Friday, August 28, 2015

Happy Birthday Copyright: 1710-2010

Well, at least in the UK. According to the British Council’s Counterpoint:

The world’s first copyright law was passed by the English Parliament on 10 April 1710 as ‘An Act for the Encouragement of Learning’. Its 300th anniversary provides a unique opportunity to review copyright’s purposes and principles.  If today we were starting from scratch, but with the same aim of encouraging learning‚ what kind of copyright would we want?

To answer this question, the British Council is organising a series of meetings in London, Shanghai and elsewhere. Our starting point is the question, What is the purpose of copyright? And, once that is agreed, even tentatively, how could we achieve it? Is the list of ‘qualifying works’ the right one? Should copyright arise automatically or should rights be registered? Is ‘copyright’ the appropriate name? How do we balance access and ownership? What are the optimal lengths of copyright terms? What is the role of moral rights, and of personal data and privacy? What do we mean by ‘fair’ in the phrases ‘fair dealing’ and ‘fair use’ and how do we uphold this fairness in practice? Is fairness in a physical world different from fairness in the digital space? How do we define unlawful copying and how do we promote a fair regime of sanctions and penalties?

Their poll seems to indicate (at the time of this posting), that 97% of respondents do not think the UK Digital Economy Bill strikes the right balance between fostering creativity and protecting rights. Perhaps one “free culture” person sat there for 24-hours and kept clicking “no”? Check out Counterpoint’s Online Copyright Project.


The Economist: Rules on Copyright Need to Return to Their Roots

This week’s The Economist weighs in on a topic I’ve been writing about recently (here and here): copyright and its effects on creativity. Whereas I argue that current copyright laws (at least in the US) do not hamper or negate creativity, The Economist thinks that they in fact do. Furthermore, The Economist thinks that copyright is, as William Patry believes, a government grant and not, as I believe, a property right.

Copyright was originally the grant of a temporary government-supported monopoly on copying a work, not a property right. From 1710 onwards, it has involved a deal in which the creator or publisher gives up any natural and perpetual claim in order to have the state protect an artificial and limited one.

Speaking against current copyright terms (see this great chart for current UK copyright terms), The Economist continues:

The notion that lengthening copyright increases creativity is questionable[.]…At the moment, the terms of trade favour publishers too much. A return to the 28-year copyrights of the Statute of Anne would be in many ways arbitrary, but not unreasonable. If there is a case for longer terms, they should be on a renewal basis, so that content is not locked up automatically. The value society places on creativity means that fair use needs to be expanded and inadvertent infringement should be minimally penalised. None of this should get in the way of the enforcement of copyright, which remains a vital tool in the encouragement of learning. But tools are not ends in themselves.

Not sure that fair use should be expanded. However, they may have a point as to the current copyright terms, and I do like their argument for longer terms on a renewable basis. This seems to imply that the “privilege” of elongated copyright protection would come to the copyright holder conditioned on a duty of care (A type of adverse possession if you will). Click here to access The Economist’s article


Eames Heir Sues to Stop Auction

Via Bloomberg News:

Lucia Eames, the daughter of 20th Century furniture designer Charles Eames and his wife, Ray, asked a Chicago court to block the planned auction of an archive of her parents’ photos and other materials. Eames, in a lawsuit filed yesterday in Illinois state court, claims the items on the block belong to her stepmother’s trust and the family-run Eames Office LLC, not to the sellers.


Photographers to File Class Action Lawsuit Against Google

The American Society of Media Photographers and a number of related trade associations are expected to file a fresh class action lawsuit against Google over images used in the publications it has been digitizing. The lawsuit is expected to be filed tomorrow in the US District Court for the Southern District of New York.

“Google is scanning in books and publications with visual images, which impedes the rights of the copyright holders of those images. We are seeking compensation for that,” said James McGuire, lead attorney in this case. Other Plaintiffs include the Graphic Artists Guild, the Picture Archive Council of America, the North American Nature Photography Association, and the Professional Photographers of America. Via The Financial Times.

UPDATE: April 8, 2010

Well, the ASMP went ahead and filed that suit. This one’s one to keep an eye on. Incidentally, we did notice that Google’s copyright lawyer, William Patry, is on a copyright symposium, Copyright and the New Economy, being held by, you guessed it, the American Society of Media Photographers. Seems a bit odd given the recent turn of events, but we’ll see what happens.


Shepard Fairey Ordered to Disclose Identities of Fellow Wrongdoers

Life isn’t getting any easier for Shepard Fairey. Today, Federal Judge Alvin Hallerstein ruled that Shepard Fairey must disclose the identities of anyone who deleted or destroyed records related to a copyright dispute over the Barack Obama “HOPE” image. Federal Judge Alvin Hellerstein ruled Monday in favor of The Associated Press in most of its requests for evidence, including when Fairey’s lawyers first knew the AP claimed to hold the copyright to a photograph the image was based on. Fairey sued the AP last year. The AP countersued. This year, it was disclosed that Fairey is under criminal investigation after Fairey said he erred about which AP photo he used as a basis for “HOPE.” He said he had submitted false images and deleted other images to conceal his mistake. Attorneys for Fairey didn’t immediately comment Monday.

In a separate article related to this ruling, the San Francisco Chronicle stated that Judge Hallerstein “also overruled the objections of Fairey’s lawyers and ordered the disclosure of financial records related to Internet sales of the Obama poster. Hellerstein said the information was relevant to resolve issues of copyright infringement and damages.” This isn’t looking good for Fairey, or for other copyright infringers who profit off the work of creative copyright holders, especially when it comes to internet usage, internet visibility, or internet sales.

UPDATE: April 6, 2010

When will the bad news end for Shepard Fairey? Ben Sheffner, over at Copyrights & Campaigns, informs us that the Associated Press has obtained additional legal firepower by adding UCLA Law Prof and IP expert Doug Lichtman as one of its attorneys of record. Shepard, can you say, “uncle”?


Gary Indiana in Love With Trademark and VARA

prem.indiana.trademarkAccording to the NY Post, artist Robert Indiana is embroiled in a court fight with a former business partner, John Gilbert, over translated knockoffs of his multicolored 1960s masterpiece “Love.”

Gilbert claims Indiana signed an August 2007 agreement to license his iconic square logo for sculptures and tapestries bearing the word “prem” — Sanskrit for “love” — in both Sanskrit and English. Gilbert’s Manhattan federal-court suit seeks unspecified damages for breach of contract and unjust enrichment, along with an order barring Indiana from interfering with any future sales. Indiana counter-sued, seeking all profits from the sales of “English Prem,” as well as unspecified damages for alleged violations of trademark law and the Visual Artists Rights Act (“VARA”). Indiana also wants the Court to stop Gilbert from making “false statements” on Gilbert’s website.

Both Gilbert and Indiana are to meet in the lovely state of Maine this month to try and settle this out. Good luck! New York Post story here.


Free Culture’s Moral Panics Continue

On the heels of yesterday’s chicken little report over the death of creativity, Marc Aronson, writing for the NY Times, op-ed’s about how copyright is–you guessed it–killing the creativity of nonfiction writers. To his credit, Aronson does propose another “permission-based” structure, which I believe is actually called licensing. Here’s a snippet of his argument (and well within fair use):

[W]e have to fix a system that is broken: getting permission to use copyrighted material in new work. Either we change the way we deal with copyrights — or works of nonfiction in a multimedia world will become ever more dull and disappointing.

Really? Does the world really suck that much? Are we really starving for creative culture? Unfortunately, this “copyright is a weed to my dainty flowers” argument seems to forget that we’re still living in a free-market (and the freedom to contract to boot). Aronson continues:

Since authors and publishers have stakes on both sides of this issue, they ought to be able to come up with suggested fees that would allow creators to set reasonable budgets, and compel rights holders to conform to industry norms. [Bold text mine]

Interestingly enough, there was an argument made for the other side of productivity this week by S.E. Cupp. In her article, Idle hands are our workshop: My generation has forgotten how to make stuff, Cupp argues that her generation is one of thought and no action. Speaking of her grandfather:

Like so many from his generation, making stuff or fixing stuff or helping make stuff work better is what you did. But after the economic boom of the 1950s, that generation raised another generation that increasingly decided that making stuff wasn’t as fun or lucrative or important as thinking about stuff.

It wouldn’t be much of a stretch to argue that “thinking about stuff” is analogous now to appropriating stuff. After all, since the ’50s, we’ve been given ample academic ammunition on the birth of post-modernism and the death of originality. Think about it, wait for someone else to write about it, and then copy it. Free culture.


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