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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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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16 December 2009

Would you still use Yahoo!, if you knew they sold your personal data at a fixed price?

Have you got an e-mail account on Yahoo! or do you use any of the services, such as messenger, groups or Flickr, provided by the Sunnyvale company? You were certainly aware of Yahoo!’s privacy policy, weren’t you? What you most probably did not know is the fact that Yahoo! surveil your personal data and then offer them to law enforcement at a fixed price. Not bad, huh?

Cryptome, a website hosted in the US that functions as a repository for information about freedom of speech, cryptography, spying, and surveillance got the ball rolling since it has obtained and made Yahoo!’s Compliance Guide for Law Enforcement available on its website. Seemingly, Yahoo! were not amused and served Cryptome with a takedown notice based on the US Digital Millenium Copyright Act (DMCA). Stretching copyright law for the purposes of preventing access to information is an interesting, albeit not novel, strategy.
By the way, this is the reason why the DMCA and, particularly, its Section 512 has come under criticism – it causes a so called chilling effect on free speech.

So long Cryptome has not complied with Yahoo!’s demand and is still hosting the document in suit. It starts to get exciting!

22 November 2009

Data retention in Austria becomes even likelier

Austria’s DerStandard informs that the data retention bill to amend the existing Austrian Telecommunications Act was in place. In a consultation procedure, the responsible minister Doris Bures has called upon the appraisal of the participants (eg regional authorities, chamber for commerce and industry, trade unions). She thereby vowed to apply “the highest standards under the rule of law” in drafting the bill.

Austria has not implemented the data retention directive yet, wherefore the European Commission threatened the government with the launch of infringement proceedings. Austrian politicians have used the data retention related set of problems in their last election campaign in 2008. For some period thereafter and, since the subject matter is highly controversial, no one appears willing to cease the delay in implementation.

Quite often, the enforcers of intellectual property rights have been viewed as the real beneficiaries of the data retention becoming a fact. Many of their lobbyists and legal representatives utilized the duration caused by the governmental delay in addressing the public and stating the necessity to access retained internet traffic data that evidences, for instance, illegal file sharing.  However and given an implementation, it is still unclear as to whether such enforcers shall have access to data so retained.

According to recent cases on file sharing, Austrian courts seem to opine that file sharers’ interest in the protection of their traffic and identity data outweighs the enforcers’ interests to access such data.

It is clear that the data retention could easily change the so established balance. I hope to soon have certainty on that.

17 October 2009

New and freely available database on copyright

Recently I received an email informing me about a newly launched service that is available free of charge and that provides a good knowledge in terms of copyright.

The service in question is KB:Law, where users can find answers to numerous questions dealing with copyright and related rights, mainly arising from the jurisdictions of Austria and Germany. Users will, however, find some matters of interest also from the realms of UK, US and Spanish law.

Obviously, the makers of this database desire to propagate copyright acknowledge among laymen as well as to ease legal practitioners’ access to useful information for their research.

A good example to follow!

24 September 2009

Eminem in a legal battle against Apple’s iTunes

Eminemphoto © 2010 Courtney Bolton | more info (via: Wylio)

Associated Press informs in a very current report that a settlement attempt between Eight Mile Style LLC, being Eminem’s music publisher, and Apple Inc. has failed.

Eminem’s music publisher accuses Apple for making available 93 songs of Eminem on iTunes without having obtained relevant consent. Apple alleges it has a valid agreement with Aftermath Records, which controls the Eminem sound recordings at issue in the case.