per cent of computers in China run unlicensed software.

In 2012, an article on Forbes explained that “IP protection will always be an uphill struggle in China and for companies doing business there,” as individual rights –including IPRs– may be at odds with traditional Chinese society. What support does that argument have?

Firstly, it’s important to note that IP is not an indigenous concept in China. Historically speaking, the lack of a strong IP regime can be traced to the early roots of China’s economic system, which emphasised agriculture and generally neglected large-scale commerce. Before the Opium War (1839-1842), foreign powers were unconcerned with the lack of IP protection in China primarily because there was little foreign investment there to protect in the first instance. Furthermore, the main European exports to China at the time were unbranded bulk commodities, and not technological innovations or creative works such as software, film, and music.

During the Chinese Revolution, Mao Zedong’s Communist Party abolished all legal systems in 1949. Throughout the Cultural Revolution of the 1960s and 1970s, China lacked any semblance of a functioning legal system. As per Communist political ideology, “Law” in China during this time was guided by general principles and shifting policies, rather than detailed and constant rules.

When chairman Deng Xiaoping adopted an open-door economic policy in the late 1970s, China’s trading partners were no longer restricted to the USSR and Soviet satellites, but instead now included Western countries. Several years later, the Communist party officially pronounced that the Cultural Revolution had been a grave error, and began to shift its economic and social reforms. To support its burgeoning and rapid economic development, China accordingly began to embrace a formal IPR strategy. When China joined the World Trade Organisation in 2001, it became bound by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Enhancing the protection of intellectual property rights is a matter of overall strategic significance, and it is vital for the development of the socialist market economy.

—Li Keqiang, Premier of the People’s Republic of China

The Wall Street Journal further explains that, incentivised by the influx of foreign technology and media companies wishing to invest in China, IPR protection in the country has been rising steadily for the last decade. In 2006, there were approximately 6,000 copyright lawsuits: in 2016, that number had multiplied nearly 15 times over to 87,000 cases.

If Chinese IP law is increasingly comparable to European and American standards, why then does China continue to attract disapproval?  

Although the rate of unlicensed or “pirated” software in China is nearly 70 per cent, the piracy rates in Indonesia, Pakistan, Vietnam, Albania, Belarus, Ukraine, Bolivia, Algeria, Botswana, Zimbabwe and many others is much higher. However, because Chinese economy is behemoth, and uses an incredible amount of software, the value of such pirated software is over $6.5 billion.

Secondly, although true that Chinese IPR enforcement is catching up to U.S. and European standards, considerable weakness remains in the high levels of bureaucracy. For example, court decisions might apply on a provincial level rather than nationally, and judges often have different interpretations of the laws.

a farm in Altay Prefecture, China. 42 per cent of people in China live in rural communities. Photo: @linsyorozuya

Of China’s 1.5 billion residents, nearly 600 million live in rural communities. While central authorities may establish the laws and regulations, it is the local authorities tasked to implement those laws and regulations. It is therefore important to note that local protectionism probably constitutes the largest obstacle to cracking down on piracy in China.

Finally, from a sociological perspective, it could be argued that English-language media promotes an inaccurate portrayal of IP piracy as somehow rooted in Chinese culture and Otherness. To be fair, European and American copyright law is also plagued with intense debate and woeful inadequacies surrounding the evolution of online technologies.

IP is a complex area of law, and for a variety of reasons copyright is perhaps one of the most difficult areas to legislate. China still has a long way to come in respect of is IPR regime, a sentiment acknowledged by Beijing. However, the danger of perpetuating snippets and sound bites without adequate context is non-trivial. IPR policy affects United States foreign policy, and incorrect understanding the problem can lead to disruptions in international relations, or even trade wars.

 

featured image photo of Shanghai: @Usukhbayar Gankhuyag

A Step Too Far? Fifa takes down celebratory World Cup dance video

A Step Too Far? Fifa takes down celebratory World Cup dance video

This story was first published for the 1709 Blog, where I regularly write about copyright law in entertainment, technology and media. 

The World Cup is the largest single sporting event on Earth, with nearly half the world’s population tuning in. With England’s (somewhat surprisingly!) good run up to the Semi-Finals, fans of the Three Lions were especially eager to show their support.

When England’s captain Harry Kane scored a goal against Tunisia, a mother filmed her 7-year old boy celebrating the moment. She subsequently posted the short 5-second clip of him dancing in the living room on Twitter. However, FIFA – Football’s ruling body – ordered the clip removed from Twitter. FIFA claimed the clip infringed their copyright, as viewers could see blurred football action from the family’s TV in the background.

Speaking to the Mirror, Kathryn Conn explained that her son “is a massive Spurs fan and he absolutely worships Harry Kane so he started dancing around in the living room. All you can see on the TV in the background is a really blurry replay of the goal. It’s hardly visible.”

According to Conn’s tweet on the subject, the copyright notice from Twitter was brought under the US Digital Millennium Copyright Act. Several sources including iNews report that Fifa issued a letter stating: “On behalf of Fifa, we hereby assert that your making available and/or promoting of the protected content on your platform is not authorised by Fifa, its agent nor the law and that your activities in this regard serve as a serious infringement of Fifa’s exclusive rights.”

By way of background, Fifa reports on its finances page that around 95% of its revenues come from the sale of television broadcasting, marketing, and licensing rights related to the FIFA World Cup. From the 2014 World Cup in Brazil, Fifa hauled in $4.8 billion in revenue, which turned a $2.6 billion profit for the association (which is then re-invested into development projects). Compared to ticket sales earned $527 million, Fifa’s broadcast revenue topped $2.43 billion, while sponsorship fees brought in $1.6 billion.

To date, Fifa’s intellectual property portfolio contains 14,000 trade mark registrations, about 300 registered designs, and 150 copyright registrations covering 157 jurisdictions overall. As is made clear in its 30-plus pages of official guidance on brand protection, Fifa has millions of reasons to be protective of its intellectual property.

Fifa engages in active surveillance and brand protection, which includes court proceedings to halt an infringing situation and seek financial compensation for any damages suffered. However, sharing official content belonging to FIFA by fans without any commercial benefit is expressly permitted, as per the branding guidance. Curious by nature, this CopyKat’s therefore wonders why an account with barely 200 followers was singled out in this instance.

Fair Play to use FIFA trade marks on social media?

Fair Play to use FIFA trade marks on social media?

This weekend, together with millions of others around the world, I watched Iceland make its World Cup debut against Argentina. Iceland, the smallest nation to ever qualify for the World Cup, is a special country for me, not least because my husband and were married there! Especially as my home country failed to qualify for this year’s tournament (sigh) it comes as no surprise that I’m supporting the Iceland’s national football team, or Íslenska karlalandsliðið í knattspyrnu.

I recently came across an article which said fans should beware of using World Cup logos in social media profile pictures. The article explained that although “many fans will be using social media to show their support by uploading images of their country’s flags and the World Cup logo as their profile pictures, by uploading the World Cup logo in your pictures you could be infringing intellectual property rights owned by the Fédération Internationale de Football Association (FIFA).”

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So, what’s the deal? Does my newly updated Facebook photo, which features FIFA’s official emblem, unlawfully infringe upon FIFA’s trade mark? The answer is below…

Intellectual Property is football’s star player.
The World Cup is the largest single sporting event on Earth, with nearly half the world’s population tuning in. The tournament, which runs from June 14 to July 15 is being hosted in Russia for the first time, at an official cost of 683 billion rubles or £8.4 billion (Reuters).

As reported on its finances page, around 95% of FIFA’s revenues come from the sale of television broadcasting, marketing, and licensing rights related to the FIFA World Cup. In exchange for funding, FIFA grants exclusive rights to use its official marks to certain companies, which this year include addidas, Coca Cola, Gazprom, Budweiser, and Visa (rights holders).

In its 30-plus pages of official guidance on brand protection, FIFA claims that if anyone could use the official marks for free, the power of the marks would dilute and there would be no reason for companies to pay for sponsorship. Without lucrative corporate partnerships FIFA would lack the revenue required to organise the World Cup.

From the 2014 World Cup in Brazil, FIFA hauled in $4.8 billion in revenue, which turned a $2.6 billion profit for the association (which is then re-invested into development projects). Broadcast revenue topped $2.43 billion, while sponsorship fees brought in $1.6 billion and ticket sales earned $527 million. In other words, it’s not ticket sales that pay the bills: it’s intellectual property.

To date, FIFA’s intellectual property portfolio contains 14,000 trade mark registrations, about 300 registered designs, and 150 copyright registrations covering 157 jurisdictions overall (Official marks). Official marks include the flag, logo, hymn, and motto of FIFA, mascots, emblems, posters, and identification symbols.

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the official emblem and the official mascot, which is a Eurasian wolf named Zabivaka. According to the FIFA website, Zabivaka – which means “goal scorer” in Russian – “radiates fun, charm and confidence.”

The words “FIFA”, “2018 FIFA World Cup”, “World Cup Russia”, “FIFA World Cup”, “Football World Cup”, and “Soccer World Cup” are also protected, as are “Russia 2018” and “Moscow 2018.” Simply writing “Russia 2018” on a t-shirt could land you in trouble, as doing so may lead consumers to establish an unlawful association with FIFA’s tournament.

Trade marks as broad as these are generally not enforceable. One wonders if these trade marks would have been approved in the first place, were it not for the massive size and power of FIFA. However, it’s also important to note that, without the co-operation of local officials, FIFA lacks both adequate legitimacy and capability to effectively police and protect their official marks.

Russian law.
Domestic law provides FIFA with the additional teeth needed to enforce its intellectual property rights. In March of 2013, Russia passed the Federal Law No 108-FZ On preparation for and the staging of the 2018 FIFA World Cup (“World Cup Law”). There are provisions aimed at protecting FIFA’s commercial rights, including a specific procedure for the registration of FIFA’s trademarks. Under Article 19, pre-existing Russian trademarks that are identical or similar to FIFA’s are prohibited for use until 2019.

Compliance is supervised by the Russian Federal Service for Surveillance of Consumer Rights Protection and Human Wellbeing (Rospotrebnadzor) and the Federal Service for Supervision of Communications, Information Technology and Mass Media (Roskomnadzor).

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FIFA poster in front of the Kremlin, Moscow

On November 2017, Rospotrebnadzor adopted an agenda to prepare for the World Cup, including the key priority of supervising the use of FIFA’s official marks. In March, the Roskomnadzor announced that it had placed 858 websites selling counterfeit products on the so-called “Russian Internet Blacklist“, the Unified Register of Prohibited Information.

Additionally, the Federal Antimonopoly Service (FAS) can also hold parties accountable for illegal use of official marks. By way of example, Bavaria Brewing House Group Ltd and Agrofirma FAT Ltd raffled tickets for the World Cup final on their website and on social media. They also used FIFA trade marks in their promotional campaign and to mark their “Bavaria” beer. As neither Bavaria Brewing House nor Agrofirma FAT were licensed rights holders, the FAS issued an injunction against the companies to stop the violations.

What this means for fans.
FIFA engages in active surveillance and brand protection, which includes court proceedings to halt an infringing situation and seek financial compensation for any damages suffered.

It’s important to note that sports bars, restaurants, clothing brands and other companies are welcome to use generic football or country related images, provided they do not include any of FIFA’s official marks. The key here is avoiding reference to the World Cup that could suggest your company has an official relationship with FIFA.

But should individuals be worried about changing their profile pics on Facebook, if those photos include official marks? Not really. This is because sharing official content belonging to FIFA by fans without any commercial benefit is expressly permitted. This includes sharing on Facebook, Twitter, or even here on KelseyFarish.com, as blogs without commercial content are likewise exempted. Provided that you don’t attempt to make money by unlawfully using FIFA’s official marks, go on and enjoy the beautiful game!

No more Safe Harbours for EU-ser Uploaded Content?

No more Safe Harbours for EU-ser Uploaded Content?

The European Union is considering a sweeping new Directive on Copyright in the Digital Single Market, currently in draft stages. Industry groups are keen to ensure their opinions are taken into consideration, especially in instances where consumers share content which belongs to artists, authors, record labels, and television channels.

Digital platforms and internet service providers which host User Uploaded Content (UUC) argue that they are not responsible for any copyright infringing material uploaded by their users. However, trade bodies representing various industries believe the incoming Copyright in the Digital Single Market Directive doesn’t go far enough to reform this safe harbour principle.

The E-commerce Directive states that EU Member States shall ensure that internet service providers are not liable for copyright infringements carried out by its customers, on condition that: (a) the ISP does not have actual knowledge of illegal activity or information;  and (b) the provider “acts expeditiously to remove or to disable access” to the illegal content, once they become aware of it (see Article 14).

This article provides ISPs with a “safe harbour” from copyright liability (also known as the “mere conduit” provision). Generally speaking, a safe harbour* is simply a protection available within a regulation that specifies that certain actions do not to violate a given rule, in particular circumstances.

1709 - EU Safe Harbour
In the United States, this principle operates under the “notice-and-take-down system”

About 18 months ago, the European Commission announced its plans to introduce a new Directive on Copyright in the Digital Single Market. As the explanatory memorandum sets out, “the evolution of digital technologies has changed the way works and other protected subjectmatter are created, produced, distributed and exploited. In the digital environment, cross-border uses have also intensified and new opportunities for consumers to access copyright-protected content have materialised. Even though the objectives and principles laid down by the EU copyright framework remain sound, there is a need to adapt it to these new realities.”

Amongst other things, the propsed Directive seeks to rebalance the position of the copyright owner against that of the internet service provider. Last week, various trade groups representing Europe’s creators and creative content producers published an open Letter to the European Council.

The authors suggest that, far from ensuring legal certainty, the Directive as currently drafted “could be detrimental to our sectors,” which include journalism, film and TV, music, and sport. While the authors support the objectives of the proposed legislation, the Letter critiques the latest draft of the directive, and expresses significant concerns about the safe harbour reforms.

In particular, the problems seem to arise with sections addressing the “use of protected content” by ISPs and other platforms which “store and give access to large amounts of works and other subject-matter uploaded by their users”. Put simply, the copyright industries want the safe harbour reformed, so that it no longer applies to user-upload sites (Complete Music Update).

This draws into question how online platforms hosting UUC should monitor user behaviour and filter their contributions. Currently, the platforms review material after it has been published and reported or “flagged” as copyright infringement. This may, as has been discussed with Facebook’s proposed use of artificial intelligence in copyright and hate speech monitoring, “inevitably require an automated system of monitoring that could not distinguish copyright infringement from legal uses such as parody” (The Guardian).

The authors of the Letter voice complaints in respect of the draft forms of Article 2, Article 13(1) and Article 13(4):

  • Article 2 defines which services fall under liability, mentioned further at Article 13. The latest draft could leave most UUC platforms outside the scope, despite the fact they continue to provide access to copyright protected works and other subject-matter. For example, music playing in the background of a makeup tutorial on YouTube.
  • The problem with Article 13(1) as currently written is that it risks narrowing the scope of the right and contravening CJEU jurisprudence. The Letter’s authors argue that “any new EU law should secure that this right is broad,” and “contain no additional criteria which could change via future CJEU rulings.”
  • As for Article 13(4) and its relevant recitals, the authors suggest the language is tantamount to a new safe harbour, which would both “seriously undermine fundamental principles of European copyright,” and pose “unwarranted liability privilege risks breaching the EU’s obligations under international copyright treaties.”

The Letter closes with the authors’ promise to “remain at the Council’s disposal to find solutions to these points.” For more on the proposed Directive, be sure to check out the IPKat’s numerous posts on the subject.

*This “Safe Harbour” in copyright law is not to be confused with the Safe Harbor Data Privacy exemptions between the US and the EU, which have since been declared invalid. On that subject, I might write on the new Privacy Sheild… at some point…

Project Gutenberg: the German edition?

Project Gutenberg: the German edition?

Project Gutenberg is an American website which digitises and archives cultural works to encourage the creation and distribution of eBooks. It currently offers 56,000 free books for download, including classics such as Pride and Prejudice, Heart of Darkness, Frankenstein, A Tale of Two Cities, Moby Dick, and Jane Eyre. Many of these titles are available because their copyright protections have expired in the United  States, and are therefore in the public domain. The website is a volunteer effort which relies mostly on donations from the public.

What does it mean if a book is in “the public domain”? This term means that something (a novel, artwork, photograph or other creation) is not protected by intellectual property law, including copyright, trade mark, or patent. Accordingly, the general public owns the work, and not the individual creator. Permission is therefore not required to use the creation.

Despite the noble cause of making literature available at no or low cost to the masses, a recent ruling against Project Gutenberg has resulted in the website being geo-blocked for all visitors attempting to access the site from Germany. The claimants in the case are the copyright owners of 18 German language books, written by three authors, each of whom died in the 1950s.

In Germany, the term of copyright protection for literary works is “life plus 70 years,” as it is in the United States. However, the United States applies different rules for works published before 1978. For works published before 1978, the maximum copyright duration is 95 years from the date of publication. In the United States, the 18 books in question are all in the public domain. For the avoidance of doubt, Project Gutenberg runs on servers at the University of North Carolina at Chapel Hill, and is classified as a non-profit charity organisation under American law.

Sharing and accessing the written word has changed since the 16th century! Engraving showing a publisher’s printing process, from the Met Museum.

The copyright holders of these works notified Project Gutenberg of their alleged infringement back in 2015. In early February 2018, the District Court of Frankfurt am Main approved the claimant’s “cease and desist” request to remove and block access to the 18 works in question. The claimants also requested administrative fines, damages, and information in respect of how many times each work was accessed from the website.

 

Our eBooks may be freely used in the United States because most are not protected by U.S. copyright law, usually because their copyrights have expired. They may not be free of copyright in other countries. Readers outside of the United States must check the copyright terms of their countries before downloading or redistributing our eBooks.

The Court reasoned that it was worth taking into account the fact that the works in dispute are in the public domain in the United States. This however “does not justify the public access provided in Germany, without regard for the fact that the works are still protected by copyright in Germany.” The simple message on the front page (cited above) may not be sufficient to draw users’ attention to the fact that what they are downloading may be in contravention of national copyright laws.

The judgement also cited Project Gutenberg’s own T&Cs in its decision, noting that the website considers its mission to be “making copies of literary works available to everyone, everywhere.” While this broad statement may seem innocuous and idealistic, the court used this to support its findings that Project Gutenberg could not reasonably limit itself as an America-only website.

A key point in this matter is the question of jurisdiction. While Project Gutenberg is based in the USA, the claimants successfully argued that as the works were in German and parts of the website itself had been translated into German, the website was indeed “targeted at Germans.” Furthermore, even if the website had not been intended for German audiences, that the infringement occured in Germany is sufficient grounds to bring the claim in German court.

While Project Gutenberg was only required to remove the 18 works listed in the lawsuit, the organisation has blocked its entire website in Germany to protect itself from any further potential lawsuits on similar grounds (see the Q&A here). Project Gutenberg is planning to appeal the decision.

This first published on the 1709 Copyright Blog. You can also read more at the IPKat here.