Did Scotland Accidentally Create A 'Use It Or Lose It' Copyright Law?

from the wouldn't-that-be-interesting dept

Tue, Jan 4th 2011 12:08am — Mike Masnick

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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Filed Under: copyright, scotland

22 Comments

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Duke (profile), 4 Jan 2011 @ 1:09am

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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pdh, 4 Jan 2011 @ 1:53am

I like it.

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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Not an electronic Rodent, 4 Jan 2011 @ 1:54am

The only thing that springs to mind is:
Ha ha.. ha ha haha... ha ha ha! :-)
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Anonymous Coward, 4 Jan 2011 @ 5:06am

Another round of TD dancing on the head of a pin.

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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freak (profile), 4 Jan 2011 @ 5:27am

Re:
Well, AC, if you bothered to look at some sources, of some of your own research, or even read the first comment, in Scotland:

"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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DH's Love Child (profile), 4 Jan 2011 @ 5:38am

Re:
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.

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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Anonymous Coward, 4 Jan 2011 @ 6:04am

Re: Re:
yes, but you miss the point. TD for years has suggested that copyrights should not be property, they should not have property rights. Otherwise, the risk is clear: Any property right that exists can be applied to the copyrighted work. If you think copyright law as it sits is tough, imagine what happens when they start applying standard property laws to it.

It will make ACTA seem like a peace offering.
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JEDIDIAH, 4 Jan 2011 @ 6:21am

IP Slum Lords
No dancing is required here to demonstrate the hypocrisy of your side of the argument. You want it both ways. You want all of the benefits of creative works being treated like real property without any of the downsides like taxes or adverse possesion.

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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Marcus Carab (profile), 4 Jan 2011 @ 6:43am

Re:
Did you even read the post? It's not saying that this is a good thing. It's just pointing out the irony.

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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Anonymous Coward, 4 Jan 2011 @ 6:49am

Wow! That also sounds like if you have a piece of land and don't use it for 20 years. You lose it. Government at work stealing what you got and then wasting it away. It is a relief to realize that our US Government is not the only thieving government out there.
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Hulser (profile), 4 Jan 2011 @ 7:17am

Re:
Of course, I imagine that if this is to be changed it will be sorted out quickly and quietly - and probably retroactively;

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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Chris Rhodes (profile), 4 Jan 2011 @ 7:29am

Re:
Yet here we are, with TD trying to suggest a new "use it or lose it" law

"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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Duke (profile), 4 Jan 2011 @ 8:07am

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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Duke (profile), 4 Jan 2011 @ 8:14am

That also sounds like if you have a piece of land and don't use it for 20 years.
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.
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Anonymous Coward, 4 Jan 2011 @ 9:36am

Looks to me like the Scottish law deals with interests in land. Just because we sometimes describe land as property, doesn't mean everything else described as property suddenly becomes land. A => B does not mean that B => A.

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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coldbrew, 4 Jan 2011 @ 10:03am

Re: Re: Re: taxes
RIght, imagine how much IP a company would want to own if they actually had to pay taxes on it. I'm sure you would be the one surprised.
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Marcus Carab (profile), 4 Jan 2011 @ 10:03am

Re:
Looks to me like the Scottish law deals with interests in land

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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Anonymous Coward, 4 Jan 2011 @ 11:44am

Re: They take your property after 3 years in most States
If you don't 'use' your property by paying your property taxes (who would pay taxes on unused property?), most states/counties will take the land from you and sell it for the amount of the owed taxes...

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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Duke (profile), 4 Jan 2011 @ 12:23pm

Looks to me like the Scottish law deals with interests in land. Just because we sometimes describe land as property, doesn't mean everything else described as property suddenly becomes land. A => B does not mean that B => A.
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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Any Mouse, 4 Jan 2011 @ 9:29pm

Re: Re: Re:
And yet you seemed to have missed the entire point, didn't you? What TD suggests and what is are two different things, and this article continues to point out how ridiculous it is to consider IP to be property. Anything to slam Mike and TD, though, right?
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Anonymous Coward, 5 Jan 2011 @ 8:36am

A technical observation. This article was the last appearing on the first page of articles. When I selected the button to move on to the next set of articles it suddenly appeared as the first article on the next page.

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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A nobody, 5 Jan 2011 @ 2:40pm

Re:
That probably happens when a new post is added to the site after you loaded the page and before you clicked the link to go to the next page. When a new page is added to the site, every existing post gets moved down one slot. So the post that was at the bottom of one page then belongs at the top of the next. Of course, that does not change the page you are reading (although there are technologies that could do so), so you do not see the effect until you click the link to display the next page.
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