Copyright/Intellectual Property

You can’t take pictures of the Eiffel Tower at night

10 September 2016

From Metro:

Not many people know this, but taking pictures of the iconic Eiffel Tower at night is illegal, and punishable by a massive fine.

The ban has been in place for a while now, but as France becomes more aggressive in its crack down on photo sharing, MEPs are joining forces in a bid to finally lift it.

. . . .

EU law allows members the choice to demand permission before people can share or sell photos of historic buildings protected by copyright.

Most countries abide by something called ‘freedom of panorama’. This allows people to take photographs and video footage of buildings, and other art works, that are permanently located in a public place.

But there are countries where the freedom is limited, like France, Italy and Denmark.

. . . .

Technically taking the picture is also illegal, but it’s the sharing part that will land you in hot water.

If you want to publish the image to social media you must gain permission from the ‘Société d’Exploitation de la Tour Eiffel’ (the Eiffel Tower’s operating company).

Link to the rest at Metro and thanks to Dave for the tip.

PG enjoyed Paris the last time he traveled there, but these sorts of rules drive him crazy.

In some European buildings – churches, palaces, etc. – taking photographs is prohibited. The rationale, if one is expressed, is that the entity earns money from selling postcard photos of the interior.

This automatically rubs PG the wrong way, particularly when he looks at the postcards, which are invariably terrible and look nothing like the photos PG would take of the building.

With civil disobedience in his heart, PG surreptitiously usually gets his photos without attracting the attention of the carabinieri, gendarmerie, peevish people who sit in uncomfortable chairs all day, etc. Once or twice he has been caught, but it soon becomes obvious to authority figures that he’s just another dumb American tourist who can’t read signs.

If, as protectors of these visual treasures are wont to explain, the works of __________ belong to the world, the world should be able to take a picture of them.

EU court backs Playboy in Dutch hyperlinks copyright case

9 September 2016

From the BBC:

The European Court of Justice has ruled in favour of Playboy in a long-running case over hyperlinks to copyrighted content.

The Dutch website Geenstijl, operated by GS Media, had posted links to an Australian site that was hosting photographs from Playboy.

But the court ruled GS Media had broken copyright rules, in part because it was motivated by profit.

GS Media said this was a blow to the “free internet”.

Playboy’s publisher, Sanoma, first brought the case against GS Media over links to photos of Dutch TV personality Britt Dekker, in 2011.

In April 2016, EU advocate general Melchior Wathelet sided with GS Media, arguing in his legal opinion to the court that posting the hyperlinks did not constitute copyright infringement.

. . . .

But now the court has ruled that GS Media’s posting of the links was a “communication to the public” – making it subject to the stated checks and balances regarding copyright.

It said the internet was “of particular importance to freedom of expression and of information and that hyperlinks contribute to its sound operation” – but added that certain parties had a greater responsibility to avoid posting links to illegally published content.

“[W]hen hyperlinks are posted for profit, it may be expected that the person who posted such a link should carry out the checks necessary to ensure that the work concerned is not illegally published,” it said.

Link to the rest at the BBC and thanks to Jan for the tip.

EU Defends Proposals Granting Publishers New Rights

6 September 2016

From The Wall Street Journal:

The European Union’s digital chief on Monday defended upcoming legislative proposals by the bloc’s executive body to grant publishers new rights, a bid by the EU to help them better negotiate compensation from news aggregators such as Alphabet Inc.’s Google news search that post snippets of their articles on their website.

The European Commission is expected to propose new EU-wide rules that would hand news publishers “legal certainty and bargaining power” against online services using their content, according to previously reported internal documents. The new rules make up part of the bloc’s copyright proposals to be presented later this month.

The commission is putting forward the new draft rules “to have a balance in the value chain, not against anybody, not against American platforms, but in the interest of our creative sector and to stabilize their business cases,” said European Digital Commissioner Günther Oettinger at the Digital Life Design conference in Brussels. The event is sponsored by German publisher Hubert Burda Media.

Publishers have been pushing for what they call a more “level playing field” with internet companies in Europe as revenues plunge because more readers consume their articles online, oftentimes by dodging paywalls.

. . . .

The commission’s proposal would require member states to grant publishers additional rights over the online use of their articles that would last for 20 years after publication of the news stories. The bloc had initially been considering for the rights to expire after just one year following publication.

“If you want to stabilize the media sector, we need more than one year—so I think 20 years is the right, balanced proposal,” said Mr. Oettinger, stressing that news content is often relevant 10 to 15 years after it was published given that current events often connect back to events in the past.

Similar initiatives in Spain and Germany have failed to halt further financial erosion for publishers. Google shut down its news service in Spain while publishers in Germany eventually granted Google a free license to publish its content after traffic from the search engine sank.

Link to the rest at The Wall Street Journal (Link may expire)

PG says traditional news publishers need Google more than Google needs traditional news publishers.

France Passes Copyright Law Demanding Royalties For Every Image Search Engines Index Online

29 August 2016

From the Disruptive Competition Project:

[T]he French Parliament adopted at the end of June a little-noticed measure in the Freedom of Creation Act… with a very big potential impact: a new royalty for the indexing of images on the Internet in France.

Senators lobbied strongly for this measure, presented as a way to ensure the remuneration of plastic art, graphic art and photographic works’ rightsholders for images “used and communicated to the public without authorisation” by search engines and indexing services – while conveniently forgetting that search engines do not publish anything and that it is technologically easy to ensure that an image is not indexed.

How would this work? When an image is published online, the reproduction right and the right of communication to the public of this image shall be transferred to one or more collecting societies appointed by the French government. Online communication services “reproducing and communicating to the public images for search and indexing purposes” shall have to obtain a license from those collecting societies to index images legally. The license fee will either be based on the revenue accruing from the exploitation of the service or be a lump sum fee.

. . . .

[I]t is quite clear that “many online services and mobile apps, from search engines to creative commons models and Europeana” will be impacted, as stated by several digital associations, including CCIA. “Basic, everyday activities of online users such as posting, linking and embedding photos online, [will] be subject to a cloud of legal uncertainty”.

Moreover, the territorial scope of this measure is unclear. Are the rights of reproduction and communication to the public transferred to a collecting society when an image is published on a French website or on any website? Is the measure based on the nationality of the works? In practice, this measure may claim ownership of the billions of pictures uploaded everyday globally – even though the huge majority of those pictures are published today for personal use by the close-to-3-billion smartphones’ owners, not expecting any revenue. It is also worth noting that a sizable number of those pictures is published under a Creative Commons license that usually refuse remuneration in return, for example, for attribution. Therefore, this measure would override the choice made by users publishing under such a license – and more generally, would deprive rightsholders of the choice between licensing their pictures or not.

Even worse, there is no realistic way for collecting societies to redistribute the revenues from the license fees accurately and fairly to billions of rightsholders all over the world. The relevant collecting societies won’t attempt to contact all French rightsholders (when close to 70% of French citizens above 15 years old have a smartphone!), let alone all global rightsholders.  In practice, the money will be split between the relevant collecting societies and the few rightsholders affiliated to those societies, who – as we say in France – won the “Jackpot”.

Link to the rest at Disruptive Competition Project and thanks to Felix for the tip.

PG says this appears to be another attempt to extract money from Google and put it into the pockets of European civil servants.

Canelo searches for descendants of forgotten crime author

23 August 2016

From The Bookseller:

Canelo imprint Abandoned Bookshop is on a quest to locate the surviving relatives of crime author Clifton Robbins as it prepares to republish two of his books which have been out of print for over 80 years.

First published with “huge success” in the early 1930s by Ernest Benn, but unavailable since then, Dusty Death and The Man Without a Face are the first of five novels by Clifton Robbins featuring Clay Harrison, a London barrister-turned-detective, and his clerk, Henry.

According to the publisher “little is known” about Robbins. He appears to have been born in 1890, in London, studied at Cambridge and worked as a journalist. He wrote nine novels between 1931 and 1940, but none of the books were ever reprinted and he had nothing published after that date. Some records suggest Robbins died in 1944, others in 1964, but “numerous enquiries, requests and years of research have yet to reveal any living descendants,” the publisher said.

. . . .

Pack said all royalties from sales of the books will be kept aside in the hope that a relative of Clifton Robbins will come forward to claim them.

Link to the rest at The Bookseller

PG makes no claims to expertise in the history of UK copyright law, but he understands that, since The Copyright Act of 1911, copyright extends for at least the life of the author plus 50 years. In 1995, the term was extended to the life of the author plus 70 years for all works that were subject to copyright protection at that time.

Thus, if Mr. Robbins died in 1944, absent UK copyright twists of which PG is unaware, his books would appear to be out of copyright. However, if Mr. Robbins died in 1964, they would appear to still be under copyright protection, assuming the author, or author’s original publisher, did whatever was required to protect his books under UK copyright law.

PG will caution that there may be facts not included in the OP that would impact the presence or absence of copyright protection for Mr. Robbins’ books. PG will appreciate any comments from those who know more about UK copyright law than he does.

Posting a GIF gets agency exec a smackdown by Olympics brand police

16 August 2016

From Digiday:

As the world hurdles into week two of the Olympics, it pays to remain mindful of ongoing Rule 40 crackdowns by the International Olympic Committee.

Ian Schafer, CEO of digital agency Deep Focus, learned this the hard way when he became a target of the IOC’s ire this morning. The Olympic governing body disabled a tweet it claimed violated Rule 40 code, which is designed to prevent over-commercialization by unofficial sponsors.

His tweet, which was originally shared on August 14th, contained video of Olympic swimmer Katie Ledecky winning the gold medal in the women’s 800-meter freestyle final.

Schafer said he found a GIF of the NBC video on Reddit and converted it to a video before sharing it on his personal account. In the footage, Ledecky is shown beating her competitors by 11.4 seconds, completing the race with no one else in sight. The tweet had been retweeted more than 3,000 times (including by former Olympic gymnast Shannon Miller) before Twitter disabled the video and mandated that the content be removed.

. . . .

Twitter forwarded Schafer the email they received from the IOC listing the legal breaches this morning. “Your unauthorised display of the Material over the internet … constitutes a clear infringement of the IOC’s rights, in particular, intellectual property rights, and causes prejudice to the IOC and to the rights-holding broadcasters who have received exclusive authorization from the IOC to broadcast moving images of the Games,” the email states.

While Schafer said he understands the IOC’s concern over maintaining distribution and advertising rights over Olympic-related content, he is frustrated about the larger implications of Rule 40.

“[The IOC is] squashing engagement in favor of preserving the scarcity of its product,” he said. “From the average consumer’s perspective, we live in a world in which content isn’t scarce. It’s a digital world, product is infinite.”

Link to the rest at Digiday

Rule 40 is designed to maximize the exposure of official Olympic sponsors (who pay a lot of money to the International Olympic Committee) by prohibiting any promotion of non-official sponsors (including sponsors of individual athletes) during a period that includes the Olympic games (July 27 to August 24 this year).

Prohibited promotions include:

  • Any express or implied written/visual allusion to the Olympic Games.
  • Any use of the image of a Participant, taken during the Olympic Games, in combination with a company or brand.
  • Any reference to a Participant’s role in the Olympic Games, or to a Participant’s performances during the Olympic Games or during any past editions of the Games of the Olympiad or the Olympic Winter Games.
  • Any use of the “Olympic listed terms or expressions” alongside the Participant’s name or image.

“Olympic listed terms or expressions” include words like not only Olympic, Olympics, etc., but also Rio, Gold, Silver, Bronze, Effort, Performance, Challenge, Summer… and 2016.

Here’s more on Rule 40.

Using Song Lyrics in Your Novel (Spoiler Alert: You probably have to pay for it)

9 August 2016

From Sidebar Saturdays:

The creative spark for my third novel – LOSING FAITH – was a line from the Coldplay song Viva la Vida. I wanted to use it as the epigraph for the book, following my junior high school English teacher’s recommendation that an opening quote helps set the tone. But in high school, I never had to pay to insert my favorite Beatles’ lyric in a term paper. Unfortunately, that’s not how it works in the real world.

Whether you can legally use someone else’s copyrighted material in your book is a question of “Fair Use”. That applies to any copyrighted material – be it other novels, newspapers, television movies, or song lyrics. The statute can be found at 17 U.S.C. § 107.

. . . .

Song lyrics present a unique challenge for raising a Fair Use defense (and for the lawyers out there, it is an affirmative defense for which the defendant bears the burden of proof and not an element of a copyright claim to be established by the plaintiff) because the author is almost invariably using a large portion of the copyrighted work. Even though I only wanted to quote two lines of the Coldplay song, it was 28 words out of 288 – or nearly 10% of the entire song. On the other hand, my novel was nearly 100,000 words, so the Coldplay song was going to be a very small portion of my work.

As a legal matter, the likelihood of succeeding in court on a Fair Use defense depends on several factors, but the most important for authors of commercial fiction are the amount of the song you quote (less is obviously better), and the effect on the potential market for the copyrighted work (making people less likely to buy the song is obviously worse).

But the strength of your legal defense will undoubtedly take a back seat to the real world consideration that your publisher will likely not want to take a chance on being sued, and will refuse to publish if there’s any quotation of a song lyric — no matter how few words — without permission. And even if you self-publish, you should consider that going to court on the issue is probably a bad idea because “winning” a Fair Use claim can be a very expensive proposition.

. . . .

I thought my publisher would get the necessary permission, and pay the required royalty. Once again, I found out that isn’t how it works in the real world.

Standard publishing contracts, like mine, contain a representation by the author that the work is original and does not violate anyone’s copyright. That means that most publishers will require the author to secure permission on his or her own.

Link to the rest at Sidebar Saturdays and thanks to V.S. for the tip.

PG says the record companies tend to be pretty aggressive about enforcing copyrights and are not big believers in fair use.

Here’s a question – Does anyone know of a book that would have been substantially diminished if it had not quoted the lyrics from a song? If so, which book and why?

Photographer Files $1 Billion Suit Against Getty for Licensing Her Public Domain Images

29 July 2016

From Hyperallergic:

In December, documentary photographer Carol Highsmith received a letter from Getty Images accusing her of copyright infringement for featuring one of her own photographs on her own website. It demanded payment of $120. This was how Highsmith came to learn that stock photo agencies Getty and Alamy had been sending similar threat letters and charging fees to users of her images, which she had donated to the Library of Congress for use by the general public at no charge.

Now, Highsmith has filed a $1 billion copyright infringement suit against both Alamy and Getty for “gross misuse” of 18,755 of her photographs. “The defendants [Getty Images] have apparently misappropriated Ms. Highsmith’s generous gift to the American people,” the complaint reads. “[They] are not only unlawfully charging licensing fees … but are falsely and fraudulently holding themselves out as the exclusive copyright owner.” According to the lawsuit, Getty and Alamy, on their websites, have been selling licenses for thousands of Highsmith’s photographs, many without her name attached to them and stamped with “false watermarks.”

. . . .

Since 1988, Highsmith has been donating tens of thousands of photographs of people and places in the United States to the Library of Congress, making them free for public use. The institution calls the donation “one of the greatest acts of generosity in the history of the Library.” The Carol M. Highsmith Collection is featured in the library’s Prints & Photographs Division, alongside the likes of Dorothea Lange’s Dust Bowl and Depression photographs.

. . . .

“The injury to Ms. Highsmith’s reputation has been … severe,” it continues. “There is at least one example of a recipient of a threatening letter for use of a Highsmith Photo researching the issue and determining that Ms. Highsmith had made her photos freely available and free to use through the Library website. … Therefore, anyone who sees the Highsmith Photos and knows or learns of her gift to the Library could easily believe her to be a hypocrite.”

Link to the rest at Hyperallergic and thanks to P.D. for the tip.

PG says authors are not the only creators who are sometimes badly treated by large commercial organizations that deal in creations protected by copyright.

PG also attests that Ms. Highsmith is an excellent photographer. You can see her professional website here and the collection of her photos she donated to the Library of Congress here.

EFF lawsuit seeks to overturn DMCA ban on breaking DRM

22 July 2016

From Chris Meadows via TeleRead:

[T]he EFF has just filed suit against the US government on the grounds that the Digital Millennium Copyright Act’s anti-circumvention provision, Section 1201, represents an unconstitutional restraint on free speech.

The suit takes aim at the practice of outlawing breaking DRM, with the Librarian of Congress permitted to make exceptions to the prohibition every three years, as well as outlawing any explanation of how to break DRM. The EFF calls this “an unconstitutional speech-licensing regime.”

“The government cannot broadly ban protected speech and then grant a government official excessive discretion to pick what speech will be permitted, particularly when the rulemaking process is so onerous,” said [EFF Staff Attorney Kit] Walsh. “If future generations are going to be able to understand and control their own machines, and to participate fully in making rather than simply consuming culture, Section 1201 has to go.”

The EFF is representing plaintiffs computer scientist Andrew “bunnie” Huang and computer security researcher Matthew Green. Huang is developing devices for editing digital video streams for his company Alphamax LLC that require the ability to break DRM in order to function properly. (Huang has previously shown up on TeleRead in connection with an open laptop he designed and successfully crowdfunded, so he’s not exactly new to advocating for open hardware.) Green is writing a book on circumventing security systems, and is investigating the security of medical record systems on a grant from the National Science Foundation—but he has had to avoid some areas of research because of concerns over Section 1201.

This is also, of course, the law that makes it illegal to crack DRM on ebooks so we can back up our purchases and convert from Kindle to ePub formats, or vice versa, or crack the DRM on DVDs or Blu-rays so we can rip the movies for mobile viewing.

Link to the rest at TeleRead

PG does not condone the pirating of copyrighted materials, including books.

However, the anti-circumvention provisions of the Digital Millennium Copyright Act were mostly written by and for the big US movie studios and record companies (yes, PG is informed they’re still called record companies). The DMCA didn’t do much for indie authors.

PG believes that a reader who wants to read ebooks that were properly purchased on that reader’s iPad as well as his/her Kindle should be legally permitted to do so. Software or services that make this possible should be legal.

Of course, some people will use such software for illegal purposes. Some people will also use baseball bats for committing crimes, not playing baseball.

PG suggests that focusing on the prosecution of criminals who are performing acts which harm creators is a much better idea than writing laws which prohibit non-criminals from doing useful work that doesn’t damage the owners of copyrights in any way.


Copyright in Small Claims: An Update

19 July 2016

From In the Open:

In theory, the idea of a small claims board that could adjudicate copyrights claims where the monetary value is not too high seems sensible.  Federal litigation is very expensive and intimidating, so a small claims mechanism could make it easier for independent artists and small businesses to defend their rights.

Nevertheless, I have never been very enthusiastic about the idea, in large part because the devil is definitely in the details of any proposed scheme.  The fear is that a small claims board could become, in the words of this 2012 article about the topic from Techdirt, just “a new venue for porn companies to coerce settlements out of internet subscribers.”  If such a board appeared to be nothing other than a mechanism to make it easier not just for trolls but for Big Content in general to bully individual users and avoid the high costs of litigation, it would ultimately be harmful to the copyright balance that is already so out of whack in the U.S.

Unfortunately, when I look at the CASE Act (H.R. 5757) (it stands for “Copyright Alternative in Small Claims Enforcement Act) introduced last week to the House of Representatives, many of these fears seem realized.  Based on the actual text of the proposed legislation, I am afraid this specific bill would have two negative impacts.  First, I fear it would greatly increase the power of the Copyright Office in shaping copyright enforcement, which is not something I can contemplate with anything other than foreboding.  Second, I think that the proposed legislation would make it easier for Big Content, and especially for the copyright trolls who are often their vanguard, to bully ordinary individuals and increase the phenomena of copyright enforcement by fear, rather than through the law.

. . . .

Two other provisions of the CASE Act leave me with a good deal of uncertainty and disquiet.  One cause for this is the potential to bring an action before the small claims board claiming infringement even on an unregistered work.  Copyright registration is required prior to bringing a lawsuit in federal court, but this bill would allow such a claim before the small claims board, with a greatly reduced potential for recovery of damages.  So such a claim would cost less to bring, but also offer less reward for success  It is not clear to me if an author, acting on her own, would be well served by such an option, or if registration, which does not cost much and would allow greater damages even in a small claims action and also provide access to the federal courts, would still be more sensible.

. . . .

Indeed, the whole area of damages in small claims is rather problematic.  On the one hand, statutory damages for copyright infringement are ridiculously high, and often are used to chill legitimate uses because the risk of making a mistake is so great.  So lowering damages in the small claims arena makes sense, and the CASE Act caps such damages at $15,000 for any one act of infringement and $30,000 in a single action.  Certainly small claims without reduced damages would be intolerable.  But these damages still strongly favor plaintiffs over defendants, since the costs of suing would be much lower, while the risk of being held liable would still be potentially devastating for individuals.  Add to this the fact that it would be impossible, before the small claims board, to be awarded attorney’s fees and court costs even if one won, and the odds are still strongly tipped in favor of the big content companies with in-house lawyers and against individual users — artists, authors and students, for example — who might find themselves on the wrong end of one of these claims.

. . . .

Overall, I have to conclude that this bill is a power grab by the Copyright Office and would be a boon to the lobbyists for Big Content.  The makeup of the proposed small claims board would be recommended by the CO from the ranks of lawyers with substantial experience in copyright infringement actions, which means that those very lobbyists would probably become the judges (called “Copyright Claims Officers”).  And the work of the board would, according to section 1402(c) of the bill, “be generally directed… by the Registrar of Copyright.”  The provisions would give the Copyright Office tremendous influence on copyright enforcement, which would please the content companies a great deal, but would undoubtedly further detract from a balanced law that genuinely encourages new creativity, rather than merely protecting profits for legacy works.

Link to the rest at In the Open and thanks to Beth for the tip.

PG wrote earlier about problems involved if copyright small claims were handled in federal court, which is where appeals from decisions of the Copyright Office Small Claims Court would go. If a large company received an adverse ruling from the Copyright Office Small Claims Court, it would almost certainly appeal that ruling to the federal court, if only to put itself into better negotiating position to settle the case on better terms.

Setting up a separate court as an extension of the Copyright Office (as opposed to the federal court system) concerns PG because of the reasons mentioned in the OP and also because the copyright small claims court holds a great potential for devolving into an organization filled with insiders where unwritten rules become as important as the written ones. Under the proposed legislation, there are three attorney hearing officers who will be doing their work at the Copyright Office, so everybody will almost certainly be located in the Washington DC area.

Perhaps PG missed it, but he didn’t see any provision in the proposed legislation that prevented any of the hearing officers from continuing to practice copyright law on the side, only that they wouldn’t undertake any activities that would conflict with their duties as hearing officers.

In federal district court, while a given district will have some local rules, those rules are written and available from the court. Individual federal judges will always have their quirks, but they won’t (usually) conflict with the local rules and Federal Rules of Civil Procedure.

The discussion of copyright trolling in the OP is also an issue for authors of both books and blogs. Fanfic authors and video creators could expect more harassment. Since there are only three hearing officers and two staff attorneys authorized under the proposed legislation, the potential for large plaintiffs to completely jam their dockets with mass filings is high.

Talking about the legislation as a small claims court for copyrights is a bit misleading if it creates an image of a state-based small claims court where landlord-tenant disputes or local merchants collecting unpaid bills are typically handled in a few minutes by a judge.

The CASE Act is 51 pages long, much longer than any state small claims enabling legislation with which PG is familiar. It includes a great many procedural provisions which don’t seem to be particularly easy for a non-lawyer to understand.

Here’s a copy of the proposed legislation:

CASE-Legislation (Text)

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