Enterprise and Regulatory Reform Bill to Amend Copyright Law

The Enterprise and Regulatory Reform Bill is set to amend Copyright Law in the UK.

See here…

Please note the explanatory notes:

“Repeals section 52 of the Copyright, Designs and Patents Act 1988 so as to provide full copyright protection for the period of the author’s life plus 70 years.
Creates a power to amend exceptions for copyright and rights in performances without affecting the existing criminal penalties regime.”

Under Section 52 of the CPDA, you can see that Section 52 of CDPA 1988 relates to designs for artistic works. It applies where an artistic work has been exploited by the copyright owner by making 50 or more copies by an industrial process and marketing those copies. In those circumstances, the designs lose their protection after 25 years and copies can then be made without infringing copyright. That section came into effect on 1 August 1989. In Lucasfilm the items were first marketed in the 1970s and, accordingly, the earlier Copyright Act 1956 applied, which imposed a shorter time period of 15 years.

Mann J and the Court of Appeal found that while McQuarrie’s paintings were artistic works, they were exploited by more than 50 copies made in the form of the stormtrooper toys (and also, potentially, by the 50 costumes made by Ainsworth at the behest of Lucas for production of the film). This established a defence for Ainsworth under s52 once the relevant time period expired.”

Francis Davey expands on this on his blog here:

What about clause 56?

I suspect someone has pointed out that the effect of s.52 is that a great many depictions of Mickey Mouse are almost certainly no longer protected by copyright, having been reproduced on an industrial scale for well over 25 years. If this provision is repealed, the transitional arrangements are going to be fun to draft.

In relation to Lucasfilm v Ainsworth, the defence was in the end redundant as Mann J held that Ralph McQuarrie’s paintings were design drawings within the meaning of s51 and so were not infringed by the making of items based on them (i.e. the Stormtrooper costumes at the heart of the case). However, the defence had been run as a fallback and there was discussion of exactly how many costumes had been made at the time.

The intersection of UK design and copyright law is a mess that has only got more confusing with time. The effect of s51, as interpreted in Lucasfilm, is that Imperial Stormtrooper armour is not protected by copyright, but Iron Man’s suit is. Why? Because the initial drawings for the Stormtroopers were done specifically as designs for a 3D article that was later deemed not to itself enjoy copyright protection, whilst Iron Man was drawn as a comic in its own right.

CRAZY…

Internet Freedom is Under Attack…

‘Father of the Internet’ warns Web freedom is under attack

“Father of the Internet” Vint Cerf  recently warned that Internet freedom is under threat from governments around the world, including the United States.

Cerf, a computer scientist who was instrumental in the Internet’s creation and is now employed by Google as its “Internet evangelist,” said officials in the United States, United Kingdom and Europe are using intellectual property and cybersecurity issues “as an excuse for constraining what we can and can’t do on the ‘net.

“Political structures … are often scared by the possibility that the general public might figure out that they don’t want them in power,” he said.

He sounded the alarm about the International Telecommunications Union (ITU), arguing the group is poised to assume the role of global Internet cop.

Cerf said the ITU is likely to try and lock in mandatory intellectual property protections as a backdoor for easy Web surveillance. Even good-faith efforts at Internet policymaking should be viewed with skepticism, Cerf said, because balancing freedom and security “isn’t something that government alone is going to figure out.” He criticised the Cybersecurity and Intelligence Protection Act (CISPA) legislation passed by the House to encourage companies to share information about cyber threats with the government, because it lacks “adequate constraints” on how the information is used. Cerf said he has the “optimistic belief” that attempts by hostile governments to restrict access will be circumvented by resourceful engineers around the world. Cerf also urged vigilante groups such as Anonymous to stop using cyberattacks as a means of activism, saying the hackings are counterproductive.

“I don’t think lawlessness is our friend,” he said.Ultimately, there is a legitimate role for law enforcement on the Web, he said, adding that “it would be bad for us as a community to say … that all the good things outweigh the bad.” “That’s not a credible position to take,” he said. Cerf said activists and regulators alike harm themselves by using terms like “cybercrime” because they suggest that “every bad thing that happens on the Internet is a crime.” “Some are just bugs,” Cerf said, while suggesting a better goal for policymakers should be “cybersafety.”

These are my favorite lines, and are what i beleive as well.

I haven’t gotten to the point of believing that governance work is a complete waste of time yet, but have decided it is time to get my programing skills out of mothballs and get back up to speed. It is not easy talk about freedom, safety, neutrality, cybercrime, IP pirate, CISPA…with different interest… personal interest, national interest… business interest of the stakeholders …

Anything that are not following somebody interest will be bad and sometimes considered as a crime … cybercrime…

“Either you with me or against me…..” Sound familiar?  This is the challenge for the future global dialog, not as easy during the period of cerf when he started the Internet everybody has one goal.

Increasingly Governments are moving towards control of Internet Freedom. Freedom of expression, although debatable, is a fundamental right and is often the center piece of a democracy. However, Governments are sometimes preoccupied with finding ways to protect national security and human rights pertaining to Internet usage. I believe that the mechanisms for enforcement of copyright laws  or illegal content laws through DNS filtering is disproportionate and  is too restrictive. In total, DNS filtering undermines security on the Internet and may block legitimate content from the Internet. Therefore, this negatively impacts freedom of expression.

It is important to note that the blocking of domain names does not actually remove illegal content off the Internet.  As a result, there is need for various human right agencies within the government, private sector, academia and civil society to negotiate the terms and conditions for Internet Regulation.  However, I believe that these agencies should have a basic understanding of the Internet before negotiating Internet regulation. Moreover, Governments need to realize that harsh regulations of the Internet may impede innovation through various ICT tools.

Recently we have seen a few examples pertaining to Internet Freedom see below:

“Iran’s telecommunications ministry has barred local banks, insurance firms and telephone operators from using foreign-sourced emails to communicate with clients, a specialist weekly said on Saturday.  “The telecommunications minister has ordered the use of domain names ending with .ir” belonging to Iran, Asr Ertebatat reported.” See http://j.mp/KDVUWK

In addition, we see that India is pushing for the creation of a forum called ‘Committee for Internet Related Policies’ (CIRP) to develop internet policies, oversee all internet standards bodies and policy organizations, negotiate internet-related treaties and sit in judgment when internet-related disputes come up. The catch is that India’s formal proposal is for CIRP to be funded by the U.N., run by staff from the U.N.’s Conference on Trade and Development arm and report directly to the U.N. General Assembly, which means it will be entirely controlled by the U.N.’s member states. See:

http://www.thehindu.com/news/national/article3423018.ece

We can effect change let us bring these issues to the fore at the various (ICANN, IGF, WSIS, IETF etc) Internet Governance meetings.

I have posted vid of this at https://www.youtube.com/watch?v=dwtTUMXpxLk&list=PL18388B00C798AEFC

The Internet is the next stage of human evolution. We look at ourselves as separate beings but the reality is that humans are far more interconnected than a hive of bees. The Internet is our collective minds. We are externalizing our collective intelligence. It allows us to collectively comprehend the universe. And since we are the universe – we are the universe contemplating it’s own existence. And it is the Internet that creates the physical structure to allow humanity to this as one and we can contemplate what no single person could ever do.

My 2p worth.

A quick look at the Trans-Pacific Strategic Economic Partnership or Trans-Pacific Partnership (TPP)

The Trans-Pacific Strategic Economic Partnership or Trans-Pacific Partnership (TPP) is a secretive, multi-nation trade agreement that threatens to extend restrictive intellectual property laws across the globe. The nine nations currently negotiating the TPP are the U.S., Australia, Peru, Malaysia, Vietnam, New Zealand, Chile, Singapore, and Brunei Darussalam. Like ACTA, the TPP is being negotiated in secret, and on a fast timetable. We don’t know what’s in the TPP IP chapter, or even what the U.S. trade representative is pushing for in this agreement. There is mounting criticism of the U.S. role in pushing the negotiations forward in secrecy, despite the public’s overwhelming disagreement with TPP goals.

“The TPP has been branded as a trade ‘negotiation’ by its corporate proponents, but in reality it’s a place for big business to get its way behind closed doors,” said Pete Rokicki of Occupy Dallas. “This anti-democratic maneuver can be stopped if the public gets active—just look at the movement that killed the ill-advised SOPA (Stop Online Piracy Act) law a few months ago. That’s why Obama’s trade officials lock the public, the press and even members of Congress from the trade negotiation process.”

One of the major criticisms is the lack of transparency. Trade agreements are often negotiated in secret, but it is the inclusion of a chapter on copyright and other IP measures that has people focusing on the TPP, much in the same way as people protested the discarded IP legislation SOPA/PIPA, other trade agreements like ACTA, and the provisions on IP legislation that were subsequently removed from CISPA.

There has been criticism of some provisions relating to the enforcement of patents and copyrights alleged to be present in leaked copies of the US proposal for the agreement. Overall, the USTR proposal for the TPP intellectual property chapter would:

• Include a number of features that would lock-in as a global norm many controversial features of U.S. law, such as endless copyright terms.
• Create new global norms that are contrary to US legal traditions, such as those proposed to damages for infringement, the enforcement of patents against surgeons and other medical professional, rules concerning patents on biologic medicines etc.
• Undermine many proposed reforms of the patent and copyright system, such as, for example, proposed legislation to increase access to orphaned copyrighted works by limiting damages for infringement, or statutory exclusions of “non-industrial” patents such as those issued for business methods.
• Would eliminate any possibility of parallel trade in copyrighted books, journals, sheet music, sound recordings, computer programs, and audio and visual works.
• Requires criminal enforcement for technological measures beyond WIPO Internet Treaties, even when there is not copyright infringement, impose a legal regime of ISP liability beyond the DMCA standards.
• Requires legal incentives for service providers to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials.
• Requires identifying internet users for any ISP, going beyond U.S. case law, includes the text of the controversial US/KOREA side letter on shutting down web sites.
• Requires adopting compensation for infringement without actual damages.
• For copyright and trademark, criminal punishment would apply even to non-for-profit infringement.

The proposals have been accused of being excessively restrictive, providing intellectual property restraints beyond those in the Korea-U.S. Free Trade Agreement and ACTA.

The US trade representative is clamping down on public participation to minimize the spread of information which challenges their hard-line IP maximalist agenda that seeks to empower corporations at the expense of public health and knowledge. In addition to increasing reliance on intersessionals, like this week’s Santiago meeting, where stakeholders are not given a forum to participate, USTR has now effectively reduced stakeholder participation in the official negotiating rounds by eliminating their opportunity to give presentations to negotiators in an official forum.

SOPA’s defeat proved that the netroots can beat IP maximalism and rulemakings from Washington designed to curb Internet freedom, while the populist response to ACTA has shown that policy laundering attempts by industry and their allies in government will face serious resistance. Ambitious, secret economic agreements have been defeated before through public awareness and organizing.

Looking at ACTA

ACTA

On a global scale, several treaties and multilateral agreements have been signed in order to bring about some form of uniformity and protection for intellectual property rights. For example, the Anti-Counterfeiting Trade Agreement (ACTA) is a plurilateral agreement for the purpose of establishing international standards for intellectual property rights enforcement. It is a broad agreement that aims to create uniform international standards to protect the rights of those who produce music, cinematic works, medicines, fashion and other products that are vulnerable to intellectual property theft.

The agreement was signed on 1 October 2011 by Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea and the United States, largely without any meaningful protests. In January 2012, the European Union and 22 of its member states signed ACTA, bringing the total number of signatories to 31.

The idea for the treaty was born in October 2007, as a collaborative effort between the United States, the EU, Switzerland, and Japan. The general public remained mostly unaware of negotiations.  ACTA would set up a legal framework and independent governing body, rather than amending existing national laws in signatory countries. This would give ACTA a much wider reach than SOPA/PIPA, and would require changes to US copyright law and would be administered by US authorities. 

Counterfeiting, copyright and trademark infringements are covered by ACTA; thus, creating a one-size-fits-all instrument of enforcement which doesn’t meet the unique needs of each sector.

Furthermore, the European Parliament’s Industry, Research and Energy committee (ITRE) concerned by the lack of definition of key terminologies on which the ACTA enforcement mechanisms are based; It fears that this creates legal uncertainty for European companies and in particular SMEs, technology users, online platform and internet service providers.[1]

Amnesty International also expressed concerns that ACTA contain vague and meaningless safeguards. Instead of using well-defined and accepted terminology, the text refers to concepts such as “fundamental principles” and goes as far as inventing a legal concept of “fair process”. “Fair Process has no legal definition in international law.  “Worryingly, ACTA’s text does not even contain references to safeguards like ‘fundamental rights’, ‘fair use’, or ‘due process’[2].

While the ambition of ACTA was to strengthen key industries within the EU, it contradicts the European Parliament’s Digital Agenda which promotes net neutrality and access to the online digital market for SMEs.

SOPA/PIPA and the Digital Economy Act in the UK both required approval from their respective national legislatures to become laws — the major reason SOPA/PIPA were shelved. However, ACTA’s negotiations and signings have largely gone on behind closed doors, and they do not require the approval of national legislative bodies (which cannot undo it once ratified), or citizens, because it does not involve changes to existing laws or constitutions. 

The EU says ACTA will also not shut down any sites or cut off internet access for anyone, unlike SOPA, which threatened to target those posting pirated content on sites and host sites directly.[3]

The Committee for a Democratic United Nations (KDUN), a non-governmental think tank based in Berlin, Germany, said that the “shockingly [un]transparent and undemocratic” international negotiations for ACTA confirm the urgent need “for a global watchdog that is elected by the world’s citizens. There was no meaningful public consultation, no involvement of parliaments or elected representatives, the drafts were only published very late and after strong public protests, and on top of that, governments did invite global corporate lobbyists to provide feedback, giving them, and not the public and their elected representatives, an opportunity to influence the treaty’s regulations according to their wishes.”

…to be continued…

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[1]

[2] COMMITTEE ON INDUSTRY, R. A. E. 2012. DRAFT OPINION of the Committee on Industry, Research and Energy for the Committee on International Trade on the draft Council decision on the conclusion of the Anti-Counterfeiting Trade Agreement between the European Union and its Member States, Australia, Canada, Japan, the Republic of Korea, the United Mexican States, the Kingdom of Morocco, New Zealand, the Republic. In: PARLIAMENT, E. (ed.).

[3]COMMISSION, E. 2012. ACTA – Anti-counterfeiting Trade Agreement [Online]. European Commission.  [Accessed 15 March 2012].

The SOPA/PIPA Controversy

Rights owners have long struggled to protect their intellectual property in the digital era. Two decades of instant copying and high-speed broadband are to blame for a significant downturn in cinema receipts and individual unit sales of CDs, DVDs and software.  Rights holders have levied accusations that search engines have profited from linking advertising revenue to sites that host infringing material.  To combat copyright infringement, rights owners have undertaken a multi-pronged approach to tackle illegal file-sharing and other ‘pirated’ content. Measures taken have included education, pushing for the imposition of sanctions – both criminal and civil, and pressuring national legislatures to propose tougher legislation granting rightsholders’ broad authority to shut down infringing sites ultimately creating economic scarcity for creative work. SOPA in the US House of Representatives, and its companion legislation in the US Senate, the PROTECT IP Act or PIPA, attempt to address the perceived problem of non-US websites engaged in infringing activity.  Because these so-called “rogue” websites have domain names registered outside of the US (for example, “.uk” rather than “.com”) and are hosted on servers outside of the United States, they are out with the jurisdiction of American courts and the existing enforcement mechanisms under US law. (SOPA and PIPA are part of a broader enforcement strategy, including the federal government’s seizure of hundreds of domain names registered in the United States and criminal prosecutions brought against the operators of web site, “Megaupload.com”.)  Although the bills have technical differences, their basic approach is the same.  They would require intermediaries subject to US jurisdiction to block access to the foreign websites, or to prevent the flow of revenue to these sites.  More specifically, SOPA and PIPA would authorise in rem lawsuits in US courts against a domain name associated with a site dedicated to infringing activity.  If the court found that the website met the statutory standard, the court would issue an order which would be served on four categories of intermediaries. ISPs would be required to prevent the domain name from resolving to an Internet protocol address.  In other words, when a user typed the domain name of the non-US site into his browser, the service provider would not connect the user to the non-US website. Search engines (for example, Google, Bing or other sites that direct users to other online locations) would be required to disable links to the non-US site. Payment systems (for example, Visa or MasterCard) would be required to refuse payment transactions between customers with US accounts and the account used by the operator of the non-US site.  Internet advertising networks (for example, Google AdWords or AdSense) would not be able to place advertisements on the non-US site or have sponsored links to the non-US site.

If intermediaries did not comply with an order, they would be subject to enforcement proceedings.  SOPA and PIPA provoked the following sharp criticisms from Internet companies and users. Although the bills’ sponsors said that they were targeting the “worst of the worst” foreign websites, the bills, as introduced, applied to both US and non-US websites.  Moreover, a small amount of infringing content within a large website could, conceivably, trigger a remedy that would apply to the entire website.  Compliance with the Digital Millennium Copyright Act’s (DCMA) notice-and-takedown procedures would not provide a safe harbour.  Thus, websites that host user-generated content, including cloud-computing sites, could be affected. All four types of actions required by intermediaries raised concerns, because they were targeted at websites rather than specific content within those websites. These were blunt instruments that could lead to the termination of the provision of lawful as well as unlawful content.

The domain name and search engine blocking remedies were particularly controversial.   Both approaches are used by governments which restrict free expression.  Thus, US endorsement of these methods to block access to content that the US government considers illegal (i.e. IP infringing) would legitimate other countries’ use of these methods to block access to content they consider illegal (e.g., criticism of the government).  Indeed, a letter from Members of the EU Parliament stated that “blocking of websites, by DNS or otherwise, severely undermines America’s credibility in the global information society.”[1]  Google has fully complied with DMCA requirements for rapid “take-down” of videos that conflict with intellectual property owners’ legitimate claims. Google has also gone much further than the DMCA requires, by implementing a comprehensive “Content ID” system to pro-actively flag uploaded content matching the “signatures” provided by content owners (resulting in various actions, some of which are punitive in nature). Some observers would argue that this latter feature can sometimes be too aggressive, by flagging content that actually meets “fair use” requirements. Additionally, take-down tools (or legal threats and actions) are sometimes used by governments not to enforce copyright restrictions per se, but in reality for raw censorship of political or religious material that is considered to be undesirable or offensive to particular groups — in the process sometimes cutting off access to those videos to everyone around the planet.

Domain name blocking also has the potential to introduce cyber-security vulnerabilities.  Court-mandated domain name blocking requires service providers to return authenticated and unencrypted responses to domain name queries in contravention of emerging cyber-security protocols.  Moreover, as users attempted to circumvent the domain name blocking they would use foreign domain name service providers that did not comply with US government cyber-security standards. Because both bills provide for private rights of action, the volume of cases could be very large, and the intermediaries would need to take action with regard to many sites, at great expense. 

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[1]BAND, J. 2012. SOPA and Its Implications For TPP [Online]. Available: http://infojustice.org/archives/7546 [Accessed 13 April 2012].               

UK Parliament Asks For Public Comment On Six IP Policy Questions

It appears that the UK Parliament is asking for thoughts from the public on six key policy questions around intellectual property. You can be assured that the large lobbying organizations will make their voices heard, but it would be great if others in the UK, who have a more modern and nuanced view of what’s happening around intellectual property issues, would make their voices heard as well:

1) What should the objective of IP policy be? 

2) How well co-ordinated is the development of IP policy across government? Is IP policy functioning effectively on a cross-departmental basis? What changes to the machinery of government do you believe would deliver better IP policy outcomes?

3) There have been numerous attempts to update the IP framework in the light of changes brought about by the digital environment. How successful have these been and what lessons can be learnt from these for policy developments?

4) How effective is the Intellectual Property Office and what should its priorities be?

5) UK IP policy sits within European and supranational agreements. How should the UK government co-ordinate its policy at an international level and what should it do to promote IP abroad to encourage economic growth? Do you have examples of good and poor practice in this area?

6) Protecting, and enforcement of, the IP framework often sits in very different departments to those that develop IP policy and those that have responsibility for the industries most affected. What impact does this have and how can it be improved?

If you do decide to respond, obviously take time to carefully detail your position and back it up with facts and analysis, rather than any sort of emotional response. The details of how to respond to the request can be found in the official announcement (pdf) of this inquiry. It’s worth noting that the group organizing this does appear to come at these questions from an already biased position — in that the person collecting these responses works for “the Alliance Against IP Theft.” So, you’re already dealing with someone who falsely defines infringement as theft. That’s all the more reason to be careful, thorough and detailed in any response.