Did Scotland Accidentally Create A 'Use It Or Lose It' Copyright Law?
from the wouldn't-that-be-interesting dept
Michael Scott points us to the news that, via some oddities within Scottish laws, the Scottish Law Commission is realizing that its current regulations may actually mean that there's a "use-it-or-lose-it" provision that applies to copyright law. I don't quite understand all the details (so feel free to chime in if you're familiar with Scottish law), but it sounds like the folks in Scotland are realizing that a law they have on the books concerning property does not clearly state that it does not apply to things like copyright -- and that law includes a 20 year use-it-or-lose-it rule. Thus, by not exempting copyright, it may automatically be included. This seems to be upsetting to some, but I find it rather amusing that the only reason why copyright is even considered "property" is because those who wanted to pretend copyright was something more than a limited government granted monopoly started calling it property. Yet, now, they may be getting upset that they might have to abide by similar rules concerning property. Of course, the Scottish discussion focuses on how to "fix" this -- and there's a problem there, since apparently, the Scottish Parliament does not have authority over copyright issues in Scotland.
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Reading through the original law report (here, I think) it looks like there is a 1973 law (the Prescription and Limitation (Scotland) Act 1973) which states that no claims can be made on any property right that isn't actioned for 20 years. The idea was noted when a case when to the House of Lords on a similar issue (the copyright claim was upheld) and the Lords noted that the case might have been different had it been tried under Scots, rather than English Law.
This doesn't apply in England as the equivalent law (the Limitation Act 1980) has a clause specifically exempting rights with a fixed time-limit (such as copyrights and related rights) but the Scots law has no such exemption. This becomes a problem because (as you pointed out, due to the copyright industry lobbying, one assumes) the Copyright, Designs and Patents Act 1988 specifies that copyright is a property right (one imagines that the drafts-men didn't think to check Scots Law on that).
The law report also notes that while this would apply to all IP-related stuff, all the other forms than copyright and performance rights (patents, design rights, trade marks etc.) last for 20 years or less, or require active registration (enough to maintain the property right). Nevertheless, they propose that the Scots law be amended to match the English law by clarifying that specific-length property rights be exempted.
Interestingly, it could be argued that, by failing to correct this, Scotland (and thus the UK) could be taken to the European Court of Justice for failing to uphold its various obligations under EU directives (not to mention TRIPS and the Berne convention).
Of course, I imagine that if this is to be changed it will be sorted out quickly and quietly - and probably retroactively; lawmakers can be very efficient when they risk legal action if they delay or when there is enough money behind them (as with the Digital Economy Act).
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At first when I read the article, I thought maybe this would be a good thing because it would lead to big media in Scotland having to argue that IP wasn't actually property, so this law should not apply. Of course this wouldn't be the smart thing to do as it would weaken their overall argument, but no one said that big media is smart when it comes to choosing their legal strategy. But, as you point out, there probably won't even be a public discussion on that. They'll just "fix" the problem behind closed doors. "Nothing to see here, folks. Move along."
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Use it or loose it makes perfect sense, why should you be able hold a copyright and halt progress.
Shame about the EU directives :(.
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The only thing that springs to mind is:
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Is a copyrighted work property or not? Much of the time, there is an argument that the creator of the work doesn't have property. Yet here we are, with TD trying to suggest a new "use it or lose it" law on property should apply to copyright.
So, which one is it?
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"the Copyright, Designs and Patents Act 1988 specifies that copyright is a property right (one imagines that the drafts-men didn't think to check Scots Law on that)."
So, legally, in Scotland, copyrights are property, no argument here or from TD.
Whether they SHOULD be property now, is another matter.
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RTFA. TD didn't suggest this at all. The Scots made copyright 'property' with their laws and in doing so, made it subject to the same laws as physical property.
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It will make ACTA seem like a peace offering.
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In the UK, copyright and related rights are defined to be property rights (by law - s.1(1) of the CDPA). This means that (from my understanding - I'm not a lawyer yet) the copyright in something, or a trademark (the concept, not the actual mark) is personal property and so can be assigned, sold, mortgaged etc. but the actual work (the material copyrighted, the design, mark or invention) is not property, being merely information.
While some aspects of property law therefore apply to IP stuffs, the way the law is drafted, certain parts are excluded - for example, the "moral rights" related to copyrights aren't assignable or trade-able.
Interestingly, copyrights being property means that a copyright or patent can, theoretically, be stolen under the Theft Act - even though the information/material can't as it is not property. Working out how this could happen requires a bit of mental gymnastics and legal toying, but it works out as something similar to some kinds of "Copyfraud".
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IP Slum Lords
This is certainly not the first time copyright reactionaries have brought up the issue of intellectual property abandonment and squatters rights.
That's one of the key problems with the current regime. You create what are essentially slumlords with control over vast stretches of unmaintained wasteland of decaying property. Those with any interest in remedying the situation or preserving works for the same of posterity are criminalized.
The Scottish law is merely an example of what happens when Media Moguls get everything they claim they want.
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As far as I can tell, TD is in no way saying it believes this law should apply to copyright. If you read the post, you'd have seen that it was the Scottish Law Commission who have made that suggestion. And they themselves aren't supporting it either, just pointing it out that the law seems to be written that way.
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"Suggesting"? Reading is apparently too hard for you, so I'll spell it out plainly:
Scotland is the one who drafted the law as if IP is real property. TD is merely "reporting" the unintended consequences that the law already on the books could have, not "suggesting" a new law.
You're welcome. Let me know if you have any more trouble comprehending the written word.
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Not quite - the law in question specifies that "any real right of ownership in land" (Schedule 3, (a)) is exempt from the 20 year limit, as are a number of other things.[ link to this | view in chronology ]
Re: They take your property after 3 years in most States
So there is already a 'use it or use it' in effect on land in the US (in most states anyway).
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Adverse possession might be well suited to deal with the orphan works problem. However, copyright is not at all like land in that you can't just drive by your property and see that someone has built a house on it. How does the "open and notorious" work for copyright use? Does posting a youtube video count?
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But it looks to the Scottish Law Commission like the letter of the law applies it to copyrights as well.
That's the issue here: nobody is saying this makes sense or is a good thing, or that treating copyright as property wouldn't have ridiculous repercussions -- but there is concern from analysts that what's on the books might allow that very thing.
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If you read the actual law, you will see that the relevant part of the law specifically doesn't apply to land, but other property rights. If you want to read (what I think is) the relevant section, it is s.8, extinction of other rights relating to property by prescriptive periods of twenty years. Subsection (a) states that unexercised rights expire after 20 years, and (b) states that this applies to "any right relating to property, whether heritable or moveable" (aside from the exceptions listed in the schedule, including land).
I'm not an expert in Scottish law, but the Scottish Law Commission thinks this must apply to copy- and related rights, and they are the experts...
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The site does not exhibit this behavior every time, but it does do it (at least on my computer) on occasion.
Curious if this is a bug?
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