So quoting the most important part of a work is now automatic copyright infringement?
Not necessarily automatic, but this is how copyright has worked in the EU for a few years now - when working out whether a "substantial part" of the work has been copied, you look at how much was taken both quantitatively and qualitatively.
With the ESB quote, you probably don't have enough as there are other major parts the script - while that is the most famous (if usually mis-quoted) line, it isn't the only part that matters. But the idea is that if you copy the bit that has the "value", you are copying a substantial part (or something like that).
But then you have the various limitation and exceptions.
The Meltwater case is an interesting one - it started in the UK a few years ago and led to a really crazy ruling (that merely receiving an email was a prima facie infringement of copyright). The UK Supreme Court heard the case last month, but it doesn't look like they'll have a judgment finished before the Easter break.
Tribunals by there very nature as NON adversarial processes do not allow EITHER side from having legal representation except in highly specific circumstances...
I don't know about New Zealand, but I'm fairly certain you can have legal representation at some tribunals (and I did go through a training programme for doing just that a couple of years ago). They do tend to have more of an inquisitorial role than courts, though - less focussed on procedure etc.
And even if you don't have representation at the hearing, having it when preparing (even just in terms of filling in paperwork, knowing when and where to submit it) can be very useful (which is something I have been involved in). And you can bet the claimants/plaintiffs will have that. If anything, the idea that representation isn't needed at these sorts of things may contribute to the lack of adequate representation or awareness.
Are you kidding, most of the amendments added are awesome; including a "serious financial harm" test for corporations - something the defamation lobby groups have been asking for for a while, and which the Government was too cowardly to include (and which the House of Commons was too spineless to introduce themselves).
What this particular amendment does isn't that controversial either (legally); merely allowing judges to take into account whether or not parties have been to an appropriate arbitrator before coming to court... but the tabloids really hate the idea of this (mainly because it would make it easier for ordinary people to complain when they're defamed).
Actually, the amendments he added were fairly good. One was dealing with corporations and this is about dealing with the tabloids - both groups which the Government is quite fond of and doesn't want to annoy.
The amendment isn't nearly as bad as some people are suggesting it is; it establishes a "Commission" to recognise "Independent Regulatory Boards" who can offer arbitration services to people over defamation claims. Nothing too controversial so far...
The amendment then gives courts the power to take into account whether or not parties in a defamation case went to a relevant arbitration service, and lower/raise damages or costs awards if appropriate.
Again, not particularly controversial (the Courts are already allowed to take into account a party's unwillingness to negotiate/arbitrate where doing so would be reasonable).
But the tabloid press really hate the idea of this, because it would make it significantly easier for people to complain to them when they defame ordinary people (as it is the huge costs of litigation that put most people off).
The other major amendment the Lords added was one that requires companies (and some other non-natural legal persons) to get permission from the court before bringing a claim, and could only get permission if they could show they had suffered, or were likely to suffer "substantial financial loss." Again, something a lot of big corporate lobby groups really don't like.
So... the Government is under quite a bit of pressure to get rid of these amendments, and as they never really cared about libel reform in the first place, are happy to lose the bill.
That said, despite having worked on this for a few years, I'm not too bothered about losing it; while the Lords did add some nice stuff, the Bill itself is still fairly terrible - there isn't much in it that is of any good, and there are some fairly nasty bits relating to the Internet (or rather, "websites", because the people who drafted it didn't know the difference between the two).
If this did become law (unlikely), then I imagine there would be lawsuits, at the national, EU and ECHR level challenging it. I think it is extremely unlikely that a blanket ban on porn would survive such a challenge (or even make it into law, given that the EC will also be aware of this).
There are even those who question whether the criminalisation of mere possession of child porn (particularly where it is defined to cover drawings etc.) could survive a legal challenge.
That said, I don't imagine this clause was expected to go anywhere (the EP passes lots of these resolutions, most of which are ignored - remember the ones on ACTA?) I don't know a huge amount about EP politics, but I suspect this clause was added to appease the conservative, family-value blocs in the Parliament, who might be otherwise objecting to a statement promoting equal values etc.
It is, however, based on the filters. In the first ruling, part of the reason the judge found that a side-wide block would be proportionate was that the ISPs already had in place systems for doing it, and all they would have to do was add a few extra URLs.
The problem with inviting them is that they're not actually parties.
Due to the way this law was written (iirc it comes from the WIPO Copyright Treaty), the claimants can be anyone (but tend to be big copyright owner groups), the defendants are the ISPs - not the site operators.
As to why the site operators weren't enjoined, the judge discussed this in the TPB case (relevant part here). Basically; 1) The law doesn't require that they be there, 2) it would be impractical to do so (to find who they are, where they are, etc.) and 3) they probably wouldn't be interested in defending the cases even if they were.
Personally, I don't find those convincing reasons not to try, but then I'm not a High Court judge.
The law is a bit worrying (I haven't read it in that much detail but I think it goes slightly further than previous ones) - the main concern is that, again, there was no hearing, no defence, no cross-examination of evidence etc.. Without seeing the witness statements I can't be sure, but I think the judge just accepted everything the BPI had to say at face value.
That's not justice - not in an adversarial court system.
This. The last time Venables was in the news after his identity was nearly revealed there were all sorts of nasty death threats etc.
His case was screwed up since the beginning (the ECHR ruled that he didn't receive a fair trial, the UK courts had to intervene in reducing his sentence after the then Home Secretary decided to increase it for political gain) and the UK is being really cautious about what happened.
In general, though, the UK has a fairly strong "rehabilitation of offenders" system whereby there are processes under which old offences can be forgotten (although still on record), particularly when children are involved.
But in this case it is more likely to be about protecting him from the mob reaction (there's footage of the original trial around somewhere, and it is deeply disturbing) if his identity is compromised (and the costs the government will have to go through to hide him again).
I wish there was a way of finding out when these sorts of rulings are happening... but it's a really interesting judgment.
It seems that the MPAA were trying to create an entire new remedy for copyright infringement; a property right over anything obtained through the infringement, not just the traditional damages for losses caused by the infringement itself.
For me the really interesting part is around [16], where the judge discusses the "copyright infringement = theft" argument (which was pretty much all the MPAA had to go on, and even that was a stretch). But the judge makes it fairly clear this isn't the case:
A copyright infringer is more akin to a trespasser rather than to the thief of the coins.
and he takes that analogy further. While not particularly definitive, it's a good starting point for arguing that it isn't like theft.
The studios are right, though; they still won the main case, and are still entitled to their damages (the money from Newzbin2) - it's merely that they don't have a property right over absolutely everything Newzbin2 made, just a normal "debt" over any actual losses.
I really hope Richard Spearman QC (a top media barrister, who has been responsible for quite a few of these cases) isn't able to convince the Court of Appeal this judge was wrong...
I've been waiting for this sort of thing since that June ruling (covered by Techdirt here). While the original ruling had a few loopholes in it, there is a good chance consumer organisations could start using it across Europe to allow for resale etc. of non-physical products. Which could be interesting.
Usually (as in, in most jurisdictions I am familiar with) the work-for-hire default status can be overridden by a contractual term. So we would need to see the contract between whoever was involved. However, that might not override the s105 provision mentioned above.
Plus there's also the issue of who owns the original copyright in a sound recording; in the EU (iirc) that is the producer of the recording, not the artists. So it may be that if Beyonce (or her minions) produced the record and the Marine Band merely performed, then the copyright might still exist - depending on your interpretation of s105; anyone know the case law on that?
It is insane. It also isn't what the law says. Quoting is perfectly legal, provided it only a small amount is quoted, or the quoting is "fair." It used to be thought (by the major publishers) that you could quote was about 400(?) words without permission. Then there were a couple of crazy cases that said even a few words (or a headline) could be copyrighted, and suddenly the publishers got a lot less friendly.
And they can get away with it because (a) people pay, (b) people can't afford to go to court, and (c) the Courts are yet to overturn (or clarify) the crazy rulings. The UK Supreme Court is due to look at it soon (a hearing in a couple of weeks), and hopefully they will fix some of the law. Getting the publishers to accept it could take longer.
I tried to answer this in more detail below (took me a while to research, so the parent got in first) but the tl;dr is that this is only the copyright in the sound recordings - the copyright in the underlying songs (the lyrics and tune) last until 70 years after the end of the year in which the last author died.
Actually for something to be theft you have to deprive someone of the item. This can easily extend to non-physical things.
Theft can extend to non-physical things, but under English law is restricted to property. A sound recording or song isn't property (although the copyright in it is), so there is no theft in taking something out of the public domain (as at that point it isn't anyone's property - if anything you are creating property).
Arguably a reduction in copyright could be theft (and when we get there, expect all sorts of arguments from the copyright lobby on Article 1 Protocol 1 ECHR grounds), but another key element of theft under English law is "dishonesty." That is going to be rather hard to show in these sorts of situations.
I'm no expert, but I'm pretty certain that no Beatles' songs will be in the public domain for quite a while; while the copyright in the recordings expires 50 years from the end of the year in which they were first made (or from when they were first published if published during that period), copyright in the underling songs (the lyrics as literary works, and tunes as musical works) lasts for until 70 years from the end of the year in which the last author died.
That means even the songs written just by John Lennon won't enter the public domain until 2051.
Of course, the key difference between the types of copyright is that the copyright in the sound recording automatically goes to the publisher (i.e. the record label) whereas ownership of the copyright in the songs is a bit more complex. It may be that these other record labels have managed to obtain licences from the appropriate copyright owner, and it is just the original record labels kicking up a fuss.
As for the details of how the copyright extension is going to be implemented (whether retroactively or not), the UK's IPO is consulting on this at the moment. As far as I can tell (from skimming the document) sound recordings already out of copyright won't go back into copyright, but some literary and musical works will (due to new rules on where the music and words for a song are written by different people, whereby the copyrights are sort of joined so if one author dies first, the copyright in her part continues until 70 years from the end of the year in which the other author dies).
Re: Re: Re: New Reality TV Show Idea: Copyright Hoarders
Having read the article, it seems the recordings are from 1962 and 1963, hence the had to rush it out before the new year. That means the expiry dates will be 31 December 2062/2082. This is what I get for not reading the article...
Re: Re: New Reality TV Show Idea: Copyright Hoarders
If that is the case, it sort of makes sense. (From my limited understanding of how this works) if they release it next year there will be no copyright in the sound recordings in the EU, as the copyright (first 'fixed' when they were recorded/made) will only last 50 years and then expire. However, if they publish something within those 50 years you get another 50 years (for a total of up to 100 years). Iirc if something falls out of copyright before the extension goes into place, it might not be brought back in for the extra 20 years.
So publishing today means it will stay in copyright until 31 December 2063/2083. Publishing next year gives them nothing. And that extra copyright will be a nice bump to their balance sheets (even if it has minimal actual value).
The really interesting thing is that, of course, the copyright in the *underlying songs* will last until 70 years after Bob Dylan (or whoever) dies. So by having the copyright in the sound recordings, they are only stopping the publication of the sound recordings by whoever owns the copyright in the original song (possibly Bob Dylan?). Any other publication would still need a licence.
On DRM confusion, and the limitations of the new exception
The UK law on circumvention is also a bit odd and there is some confusion (at least, I am confused) as to what is actually legal as the law is phrased ambiguously (always helpful).
What the law does is give extra people the right to sue you if you circumvent DRM (or "effective technological measures" and "rights management information"). However, it is unclear whether this is simply giving these people the right to sue for some underlying copyright infringement, or for the mere circumvention.
Interestingly, one of the text-books I looked at suggested it was different with technological measures and rights management information - despite the wording being remarkably similar.
The personal copying exception is also being phrased in a way to make it pretty meaningless anyway:
[it] only allows copies to be made by and for a person who lawfully owns an original copy... includ[ing] downloaded digital content that has been purchased to keep (or licensed in an analogous way) such as eBooks or film downloads, but not rented or streamed materials. [Emphasis added]
My reading of that is that all the publisher needs to do is license the content for a limited time (200 years should be enough) and the exception won't apply - and given the recent rulings on resale coming out of the EU, they may be doing this anyway.
There is some nice stuff in the report, though, including this gem:
In the interests of transparency, any restrictions on use enforced by TPM should be made clear to consumers up front, at the point of sale.
I imagine this won't be done using big DRM warnings, but is still rather similar to the Pirate Party manifesto - and might drive home how widespread (and how utterly futile) most DRM is.
Still, it's nice to think that by the end of 2013 the Government may have finally got around to implementing this exception, first recommended by the Gowers Review in 2006, and really needed as far back as the mid 90s (when I remember people ripping CDs and VHS soundtracks to cassette tapes for personal use) - 20 years behind for Government isn't that bad...
On the post: Sorry Fair Use, Court Says News Clipping Service Infringes On AP Copyrights
Re:
With the ESB quote, you probably don't have enough as there are other major parts the script - while that is the most famous (if usually mis-quoted) line, it isn't the only part that matters. But the idea is that if you copy the bit that has the "value", you are copying a substantial part (or something like that).
But then you have the various limitation and exceptions.
The Meltwater case is an interesting one - it started in the UK a few years ago and led to a really crazy ruling (that merely receiving an email was a prima facie infringement of copyright). The UK Supreme Court heard the case last month, but it doesn't look like they'll have a judgment finished before the Easter break.
On the post: Why Site Blocking Orders Need To Be Challenged In Court
Re:
And even if you don't have representation at the hearing, having it when preparing (even just in terms of filling in paperwork, knowing when and where to submit it) can be very useful (which is something I have been involved in). And you can bet the claimants/plaintiffs will have that. If anything, the idea that representation isn't needed at these sorts of things may contribute to the lack of adequate representation or awareness.
On the post: UK Politicians Offer An Awful Bargain: Give Up Free Press If You Want Defamation Reform
Re: Plans are afoot...
What this particular amendment does isn't that controversial either (legally); merely allowing judges to take into account whether or not parties have been to an appropriate arbitrator before coming to court... but the tabloids really hate the idea of this (mainly because it would make it easier for ordinary people to complain when they're defamed).
On the post: UK Politicians Offer An Awful Bargain: Give Up Free Press If You Want Defamation Reform
Re:
On the post: UK Politicians Offer An Awful Bargain: Give Up Free Press If You Want Defamation Reform
Slightly exaggerating the situation...
The amendment then gives courts the power to take into account whether or not parties in a defamation case went to a relevant arbitration service, and lower/raise damages or costs awards if appropriate.
Again, not particularly controversial (the Courts are already allowed to take into account a party's unwillingness to negotiate/arbitrate where doing so would be reasonable).
But the tabloid press really hate the idea of this, because it would make it significantly easier for people to complain to them when they defame ordinary people (as it is the huge costs of litigation that put most people off).
The other major amendment the Lords added was one that requires companies (and some other non-natural legal persons) to get permission from the court before bringing a claim, and could only get permission if they could show they had suffered, or were likely to suffer "substantial financial loss." Again, something a lot of big corporate lobby groups really don't like.
So... the Government is under quite a bit of pressure to get rid of these amendments, and as they never really cared about libel reform in the first place, are happy to lose the bill.
That said, despite having worked on this for a few years, I'm not too bothered about losing it; while the Lords did add some nice stuff, the Bill itself is still fairly terrible - there isn't much in it that is of any good, and there are some fairly nasty bits relating to the Internet (or rather, "websites", because the people who drafted it didn't know the difference between the two).
On the post: European Parliament Considers Banning All Pornography, Blocks Emails From EU Citizens Protesting Against Censorship
Re:
There are even those who question whether the criminalisation of mere possession of child porn (particularly where it is defined to cover drawings etc.) could survive a legal challenge.
That said, I don't imagine this clause was expected to go anywhere (the EP passes lots of these resolutions, most of which are ignored - remember the ones on ACTA?) I don't know a huge amount about EP politics, but I suspect this clause was added to appease the conservative, family-value blocs in the Parliament, who might be otherwise objecting to a statement promoting equal values etc.
On the post: Why Is The UK Blocking Access To Sites Without Any Hearings?
Re: Re: Re:
On the post: Why Is The UK Blocking Access To Sites Without Any Hearings?
Re: Re:
Due to the way this law was written (iirc it comes from the WIPO Copyright Treaty), the claimants can be anyone (but tend to be big copyright owner groups), the defendants are the ISPs - not the site operators.
As to why the site operators weren't enjoined, the judge discussed this in the TPB case (relevant part here). Basically; 1) The law doesn't require that they be there, 2) it would be impractical to do so (to find who they are, where they are, etc.) and 3) they probably wouldn't be interested in defending the cases even if they were.
Personally, I don't find those convincing reasons not to try, but then I'm not a High Court judge.
On the post: UK Lets The Recording Industry Decide What Websites To Censor
The law is a bit worrying (I haven't read it in that much detail but I think it goes slightly further than previous ones) - the main concern is that, again, there was no hearing, no defence, no cross-examination of evidence etc.. Without seeing the witness statements I can't be sure, but I think the judge just accepted everything the BPI had to say at face value.
That's not justice - not in an adversarial court system.
On the post: Google, Facebook And Twitter Ordered To Delete Photos By UK Law Enforcement
Re:
His case was screwed up since the beginning (the ECHR ruled that he didn't receive a fair trial, the UK courts had to intervene in reducing his sentence after the then Home Secretary decided to increase it for political gain) and the UK is being really cautious about what happened.
In general, though, the UK has a fairly strong "rehabilitation of offenders" system whereby there are processes under which old offences can be forgotten (although still on record), particularly when children are involved.
But in this case it is more likely to be about protecting him from the mob reaction (there's footage of the original trial around somewhere, and it is deeply disturbing) if his identity is compromised (and the costs the government will have to go through to hide him again).
On the post: UK Judge: Giving Hollywood Money From Newzbin2 Would Create Chilling Effects On Innovation
Some interesting gems in the judgment
It seems that the MPAA were trying to create an entire new remedy for copyright infringement; a property right over anything obtained through the infringement, not just the traditional damages for losses caused by the infringement itself.
For me the really interesting part is around [16], where the judge discusses the "copyright infringement = theft" argument (which was pretty much all the MPAA had to go on, and even that was a stretch). But the judge makes it fairly clear this isn't the case:
and he takes that analogy further. While not particularly definitive, it's a good starting point for arguing that it isn't like theft.
The studios are right, though; they still won the main case, and are still entitled to their damages (the money from Newzbin2) - it's merely that they don't have a property right over absolutely everything Newzbin2 made, just a normal "debt" over any actual losses.
I really hope Richard Spearman QC (a top media barrister, who has been responsible for quite a few of these cases) isn't able to convince the Court of Appeal this judge was wrong...
On the post: Valve Sued In Germany Over Right To Resell Games
Been waiting for this to happen...
On the post: Is The Backing Track To Beyonce's Rendition Of The Star Spangled Banner In The Public Domain?
Re: Not a governement employee, but...
Plus there's also the issue of who owns the original copyright in a sound recording; in the EU (iirc) that is the producer of the recording, not the artists. So it may be that if Beyonce (or her minions) produced the record and the Marine Band merely performed, then the copyright might still exist - depending on your interpretation of s105; anyone know the case law on that?
On the post: Churchill's Heirs Seek To Lose The Future By Charging Biographer To Quote His Words
Re:
And they can get away with it because (a) people pay, (b) people can't afford to go to court, and (c) the Courts are yet to overturn (or clarify) the crazy rulings. The UK Supreme Court is due to look at it soon (a hearing in a couple of weeks), and hopefully they will fix some of the law. Getting the publishers to accept it could take longer.
On the post: Beatles' First Single Enters Public Domain -- In Europe
Re: Re:
On the post: Beatles' First Single Enters Public Domain -- In Europe
Re: Re: No, it's not theft
Arguably a reduction in copyright could be theft (and when we get there, expect all sorts of arguments from the copyright lobby on Article 1 Protocol 1 ECHR grounds), but another key element of theft under English law is "dishonesty." That is going to be rather hard to show in these sorts of situations.
On the post: Beatles' First Single Enters Public Domain -- In Europe
Not in the Public Domain yet...
That means even the songs written just by John Lennon won't enter the public domain until 2051.
Of course, the key difference between the types of copyright is that the copyright in the sound recording automatically goes to the publisher (i.e. the record label) whereas ownership of the copyright in the songs is a bit more complex. It may be that these other record labels have managed to obtain licences from the appropriate copyright owner, and it is just the original record labels kicking up a fuss.
As for the details of how the copyright extension is going to be implemented (whether retroactively or not), the UK's IPO is consulting on this at the moment. As far as I can tell (from skimming the document) sound recordings already out of copyright won't go back into copyright, but some literary and musical works will (due to new rules on where the music and words for a song are written by different people, whereby the copyrights are sort of joined so if one author dies first, the copyright in her part continues until 70 years from the end of the year in which the other author dies).
On the post: Sony Issues The 'Bob Dylan Copyright Collection Volume' Solely To Extend Copyright On Dylan's Work
Re: Re: Re: New Reality TV Show Idea: Copyright Hoarders
On the post: Sony Issues The 'Bob Dylan Copyright Collection Volume' Solely To Extend Copyright On Dylan's Work
Re: Re: New Reality TV Show Idea: Copyright Hoarders
So publishing today means it will stay in copyright until 31 December 2063/2083. Publishing next year gives them nothing. And that extra copyright will be a nice bump to their balance sheets (even if it has minimal actual value).
The really interesting thing is that, of course, the copyright in the *underlying songs* will last until 70 years after Bob Dylan (or whoever) dies. So by having the copyright in the sound recordings, they are only stopping the publication of the sound recordings by whoever owns the copyright in the original song (possibly Bob Dylan?). Any other publication would still need a licence.
On the post: Proposed Changes To UK Copyright Law Sensible But Require Gov't Request If You Want To Circumvent DRM
On DRM confusion, and the limitations of the new exception
What the law does is give extra people the right to sue you if you circumvent DRM (or "effective technological measures" and "rights management information"). However, it is unclear whether this is simply giving these people the right to sue for some underlying copyright infringement, or for the mere circumvention.
Interestingly, one of the text-books I looked at suggested it was different with technological measures and rights management information - despite the wording being remarkably similar.
The personal copying exception is also being phrased in a way to make it pretty meaningless anyway:
My reading of that is that all the publisher needs to do is license the content for a limited time (200 years should be enough) and the exception won't apply - and given the recent rulings on resale coming out of the EU, they may be doing this anyway.
There is some nice stuff in the report, though, including this gem:
I imagine this won't be done using big DRM warnings, but is still rather similar to the Pirate Party manifesto - and might drive home how widespread (and how utterly futile) most DRM is.
Still, it's nice to think that by the end of 2013 the Government may have finally got around to implementing this exception, first recommended by the Gowers Review in 2006, and really needed as far back as the mid 90s (when I remember people ripping CDs and VHS soundtracks to cassette tapes for personal use) - 20 years behind for Government isn't that bad...
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