Category Archives: Copyright

A Primer On Spotting IP Issues Associated with Social Media Websites and Content

Posted on by
Reply

By Charles Macedo, Partner at Amster, Rothstein & Ebenstein LLP

Most businesspeople and generalists understand that social media can be an important but risky part of doing business. This article seeks to identify how to spot potential intellectual property law issues associated with social media websites and content that can arise for a company.

I. Common Aspects of Social Media Websites

There are certain fundamental aspects that internet sites (whether they be social media websites or any other kind) have in common.

First, an internet site resides at a domain name or Uniform Resource Locator (URL). The domain name or URL is like the street address of a website. Social media websites such as Facebook and Twitter will also have specific URL pages for specific users.

Social media may be integrated into company websites directly by allowing for users of the websites to comment or share information in response to postings on the websites (like blogs) or products offered for sale (like product reviews or commentaries). Social media may also be integrated in less direct fashions, such as through sharing links which allow a user to tell his or her friends on a social media website like Facebook that the user ‘likes’ the product, article or website, or by providing a link in a ‘tweet’ on Twitter.

Websites are used for the sale of products, content or the display of other kinds of information.

In addition to merely displaying data or other information in response to an inquiry, websites can also obtain, process, reformat and/or display data obtained from other sources. For example, the US Patent and Trademark Office provides text and image versions of US patents at its website, http://www.uspto.gov. Other websites may use this same information and reformulate the data (sometimes along with other data) in different forms, such as at http://www.google.com/patents and http://www.pat2pdf.org.

All of these types of websites can create intellectual property rights and potentially infringe upon others’ intellectual property rights.

II. Relevant Intellectual Property Laws

Chart: Types of Intellectual Property Assets

Intellectual property is considered property of the mind. Expressions of ideas, identifying information, inventions and business relationships can all be protected (and potentially infringed) through different kinds of intellectual property laws and related legal theories.

  • Copyright law protects original expressions of ideas from being copied by others.
  • Trademark law protects identifying information (e.g., a company’s brand) from being used in a confusingly similar manner by more than one company in a related line of business.
  • Patent law protects new, useful and nonobvious ideas from being used by others.
  • Business Torts law protects against wrongful conduct such as misappropriating another’s property, unfairly competing, or tortiously interfering with someone else’s business expectation or contract.
  • Trade Secret law allows for the protection of secret formulae, patterns, or compilations of information.
  • Contract law protects business partners as the parties to the contact agree.

Social media websites and content can potentially impact a company with respect to each of these areas of intellectual property law.

A. Copyright Law

Copyright law provides legal protection for original expressions of ideas being reproduced without authorisation. Copyright protection covers a large variety of original works, including:

  • ‘literary works,’ like books and magazines, computer software and related works;
  • ‘musical works,’ like songs and the accompanying lyrics;
  • ‘dramatic works,’ like plays;
  • ‘pantomimes and choreographic works,’ like dance movements and ballets;
  • ‘pictorial, graphic, and sculptural works,’ like paintings, pictures, jewelry, toys and statues;
  • ‘motion pictures and other audiovisual works,’ including movies, television broadcasts and DVDs;
  • ‘sound recordings,’ including MP3 files;
  • ‘architectural works,’ like designs for buildings; and
  • original compilations of data.

On the internet, copyright law can be used to protect original content, articles, data compilations and other information on a website. Publication of content on a company’s website or other websites can be protected by copyright law, but failure to timely register a claim to a copyright can limit the company’s damages.

Similarly, copyright law can potentially be used to prevent others from data mining content from a company’s website and using its original content without permission.

In particular, manipulating, parsing, reorganising, and merging public data with other data can lead to potentially copyrightable data. Copyright law can be an effective way to protect a company’s data and other original content.

In addition, if careful analysis is not done upfront on how a website obtains, manipulates and presents data and other information, that website can be the subject of a copyright infringement action by others. Here again, this is an area where consulting counsel in the first instance can save a company a lot of expense and aggravation over the long haul.

In the context of social media websites, blog postings, answers to requests, ‘tweets’, pictures taken or created and posted on a user’s page, or other content driven expression are all potentially copyrightable. A company needs to be careful how it, its employees and others post the company’s content and content of others.

Some social media websites claim copyright ownership over all items posted on their websites. Other social media websites recognise that the copyright remains with the author (presumably the individual or company posting the content at issue). Before a company allows for its information to be posted on social media websites, it should make sure to carefully review the terms and conditions of such websites to make sure that the company is not unwittingly giving up its copyrights to the content.

Companies also need to be careful of posting the copyrighted content of others without permission. Clearing rights to post others’ copyrighted material is an important step for any company.

Ownership of copyrights is also a difficult area for many people to fully understand. In preparing copyright applications, companies are often lulled into thinking that because the form appears so simple, they do not need expert advice on how to fill it out. However, this is an instance where the apparent simplicity can lead to disastrous results. See, e.g., ‘Joint Authorship of Doo-Wop Song Found Based on Disputed 10 per cent Contribution to Lyrics‘ [pdf], JOURNAL OF INTELLECTUAL PROPERTY LAW & PRACTICE, November 1, 2009.

Identifying authors of a particular work and source materials from which a work was derived can be complicated. Also, making sure that a particular work made either with the assistance of or by another is a ‘work for hire’ and/or properly assigned is another area where errors often occur. Many purported copyright owners do not appreciate that not every kind of ‘work’ qualifies as a ‘work for hire’.

Making sure appropriate contracts are entered into when a copyrightable work is being prepared is important, and it is worth consulting a trained copyright lawyer in the first instance.

B. Trademark Law

In general, trademarks are used to identify a single source of products and services sold on a website.

A trademark is a symbol, a word, or another readily recognisable item, such as a brief musical snippet, that uniquely identifies the source or origin of goods. In other words, a trademark identifies where a particular product comes from.
Trademark law protects against likelihood of confusion; that is, whether consumers are likely to think that the sources of two goods or services are the same.

Web pages commonly use word or logo forms of trademarks. In the multimedia world that the internet has become, it is not surprising to also visit websites where sound marks (e.g., ‘Hedwig’s Theme’ from the Harry Potter movie playing on a Harry Potter website) are used to identify the source of the website.

Similarly, domain names for websites can also be based on a company’s trademark, e.g., http:/www.amazon.com, http://www.panasonic.com, http://www.jvc.com, etc.

In social media, not only is a company’s trademark used in the main URL address, such as the use by Facebook of its trademark in its URL address http://www.facebook.com, but users’ trademarks may be used to identify specific user pages on such social media websites. For example, Starbucks has a Facebook page to advertise a specific coffee product.

On the internet, trademark law can potentially be used to protect competitors from selling goods or services with confusingly similar marks. It may also be used to prevent the use by others of domain names and user pages that incorporate a company’s trademarks and search engines and other software that use a company’s trademarks to divert potential customers to competitors’ websites, products or services.

These are important business tools that cannot be ignored when operating a business on the internet. The role of social media in this potential attraction or diversion is increasing every day as more companies create ‘fan’ pages, social media websites create and implement more widgets to interconnect with other web outlets, and more and more opportunities to use trademarks in URL addresses are created, with not only additional high level domain names (.com, .org, .biz, .net, .tv, etc.), but also with individual user pages on social media and other websites.

To start with, as with other businesses, the selection and use of appropriate trademarks for an internet-based business is quite important. Selection of certain kinds of marks with popular descriptive terms in them can direct the flow of internet traffic to a company’s website.

However, adoption of that same kind of trademark can also result in consumers, who are looking for that company’s products or services, being diverted to a competitor’s website in a fair and reasonable manner.
Consider, for example, one of the leading ‘pop-up’ cases from the Second Circuit involving the mark ‘1-800-Contacts’. On one hand, whenever a consumer searches for ‘contacts,’ a website containing this mark will be returned. Thus, many potential internet consumers may potentially be driven to the website.

On the other hand, when consumers search for the mark ‘1-800-Contacts,’ consumers may be diverted to a competitor’s website since search engines can sell the key word ‘contacts’ to competitors with minimal risk of being accused of trademark infringement.

Thus, while selecting a mark that includes the product being offered as part of that mark may direct traffic to the website, there may also be great difficulty in trying to stop others from redirecting traffic to their websites.

Another important consideration at the time of selecting a mark is whether others are already using the mark. Thus, it is prudent to do a ‘clearance search’ prior to implementing a new mark.

Trademark law can also be useful in preventing others from adopting domain names which incorporate a company’s registered trademark. These third party domain names using a company’s marks can be harmful to its reputation (depending upon their content) or can divert potential business leads away from the company.

While procedures like lawsuits and ICANN proceedings exist to force third parties that misappropriate a company’s registered trademarks to return the domain names to the company, the easiest way to avoid such costly procedures is for the company to register the various, obvious derivatives of its marks to be directed to its website in the first instance.

Spending fifty dollars today can save a company thousands of dollars in the future. In order to ensure that a company’s trademarks remain enforceable, best practices dictate that a proper system of monitoring and enforcing those trademarks be set up and maintained. Such a system typically includes the use of watch services to review filings with the US Patent and Trademark Office, periodic internet searches, following up with cease and desist letters, and if necessary, enforcement proceedings. Using ‘alerts’ from search engines can also help identify unauthorized use of a company’s trademark on the internet.

For social media websites and other internet venues, the role of whose duty it is to police and enforce against violations differs internationally, as evidenced by the seemingly contradictory results in the U.S. and France in actions brought against eBay for its alleged failings in protecting against the sale of counterfeit items. See, e.g., eBay: A Tale of Two Defenses [pdf], IP Law360, August 22, 2008.

Companies should set up appropriate policing mechanisms to see how their important trademarks are used on e-commerce and social media websites, and when appropriate follow such websites notice and take down procedures to protect against abuses.

While these procedures may at times seem like expensive diversions to a company, the cost of not instituting such procedures can be diverted sales, brand tarnishment, and potentially a loss of trademark rights.

C. Patent Law

Since at least the State Street decision in 1998, patent protection has been important with respect to the internet. Although over the past few years, critics have sought to limit so-called ‘business method’ patents, the recent Supreme Court decision in Bilski v. Kappos has confirmed that such patents are here to stay, and thus cannot be ignored as a class.

Patents are issued for a limited time (20 years from earliest filing date) for new, useful and non-obvious ideas to the first and true inventor.

While patent offices around the world are struggling with this issue, at least in the United States, novel and non-obvious techniques for manipulating data can potentially be subject to patent protection. Similarly, in the United States, other novel and non-obvious business method techniques can also potentially be subject to patent protection. In the context of the internet in particular, at least in the United States, patents can be used to prevent others from copying novel and non-obvious aspects of a website such as:

  • How data is accessed and manipulated;
  • Novel and nonobvious functions of one’s software;
  • New business methods implemented by one’s website;
  • New functionality of one’s software programs;
  • New techniques used to block misappropriation of one’s data.

Because of the difficulties that the US Patent and Trademark Office has had in grappling with manpower issues, confidential subject matter and the flood of applications in this area, it should be recognized upfront that obtaining patents in this area can be more costly, time-consuming and difficult than for patents in other, more traditional subject matters.

With respect to social media websites, patents can potentially cover ways that social media websites operate, ways that a company’s website interacts with a social media website such as through advertisements or linkages, or other operability that may be developed in the future.

As new business models are developed and implemented, patent protection for new and non-obvious practical applications and particular implementations are being sought and obtained, and will be the subject of future litigations in years to come.

D. Business Torts Law

In addition to federal trademark law, there are a host of related state law causes of action (e.g., unfair competition, tortious interference, trespass to chattels, misappropriation, etc.) that can be used to address trademark-like injuries.

Unfair competition is a flexible cause of action directed to address unfair or fraudulent business practices. A cause for unfair competition can potentially address a wide range of conduct by competitors that affects a company’s business.

Examples of cases in which unfair competition claims have been invoked include false or deceptive advertisements, misstatements about a competitor’s products, and other false and misleading statements which injure a business or its reputation.

When actual or potential customers are diverted by improper means from a company’s website, a cause of action for tortious interference with contract and/or tortious interference with prospective business relations may be appropriate. However, since this is a state law claim, it important to make sure to consider the correct law and the scope of potential defences available under that law.

Tortious interference claims can address the circumstances where a company’s trademarks are misused by other websites and cause inappropriate diversion of customers or prospective customers from the company’s website.

Conversion and misappropriation claims apply when property is taken. An interesting legal theory exists whereby a misappropriation claim may be present when goodwill is taken by improper acts, such as adopting another’s business name in a jurisdiction where that entity does not do business, but nonetheless has fame and goodwill based on that entity’s operation in other venues.

Trespass to chattel claims apply when someone improperly intrudes upon another’s property. These types of causes of action have been used, for example, to stop third parties from robot mining data from a website.

E. Trade Secret Law

Trade secret law protects a secret formula, pattern or compilation of information. One of the most famous trade secrets is Coca Cola’s secret formula, or the Colonel’s secret recipe for Kentucky Fried Chicken. Other examples of trade secrets can include a secret manufacturing process, a list of customers or trade routes who purchase or would likely be interested in purchasing a particular product or service, or the source code for a computer program.

Most companies protect some aspect of their businesses using trade secret protections. Some are better than others at doing so.

Social media and the internet can put at risk a company’s trade secrets. Since the sine qua non of a trade secret is that it is kept secret, the speed and ease in which information can be rapidly (and permanently) distributed with a click of a button in social media and internet poses a clear risk for any company seeking to maintain a trade secret. A simple posting of a company’s secret information can destroy the secret and leave that information to be available to anyone.

Consider, for a second, a company that considers its customer list to be a trade secret and seeks to protect such information. A salesperson who identifies those customers as ‘friends’ on Facebook, or ‘connections’ on LinkedIn, or some other similar status on another social media website, could destroy the secret nature of such a list. It also can lead to that salesperson, in essence, appropriating that information should he or she leave to go to work for a competitor.

F. Contract Law

Contract law can be used to fill gaps in intellectual property law, and obtain protection that might not otherwise be clearly available.

The best time to work out the scope of rights with a business partner is at the beginning of the relationship. At that time, parties are more willing to give and take with each other since the prospect of a successful and profitable business relationship is around the corner. Thus, at that time, provisions can be included in agreements that help ensure that intellectual property will be recognized and respected.

However, care must be taken on how the contract clauses are drafted in order to avoid the risk of such clauses becoming unenforceable.

Arm’s length agreements can be useful ways of establishing royalty rates for intellectual property. Care must be taken in specifying what is being paid for pursuant to the agreement, such as the services, goods, rights to use intellectual property, etc.

Non-compete clauses, so long as properly drafted considering appropriate state law, can provide protection that other areas of intellectual property law might not otherwise provide. For example, non-compete clauses can protect a company from key employees leaving and stealing business or trade secrets. Again, care must be taken to come within the parameters of the particular state law that governs the contract.

Agreements which license rights to use a company’s trademarks can include remedies that are broader than the law might otherwise provide. Consequently, the uses that a company tolerates by agreement can affect the uses that the company can object to in future disputes. The failure to include certain necessary clauses in trademark licenses can have adverse results on the enforceability of such marks in future contracts.

Shrink wrap/click through agreements can be used to prevent misuse of a company’s data by users. However, enforceability of such agreements may be an issue, depending upon the terms, conditions, choice of law and method and document by which the user acknowledges acceptance.

Contracts can also be used to fill other gaps that other forms of intellectual property law might otherwise leave open.

III. Conclusion

For internet business, like other business, the use of intellectual property law needs to be carefully considered.

A strategic plan should be developed on how to identify a company’s intellectual property, turn it into a tangible asset and properly enforce and protect it.


(This post is by Charles R. Macedo and was has been reproduced from IP Watch where it was published under a Creative Commons BY-NC-ND licence.)

Ghost-writing, Plagiarism and Copyright

Posted on by
Reply

Ghost writing is intriguing because it exists in a gray area. It is clearly a form of plagiarism, although it is supposedly plagiarism with the consent of the actual author (the ghost writer) of the work. Perhaps that makes it morally acceptable? In other words, does the consent of the actual author make it acceptable for the ostensible author (the person commissioning the work) to appropriate authorship of the work? It is, after all, a contractual relationship, in most cases, and one of the essential elements of a contract it be entered into voluntarily by the parties. Therefore, it could be argued, that if the actual author consented to having his work published as the work of the ostensible author, there can be no case of plagiarism really having occurred.

However, if one were to look at the contexts within which ghost-writing contracts are generally signed, it is apparent that as a general rule, the ghost-writer is a person whose socio-economic status is lower than that of the ostensible author. Whether or not there can be true consent in such circumstances is debatable. While there may be no coercion in the legal sense of the word which would invalidate any specific contract, the broader picture may clearly demonstrate that socio-economic constraints cause actual authors to consent to the publication of their work under the names of other persons. As such, it may be possible to consider ghost-writing contracts to be unethical despite being legal.

Further, leaving aside arrangements which involve concrete ghost-writing agreements, it is also pertinent to note that the line between editing and ghost-writing is sometimes extremely thin, as many editors would be able to attest to. This is because when “authors” produce badly written texts those texts may require not merely editing but re-writing before they are suitable for publication. In most cases, the editor would not even be credited as a joint author despite possibly having entirely written the final text. This is especially true if the ostensible author happens to be a well-known person, and the editor is not.

Another route through which an actual author may become a ghost writer is when he is a person working within an organisation, possibly as an assistant of a researcher, or at some other analogous lower-rung position (in comparison to the ostensible author). For example, describing the process through which a person could besome a ghost-writer, Debora Weber-Wulff says, ‘First an assistant prepares some material. Then something is written by an assistant and rewritten by the researcher before publishing. Then under the pressure to publish more and more and more a text gets passed through without change, but the true author is kept hidden, and the researcher does not even find anything wrong with this.’

As such, ghost-writing arrangements may not involve express contracts, and could well involve merely implicit consent, which consent may be forced. That is to say that the actual author may be required by circumstances to consent to the appropriation of his work by the ostensible author. Consent may not be voluntary, or for that matter, even exist. It may simply be assumed, and the actual author may not be in a position to complain about the loss of his right to be attributed for his work. In such circumstances, it is clear that there is no true consent, and thus, without the circumstances being changed, it is unlikely that it would be possible to consider ghost-writing to be above the board from either an ethical or legal point of view.

Coming back to express ghost-writing agreements though, leaving aside the issue of consent, it is unclear what their legal position would be under Indian law. This is because under the Copyright Act, the first owner of a copyrighted work is determined according to the provisions of Section 17. Although this Section contemplates works made for hire (or commissioned works), under Indian copyright law, the work-for-hire doctrine as it exists in Title 17 of the United States Code does not exist. In India, the person commissioning a work may become its first owner but the commissioner cannot become the ‘first author’.

Therefore, the actual author or the ghost writer would continue to be the author of the work. Under Section 57 of the Copyright Act, the author of a work has the right to be attributed as the author of his work. It is unclear whether an author may waive the right to attribution as contemplated by Section 57. Relying on the 2006 Centrotrade judgment of the Supreme Court, it may be argued that the right to attribution can be waived by an author since this judgement states: ‘A person may waive his right. Such waiver of right is permissible even in relation to a benefit conferred under the law. But it is trite that no right can be waived where public policy or public interest is involved.’

However, this judgement does not pertain to copyright, much less to Section 57 rights. As far as moral rights are concerned, it would be possible to argue that they cannot be waived, and that any supposed waiver of moral rights is invalid. The crux of the matter is that the question of the waiver of moral rights has not specifically been determined by an Indian court, and the statute is silent on the issue. As such, the possibility of the waiver of the moral right to attribution exists in an extremely gray area of copyright law. Should it transpire that the moral right of an author to attribution cannot be waived, it would appear that ghost-writing contracts would be ultra vires the Copyright Act, and thus be invalid under Indian law.

Leaving aside the question of validity of ghost-writing agreements, there is also the question of public perception. Ghost-writing could be considered to be fraud in the popular sense of the word since the intention of a ghost-writing arrangement is to blind the audience to the fact that the ghost-written work is not a work which has been written by its ostensible author. To some, that in itself, would make ghost-writing arrangements unethical, particularly considering that ghost-writing arrangements generally serve to increase the ‘prestige’ of the (usually “more powerful”) ostensible author by misappropriating the ‘prestige’ which should have been accorded to the actual author (who has comparatively less “power”).

(This article is by Nandita Saikia and was first published at LawMatters.in.)

Case Citation: Centrotrade Minerals and Metal. Inc. v. Hindustan Copper Limited; (2006) 11 SCC 245

Is Copyright Infringement Theft?

Posted on by
1

[This post was revised to include Part II which was first published at 'IndianCopyright'.]

Part I:

Some time ago, Terry Hart wrote a post on Copyhype which leaned towards characterising copyright infringement as theft, and Techdirt (via @gkjohn) subsequently posted a write-up on why copyright infringement is not synonymous with theft. There exists case law on the subject; unfortunately, case law which is susceptible to interpretation, and as much as one might wish, the issue is not entirely one which confines itself to legal interpretation but is one which deals with how one perceives copyright infringement. That is to say, does one consider copyright infringement to be a legal issue with moral overtones?

If one were to think of copyright infringement as a moral wrong, one would be far more likely to think of infringement as theft — in the popular sense of the word — with all of its attendant moral implications. However, if one were to think of copyright infringement as merely the violation of a legal right (which is, incidentally, how I perceive copyright infringement), one would be far less likely to consider copyright infringement along the same lines as theft. However, that being said, the question is more nuanced than “Is Copyright Infringement Theft?” since copyright infringement often occurs concurrently with plagiarism. As fluid as the term ‘plagiarism‘ may be, there is little doubt that plagiarism involves copying another person’s work or ideas without attributing that person. There may, of course, be times when plagiarism is unintentional and inadvertent. In such cases, assuming attribution is accorded to the source as soon as a crediting error is noticed, plagiarism would generally not be considered to be an issue.

Leaving aside instances of inadvertent plagiarism, firstly, if the person committing plagiarism were copying another person’s work in a manner which would violate the rights of the owner of the work as defined by copyright statutes, not only would he be committing copyright infringement but he would also be violating the original author’s moral rights. And, secondly, assuming that he copied the original author’s work in a manner which did not make the copied version fall within the scope of the violation of copyright or of the author’s moral rights under copyright law (such as by paraphrasing the author’s idea without attribution and with completely new expressions), he would still be committing plagiarism although he would not be guilty of copyright infringement or of violating the author’s moral right as defined by copyright law.

In the first case, it is relatively clear that both the owner’s and the author’s rights would be violated. However, as far as the owner’s rights are concerned, the scope of copyright infringement has itself become so wide today that it is virtually impossible to make any form of derivative work from a copyrighted work without committing copyright infringement. Considering that copyright is, in itself, an entirely legal right, it could, consequently, be argued that it is amoral. Theft, on the other hand, has distinctly moral and religious overtones. As such, the mere violation of copyright may not be comparable to theft because of having an entirely different genesis.

There is, however, still the issue of plagiarism to be dealt with in both the first and second cases. Plagiarism, which may be roughly equated with the violation of an author’s moral right to attribution, is generally considered to have moral overtones, and need not necessarily occur in conjunction with copyright infringement.

It is far easier to make comparisons between theft and plagiarism than it is to do so between theft and copyright infringement because both theft and plagiarism are — to a certain set of persons — distinctly moral issues. As G. Thomas Couser, explained in an open letter to student plagiarists: “The opposite of academic honesty is not actually academic dishonesty; it’s dishonesty that is decidedly unacademic. …. The problem is not so much rule breaking as point missing.” However, there is, of course, also a set of persons to whom plagiarism is not a moral issue.

Further, attempting to bind plagiarism to ethical, philosophical or historical anchors is not always easy. For example, prior to the emergence of modern copyright, much of our intellectual work product was communal and derivative — and there is no evidence that plagiarism was ever an overriding concern. There are those who draw parallels between the manner of creating works in say, the medieval times, and in modern times: the Internet has once again allowed us to create much of our intellectual work product on a communal basis, this time on a international scale, with many of our ideas of authorship supposedly being eroded. And, if the importance accorded to authorship were to be diminished, the likelihood of plagiarism being considered a wrong would also be diminished; without a clear author, who would one attribute?

The primary problem with this argument is that whether or not an author is easily identifiable, a person using an existing work would still be able to source it. For example, a Wikipedia article, the definition of a communal work, could always be attributed with a link to it even if its authors were numerous or difficult to identify. Copying from a work of joint authorship does not negate the fact that such copying is plagiarism if it is devoid of attribution. In addition to this, as Jonathan H. Adler has pointed out, “The mash-up culture is not a culture of plagiarism.  Those who copy music, lift riffs, or appropriate images don’t usually claim authorship of the original source material or claim it as their own.  They use this material in works of their own, while freely acknowledging its provenance.  …. Even in the Internet Age, we recognize the difference between incorporating the work of another and passing it off as one’s own.”

The appropriation of another’s work and passing it off as one’s own would seem to be a moral issue. Whether or not one considers it to be synonymous with theft is, however, ultimately, a value judgment. Given that such appropriation or plagiarism often takes place in conjunction with copyright infringement, it is difficult to separately consider issues of ownership and authorship, of the violation of a legal right and the violation of a moral right, and most importantly, in this case, to separately consider the issues of infringement and theft.

(This part was first published at LawMatters.in.)

Part II:

One question which arises with reference to the nature of copyright infringement is whether or not it is comparable to theft. While many rights holders describe infringement as being analogous to theft, using words such as ‘pirac’ and ‘pirates’ to describe copyright infringement and those who commit it, the position that ‘infringement is comparable to theft’ is open to strenuous debate, and even more so is the position that ‘infringement is comparable to piracy (with all its attendant insinuations)’.

In India, to have committed theft according to the letter of the law, one must have ‘intended to take dishonestly any movable property out of the possession of any person without that person’s consent, and have moved that property’. As such, if one were to consider the legal definition alone, it is clear that despite the fact that copyright is considered to be movable property, copyright infringement could not possibly be considered to be analogous to theft simply because infringement does not generally involve removing copyright from the ‘œpossession’ of the owner and moving it. For one thing, copyright, being an intangible, cannot be possessed. And for another, even if one were to enjoy the copyright of another person without his or her consent, one would not be ‘removing’ it from any supposed ‘possession’ of the owner.

Of course, there may be situations in which products which have an intellectual property component which are the subject of theft, but in such cases, as a general rule, it is not the violation of intellectual property rights which is of primary focus but the theft of the products themselves. For example, if a consignment of music CDs were stolen, one would generally have the owner of the CDs speak of theft and not of copyright infringement. In fact, at the point of time when the CDs were stolen, it could be argued that copyright had not been infringed, and that only a subsequent act of the perpetrator such as the sale of the CDs would cause the copyright in them to have been violated.

The underlying assertion, however, would remain unchanged: that ‘copyright infringement’ could not be equated with ‘theft’, in the legal sense of the word. The popular sense of the word could be considered to be a completely different story though. Theft, in everyday terms, assumes a much broader meaning which is fraught with moral and religious overtones. In the Christian tradition, for example, the Eighth Commandment clearly prohibits stealing.

This Commandment too would appear to contemplate stealing something which is tangible though, and not something which is merely a ‘right’ or, more accurately, a privilege granted by the state – a privilege which cannot be considered to have moral overtones particularly in light of the copyright’s history: leaving aside proto-copyright regimes which existed in parts of Europe, if one were to consider the origins of copyright in England, the first modern copyright statute arose not so much because of an ardent desire to protect authors but from the instinct for self-preservation which publishers had. The Company of Stationers had, by the time of the reign of Queen Anne, lost the privileges which were accorded to them in consequence of existant censorship laws in England, and it was to preserve their livelihoods that they pushed for the1709 Statute by having a hitherto virtually unheard of right – the author’s copyright – enacted into law.

While today, it may be possible to argue that the author’s copyright is all about authors, if one were to take oneself back in time to the 1700s (or, for that matter, even the 1970s), it would become apparent that the author’s copyright was little more than a support structure for a business model which supported publishers far more than it did authors. After all, an author’s exclusive right was of very little use to him (or her) as in pre-Internet times, there was no real way in which an author could publish and distribute his work unless he had independent means.

As such, as an economic and legal right, which is decidedly amoral, it is extremely difficult to argue that the infringement of copyright is comparable to theft. However, modern copyright statutes tend to include such rights as the right to attribution within their scope, and in fact, may include such rights in such a manner as to leave them irreversibly enmeshed with copyright.

Under the Indian Copyright Act, 1957, for example, Section 57 includes within its scope the right of an author to be attributed for his work. Although, in the Indian statute, the right is referred to as a ‘Special Right’, commentaries on Indian law often refer to the right as a moral right, as do some foreign statutes which incorporate the right to attribution as a moral right within their text. This right to attribution subsists in respect of a work protectable by copyright (arguably even after the expiry of the copyright in that work), and it subsists ‘independently of the author’s copyright and even after the assignment either wholly or partially of the said copyright’. Thus, the right to attribution could be considered analogous to the right not to be plagiarised.

Despite the fact that the right to attribution is explicitly stated to be independent of copyright, and is impliedly considered to be a moral right, Section 63 of the Indian Copyright Act which deals with criminal offences fails to differentiate between the infringement of copyright (an economic right), and the violation of a Section 57 right (a moral right). It treats the two in exactly the same manner, and prescribes exactly the same punishment for both.

This sort of intermingling between moral and economic rights is not uncommon. Even if one were to turn to International laws such as the UDHR and the ICESCR, one would see that while they could be considered to be different, these treaties do speak of these disparate rights in the same breath. In fact, it is also pertinent to note that these treaties do not even seem to differentiate between different kinds of intellectual property which are created by intellectual labour. Article 27(2) of the UDHR merely states that ‘everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’. And, along similar lines, Article 15(1)(c) of the ICESCR states that ‘the States Parties to the present Covenant recognize the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’.

Perhaps it is this trend of “simultaneous treatment” of economic and moral rights which has created much confusion, along with the fact that infringement may occur in conjunction with plagiarism. While it may well neigh be impossible to set up an unassailable argument of infringement not being analogous to theft, in the case of plagiarism, it is far easier to make comparisons with theft considering that both plagiarism and theft have strong moral overtones, and both of them involve attempting to appropriate something which belongs to another.

In the case of plagiarism, the work of an actual author is fraudulently misappropriated and passed off by the plagiarist as his own. In some cases, plagiarism may be inadvertent. However, in others, plagiarism is anything but inadvertent and is a deliberate attempt to do such things as, possibly, gain prestige if one an academic, or take a short cut to avoid actually having to do the research (and writing!) for a paper if one is a student. Although if one were to go back in time, many of our greatest works could be considered to be ‘communal’ in some cases or “derivative” in most others, the mere fact that the historical origins of modes of production would not obviate the damage which plagiarism is capable of doing today.

One’s words are no longer considered to be communal property even assuming that there was a time when that was the case. In the case of academic plagiarism by students, as G. Thomas Couser explains in a letter to plagiarists, ‘plagiarism entirely defeats the attempts of professors to educate students. It is a substitute for (and the very antithesis of) the intellectual work which professors ask students to do, and committing plagiarism suggests that students do not value an expensive education’.

Within an academic setting, it is not difficult to find persuasive moral arguments against plagiarism especially given that one’s standing in the community is dependent on one’s publications. Another convincing argument though, which applies in almost all settings, is that plagiarism involves a form of identity theft. In writing a work, authors typically ‘exude’ a part of themselves into their work. By appropriating the work of another, what a plagiarist in effect does is steal the voice of the actual author. Considering this, it would be difficult to justify plagiarism.

As such, considering the nature of plagiarism, it may be possible to treat plagiarism as theft despite the fact that copyright infringement is not. However, considering that plagiarism and copyright infringement often occur concurrently, it is sometimes extremely difficult to speak of them separately. Despite this difficulty, it is unlikely that it would be easy to justify lumping ‘plagiarism’ and ‘infringement’ under the umbrella term of ‘piracy’ as many are wont to do.

(This part was first published at ‘Indian Copyright‘.)

Spinoffs and Sequels

Posted on by
Reply

It looks like Michael Douglas and his ex-wife Diandre are set to debate the difference between these two forms of derivative works — sequels and spinoffs — in Court. Under the terms of their divorce, Diandre is entitled to fifty per cent of income from spinoffs of movies in which Michael Douglas acted before their divorce.

The issue has come up with reference to “Wall Street 2″ which Diandre is treating as a spinoff, and Michael Douglas is treating as a sequel. The press and publicity associated with the film all seem to treat the film as a sequel as well. However, the terms “sequel” and “spin off” are not defined by copyright law, and the term “spin off” is not defined in their divorce agreement either. Also, it isn’t clear why the terms of the divorce refer to spinoffs and not to sequels given that the former term is usually used with reference to TV programmes, and the clause itself refers to films.

A sequel is defined as “a literary work, movie, etc., that is complete in itself but continues the narrative of a preceding work”, while a spin off is defined as “something derived from an earlier work, such as a television show starring a character who had a popular minor role in another show”.

The link between spinoffs and sequels appears to be only incidental — they are both derivative works, and that appears to be where the similarity between them ends. A spinoff would generally be primarily unrelated to the original work — think “Joey” and “Friends” — while a sequel would build on the story contained in the the original work.

ABC News has an interesting report on the subject (here) where they had two lawyers discuss the matter.

Privilege and Property. Essays on the History of Copyright.

Posted on by
Reply

“What can and can’t be copied is a matter of law, but also of aesthetics, culture, and economics.”

According to its publisher, OpenBook Publishers, this book edited by Martin Kretschmer, with Lionel Bently and Ronan Deazley will trace the history of copyright law, and its emergence from a “a wide range of norms and practices” across a number of countries. The book will also explore the effects of such things as the abolition of the privilege system, and the evolution of the rights associated with the visual and performing arts.

What looks particularly interesting about the book though it the business model being used to publish it. It can be read online free of charge; there are also various paid formats available:

1. digital(pdf) -  £4.95

2.paperback -  £14.95

3. hardback -  £24.95
 
 

The Proposed Accessibility Exception to Copyright

Posted on by
1

Update (April 26, 2010):

Please note that although this does not affect the critique below, the relevant Section No. is 52(1)(zb) in the Copyright Amendment Bill, 2010, and not 52(1)(za) as mentioned herein — Section 52(1)(za) was based on documents which had reportedly been leaked and made available.

Section 52(1)(zb) reads as follows:

The adaptation, reproduction, issue of copies or communication to the public of any work in a format, including sign language, specially designed only for the use of persons suffering from a visual, aural or other disability that prevents their enjoyment of such works in their normal format.

Also read Disability and the Indian Copyright Amendment Bill, 2010 (SSRN link).

This paper is updated till May 6, 2010, and deals with both the proposed accessibility exception to copyright, and the compulsory licence which has been proposed for the benefit of disabled persons.

The Proposed Accessibility Exception to Copyright

By Nandita Saikia and Bihu Sharma

(This is a Working Paper and is based on the proposed Copyright Amendment.)

 

Introduction

The disabled in India are, for the most part, an invisible minority with disability, and often the disabled themselves, being stigmatised. In a country where access to information and education is limited by a variety of factors, including class and caste, persons who have disabilities tend to be far more disadvantaged than the average person of their own caste and class would be.

Disability is generally considered to be an individual and isolated problem and without a support structure, comprising family or other persons, that has adequate resources, having a disability in India is almost certain to limit one’s ability to be a productive member of society.

One of the ways in which disabled persons are prevented from realising their potential is by their access to printed material such as books being virtually non-existent should they suffer from a disability which hampers their ability to access printed material.

Image from WikiCommons

Image from WikiCommons

The Scale of the Issue

A large fraction of printed materials are protected by copyright law which grants the owners of copyright certain exclusive rights with respect to such materials.

In the developed world, estimates indicate that only 5 per cent of published books are converted into formats which are accessible to people with visual impairments. In India, the situation appears to be much worse. It has been estimated that only about 0.5 per cent of all published books in India are converted into accessible formats, and that less than 1 per cent of visually impaired persons have adequate access to printed matter. These statistics only take into account persons who are visually impaired.

Additionally, besides those who cannot access printed material due to reasons not related to disability such as illiteracy or financial constraints, there are millions of people in India whose access to printed material is limited because of other disabilities ranging from dyslexia to an inability to manipulate the pages of a printed book.

Exhaustion of Rights

The doctrine of Exhaustion of Rights states that once a copy of a copyrighted work has been legally sold, the copyright owner exhausts his rights in that copy of the work and can be resold without reference to or consent from the owner. This means that once a copy of a copyrighted work had been made available anywhere in the world in an accessible format, that copy would not be considered to be an infringing copy of the work in India.

Thus, although explicitly following the principle of international exhaustion could adversely impact such things as the availability of low priced editions in India, since publishers would have little incentive to make such editions available in the Indian market without the assurance that the copy would not be ‘leaked’ to countries, following a principle of international exhaustion may actually benefit disabled persons since the cross-border movement of copyrighted works in accessible formats would be legal.

The Proposed Amendment to the Copyright Act, 1957

Indian Copyright law does have ‘exceptions to copyright infringement’ incorporated in it. These exceptions could be in the form of ‘Fair Use’ or ‘Fair Dealing’ provisions, and, if one were to extend the definition of ‘exceptions to copyright’, it would also probably be possible to include within the scope of the definition statutory and compulsory copyright licences.

The Indian Copyright Act, 1957, as it stands today, however, does not contain provisions which deal with making copyrighted works accessible to disabled persons. Traditionally, exceptions to copyright have been defined in terms of very narrow circumstances in which a copyrighted work may be exploited by a person other than its owner without the consent of the owner.

The need to incorporate provisions which enable disabled persons to access to copyrighted works has, however, been recognised in recent years, and it has been proposed to amend the Copyright Act, 1957, to include within the statute a separate compulsory licensing provision to allow for the publication of copyrighted works in formats for the benefit of the physically challenged.

In addition to this, it has been proposed to incorporate an additional ‘exception to copyright infringement’ in the statute which would allow a copyrighted work to be reproduced and distributed in a format accessible to disabled persons. The proposed amendment reads as follows:

Section 52(1)(za): The reproduction, issue of copies or communication to the public of any work in a format, including sign language, specially designed only for the use of persons suffering from a visual, aural or other disability that prevents their enjoyment of such works in their normal format.

Although the proposed insertion of such a Section is, in itself, a step forward, it would appear that the provision does not serve the needs of either copyright owners or disabled persons as best it could. For example, it is entirely silent with reference to technological protection measures, and does not say that such a measure may be circumvented in order to convert a copyrighted work into an accessible format. While it would be possible to argue that the law intended to allow for technological protection measures to be circumvented under the accessibility exception, one would probably have to use rather circuitous logic to do so.

In addition to this, there are a number of other provisions in the accessibility exception which give rise to concern. The aim of an accessibility exception to copyright would presumably be to ensure that disabled persons are able to enjoy copyrighted works to the same extent as abled persons. It is, however, debatable whether the proposed amendment to the Copyright Act, 1957, is successful in doing so.

The Protection of Copyright Owners

Under the proposed amendment, the reproduction, issue of copies or communication to the public of a copyrighted work would be legal if it were in a format specially designed only for the use of persons with a disability regardless of whether or not the copyright holder had already made the work available in that format. Further, given that the format into which a work could be converted to ensure accessibility has not been qualified in any way, the original format could be modified to an extent beyond that which would be required to provide accessibility to disabled persons.

Thus, the extent to which modification has been allowed under the proposed amendment is not qualified. Ideally, for the protection of rights holders, the exception should have only applied to works which had not been made available by rights holders themselves in the necessary accessible formats (at a reasonable price and without undue effort having to be expended in order to obtain the works in question in such formats).

Further, there is also no provision in the accessibility exception which states that it would apply only to non-commercial endeavours to make copies of works in accessible formats available to disabled persons. It is conceivable that such a requirement would, in a country like India, simply restrict the applicability of the exception to an appreciable extent. Further, if the proposed amendment were to be modified along the lines mentioned in the previous paragraph, it would completely obviate the ‘need’ for a provision regarding non-commercial use since the rights of copyright owners would be adequately protected.

The Requirements of Disabled Persons

The proposed amendment requires the accessible format to have been specially designed only for the use of persons suffering from a disability (such as Braille). This would immediately exclude formats which have not been ‘specially designed’ only for disabled persons from falling within the scope of the accessibility exception. Since many of the formats which disabled persons would benefit from are not formats which have been specially designed for them (whether they be large-print photocopies for visually-impaired persons or photocopies on coloured paper for dyslexic persons), this requirement would, in a way, defeat the aim of attempting to ensure that disabled persons are in fact able to access copyrighted works.

Moreover, according to the proposed amendment, the format to provide accessibility must have been specially designed not merely for the benefit of persons with disabilities but for their use. This means that a format which may be utilised for instructional or educational purposes, for the benefit of disabled persons, without being designed specifically for the use of disabled persons, could be seen to be excluded from the scope of the accessibility exception.

Similarly, the requirement that a disabled person be prevented from being able to enjoy the work in its original format also significantly narrows down the scope of the proposed amendment since it means that certain ‘activities’ would not fall under the scope of the disability exception. If a disabled person were to enjoy a copyrightable work to any extent at all, the provisions of this exception would not apply, since the person would not be considered to have been unable to enjoy the work, or to have been prevented from doing so on account of their disability. The corollary to this is that a format of work which would merely enhance a disabled person’s ability to access and enjoy a work (such as a large print photocopy) may not fall under the scope of this exception since the disabled person may not have been prevented from enjoying the work in its original format.

With reference to accessible formats themselves, the insertion of sign language as an example of an accessible format gives rise to some concerns in itself. It would probably have been worth specifying that an accessible format contemplated by the provision could be any format whether or not it was substantially the same as the original format of the work. Such an amendment would be welcome since it is entirely conceivable that, in future, it could be argued that the law never intended for ‘minor’ changes in formats such the making of photocopies to be included within the scope of the exception considering that the one format mentioned would, in most cases, be a ‘substantial’ change, and that it betrays the legislative intent to only include ‘substantial changes’ of format within the scope of the exception.

Conclusion

While the drafting of this proposed amendment in the Indian Copyright Act, 1957, to enhance accessibility to copyrighted works at all is certainly a step in the right direction, the text of the exception is fraught with ‘loopholes’, and its language could well be considered to be a reflection of the way in which the Indian society views disabled persons.

According to the proposed amendment, disabled persons do not simply have disabilities, they are ‘persons suffering’ from disabilities, and formats in which copyrighted works are made available for abled persons (who comprise the majority of the population) are not merely the original formats but the ‘normal’ formats of those works.

India probably has a long way to go before it sees disability as nothing more than a difference instead of as an abnormality. However, in the context of an exception to copyright for the benefit of disabled persons, even as it stands, the proposed amendment would probably significantly enhance the ability of disabled persons to access copyrighted works.

Image Source: WikiCommons

Rapist Claims Copyright

Posted on by
Reply

True, the threshold for ‘copyrightability’ is low for literary (and other) works. A literary work must be original. It should not infringe another work’s copyright. It should be written or otherwise fixed in a tangible form. Writing it should generally involve some form of skill and labour being expended. And it need not contain an iota of merit.

That being said, there are some things which cannot be copyrighted. You cannot copyright a description of what you are. You cannot copyright a phrase used by the world plus dog. You are unlikely to be able to copyright the ordinary grocery list. You probably would not be able to copyright the text in a standard almanac or calendar. You may not be able to copyright the title of a book. And you definitely cannot copyright your name.

That, however, is exactly what a former legislator from South Dakota who was convicted in 2007 on four counts of second-degree rape has attempted to do.

Claiming that he seeks to prevent the use of his name without his consent, Ted Alvin Klaudt sent out a letter and an accompanying document labeled ‘Common Law Copyright Notice’ reserving a common-law copyright of a trade name or trademark for his name. It said no one could use his name without his consent and that anyone who did so would owe him $ 5,00,000, according to an article in the New York Times.

It would appear that Klaudt is trying to use his own rather confused version of copyright and trade mark law to ensure that he doesn’t get (? any more) bad press. However, apart from the fact that it has brought his name into the limelight in additional contexts, the fact is that the law would simply not support his claim.

For one thing, he would not be able to copyright his name. And as far as trade marks are concerned, they denote the origin of goods or services, and a name would not be a valid trade mark unless it was used in conjunction with one of the two. (Perhaps we’ll see Klaudt stationary in the market soon?)

However, even if a valid trade mark existed, Klaudt would still not be able to prevent others from using the his name for such purposes as reporting news under any law. While this is certainly an interesting way to try to prevent persons writing his name (and writing about him), it isn’t an approach which intellectual property law would support.