4 July 2011

Star Wars Coloured Green


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Image by JD Hancock on Flickr

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We all do care for the environment, do we not?
Not surprisingly, Greenpeace cares even more.

The green multi cares so much that some weeks ago it started attacking Volkswagen over latter’s environmental credentials.
Using a Star Wars influenced get-up, the environmental activists accused the Wolfsburg company to be on the dark side and to abuse the force

to lobby against key environmental laws despite making claims that it wants to be the most eco-friendly car automaker in the world.

The funny thing is that Greenpeace expressed its criticism by uploading a video on its channel on YouTube. The video is a heavy parody of a previous Star Wars based advertisement of VW.
Shortly thereafter, however, not only did the parodying video disappear from YouTube, but the Google affiliate quickly shut up the entire Greenpeace channel.

Whose dark force should one suspect behind such a Sith-esque act?
The one of VW?

Believe it or not, but it was

Lucasfilm Who Rushed To Aid

the German car manufacturer in their conflict with Greenpeace.

Reportedly, Lucasfilm has claimed the infringement of their copyright by Greenpeace and has served YouTube with (probably) a DMCA takedown notice.

I was curious why YouTube elected to comply with Lucasfilm’s request since the parody of Greenpeace falls clearly under a

Fair Use

defence and the broadcast-it-yourself platform, in similar instances, has fought legal proceedings against right holders in order to protect both, its users and its business model.

A closer look into the DMCA drew my attention to its Section 512 (g) (1) that gives Greenpeace the opportunity to respond to the notice and takedown by filing a

Counter Notification

It turns out that, if Greenpeace serves YouTube with a counter notification complying with statutory requirements, including a statement under penalty of perjury that the parodying video was removed or disabled through mistake or misidentification, then unless Lucasfilm files an action seeking a court order against Greenpeace, YouTube will have to

Put The Video Back

up within 10-14 business days after receiving the counter notification.

See whether my prediction will hold true.

24 February 2011

The Images Of Your Fairness


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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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25 June 2010

Do not misappropriate the law, guys.


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Locked books. Courtesy to presscafe.org

It has been a long time since I wrote my last posting related to Bulgaria. During the last days, however, a police campaign or even a raid directed against the online content provider www. chitanka.info (chitanka meaning an alphabet book in Bulgarian) achieved a huge medial attention and, particularly, that of the Bulgarian blogosphere. While the police claimed a success over a group engaged in “Internet piracy”, journalists and bloggers saw an attack against the knowledge society in Bulgaria.

What was the problem in the first place?

Chitanka.info had digitised numerous printed books and made them available on the Internet to the world at large. In legal terms, chitanka.info had copied and adapted (mainly literary) works and subsequently communicated those to the public. On the grounds that, the foregoing acts represented acts restricted by copyright law, publishers and right owners’ associations argued that chitanka.info had infringed the copyright in the works, because they acted without the consent of the respective copyright owners. Apparently, these very right owners instructed the police to raid chitanka’s premises and to seize the equipment hosting the arguably infringing materials.

 

Top police investigator Yavor Kolev seizes one of chitanka's servers. Courtesy to bnews.bg

The operators of chitanka.info raised several defences, some of which were legal by their nature and some that were not. Regarding the latter they argued that their offering addressed school kids and thus served to satisfy primary educational needs. They further argued that some of the books they offered to download represented sold-out editions, not re-published since then and thus no longer available in bookstores. Eventually, they stressed on the misery reigning in public libraries and on the fact that today’s consumers demanded an online access to books, but publishers yet failed to (legally) satisfy this demand. Chitanka.info’s legal defences grounded on Art 24 (9) of the Bulgarian Act on Copyright and related Rights (Copyright Act) and on the fact that their offering was merely altruistic as it did not depend on a payment.

I would like to focus on chitanka.info’s legal defences in this posting. Art 24 deals with the free (fair) use of works for which users neither need tot obtain the copyright owners’ consent nor owe they any payments in connection with thei use of those works. Subsection 9 of this Article regards – as the Bulgarian and hence legally binding version of the act calls them –  the “publicly accessible” libraries. Please observe that the English translation of the act accessible via the link above refers to “public libraries”. This ostensibly unimportant distinction, displayed by the translation and of later relevance, might prove decisive for chitanka.info’s case.

To the best of my knowledge, neither the Bulgarian Copyright Act nor other legislation in force in Bulgaria defines the term of a “publicly accessible” library. By contrast, the Bulgarian Public Libraries Act delivers a definition of the term “public library”. Accordingly, a library needs to comply with certain requirements set out in Art 8 of said act, in order to be deemed a “public library”. There is no doubt that chitanka.info does not comply with those requirements. The Public Libraries Act was, however, delivered in 2009, whereas Art 24 (9) of the Bulgarian Copyright Act was last amended in 2005.

The issue suggests a few logical questions:

  • What did the lawmakers have before eyes when they drafted the Public Libraries Act?
  • Did they consider the “publicly accessible” libraries as mentioned in the Copyright Act, and
  • Are public libraries to be equated with publicly accessible libraries at all?

Depending on the answer of these questions, there might be following solution approaches:

  1. The terms public library and publicly accessible library are identical. Since chitanka.info does not qualify as a public library it likewise fails to qualify for the limitation under Art 24 (9) granted to publicly accessible libraries.
  2. The terms are not identical and the lawmakers did not intend to curtail the limitation under Art 24 (9) to only public libraries. Moreover, the limitation should apply to any library that is publicly accessible. Chitanka.info would then qualify for the safe harbour provided by Art 24 (9). Public libraries would qualify as well as they are by their definition “publicly accessible”.

It will be up to a court of competent jurisdiction to decide somehow or other. I personally would support the second solution approach as I am of the opinion that copyright law is misappropriated when used to prevent the spreading of information, particularly for educational purposes. My friendly piece of advice to the police would then read: do not misappropriate the law, guys.

 

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8 November 2009

When does hip-hop sampling infringe copyright? The "Bow wow wow, yippie yo, yippie yea" case.


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On 4 November 2009 the US Court of Appeals for the 6th circuit affirmed the US District Court for the Middle District of Tennessee’s decision that the unauthorized use of George Clintion’s “Bow wow wow, yippie yo, yippie yea”, being the rerfain in his “Atomic Dog“, by Public Announcement, an R&B and hip hop group, in their song “D.O.G. in Me”, constituted copyright infringement. The infringement was claimed by Bridgeport Music to which George Clintion has had assigned his rigts. Proceedings were then commenced against Universal Music Group that acquired A&M Records – the music label that had previously released the infringing “D.O.G. in Me”.

What makes this case remerkable, is the Court’s restated guidance on “sampling”.

Sampling Is Widely Used

by many rap or hi-hop artists when creating their songs. The authority thereby dealt with questions relating to both, substantial similarity and  a possible fair use defence.

 

Having personally found such guidance really usefull, I decided to make it an entry on my blog.

In opining as to whether the claimed substantially similarity was present, the Court decided to “identify which aspects of the artist’s work, if any, were protectible by copyright” and, second, to “determine whether the allegedly infringing work was substantially similar to the protectible elements of the artist’s work.”

Having done so, the Court dismissed the comparison between the two songs as a whole, but applied the “fragmented literal similarity” test by asking whether a smaller fragment of “Atomic Dog” has been copied literally, and not the overall theme or concept of the song. This view was backed by an expert testimony that described the copied elements of “Atomic Dog” as

Unique To The Song And The “Bow Wow” Refrain

in particular, as the most well-known aspect of the song.
Thus, the Court found that there was substantial similarity, as the copied elements were found to have such great qualitative importance to the song.

While examining

Whether a Fair Use Defence Might Be Applicable

the Court overthrew Universal’s claim that the copying certain elements from “Atomic Dog” in “D.O.G. in Me” was intended as an homage or tribute to George Clinton and, thus fair use. The court came to this result upon applying the statutory factors from 17 U.S.C. § 107: “D.O.G. in Me” was indeed transormative (first factor); however “Atomic Dog” was clearly within the core of copyright protection (second factor); moreover, the copying covered the most distinctive and recognizable elements of “Atomic Dog” (third factor), and finally, given the fact that “Atomic Dog” is one of the most frequently sampled compositions of the Funk era, Bridgeport could lose substantial licensing revenues if it were deprived of its right to license content such as that used by Universal (fourth factor).

In my personal view this decision is capable of building

An Opposite Pole To

Campbell v. Acuff-Rose Music and hence a milestone in legal practice.

30 October 2009

German Constitutional Court backs the private copying exception


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In a very current decision, the German Constitutional Court

Rejected the Constitutional Complaint

of several phonogram producing companies. The companies in question demanded changes to section 53 (1) of the German copyright act that was amended as recently as of 1 January 2008. Section 53 is part of chapter 6 of the act which deals with limitations to copyright. In particular, section 53 provides that reproductions are permitted for the purpose of individual uses (that is, the use by the person making the copy).

The complainants asserted that section 53 (1) interfered with their constitutionally guaranteed right on property.

The Court rejected the complaint, however, on the grounds of late filing.
Apart from that,

The Court Affirmed That Private Copying Applied to Digital Works

since the 2003 amendments to the copyright act.
Seemingly, the Court opined, the legislator did not intend to undertake changes thereto in the course of the recent 2008 amendments.

The Court further advised on the obligation of manufacturers of copying devices to pay levies (eventually paid by consumers of such devices) that forms a balance to the private copying use.

All in all an important clarification for nowadays’ use of copyright works.