New IP Watchlist Ranks Countries On How Well Their Copyright Laws Serve The Public

from the alternative-to-the-special-301 dept

We've written plenty about the absolutely ridiculous Special 301 Report put out each year by the USTR. It's a list that the US uses to name and shame countries that it considers "naughty" when it comes to not passing intellectual property laws that the US likes. Of course, there is no actual methodology behind the list. Basically, various industry groups (i.e., RIAA, MPAA, PHRMA etc.) send in their thoughts about which countries they don't like, and the USTR magically takes their complaints and produces the list. This leads to bizarre things like naming Canada one of the worst of the worst, despite having stricter copyright laws than the US already.

Consumers International has decided that there's no reason that the USTR gets to have all the fun, so it's been releasing its own IP Watchlist ranking countries based on how pro- or anti-consumer local IP laws. In other words, Consumer International judges IP laws around the globe based on IP's actual purpose: to benefit the public. The actual report (pdf and embedded below) is a good read.

The US actually does fairly well. We're helped along by the fact that we actually have things like "fair use" in the law. The UK, however, comes in near the bottom. The report also highlights the ridiculousness of pushing stronger enforcement in some of the poorest countries in the world:

Malawi is a politically-troubled, least-developed country where more than half of the population lives below the international poverty line of $1.25 per day. One would have thought that IP enforcement should take a back seat in such a country, in favour of measures designed to ensure the satisfaction of the population’s basic needs of food, water, clothing, shelter, and medical care.

Yet Malawi was one of four poor countries in which Interpol chose to conduct an anti-counterfeiting campaign in 2009, and in which the local police often join IP-holder organisations in conducting copyright raids against local traders. Is this noholds-barred, developed-country model of IP protection and enforcement truly the most appropriate model for countries like Malawi?

It's worth noting, by the way, that the top three countries on Consumer International's list -- Israel, Indonesia and India -- were also on the USTR's Special 301 "Priority Watch List" as having the worst IP regimes last year. But, as Consumer International shows, they actually have the best IP regimes when it comes to serving the needs of the public. That seems to show just how ridiculous the USTR's Special 301 list really is.

Filed Under: india, indonesia, interpol, israel, malawi, special 301 report, ustr, watchlist

Can We Subpoena The Monkey? Why The Monkey Self-Portraits Are Likely In The Public Domain

from the do-monkeys-believe-in-the-public-domain dept

So our post concerning the takedown request from Caters News Agency over the monkey self-portraits has stirred up quite a lot of interest and discussion around the globe. I wanted to revisit the issue a little more focused on the legal side, and why it seems quite likely that these images are very much in the public domain (which would also suggest that an actual takedown notice (rather than a simple request, as happened here) would represent copyfraud.

First up, I've seen many people insisting that the camera owner gets the copyright on any photo taken with their camera. If you read the comments on various other news stories that have covered this, people say this so confidently. They're almost certainly wrong. There may be some exceptional cases where that's true, but for the most part it's not true. The confusion here is between ownership of the photo itself and the copyright on the photo. This is an issue that confuses many people who don't deal much with copyright law, but the photo and the copyright on the photo are two separate things.

Under US law (we'll deal with elsewhere soon), you have to have made the creative contributions (the copyrightable aspects) to the image to have it qualify for any copyright protection (and then, it's only the creative aspects that get the copyright). Thus, you could argue that if the photographer had set up the camera, framed the shot, and simply let the monkey click the shutter, perhaps there is some copyright there (though, even then it would likely be limited to some of the framing, and not much else). But David Slater has already admitted that the monkeys found a camera he had left out by accident and that he did not have anything to do with setting up the shot. He's stated that the monkeys were playing with the shiny objects and when one pushed the shutter, the noise interested them and they kept it up. It would be difficult to argue he made any sort of creative contribution here to warrant copyright.

Can the monkeys get the copyright? No. As Justin Levine kindly pointed out, according to the rules published by the US Copyright Office:

503.03 Works not capable of supporting a copyright claim.

Claims to copyright in the following works cannot be registered in the Copyright Office:

503.03(a) Works-not originated by a human author.

In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood even if polished and mounted is not registrable

That seems pretty cut and dried. The works are not subject to copyright at all. That would make them public domain.

But that's all under US law. Could there be international claims? Aurelia J. Schultz has the best review of the relevant international law that I've seen, and it, too, concludes that the photos are almost certainly public domain. There are two countries where the law may matter: Indonesia and the UK. Schultz first looks at Indonesian law:

Under Indonesian copyright law an author is “a person or some persons.” Miss Monkey is ruled out right there I’m afraid.

Sorry, Monkey. UK law?

Since it’s a British company claiming copyright, any suit is likely to be brought in the UK.  Indonesia is a member of Berne and TRIPs, so the photos should be treated the same as UK works under UK copyright law.  Unfortunately for the monkey, The UK copyright law also defines author as “the person.”  Sorry monkey, it’s not you.

Monkey see, monkey do, but monkey don't get no copyrights. Okay, but does David Slater and/or Caters News have any copyright interest in the photos under international law? Again, the answer is almost certainly no. Under Indonesian law, if anyone can claim the right to the image, it might be the Indonesian government:

There is a clause in Article 7 of the Indonesian copyright law that specifies if a work is designed by one person and worked out by another, then the one who designed the work gets the copyright. If the photographer had set up the shot and the monkey had just taken the photo, the photographer would likely have the copyright. But the photographer didn’t design anything here. He just left his camera. The monkey did all the designing in the photos, so this article shouldn’t apply.

Perhaps more useful here is Article 9, “If a legal entity announces that a work has originated from it without mentioning a person as the author, then the legal entity shall be deemed to be the author, unless proven otherwise.” The monkey took the photos in an Indonesian national park. The Indonesian government presumably owns that park and is a legal entity. It would seem that if the Indonesian government claimed it was the copyright owner, then it would be. Except for that “unless proven otherwise bit.” But this leads us to another question, does the park own the monkey?

If not having an author as defined under the copyright law is the same as having an unknown author, then Indonesia owns the copyright under Article 10A of the Indonesian copyright law.

Okay, but Caters said they represented Slater, not the Indonesian government. What about under UK law? There, too, it appears that the image is almost certainly public domain:

Under Section 153, the work only qualifies for copyright protection if it meets requirements in several different areas including the area of author.  Section 154 outlines the requirements the author must meet in order for the work to receive copyright protection. 

• Option one, a British citizen. Pretty sure the Indonesian monkey is not a British citizen.
• Option two, an individual domiciled or resident in the UK. Monkey lives in Indonesia.
• Option three, an individual domiciled or resident in another country to which the relevant provisions of this Part extend. This seems to include any countries to which the UK must extend national treatment with respect to copyright. Since Indonesia is a member of Berne and TRIPS, Indonesia would be one of these countries. It might seem like we need to know if the monkey is an individual, or if it can be domiciled or resident.  But, that doesn’t matter because the first part of Section 154 says “if the author was at the material time a qualifying person.” (emphasis added)

So it appears under UK law, the photos are in the public domain.

So, it's looking like the image is in the public domain in both the UK and the US.

Of course, given Caters initial response to this whole thing: "Michael, regardless of the issue of who does and doesn't own the copyright - it is 100% clear that the copyright owner is not yourself," it suggests that Caters doesn't wish to recognize a public domain or the value that it provides. I find this to be yet another depressing statement on the state of copyright law today, where people can't even fathom the idea that such a photo might actually belong in the public domain, where it can be used legitimately to enrich the lives of everyone.

Filed Under: copyright, david slater, indonesia, monkeys, public domain, uk, us
Companies: caters news agency

Indonesian Politician Who Passed Strict Anti-Porn Laws Caught Watching Porn On His iPad... In Parliament

from the i'm-sure-it-was-just-for-research dept

What is it with moralizing politicians who scream and legislate against some moral "evil," and then are later caught being heavily involved in just such a thing? The latest such example comes from Indonesia, where a politician by the name of Arifinto, who was an avid supporter of a controversial anti-porn law that is extremely strict (it prohibits broadcasting, possessing and storing pornographic material -- along with forbidding kissing in public, exposing a woman's "sensual" parts or showing any erotica), has been caught viewing porn on his iPad while sitting in Parliament and "listening" to a debate about a new Parliamentary building. Arifinto quickly stepped down from Parliament, but I'm surprised no one's blamed the iPad yet...

Filed Under: arifinto, indonesia, porn

Indonesia Proposes Law To Review & Tax Every Internet Application

from the that's-not-how-innovation-works dept

As has been discussed multiple times, one of the reasons why the internet has thrived (or even why the software industry has thrived) is that the barriers to entry are low. You don't need to build a factory or get all kinds of approvals. You can just create something and go. But, perhaps not in Indonesia any more. Glyn Moody points us to a report on a proposed law in Indonesia that would first seek to tax all technology/software firms above and beyond existing taxes and (even more worrying) require anyone creating an application to get permission from the government before any application can be released. Apparently, this will apply to any application "which uses the internet to transmit voice, images, data, content based services, e-commerce, as well as other services provided through applications." Yeah, pretty broad.

Developers in Indonesia are reasonably up in arms over this, claiming that it will devastate the industry if they have to get government permission for every app or web service they put up. The government's defense of the law in the face of such criticism is hardly convincing:

Ministry spokesman Gatot Dewa Broto defended the proposed law in public statements, claiming it is there to ensure the laws aren't going to be left behind once the industry takes off.

Well, yes, I guess if you put in place laws that pretty much guarantee that the industry will never take off, then, the laws won't get left behind. But that hardly seems like a practical solution.

Filed Under: indonesia, innovation, taxes, technology

Indonesian ISPs Ordered To Ban All Porn In Just A Few Weeks

from the good-luck dept

Towards the end of July a few people submitted the news that Indonesia's Information Minister Tifatul Sembiring had ruled that all Indonesian ISPs had to start blocking access to porn by August 11th (the start of Ramadan). As of this weekend, Sembiring appears to have backed off the deadline slightly, giving ISPs one month to implement a filter that would block access to porn. The NY Times is reporting, however, that ISPs are at a loss as to how they're expected to do this. So far, all that Sembiring has apparently told them is that they should use the same keyword filter app that the government uses internally, not realizing the massive difference between a work-level filter and a country-wide filter. Also, it seems to ignore the ridiculous limitations of a pure keyword filter. The ISPs are, instead, saying that if there needs to be blocks, at the very least, the government should supply them with a list of sites to be blocked. They also warn that an internet-wide keyword filter would likely slow down internet access in the country. It seems like yet another case of someone demanding that "something" must be done, without realizing that said "something" isn't really possible.

Filed Under: blocking, filters, indonesia, porn

More Examples Of Patent Incentives Making The World Less Safe

from the hoarding-the-info-needed-to-save-us dept

For years, we've written about how Indonesia has been hoarding bird flu samples and refusing to share them with researchers, because they're afraid that someone will come in and patent the cure, based on the samples they provide, and that will make it much costlier to Indonesia to get the vaccine. Of course, the end result instead might be no vaccine at all... It looks like we may be facing a similar issue with Ug99, a fungus that is aggressively killing wheat crops in Africa and the Middle East -- potentially having a massive impact on global food supplies. FormerAC alerts us to an article about the fight against Ug99, where it's noted that Pakistan won't share some important samples with the rest of the world, again out of fear that some big company will patent what they find:

As the breeders keep tinkering, South Asia is bracing for impact. The CDL recently tried to get its hands on a suspicious P. graminis sample from Pakistan that is said to knock out Sr31. But the country is reluctant to share: "Some countries regard isolates of their pathogens as part of their genetic heritage," CDL director Marty Carson says. "I guess there's a fear that we'll patent something off of it."

Well, given Monsanto's history of patenting disease resistant crops -- and then over-aggressively attacking anyone who uses such crops (even accidentally), it would seem like a rather legitimate fear. Perhaps, rather than brushing this fear off, the USDA's Cereal Disease Laboratory (CDL) should work to do something to fix things?

Filed Under: cdl, indonesia, intellectual property, monsanto, pakistan, patent
Companies: monsanto, usda

Indonesian Artists Refuse Copyright As Being Against Their Religious Beliefs

from the protecting-designs-makes-no-sense dept

Boing Boing points us to a story about how some batik-makers in Java, Indonesia are resisting attempts by the gov't to have them copyright their designs. The local government is warning the designers that without copyrighting, the designs others could copy them and claim them as their own, but the designers have a religious objection to the idea:

"They believe that each time they create something, it is not they who worked, but it is God who worked through their human body and soul," Gunawan said. "Being grateful [to God] is sufficient for them."

What's funny, then, is to see the politicians fret about this, worrying how people in Malaysia might copyright the design first and "there is little that we can do." Except... if the designers don't care, what needs to be done? If someone else profits from it, so what? How does that harm the original designer?

Filed Under: artists, batik, copyright, indonesia, java

Pharma Patents And Why Indonesia Is Hoarding Bird Flu Samples

from the this-isn't-good-for-health dept

We've pointed to plenty of examples concerning how pharmaceutical patents actually do more to hold back life-saving cures, and here's another example. It's actually a continuation of a story we wrote about a year and a half ago, about Indonesia's decision to stop supplying bird flu samples to the World Health Organization, claiming it was worried that a big pharma would patent a drug based off of it, and Indonesia wouldn't receive any of the benefit. The country has something of a point: as pharma companies have made various cures incredibly expensive in the past.

However, Indonesia is now taking this a step further, claiming "viral sovereignty" over the bird flu. In other words, it's claiming that since the virus samples are found in the country, Indonesia owns the virus -- and it's fighting pretty much every attempt by others to do anything with the virus, sometimes using questionable claims such as one about how a US medical research facility is trying to use the virus not to create a cure, but to create biological weapons. It's basing this claim of "viral sovereignty" on the same ridiculous patent rules that allow a country to claim "ownership" and patents over indigenous plants.

While there's obviously a huge political component to this dispute, at the heart of the trouble is this idea of "ownership" of something like a plant, virus or drug -- and that's an idea that the US has been a huge supporter of, so it can hardly complain about Indonesia taking it to the logical conclusion. And, of course, that logical conclusion is the exact opposite of what supporters of pharma patents insist the system is designed to encourage. That is, thanks to this hoarding and claims of ownership, not nearly enough research is being done to try to create vaccines for bird flu. And, to make this even worse, it appears other countries are starting to consider "viral sovereignty," as well -- meaning that research into curing various diseases may grind to halt while various countries argue over who owns what.

Filed Under: flu, indonesia, patents, viral sovereignty, virus, who