Government Officials Push For Copyright Reform

Tom Pullar-Strecker reports on Stuff that Government officials are keen to liberalise our copyright laws.

This is according to an official briefing given to ICT Minister Amy Adams, released under the Official Information Act.

Well good luck with that. Our government seems determined to do a trade deal with the US at almost any cost, a deal that would inevitably result in New Zealand toughening up its copyright laws for the benefit of the US entertainment industry.

It seems that, while officials understand the importance of balancing the rights of content creators with the need to encourage innovation, ICT Minister Amy Adams appears keen to put any review of our copyright laws on the back-burner. From a trade perspective it is easy to understand why, because moves to modernise our copyright laws would probably impact on any chances of a trade deal being struck with the US.

But the fact remains that copyright does need to modernise. A legal system that makes unlawful ordinary, everyday web behaviour is a legal system that needs to change.

I don’t have any particular faith that a modernisation of copyright laws will occur soon, regardless of who forms the next government. It’s easy for opposition parties to decry our outdated copyright laws, but governments have to balance such concerns with the need to stay onside with trade partners. The last Labour government was directly responsible for the section 92A debacle, so, while Labour’s Clare Curran may appear to strongly favour copyright reform, I’d put my money on it being business as usual after 2014.

Change will occur, but I doubt New Zealand will be in the vanguard of copyright reform while Trans-Pacific Partnership negotiations continue.

Spears Into The Sea

This morning’s New Zealand Herald editorial wades into the Megaupload case, opining that copyright laws need to be respected and enforced.

More disturbing than the global breach of copyright alleged in the charges is the belief among many users of such sites that the net is, or should be, a copyright-free zone.

The ability to share and exchange enjoyable material is one of the most attractive and commonly used features of the internet. Just about everyone joins in the free distribution of something everyday. When we click on a link or forward an email, we seldom pause to wonder whether the originator of the material has a property right.

Common sense should tell everyone the originator needs a copyright to be able to sustain the creation of such material but common sense appears to elude some of the internet's enthusiasts. They regard pay-walls as an impediment to virtual democracy and a challenge to their technical agility. Yet the wealth we now witness at Coatesville suggests they are not evading all tolls on their traffic.

It may be argued that sites such as Megaupload provide a service that any originator of material could provide. The issue may be the price they can charge if they face none of the costs of original creation. It seems internet users are happy to send movies, music and other works they possess to a "cyberlocker" for faster transmission to their friends. Once the cyberlocker has the material it can be made universally available for a small fee.

As the home of Hollywood, popular music and indeed, the world's leading software creators, the United States has more "intellectual property" to defend than most places. But countries such as ours should be unequivocal in their support of efforts to police global copyright.

Internet breaches should not be confused with parallel importing, which this country permits. Parallel importing is made possible when suppliers discriminate between countries and charge some a lower rate.

The internet is an instant global supply; it cannot discriminate between national markets.

The internet needs to protect intellectual property somehow. Unauthorised distributors of underpriced work can prosper only at the expense, and eventual death, of their golden goose.

I usually try to steer clear of the debate over copyright and its future. Because in my day job I deal with a range of people in the IP world, from creators and exploiters to potential infringers, I have the benefit of seeing the debate from a number of different perspectives.

However, the Herald’s analysis strikes me as too simplistic. it doesn’t take a genius to work out that with the increasing prevalence of digital technologies in our daily lives, traditional copyright protection models have become outdated. Is the answer really just to enforce the existing laws more aggressively and expect people to stop infringing?

The rise of the internet, and the ease with which electronic material can be replicated and shared, make it more difficult for owners of content to assert and enforce copyright. How does a content owner effectively enforce their rights when thousands of people can copy that content with just the click of a button?

In the pre-internet age, the potential for mass distribution of infringing material was limited, and most copying was on a small scale. Large-scale infringers were fewer, and the traditional models of enforcement (cease and desist letters, injunctions, damages etc) were often effective in dealing to the problem.

But in today’s filesharing age, illegal content can be downloaded in an instant. Hundreds of thousands, if not millions, of people are happily sharing content created by others, in a way that violates copyright laws.

Responses to the challenge created by mass filesharing have been varied. Some industry groups argue that the law is the law, copyright infringement is theft, and people need to simply stop the illegal copying and distribution of other people’s content. At the other end of the spectrum are those who believe that everything should be available for free on the internet. In between are those who are happy with some form of copyright protection for creators and copyright owners, but think current copyright laws are outdated and overly restrictive.

Irrespective of where people stand, what seems clear is that mass copyright infringement will not go away soon. The Megaupload crackdown may look like a big deal, but such enforcement actions alone are unlikely to reduce the scale of the infringement problem. The actions taken by US authorities look more like Canute commanding the tides to halt; or the Roman emperor Caligula’s war against Poseidon, when he marched his army to the beach and commanded his men to throw spears into the sea.

What’s the answer? I have no idea. If I knew how to solve the copyright dilemma I’d be the richest person in New Zealand. However, it seems that a lot of people who infringe do so because the content they want is not available at a price they are prepared to pay. A lot of people have expressed frustration at not being able to access their favourite TV shows, because the official sites often prohibit downloading from particular countries or regions. In other cases users are prepared to pay something for the material, but believe the price being charged is too high. In such cases it could be argued that the biggest problem lies with traditional distribution models simply failing to adapt to meet consumer expectations.

None of this is an effort to excuse what is in the end illegal behaviour, nor is it an attack on traditional forms of enforcement. I should make it clear that I have no issue with individuals or corporations wanting to enforce their rights in content. But if copyright owners want to reduce the volume of infringements taking place, they must also understand the reasons why people choose to illegally download content. It is not enough just to enforce existing laws.

If people will continue to smoke or drive too fast, despite the very real and proven dangers to their well-being, should we really be surprised that people ignore the calls not to illegally fileshare? Especially when the technology to do so is readily available, when the chances of infringers being caught are small, and when the actual harm caused by an infringing act is difficult to quantify.

The enforcement of existing copyright laws alone will not hold back the rising tide of filesharing. The Herald’s editorial offers nothing useful to the copyright debate.

The Macaque Monkey And The Copyright Conundrum

You may have seen some photos recently published in papers around the world. A black macacque monkey snatched a camera and took some delightful self-portraits.

But as the excellent 1709 Blog reveals, the photographs have got copyright experts excited. Why? Because it's not entirely clear who owns the copyright in the photographs. Does the monkey? The camera's owner? Does anyone?

The matter is complicated by the fact that it's not clear which country's copyright laws apply. It is possible that Indonesian copyright law applies, because the photos were created in Indonesia. However, UK law may apply, as the camera owner is British, as is the company now claiming ownership. Issues of which country's copyright law applies can get quite complicated in these sorts of situations.

But it's pretty clear that Ms Monkey misses out, because monkeys aren't "persons", so can't hold copyright.

The camera owner, David Slater, didn't create the image, nor did he pose the picture or set the camera up. All the work was done by the monkey. Surely, then, neither Slater nor anyone else claiming to derive title from him can legitimately say they own the copyright.

It appears that Slater transferred whatever rights he did have in the images (arguably none!) to Caters News Agency, perhaps in the hope that the legal principle known as nemo dat quod non habet ("no-one can give what they don't have") might somehow not apply in this case. Caters has since issued a takedown request to Techdirt over that site's use of the images, even though Caters appeared unable to explain on what basis it can claim to own any copyright. Caters' reasoning appears to be "well someone must own the copyright, and it's not you, so either way you can't use the images". That ignores the rather obvious problem that if you don't own the copyright in a work you don't get to complain how someone else uses the work.

There's also a whole pile of fair use arguments Techdirt could use under US copyright law if Caters really got serious and decided to litigate. I would love it if Caters did sue, if only to see how a court tried to handle the whole ownership issue.

It seems likely that in fact nobody owns the copyright and that the photos are in the public domain. Certainly in respect of UK law, that is the conclusion of the 1709 Blog author.

This fact emboldens me to publish the cutest of the pics.

US Anti-Piracy Groups Look To Extend US Copyright Laws Offshore

Peter Walker of the Guardian reports on an interesting development in the war being waged by the US on alleged copyright infringers.

British website owners could face extradition to the US on piracy charges even if their operation has no connection to America and does something which is most probably legal in the UK, the official leading US web anti-piracy efforts has told the Guardian.

The US's Immigration and Customs Enforcement agency (ICE) is targeting overseas websites it believes are breaking US copyrights whether or not their servers are based in America or there is another direct US link, said Erik Barnett, the agency's assistant deputy director.

As long as a website's address ends in .com or .net, if it is implicated in the spread of pirated US-made films, TV or other media it is a legitimate target to be closed down or targeted for prosecution, Barnett said. While these web addresses are traditionally seen as global, all their connections are routed through Verisign, an internet infrastructure company based in Virginia, which the agency believes is sufficient to seek a US prosecution.

But it's not just sites with the pirated material on them being targetted, but sites that link to the material. In May UK man Richard O'Dwyer was arrested at the request of US immigration and customs officials. His alleged offence was to provide links on his website to other sites where people could download pirated material.

It certainly seems a stretch to argue that running sites based outside the US, with only a tenuous link to the US, could amount to an infringement of US copyright laws. So I expect any extradition requests would be strenuously resisted, at least to the extent that the defendant is able to resist, given the modest financial resources most individuals have.

It's also a bit scary to think that you could be held liable for the links to your site. I would hope, though, that authorities distinguish between a website with a solitary link to a filesharing site, and one with screeds of links.

The US content industry certainly faces some challenges, and this latest attempt by the US to assert its copyright laws outside its borders is certainly a bold one. But even if US authorities manage to win a few of these battles, will it make a difference to the war on internet copyright piracy? Or is the war already lost? For professional reasons I don't intend to express an opinion, but I welcome yours.

The Five Biggest IP Mistakes Tech Start-Ups Make

US IP blog IP Watchdog lists the top five IP mistakes tech start-up companies make. It's worth a read if you're involved with a tech start-up.

Lists like these are always subjective. Ask two different experts and they'll give you two different lists. Which is why I will post my own list. Having said all that, my list is not all that different from IP Watchdog's. This tells me people make the same mistakes wherever they're from.

Here are my five.

Not getting patent protection: If you're a tech start-up, then patent protection will probably be an important part of your business. The main reasons you want patents are:

• VC investors will usually look at the availability and extent of a tech company's patent portfolio when they decide whether to invest in the company. 
• A patent is an exclusionary right, meaning it is a right to prevent others from doing certain things described in the patent's claims. A good portfolio of patents and patent applications can deter others from making or exploiting the products or processes the subject of those clams.
• A good patent portfolio can also be a useful insurance policy in the event a company is dragged into patent litigation. The more patents you have, the harder it will be for someone else to take you on in the courts.

So not investing in a good patent portfolio can often be fatal. 

Not doing FTO searches: If you're going to invest a heap of cash into R&D, then it makes sense to check the patent landscape first. Freedom to operate patent searches can assist to determine whether an area of proposed R&D activity has been heavily patented. Inventors and developers will often go to see their patent attorney after they have made their supposed breakthrough, only to learn that what they have done potentially infringes someone else's patents. A good FTO strategy can prevent unnecessary work being done in heavily patented areas, and identify gaps that can be exploited. 

Not being smart about what, where and how much to file:  It's a myth that patent attorneys are only interested in filing more patents, designs and trade marks. It's a myth perpetuated by some in the anti-patent or open-source community, and by some in the business world. I've heard one business adviser refer to patent attorneys as being like drunks in a brewery.

As with all industries, the IP profession has both good and bad people. The profession has a few cowboy operators, but most are reputable, responsible and professional. They understand that the secret to a successful and strong IP practice is repeat business. A client who goes nuts filing everything and everywhere will soon learn they are blowing cash unnecessarily, and they'll probably blame their IP adviser.

The key is to think strategically and work out where your key markets are, what you need to protect, when you need to do it by, what the costs are, and what you can afford to spend. A good IP adviser can help with that exercise, so you should use their expertise and not assume their answer will be to file more patents. 

Not tying down confidentiality: For most tech start-ups confidentiality is absolutely critical. Anyone the company deals with should be under obligations of confidentiality, if at all possible (accepting the reality that some people and companies just refuse to sign confidentiality agreements), and the company's confidentiality and secrecy policies should be aligned with its patent strategy. Some disclosures of information, even if made under confidence, can destroy patentability, so any proposed disclosure of anything potentially patentable should be cleared by the company's IP adviser first. 

Sorting out ownership:  IP laws are complicated, and different laws have different rules about who owns new IP that is created. For example, under New Zealand's Copyright Act 1994 the first owner of a certain type of work (i.e. a photograph, software, painting, drawing, diagram, map, chart, plan, engraving, model, sculpture, film, or sound recording) will be the person who commissioned it, unless the parties otherwise agree. But under New Zealand's current legislation someone who commissions another to create a patentable invention does not automatically have legal title to the patent rights in that invention.

Other countries have completely different IP laws, so if you're dealing with overseas parties the issue of IP ownership can be a minefield unless you've got a clear contract in place.

For this reason it is critical that companies dealing with third party developers and creators have clear contracts in place setting out who owns the IP in what is created, and who has the right to exploit it.


I could post a whole lot more about the most common IP mistakes people make, but five seems like enough!

The Urgency Stinks, Not So Much The Content

The Copyright ((Infringing File Sharing) Amendment Bill was passed during an urgent session of Parliament last night.

The move has provoked a lot of heat over the internet. The reaction of many people over twitter last night as the bill progressed was largely negative, with much outright hostility at the measure. What appears to be exciting the most outrage is the prospect of users’ internet accounts being shut off. Many twitter users blacked out their avatars, and some are talking about another blackout day.

I just couldn’t get angry about the content of the bill. Maybe it’s because I’m a lawyer working in the IP field. Being an IP lawyer doesn’t automatically mean I always support stronger IP protection, and most IP lawyers would agree there has to be a careful balance between providing incentives to create and innovate, and encouraging the freedom of expression and the dissemination of ideas.

Copyright is a really difficult area in which to make law, because technological advances have made it easy for people to engage in activities that have been traditionally regarded as infringing copyright. Purists on both sides of the copyright debate (“it’s simple – just don’t copy anything!” versus “everything must be free!”) tend to end up shouting at each other whenever this matter is debated, which means that finding a compromise solution a lot of people can accept is often next to impossible. But the law is a compromise, and as compromises go it could have been a lot worse.

The new law is much watered down from what the Labour government originally passed. Users can have their internet connections terminated, but only by order of a court, and only after a third strike, and only for six months, and only then if an Order in Council has been enacting enabling this power. On top of that lot, a court will still have discretion to determine whether or not to suspend. The likelihood is that there won’t be a lot of suspensions.

Still, there is a good argument that the internet is a human right, and that denying someone the right to access information or social networks online is an infringement of their basic liberties. On the other hand, copyright laws have long recognised the rights of creators to control the exploitation of their creative output. Which right is more fundamental? There’s no “right” answer. Just opinion.

While I couldn’t get angry at the content of the bill, it does bother me that urgency was used to pass this piece of legislation. I don’t know why, and I can only come up with two possibilities. One is that the passing of the legislation was a necessary gesture by the New Zealand government under the secret TPP negotiations. The other is that this government is so addicted to the use of urgency and has such a fundamental disdain towards democracy that they thought nothing of it.

And it’s not as if they have a useful opposition to stop them. In this case Labour stood meekly by, hopefully embarrassed by the whole debacle they originally started.

Harry Potter Kills Lesser Boy Wizard

I reported in October that the estate of Adrian Jacobs, author of an obscure book about a boy wizard entitled Willy The Wizard, was suing the author and publisher of the Harry Potter books for copyright infringement.

Contrary to much of the reportage, this is not a plagiarism case, but is in fact one of alleged copyright infringement. Plagiarism may be regarded within literary circles and academia as a mortal crime, but it is not something legally actionable.

The claim for infringement was always going to be tough to prove, and even though a judge a couple of months ago refused to throw the suit out, the judge remarked that the claim was unlikely to succeed.

Now a case being taken in the US by the estate has been chucked out. This setback should see the estate give up the fight, if the trustees of the estate have any sense. Holding out for a settlement is always a possibility, but when the outcome of a case has the potential to impact on the reputation of an author, a settlement becomes very unlikely. For J K Rowling anything other than outright victory will be regarded as inconceivable.

Final ACTA Treaty Released

The final draft of ACTA (subject to final legal review*) has been released, and it appears much watered down from previous versions.

You can view it here. It's not a hard read - only 24 pages.

No doubt many of those totally opposed to ACTA will still rail against it. That can hardly be a surprise, given the veil of secrecy covering many of the negotiations. The entire process to get to this point has been difficult and filled with controversy.

I haven't followed the minutiae of the ACTA negotiations and the various changes to the treaty language along the way, but from a quick read of the final draft it doesn't look like our government will need to implement huge changes to our IP or customs laws to comply with the treaty. I'm not sure whether our current copyright provisions regarding technological protection measures are consistent with the treaty, but the treaty is filled with exceptions and I've only taken the briefest look. Someone with more of an interest in the issue than me will no doubt examine to what extent our laws are consistent with the treaty.

Some rightsholders may be concerned that some of the key provisions they pushed for have been watered down.

And there will be those who just want to put the damn thing in a shredder or burn it, regardless of what it says. The term "ACTA" inspires a lot of venom in some people.

* I'm not sure if this legal review will be a "one last final check in case we missed anything obvious" review or more of a detailed legal review. I assume the former, otherwise they wouldn't be calling it a final draft. The lawyers will/should have been heavily engaged in the drafting from the beginning.

No Copyright In Headlines In Australia

An interesting copyright case has come out of Australia this week.

An Australian court has found there is no copyright in newspaper headlines.

Fairfax, the publisher of the Australian Financial Review, took LexisNexis Australia to court over the publication by LexisNexis of an abstracting service called ABIX, that provides daily abstracts of a number of Australian newspapers.

Fairfax claimed that the use by LexisNexis in ABIX of headlines from the Australian Financial Review infringed its copyright. It produced to the court ten headlines from two different editions of the newspaper, and argued that these headlines were copyright works in their own right. It also argued that a newspaper article with the headline is also a copyright work, and that by copying the headline LexisNexis was copying a substantial part of the overall work.

LexisNexis countered by arguing that copyright does not subsist in headlines, and that any copyright that might subsist in the articles was not infringed by the copying of a headline.

The court ruled in favour of LexisNexis, ruling that a newspaper headline was to be treated like a title. Courts have generally ruled that titles (e.g. book and film titles) are too short to attract copyright protection as literary works. The need to identify a work without infringing copyright is another reason for excluding titles from copyright protection.

It was also determined that the use of the headlines did not involve the copying of a substantial part of the newspaper articles.

Finally, even if copyright infringement had been possible, LexisNexis would have been able to rely on the fair dealing defence, which allows for copyright works to be reproduced for the reporting of news.

But even though Fairfax lost the case, it has indicated it may appeal, so the battle may not be over yet.

New Copyright and Patent Laws To Be Passed

The Government is proceeding with plans to amend copyright and patent laws.

It is also pushing through changes to a range of other intellectual property laws.

The Intellectual Property Law Reform Bill had its first reading in Parliament last night. The legislation is being pushed through under urgency, and is expected to have its second and final readings today.

The proposed law, which will come into effect on 1 October this year, will increase the threshold for copyright infringement from the current 12.5% level to 15%.

Penalties for some software patent offences wil also be increased under the proposed law changes.

The law presently allows people who want to copy someone else's work to copy up to 12.5% of that work without infringing the owner's copyright.

The law was introduced in 1985, although the threshold was originally set at 10%. It was increased to 12.5% in 1988.

The Government has been signalling for some time that it wanted to streamline the intellectual property system, to eliminate anomalies and reduce the incentives for people to cheat the system.

Commerce Minister Simon Power said that the copyright infringement threshold increase would allow more copying of original works. The effects of this change would be offset by proposed changes to the copyright file-sharing provisions of the Copyright Act 1994, which will introduce a "three strikes" system for copyright infringement.

Mr Power said that the overall effect of the changes would be "legally neutral" for most copyright owners.

The reform package includes a number of changes to patent laws.

The maximum penalty for possession of a software patent will increase to three years' imprisonment.

The maximum penalty for possession of a software patent for the purposes of supplying litigation is also increasing, to nine years' imprisonment.

Mr Power said that the Government was committed to winning the war against software patents, and that these measures showed it was serious about eliminating the scourge of software patent litigation.

"This is an epidemic," said Mr Power. "It's in our communities, in our schools and on our streets. In some parts of Auckland you can't walk down the street without a patent attorney bailing you up and offering to supply you with a cease and desist letter.

"And that is just the tip of the iceberg. The serious patent dealers will supply actual patent specifications."

Mr Power said software patents were responsible for much of the conflict in the legal community.

"We have seen an escalation in conflict between gangs of patent attorneys and IP lawyers. These gangs seem to hang out in small groups around the courthouses, and at the Intellectual Property Office. Disputes can quickly escalate, and they will often end up attacking each other with whatever is at hand: motions, submissions, applications and appeals."

Sensible Patenting Trust spokesperson Jon Pope said his organisation supported the move to get tough on software patents.

"This is long overdue. For decades successive governments have done nothing to stem the flow of intellectual property into this country. We say enough is enough."

But a spokesperson for the National Organisation for the Reform of Patent Laws (NORPL), Jill Smithereen, said that proposed patent law changes were an enormous overreaction to a non-existent problem.

"There's no software patent crisis. There's almost no litigation on software patents in this country. Where's the crisis?

"These moves will only result in patentees going underground, and filing their applications in other countries.

"This is yet another example of the Government only having ears for the anti-patent 'hang-em high' crowd."

The reform package includes a number of other measures.

• Trade marks that have sat idle for more than twelve months will be required to complete a work assessment. Those that are fit but make no attempt to make themselves useful will be removed from the register.
• The defence of "claim of right" will be abolished, to ensure patentees cannot exercise any rights under patent laws.
• Patent attorneys will be assessed for reading, writing and language comprehension skills under a new set of national standards to be introduced.

Copyright Troll Sues Bloggers And Website Owners

When people in the intellectual property industry talk about trolling they’re usually referring to patent trolls. A patent troll is a company that appears to have no purpose other than to sue others for patent infringement. The typical patent troll creates nothing, and the only people it employs are lawyers. Most people in the IP world have a negative view of patent trolls, and regard them as an unavoidable evil. If we are to have a patent system, there will always be those who try to use the bundle of rights given by a granted patent to screw over others. That’s just the way the world works.

Patent trolling is big business, especially in the US, where courts have the ability to award triple damages for patent infringement. But now a new breed of trolls is appearing: the copyright troll. Wired reports on efforts by Nevada-based company, Righthaven, to sue bloggers and website owners who have reposted newspaper articles without permission from the copyright owner.

This is one of those “only in the US” stories, because US copyright laws give copyright owners the ability to claim “statutory damages” of up to US$150,000 for copyright infringement, without the need to show actual harm or damage.

Righthaven has been in existence for only a few months, but has already filed 80 lawsuits. Its business model works like this:

• locate an article from the Las Vegas Review-Journal newspaper that has been posted on a blogsite or website without permission
• acquire the copyright in the article from the Las Vegas Review-Journal. This is usually done after the potential infringement is discovered, though in some cases the copyright may have been assigned beforehand
• then sue the blogger or site owner for copyright infringement and demand an extravagant amount in statutory damages
• settle with the terrified blogger or site owner for a lesser amount (thus avoiding legal scrutiny of its potentially flimsy claim), then share the spoils with Stephens Media, the owner of the Las Vegas Review-Journal.

As a short term tactic it might just work. If you terrorise enough people into settling you might be able to make a killing.

But there are a few problems with this business model.

For starters, it is causing a backlash against Stephens Media, the owner of the Las Vegas Review-Journal. The Blogger News Network reports:

Righthaven has figured out how to monetize the blogosphere, and Stephens Media has figured out how to extract a few more bucks from their newspaper holdings. For now, at least – until bloggers and news aggregate sites begin acting on the principle that any content in any Stephens Media newspapers is about as toxic as radioactive sewer sludge. While a fair number of bloggers and websites have paid up just to make it all go away, others are fighting back by either ‘Righthaven-proofing’ their sites, or blacklisting Stephens Media through their site-posting rules. There are even Firefox and Chrome plug-ins to automatically exclude Stephens Media from your internet browser. Righthaven and Stephens Media may perhaps gain in the short run, but prospects for long-term gain seem pretty iffy.

Maybe Stephens Media has already decided the newspaper is dead as a business model, because its short term gain may lead to long term extinction. A business model that requires you to sue your customers can’t last forever, because you soon won’t have any.

The trollish behavior of Righthaven has also incensed a number of people within the legal fraternity, and a number of legal defences are being formulated in reaction to the infringement claims. These defences include:

• the argument that Righthaven didn’t own the copyright at the time of the alleged infringement. I’m not sure how strong this defence is under US law. Under New Zealand law when you take an assignment of copyright you would also normally take an assignment of all rights of action for any infringements arising before the date of the assignment
• potential fair use arguments. Fair use is the doctrine that allows copyright material to be used for the purposes of commentary, criticism, news reporting, research, teaching or scholarship. We have a similar provision under our copyright laws (section 42 of the Copyright Act 1994), though our “fair dealing” exceptions to copyright infringement are not generally as broad as those in the US
• an implied licence defence. By failing to limit the ability of users to copy and paste text by technical means, and by encouraging sharing of its articles via various social media sites, the newspaper has given an implied licence to people to use, copy and share the material
• the innocent infringement defence. In some cases material has been posted by third parties in comments sections of blogs and sites, and bloggers and site owners have argued they cannot be held responsible for such actions. Such defences would certainly have an impact on the potential damages that might be awarded, though they will not change the fact that an infringement is still an infringement.

Like I said, this is an “only in the US” situation. It’s not that a newspaper would never sue a blogger or site owner in New Zealand. But the idea of doing so as a business model to gather revenue would not work here, because we don’t have a statutory damages regime.

There might still be good reasons for a copyright owner to want to sue a blogger or site owner for copyright infringement (e.g. to prevent reputational damage), but in most cases the plaintiff isn’t going to make a killing, and will probably be more interested in stopping the use, rather than profiting from it. In most cases a cease and desist letter will do the job (provided it is based on sound legal principles).

Also, much of the typical copy and paste stuff you see on blogsites here (including this one) is permitted under our copyright laws. Fair dealing for the purposes of commentary, criticism or news reporting is a defence to copyright infringement, even if the exact parameters of the “fair dealing” concept aren’t always clear.

(Hat tip: IP Biz blog)

Oh No, An IP Post!

At least it's short

Below are a couple of (well I think so anyway) interesting articles on topical IP issues.

The first is an argument by a US patent attorney about why software ought to be patented. It is rabidly pro-patent in a way that is probably as unbalanced as many of the anti-software-patent pieces I've seen, and some of the arguments in favour could easily be challenged. But within all the bombast are a few gems.

The other one is about copyright collection societies and the challenges that face them, and how one society is trying to deal with those challenges.

That's all I got. Not every post has to be about politics, people.

Copyright (Infringing File Sharing) Amendment Bill - Will Disconnection Work?

It isn’t clear to me why the Law Society has taken a positon on the internet disconnection provisions of the Copyright (Infringing File Sharing) Amendment Bill.

The Commerce Select Committee has been hearing submissions on the Bill today.

The Society’s Intellectual Property Law Committee presented a submission arguing that the provision to ban persistent infringers should remain in the Bill, but should only be enforceable via the courts through the actions of rights-holders.

They have also said that the courts need to have the power to ban offenders from applying for a new internet account.

The modified Bill that came out of various discussions and public consultation was certainly much less onerous on alleged infringers than the initial proposals. Inevitably it does not go far enough for some, while for others any potential loss of internet connection is regarded as too harsh a penalty.

The current provisions of the Bill are pretty moderate, and would ensure disconnection would only occur in the event of serious infringement and where there were no compelling arguments not to disconnect. That should protect legitimate businesses, many of whom were concerned that the original proposals could have seen them losing their connections due to the actions of their employees.

The difficulty in all of this is that anyone who loses their internet connection would be able to have another one up within hours, with a different ISP. If the intention is to use disconnection as a last resort, shouldn’t the penalty be enforceable and meaningful? A determined and flagrant infringer will simply set up again under a new provider, and perhaps under an alias.

So it surprises me that the Law Society is arguing in favour of a provision that just doesn’t seem to work.

I don't know what the solution is to the ongoing filesharing problem. Nor do most people (apart from the zealots on each end of the spectrum who seem so certain of their arguments). But I have doubts about the wisdom of imposing a sanction that won't actually stop those who are the real problem.

The idea that access to the internet is a human right is also gaining traction. I'm not conversant with all the arguments for and against that idea, but it may be another reason why disconnection shouldn't be on the table.

This is purely my personal view. No doubt many of my colleagues in the IP industry would disagree and would argue that infringers should be punished. But even if we accept that, will the Bill achieve that?

Copyright (Infringing File Sharing) Amendment Bill: Make A Submission

Public submissions are now being invited on the Copyright (Infringing File Sharing) Amendment Bill.

You have until 17 June to do so, if interested.

I reported on the Bill a couple of months ago. The Bill introduces a "three strikes" policy for dealing with file-sharing copyright infringement matters.

Apparently, some of the matters addressed by the Bill are contentious. I know better than to get myself drawn into a debate on copyright protection, so won't be making a submission.  But feel free to exercise your democratic right to be ignored.

Another ACTA Leak

Last week Government officials were assuring us that there was no reason to worry about the ACTA negotiations to be conducted in Wellington next week, and that if a treaty was signed it would not lead to major changes in our copyright enforcement laws.

Now the Montreal Gazette reports on further leaked draft ACTA documents that seem to suggest state agencies will have wide-ranging powers.

The draft text provides for enhanced search powers that will allow border security to comb through the PCs and iPods of travellers. And products that could be used to circumvent the digital locks on media will be prohibited.

Also, people who illegally download material over the internet could be disconnected for up to 12 months. That's different to the six-month maximum proposed under the current bill before Parliament.

What stinks about this is not so much the proposed measures themselves, but the secrecy behind the negotiations. Copyright is an area that divides many people, and if we are to sign up to a treaty that will change the way we enforce copyright laws we should have a thorough public debate about the issues first. Once the draft text has been agreed it will be very difficult for our Government to back out.

So why the secrecy?

IP Epic Fail #1

It's IP school time for one lucky media person.

This is the first post in what I suspect will be a long series of frustrated posts on the inability of the news media to understand basic intellectual property issues or terms.

Today's lesson is about the difference between trade marks and copyright, and is given for the benefit of the editor of the Stuff website. The Stuff site ran an article by Asher Moses and Julian Lee of the Sydney Morning Herald. The article concerns a trade mark dispute between Apple and another company regarding the right to register the DOPi trade mark.
 
So if the dispute is a trade mark one, why does the title of the piece refer to "iCopyright"? Note: the original SMH article didn't have copyright in its title.

Ok, Stuff editor, sit down and take your lesson.

The Lesson

What is the difference between trade marks and copyright? To keep things really simple, trade marks protect brands. Copyright generally protects expressions of ideas - e.g books, musical works, designs, drawings, photographs etc.

It would be very difficult to claim copyright ownership in a single word*, though I suppose it might be possible if a word were distinctive enough. That's why this dispute is a trade mark one, not a copyright one.

And another distinction: you don't have to register anything to get copyright protection. It exists from the moment the work in which the copyright subsists comes into existence. Trade marks are usually registered. There may be limited rights in an unregistered trade mark, but those rights are harder to enforce than if you have a registration.

Not so hard, was it? Though that was the dumbed down version.

* exception: a sylisation of a word or series of words can attract copyright protection. A good example of this would be the distinctive Coca Cola writing that appears on Coke bottles and cans.

ACTA - It's Still A Secret But You Can Tell Us What You Think Of It - Updated

Now Updated With New ACTA Leaks!

You're not allowed to know what the content of ACTA is, or which country has proposed what, but at least you can now make submissions on it.

Doesn't that make you feel all warm inside?

But seriously, why are we bothering with the new three-strikes bill for copyright infringements while submissions on ACTA are being sought? Especially when much of the content MED wants submissions on is the subject of the bill and will be thrashed out during the select committee process.  This makes no sense to me. Am I missing something?

The MED also wants to hear views on technological protection measures (TPMs) and rights management information (RMIs).

You have until the end of the month. Get moving!

Update: Michael Geist reports on a leaked EU document on ACTA. I haven't had time to digest it in detail, but it appears a number of countries, including New Zealand, have a problem with the hardline approach taken by the US on infirngement and, in particular, TPMs and RMIs. 

Now we know that New Zealand and other countries have been debating what ACTA will cover, it is timely to ask exactly what the MED's submission process will achieve. If we have already told other countries what we will accept, what purpose will these submissions serve?

The Herald On The New Copyright Bill

This story on copyright is (to put it politely) not as accurate as it could be:

Anyone caught breaching copyright by downloading films and music from the internet will face large penalties and could even be disconnected by their internet service under new legislation.

No, that's completely inaccurate. Anyone caught infringing must first be given three notices before any action can be taken. So that's two free infringements. And while the penalty is a maximum of $15,000, in most cases the amount awarded to the copyright owner will be low. The Cabinet paper that preceded the new copyright bill stressed the need not to impose excessively punitive penalties.

A three-strikes system will hand out formal warnings to offenders, and further illegal downloads could prompt copyright owners to apply for up to $15,000 compensation from the user.

The copyright owner could also ask the relevant internet service provider to cut off the customer's internet connection for up to six months.

The ban could happen only after a copyright owner, such as a media company, applies for a district court order for the internet service provider to suspend the user's internet access.

Those last two paragraphs don't work well together. The court can order that the customer's connection be terminated. But the ISP would still be entitled to disconnect the user under its own terms and conditions. Although I suspect most won't terminate, other than for the most flagrant infringements.

Dozens of bloggers throughout the country are planning to take their blogs down on Monday morning in an "internet blackout" protest against the bill. Similar protests a year ago led John Key's government to stall the previous Labour government's attempt to update copyright law.

Well that's news. I've not seen anything on any blogs about a blackout. Mind you, there are literally thousands of blogs out there.
 
But why the blackout? The bill is about as good as opponents of copyright can hope to get, because there has to be some penalty for repeatedly infringing copyright. The warning system appears to balance the rights of all main stakeholders in this matter: copyright owners, ISPs and internet users. 
 
And the provisions regarding disconnection of internet accounts have been so watered down that few people will find themselves being disconnected, other than serious and repeated infringers.
 
Some details of the system may need refining, and people will have the opportunity to raise issues during the select committee process. I really cannot see the Government giving up on this bill, so opponents should work to improve the proposed system via the parliamentary process. 
 
So I will not be blacking this site out on Monday. Not that I would know how.

New File Sharing Bill, Confidentiality and ACTA

The Copyright (Infringing File Sharing) Amendment Bill was introduced into Parliament on Tuesday.

You can read the text of the bill here (though a warning: you'll probably get lost amidst the procedural morass that is sections 122C to 122I).

The bill introduces a three-notice system to deal with illegal file sharing. I posted on this previously when the Cabinet paper the bill is based on was released. The bill largely reflects the content of that Cabinet paper, but with a few changes and with some more detail in a couple of areas. It doesn't deal with some of the important issues ISPs and rights owners will want answered, such as how much ISPs will be entitled to charge rights owners, and what the infringement penalties will be.

The bill includes detailed provisions about how infringement proceedings will be held.  In effectively banning lawyers from Copyright Tribunal proceedings the legislators are clearly trying to accommodate those who raised concerns about the ability of alleged infringers to defend themselves.

The law is due to come into force on 1 October, but must first pass through the select committee process. I expect some of the procedural details will be further refined once all the various interest groups have had a say.

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I was trawling through Te Webz looking for articles about royalty reporting (I do a lot of IP licensing work), when I stumbled across this delightful article by Frank Quirk of the band Too Much Joy (no, I’d never heard of them either). It raises some interesting questions about how the major labels treat their talent.

I don't do too much work with music copyright (because, sadly, most NZ musicians are too poor to afford lawyers), so it was certainly interesting to read one man's experiences of the royalty accounting methods of a big label. I wonder if this is how musicians in NZ get treated.

So, while I can play more than three chords on the guitar, I think I'll stick to my day job.

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On IP Watchdog, Gene Quinn examines why many companies simply refuse to evaluate inventions submitted to them, other than on a non-confidential basis.

In my experience this applies generally to large companies that have significant ongoing R&D programmes. Few NZ corporates would flatly refuse to sign a confidentiality agreement, because we simply don't have that many large innovative corporates doing significant volumes of R&D.

The trouble with accepting any idea that comes through you door is that, if you're already developing something similar and you sign a confidentiality agreement, you may find it hard to then exploit the invention you independently developed. Because it may look to some as if you simply pinched the idea off the person who came knocking at your door.

When I act for an inventor who is about to talk to someone about their invention I always advise them to get a confidentiality agreement signed, unless their patent application has already been published. But the reality is that some people just won't sign confidentiality agreements.

So if your invention is protectable your best option is to at least file a provisional patent application before disclosing the invention. It's not always ideal, especially if your idea is at an early stage and if you want to refine your invention further before filing a complete specification 12 months later - but it's often a better option than not talking to someone who may potentially be your best prospect for a deal.

Here is another trap. If you have something patentable but haven't got a patent application in, and if you then talk to someone about licensing or selling your invention, you may lose the ability to patent your invention altogether. That applies even if you are talking under the terms of a confidentiality agreement.

If your invention is valuable, it is always best to talk to an IP professional before disclosing details of it to anyone.

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ACTA negotiations continue to bubble away, though nobody other than a select few officials appears to know what is going on.

But leaked documents have revealed that Round 8 of the ACTA negotiations is to be held in Wellington, between 12-16 April.

If you're in the capital at that time, look out for a lot of American gentlemen wearing power suits and dark shades.

Suing For Plagiarism? I Don't Think So

Here's an interesting case:

Harry Potter author JK Rowling has called for a plagiarism case against her to be dismissed, describing it as "unfounded" and "absurd".

I'll say. For starters you can't sue someone for plagiarism, because, however much a literary crime it may seem, it just isn't legally actionable.

Copyright infringement, however, is a different story. I've no doubt that copyright infringement is behind the case being taken against Rowling and her publisher.

In June, the estate of Adrian Jacobs issued proceedings at London's High Court against Bloomsbury Publishing Plc, claiming that Rowling copied substantial parts of The Adventures of Willy the Wizard - No 1 Livid Land written by Jacobs in 1987.

It said the plot of Harry Potter and the Goblet of Fire copied elements of the plot of Willy the Wizard, including a wizard contest, and that the Potter series borrowed the idea of wizards travelling on trains.

I hope for the plaintiff's sake that they have more than that.  Even if they can prove Rowling borrowed the same plot elements after reading Jacobs' book (and that may be hard to prove if the book in question is an obscure one), that would probably not amount to infringement if those elements are simply "the wizards travel by train" or "there is a wizard contest".

I don't know enough about the claim to know whether it's as dumb as that. Even if it is it would be hard to find a dumber copyright case than that brought in 2006 by the authors of the bestselling “non-fiction” book Holy Blood Holy Grail, Michael Baigent (a New Zealander) and Richard Leigh, against Dan Brown, famous author of the novel The Da Vinci Code.

I wrote about this case in October:

They claimed Brown’s book took themes from the earlier work in a way that amounted to an infringement of their copyright.

Despite the obstacles (i.e. the somewhat obvious problem that their claim was laughable and legally without merit), Baigent and Leigh decided to spend literally millions of pounds in an attempt to punish the author of the very book that had propelled their own work back into the bestseller lists. This article, written by one of my colleagues about the case and trial court judgment, is a good summary of the issues, and it explains why Baigent and Leigh failed so miserably.

And then when the trial court judge smacked them down, they appealed (unsuccessfully, of course) and got hit with an enormous costs award.

Fools. Greedy fools.

Is this another example of greed getting in the way of good sense? Maybe the executors of the Jacobs estate think Rowling will pay them to go away. But what choice does Rowling have but to fight this all the way? If she settles her literary reputation will be destroyed.