27 February 2011

Net Neutrality: It Is Getting Serious In Austria

Do you remember my primer on net neutrality? In that very same I expressed my concern about the development in the United States and showed some optimism as to the “stable conditions” in Europe. Well, I might have been wrong. But let me first remind you

What is net neutrality about?

In a nutshell: net neutrality is the principle proposed for user access to the Internet, which would prevent Internet Service Providers (ISP) from acts of discrimination related to different kinds of Internet traffic that would result in restricting content, sites or platforms.
Having monitored the press releases this week, I
came across what sounded very much like a war cry against that principle. Somewhat suprisingly, it came from Austria.

What is the current menace?

In a very recent meeting in London, Mr Hannes Ametsreiter, CEO of the Telekom Austria Group, reportedly challenged the principle of  net neutrality, thereby using harsh, even menacing expressions. For those not necessarily familiar with the abovementioned company: Telekom Austria is the incumbent telco operator in Austria that still has a significant market power.

From what I read, he has considered to block the access to services such as Skype and Google Voice, provided they “cannibalize and eat up our revenues“. This sounds scary, does it not? And should Internet users just accept that threat or can they rely on some shelter? Let us have a look at the regulatory front.

What does the regulation say?

You will not find a specific language on net neutrality in the regulations currently in force. The Access Directive from 2002 spends some words on “adequate access, interconnection and interoperability of services” in its Article 5. In the light of the older legislation, however, this represents an instruction related to interconnection rather than to net neutrality. The latter did simply not represent an issue in 2002.

But things have changed with the issuance of the revised Telecoms Package in 2009. The updated version of the Access Directive contains not only European Commission’s declaration on net neutrality, it even mandates the Member States to “promote the ability of end-users to access and distribute information or run applications and services of their choice“. The Member States are under the obligation to transpose that directive by 25 May 2011.
Things look now brighter, do they not? Nevertheless, we should take Mr Ametsreiter’s words very seriously.

My concluding thoughts

I have some understanding for Mr Ametsreiter’s concern. Incumbents such as Telekom Austria are under the obligation to provide for a universal service. In the last decade however, they have gradually been bleeding market share and revenue in the realm of voice services. A good chunk of the customers they have lost went to Skype and Google Voice, since those have a nearly free of charge Voice over IP offerings. Incumbents claim that they remain sitting on the cost of their infrastructure, while Skype and the like absorb the profits. Without such infrastructure, incumbents as well as other ISP assert, there would not be Skype or content providers at all. But would there be any interest in ISP if there were not content providers?
Reminds me of who came first, the chicken or the egg.

The optimists among use might say: the market competition will solve it all.
I do not think so.
It is simple – if an incumbent makes a first step, others will follow and the market will fail. And this is the reason why we have regulation – to remedy such failures, irrespective of whether Mr Ametsreiter likes it or not.


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24 February 2011

The Images Of Your Fairness

All Rights Reserved*photo © 2009 Paul Gallo | more info (via: Wylio)

I bet you are pretty much familiar with the sign above, are you not? On the Internet, you can see it almost everywhere, but particularly with respect to images.  Why is this so? Well, it indicates that the work it applies to is protected by copyright. Nevertheless, rights in images are just too often infringed and misappropriated on the Internet.
This is not surprising, since images, photographs and pictures are considered impressive addenda especially to weblogs. The famous blogger Mack Collier has written a blog post on the marketing power of pictorial content. However, I will leave the marketing to Mack and stick to my last, that is the legal perspective of utilizing images on weblogs.
I would start addressing this question:

What is the legal nature of images?

Images or photographs represent a protected subject matter under copyright law. They are works. Generally, works must fulfil some requirements in order to qualify for copyright protection, but the threshold relating to images has often been said to be rather low.
The British, for instance, have never scrupled to place every variety of photograph within copyright. Once produced with a sweat of the brow, a photograph needs not show an artistic quality.
Albeit not identical, the test under US law is similar to the one under UK law. It differs in that it requires a minimal degree of creativity.
Authors’ rights systems such as France and Germany tend to give copyright only to photographic works, that is the results of careful and distinctive arrangement, involving an element of aesthetic judgment.
But be cautious – in those jurisdictions the law on unfair competition provides for a “catch-all” protection, hence even images that do not qualify for copyright protection are not free-for-all.

What does the copyright protection of images mean?

Copyright owners (or right holders) are granted exclusive economic and moral rights in their works. While moral rights seek to protect certain non-pecuniary interests of authors, the economic rights enable them to control the economic exploitation of their works. In my view, the most important economic rights relating to images on the Internet are

– the right to make copies of the image;
– the right to distribute such copies to the public, and
– the right to communicate the copies to the public by means of an electronic transmission.

The general rule is that, whoever undertakes one of the above activities without author’s or right holder’s permission, is liable of copyright infringement. As a consequence, an infringing user is likely to be liable for tort or, depending on the jurisdiction, even for a criminal offence.
I wrote “the general rule” above, because copyright legislations usually seek to strike a fair balance between copyright owners’ and users’ interests. Hence, in some occasions even the unauthorized use of copyrighted images would not result in an infringement – it could be prejudiced by doctrines of limitation.

What are the limitations or defences you may rely upon with respect to images?

While Internet users under an author’s right jurisdiction may rely on narrowly statutorily defined limitations, users in either the United Kingdom or the United States are bound to the underlying notion of fairness.

In other words, if a user under an author’s right jurisdiction copies, distributes or communicates an image on the Internet and such copying, distribution and communication to the public falls within a statutory limitation, it is exempt and does not constitute infringement.
By contrast, a user in the US may benefit from a general fair use defence when accessing and using images. Fair use covers different purposes and applies to both commercial and non-profit use. A user in the UK may rely on something that is half-a-way between the author’s right and the US systems. UK copyright law is akin to author’s right laws in that it provides users with a defence, if their use relates to statutorily defined purposes. By the same token, it shows  similarities with US law in that there is a requirement that such use be fair. The defence under UK law is referred to as fair dealing.

How can you apply the limitations or defences to your use of images online?

Applying the limitations or defences to images will not each time be easy. For instance, the limitations under the laws of France and Germany as well as the fair dealing defences under UK law are comparatively narrow and are enumerated exhaustively. The US fair use doctrine, albeit not exhaustively legislated, also covers just specific purposes.
One could summarize those to the following:

– private or individual use (author’s law systems only);
– criticism, analysis, cultural discourse;
– news coverage and
– research.

Which of the above would be beneficial to a blogger? Hmm, not many. The private or individual use, for instances,  applies only to the act of copying, whereas the copied image may be used only within the private sphere. Uploading an image on a weblog is far more than just copying and once put on a weblog, the copied image leaves the private and enters the public sphere.
If you upload images on your blog for the purpose of criticism and analysis, then your outlook is bright. The same is almost true with respect to news coverage: unfortunately, using images for that very purpose does not qualify as fair dealing under UK law. Researchers among the bloggers (and I would figure myself belonging to them) have again good perspectives and, given their fairness, may rely on limitations and defences in all of the abovementioned jurisdictions.

Well, not very promising, huh? There must be another way to design your blog with pictures in a compliant and lawful manner.

What do you know about Creative Commons?

Creative Commons (CC) licenses were developed to create a more flexible copyright model, replacing “all rights reserved” with “some rights reserved”. Among them there are some which are rather permissive, thereby requiring a mere attribution to the author of the work. Others are really restrictive and forbid modifications to and/or commercial use of the work. In any case, the CC licenses call upon the fairness of the users.
You can search for images licensed under a CC license on Flickr or access them directly via Wylio.

Final thoughts

As you could see, there are some ways to lawfully access even “all rights reserved” photographs and communicate them on your blog. Besides there are innovative and culture distribution friendly license models that also allow you to use pictorial content on the Internet, albeit with “some rights reserved”.
What you should bear in mind is to be fair towards the authors and copyright holders, because the pictures on your blog represent the images of your fairness!


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13 February 2011

Why File-Sharing Mice Should Not Fear The Media CAT

Catputerphoto © 2009 Sarah | more info (via: Wylio)

What is the usual outcome of a cat hunting a mouse? The cat nearly always prevails, does it not?
Well, that might be the case in cats’ and mice’ real life, but in
a virtual cat-and-mouse-game occurring in the field of file-sharing things are often likely to look different. Hence, it is much more like Tom & Jerry.


Some time ago I blogged on Media CAT hunting numerous alleged and, in many cases unknown, file-sharers, accusing them of copyright infringement and asking the Patent County Court for a default judgment. Being too grotesque at its very beginning, this story seems to now have reached an unanticipated end.

The recent hearing before the Patent County Court

On 17 and 24 January 2011 HHJ Collin Birss QC undertook hearings on Media CAT’s allegations against 27 individuals. Those, in Media CAT’s view, had violated Sections 16 (1)(d) and 20 of the Copyright, Designs and Patent Act (CDPA).
Prior to lawsuit commencement, Media CAT had first served the internet service providers (ISP) of the P2P-users with Norwich Pharmacal orders to identify them. Thereafter Media CAT began sending so called “letters of claim” to  the individuals so identified, thereby threatening each of them to pay £ 495 in order to avoid litigation.

The key issues in the judgment of Birss QC

In his  judgment delivered in February 2011 Judge Birss made some important comments and findings on file-sharing in general and rebuked the business practice of Media CAT and its legal support ACS:Law in particular.

With respect to Media CAT’s business model, he found that

– the letters asserting that Media CAT was a copyright protection society and that it was the exclusive territorial licensee of rights granted by the copyright owner were misleading, since the letters would be understood by many people as a statement that they have been caught infringing copyright in a pornographic film, that Media CAT had evidence of precisely that, and that a court has already looked into the matter (a copy of the Norwich Pharmacal is provided);

– the agreement between a copyright owner and Media CAT, giving Media CAT a “sole and exclusive right to demand collect and receive all revenues in respect of illegal file sharing” was insufficient to acquire the rights it claimed in relation to copyright and that in order to provide for legal certainty to the defendants, claimants need to be joined by the copyright owners pursuant to Section 102 CDPA, and that

– the notices of discontinuance, subsequently filed by Media CAT, represented an abuse of process and should be set aside as well as should the proceedings be stayed until the copyright owners, if any, decide to join the proceedings.

With respect to file-sharing and P2P networks, Birss QC held that

– the proof that an Internet user had installed a P2P software did not prove he had used it to infringe copyright;

– a claimant needed to establish that the defendant had downloaded and distributed the copyrighted work, i.e. that a copyright infringement had taken place. A mere copy of an IP address logged as a node on the P2P network and relating to films was not sufficient to evidence a copyright infringement, and that

– it had to be clarified where the copy of the file alleged to have been transferred in the P2P network did come from and to exclude that the copyright owner could have made it available on the Internet in the first place.

My final thoughts

Everyone on the Internet using a P2P technology should be aware that it is capable of causing copyright infringement. However, that can be said of many things and Judge Birss distinguishes very well that the primary objective of P2P is not to necessarily violate copyright law. Besides, there are certain requirements which a claiming rightholder must meet in order to succeed in court proceedings. These requirements include, as the present case shows, the entitlement to claim and the establishing of an accomplished copyright infringement. To an extent, the foregoing might prove insurmountable to copyright trolls like Media CAT or GCB.

It does not surprise that Media CAT has gone insolvent and ACS:Law ceased to send letters of claim.

As I wrote in the beginning: the CAT has failed and the mice have won.

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11 February 2011


At some time yesterday I wanted to check the stats of the Reguligence Weblog, but for an unknown reason I could not access it. An error message (pretty much like the one above) appeared on the screen and I called my hosting provider to ask them what was going on.
“We are experiencing an outage. We know about it and will remedy it soon” an unconvincing female voice told me on the phone.

Must be just another technical issue, I thought and hung up after wishing a good night.

But what a surprise when I viewed the weblog’s front page earlier this morning. Damn, a rollback! The most recent article it displayed was the one of 01 February 2011…

The importance of a backup

It’s really weird, but yesterday I had a feeling that made me export and backup all files of the Reguligence Weblog. Indeed, thank God I did it, as I would otherwise have ended up two articles down. None of that with a backup. I just had to import and upload the files and the damage of the rollback was contained.

As of today, I started exporting and saving all weblog’s files on a regularly basis, that is each time upon publishing of a new blog post.

Unless you want to suffer a painful rollback, I would advise you to do the same!

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10 February 2011

Why You Are Free To Charge For Open Source Software

Courtesy to dff-jisc http://www.flickr.com/photos/dff-jisc/

Open source software is free and we all know that, do we not? It’s intriguing, but for a long period of time I have considered to blog on that subject since many have asked me over and over again what is this “free” supposed to mean and whether they can offer open source software against payment.

In order to answer their question, I first had to determine what “free” meant.

When we speak of free software, we are referring to freedom, not to price.

This is what the Preamble of the GNU General Public License V3 says. Why GNU/GPL? Well, simply because it is estimated to cover at least 60% of all  open source software, which makes it the most important and widespread license. So, following the GNU/GPL “free” is to demonstrate the freedom to access, modify and distribute software and not to necessarily express “for free” in the sense of, say, free beer.
Thus, GNU/GPL turns out to be the license that describes what “free” is supposed to mean and does it with disarming clarity. The other relevant open source licenses, such as MPL, EPL or Apache, tend to rely on the rather legal term “royalty-free”. And this  brings us to the next point:

Free Vs Royalty-Free

In above licenses (and in copyright law in general), the term royalty-free means that once the software is licensed, the licensee is free to use and distribute it without owing additional royalty payments to licensor or distributor.
Nevertheless, this does not prevent the licensor or distributor from charging an initial fee for distributing or otherwise making the software available to a licensee. Besides, a fee is commonly justified with the provision of, inter alia, well-written documentation and professional support services. In fact, this represents the ground for various business models run by commercial undertakings such as Red Hat or Novell.


In all brevity, if you like to utilize a software under an open source license by charging something for it, you are just free to do it.


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8 February 2011

Football Without Frontiers?

DSC00926photo © 2010 Ben Sutherland | more info (via: Wylio)

Football is a very valuable industry in England and Europe in the first place and it is responsible for generating billions. However, what makes football really big is its connection with television. It was the television broadcast that brought the football of England’s Premier League to the world at large. Football without frontiers, indeed.

Football and television broadcast rights – this is the subject of this blog post. If you are a football fan and watch the broadcast of the Premier League, you have certainly heard of the proceedings brought by the Football Association Premier League (FAPL) against the QC Leisure (et al) and Media Prtocetion Services Ltd against the brave publady Ms Karen Murphy. The High Court of Justice of England and Wales has recently referred those proceedings to the Court of Justice of the European Communities (Court) where few days ago Advocate General Juliane Kokott delivered her opinion.

The facts

FAPL markets the copyright for the live transmission of its football matches. It essentially grants its licensees the exclusive right to broadcast and economically exploit the matches within their broadcasting territory, generally the country in question. In order to safeguard the exclusive rights of other licensees, those Licensees are at the same time required to prevent their broadcasts from being able to be viewed outside their broadcasting territory. BSkyB is such a licensee of FAPL for the UK and offers its sports feed to pubs against £7,200 a year. NOVA is the licensee for Greece and offers its sports feed to bars or pubs at about €1,080 (£700) a year. Both BSkyB and NOVA use a conditional access technology and have a “footprint” extending beyond the territorial limit of the licences they enjoy from FAPL. Any person within a broadcaster’s “footprint” who has the appropriate satellite dish, decoder box and decryption card is technically capable of viewing the programmes provided by that broadcaster as part of its broadcasting service.
Not surprisingly, proactive undertakings (such as QC Leisure) import decoder cards from abroad, in the present cases from Greece and Arab States, into the United Kingdom and offer them to pub owners (such as Karen Murphy) then at lower rates. The FAPL is attempting to stop that practice since it undermines the viability of the services they provide.

The claims

Basically, claimants asserted that the use of foreign decoder cards in the UK to access foreign transmissions of live FAPL football matches committed an offence under Section 297 of the Copyright Designs and Patents Act 1988 (CDPA) and involved an infringement of their rights under Section 298 CDPA as well as their copyrights in various artistic and musical works, films and sound recordings embodied in the Premier League match coverage. Further and since BSkyB has the exclusive right to broadcast the football matches in question for reception within the UK, it demanded the “applicable” payment being the subscription which would be payable to BSkyB if Karen Murphy had contracted to receive BSkyB’s service rather than the NOVA service from Greece.

The defences

Since Sections 297 and 298 of the CDPA were introduced to transpose Directive 98/84/EC the defendants pleaded that the purpose of the Directive is not, as the claimants contended, to give to service providers of lawful decoder cards a right to control their circulation or place of use and so divide the single European market into zones with differential pricing. On the contrary, the purpose of the Directive is to facilitate the undistorted operation of the single market by giving to service providers a Community-wide right to suppress the manufacture of and commercial dealings in cards which give access to protected services for, and further to remove obstacles to the free circulation of cards which might previously have arisen from pre-existing provisions of national law. Further defences were based, inter alia, on the fundamental freedoms under the EC Treaty as well as on Article 81 EC.

The questions referred to the Court

Following the referance for a preliminary ruling consisting of an unusually high number of questions (more than 20 relating to both cases) the Court joined the two cases. The referred questions asked the Court to interpret the Directives 98/84/EC, 93/83/EC and 2001/29/EC as well as Articles 28 and 30, 49 and 81 EC.

Advocate General’s opinion

After having undertaken a remarkable dissection of Community law dealing with copyright and broadcasts, Advocate General Juliane Kokott concluded that the decoder cards sold outside, but used within the UK did not constitute “ilicit devices”. Nevertheless, member states, Kokott wrote, were at liberty to by means of national law prevent the use of such cards, when they were obtained on the grounds of false personal data. The same would also apply to acquirers purporting private use, but deploying decoder cards on commercial scale. Kokott further opined that, a copyright work (=football match) is not communicated to the public by wire or wireless means, within the meaning of Article 3(1) of Directive 2001/29, where it is received or viewed as part of a satellite broadcast at commericial premises (=pub) or shown there, free of charge, via a single television screen and speakers to members of the public present in those premises. Not less important for the present cases, the freedom to provide services under Article 56 TFEU (previously Article 49 EC) precludes provisions which, on grounds of protection of intellectual property, prohibit the use of conditional access devices for encrypted satellite television (=decoder cards) in a Member State (=UK) which have been placed on the market in another Member State (=Greece) with the consent of the holder of the rights to the broadcast (=FAPL). The latter is despite any false personal data at acquisition or individual agreements to use the decoder cards only for domestic or private use. However, the freedom to provide  services is no magic bullet: it may be prejudiced by national rules, which allow rights holders to a broadcast to object to its communication in a pub, provided that the restriction of freedom to provide services stemming from the exercise of that right is not disproportionate to the share of the protected rights to the broadcast.
In the end the Advocate General delivered her mostly relevant conclusion: FAPL’s license agreements with content providers such as BSkyB or Nova that provide for territorial exclusivity and ban the export of decoder cards to other member states of the EU are incompatible with Article 101(1) TFEU (previously Article 81 EC) , since such licence agreements are liable to prevent, restrict or distort competition.

My two cents

If  the decision of the Court in those combined cases follows the opinion of Adovace General Kokott, then it will very likely be 2011’s landmark decision par exelance!
Especially the economical impact has the potential to be nothing less than disruptive. What seems to be an ease for viewers and supporters may soon dramatically lessen the quality offered by the FAPL and the clubs participating in it, as they will encounter unexpected difficulties to maintain there way of working. Where do you think does the money for the recent truly vertiginous football transfers come from? 75 Millions for Cristiano Ronaldo? You better forget about that!

What should we expect if the Court decides the cases in the affirmative? Will it mean the end to a football without frontiers or will it be rather its long awaited redemption from commercialism and recollection of true values?

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1 February 2011

The Spy Who Loved Her Name

IMG_9950photo © 2010 zemistor | more info (via: Wylio)

Do you remember the bank that trademarked “Christmas”? Can happen only in Russia, right? Well, the land of Tolstoy, Bakunin and Putin shows once again that it is always good to provide for news relating to intellectual property!

The current case I would like to spend some words on is not as outrages as the “Christmas” one, though it involves a personality who not long ago gained a huge medial publicity.

Like to guess who might that be? Hm, what was this blog article’s name in the first place?

Yes, I can be talking only about Anna Kuschyenko, also known as Chapman! According to the Russian newspaper Komsomolskaya Pravda, the spy scandal heroine has successfully been granted the right to use her name as a trade mark for the classes 3, 14, 25, 28, 32, 33, 35 and 41. In doing so, Chapman obviously did what many others had already done in the past.

In this respect people have often asked me:

Are personal names registrable as trade marks?

In all generality, yes. While treated as descriptive signs and hence “weak” marks in the US, they are to be assessed exactly the same way as any other prospective trade marks in the European Union.
In other words, both jurisdictions allow the registration of personal names with their respective trade mark offices.

Apparently the same is true also under Russian trade mark law. Nevertheless, there is one thing I don’t really feel kosher about when considering the registrability of the Chapman mark. After all she was accused to have participated in an espionage affair and thus deported back to Russia. I would have classified those circumstances disparaging, had I been appointed to examine Ms Chapman’s application and, would have eventually rejected it. But Russia is different and we all know that. Russia loves its spies and treats them as heroes. Would it be then permissible to ask:

Was the trade mark registration Russia’s payoff to Ms Chapman?

I am afraid we will never figure this one out. In any case she spied in her country’s name, did love its own and succeeded in trademarking it!

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