By Chris J Holland, on 23 June 2016
High profile copyright cases arising from the music industry are quite common. There are often impressive amounts of money involved because of the commercial value of rights in recorded music. Those rights can be complex, potentially involving rights in the recording itself, performers’ rights and separate copyrights in the music and lyrics.
In addition, there seems to be something peculiar to the nature of music which easily gives rise to claims of plagiarism or copyright infringement.
The latest case concerns the Led Zeppelin hit “Stairway to Heaven”. Follow the link to read the Guardian’s report on the court proceedings in Los Angeles. The claim is that a significant part of the music of the Led Zeppelin number was taken from “Taurus”, a song written by the late Randy Wolfe for his group, Spirit.
There are some similarites with the well known case concerning George Harrison’s “My Sweet Lord” which was judged to have reproduced the music from the Chiffons’ hit “He’s so fine”. A major difference in this case is that the members of Led Zeppelin deny that they were familiar with the music of “Taurus”.
Copyright infringement need not be intentional and can be completely inadvertent, as was held to be the case with “My Sweet Lord” and still be infringing. On the other hand you can only plagiarise a piece of music if you have actually heard the music, otherwise any similarity would presumably be coincidental.
By Chris J Holland, on 31 May 2016
UCL authors sometimes ask about suitable copyright notices to add to their works to ensure that they are protected. In the UK and in the European Union generally there is no requirement for works to be registered for copyright protection. Copyright applies automatically once a work is “fixed” in some form, regardless also of whether it has been published or not.
It follows that adding a copyright notice such as “Copyright 2016. All rights reserved” does not increase copyright protection in the least. It may still serve other useful puposes such as reminding people about copyright restrictions and indicating the likelihood that a rights owner may take action against infringement.
If the notice identifies the rights owner it also serves the purpose of advising whom to contact for permission to reuse the work. It can even be a form of licence if it specifies what is acceptable, such as “You are permitted to make one copy for non-commercial educational purposes” or the like and may be a DIY alternative to attaching a Creative Commons licence to your work if you are happy to allow certain kinds of reuse.
By Chris J Holland, on 12 April 2016
A recent IPKat blog post pointed out that contrary to expectations a newly discovered and previously unknown work by Beatrix Potter, Kitty in Boots is still protected by copyright. The author died in December 1943 her published works came out of copyright after 70 years had passed, that is in January 2014. Kitty in Boots on the other hand is an unpublished work and is caught by the rule which keeps a vast number of unpublished works in copyright until 2039 (see previous blog posts explaining the 2039 rule and the recent Free our History campaign to have it changed). The copyright in Potter’s works was left to her publisher and now appear to belong to Penguin.
The 2039 rule is a peculiarity of UK law and is not found in the copyright regime’s of other EU member states, although anomalous differences in copyright duration are quite common. This has prompted organisations representing libraries and archives to lobby for a harmonisation of copyright term as part of the current review of EU Copyright law. See for example Copyright for Knowledge and also LACA’s London Manifesto.
By Chris J Holland, on 4 March 2016
The UK Intellectual Property Office has published a revised IPO Copyright Notice on “Digital Images, Photographs and the internet” (November 2015). The Notice provides a clear and helpful explanation of this whole area of copyright, but there is a significant change, which is worth highlighting, in way that it deals with digital images of earler artistic works:
“…according to the Court of Justice of the
European Union which has effect in UK law, copyright
can only subsist in subject matter that is original in the
sense that it is the author’s own ‘intellectual creation’.
Given this criteria (sic), it seems unlikely that what is merely
a retouched, digitised image of an older work can
be considered as ‘original’. This is because there will
generally be minimal scope for a creator to exercise
free and creative choices if their aim is simply to make a
faithful reproduction of an existing work”
It is interesting that this reinforces the point that in the case of a straight forward digital image of a work of art which is itself out of copyright it is unlikley that the digital image will be protected by copyright under EU law. It is likely to fail the originality test. It is not uncommon for art galleries to claim copyright protection for the digital images of works in their collections which can be found on their websites. The 1709 Blog
recently mentioned copyright challenges to Wikimedia from various art galleries on this very issue, the re-use of digital images of works of art which are themselves in the public domain.
By Chris J Holland, on 19 February 2016
Following the copyright questions raised by the famous “monkey selfie”, a horse called Betty grazing in a Welsh field photo bombed a selfie being taken by a young boy with his dad. Betty appears in the background with a big horsey grin. Subsequently the Bellis family entered their son’s selfie in a competition and won a £2,000 holiday as their prize. Unfortunately he owner of Betty the horse felt that she really deserved any share of the prize since her horse “starred” in the winning photo without her knowledge or consent. You can see this reported on the 1709 blog and Walesonline along with the selfie itself. Is there a copyright issue? Not really: The boy and his father were on a public footpath. The copyright in a photograph belongs to the photographer, in this case the boy taking the selfie. Presumably the father had the consent of the photographer when he entered the selfie in the competition.
By Chris J Holland, on 23 December 2015
The European Commission has published a “communication” outlining its long-awaited proposals for copyright reform. Specific areas of change are highlighted, some of which are very relevant to HE and research:
An EU wide Text and Data Mining exception is proposed, which would enable “public interest research organisations” to carry out TDM on any content to which they enjoy legal access. For previous posts on TDM see here. There is also an excellent explananation of the importance of TDM on the Universities UK blog.
The UK is ahead of the game (in EU terms) having implemented an exception in 2014 to enable TDM providing it is for a non commercial purpose. Library and research organisations have lobbied energetically for a TDM exception which would apply in all EU member states and which would not have the “non commercial” limitation .
Just as there is some doubt about where the boundery lies between commercial and no commercial so there is some uncertainty about the scope of “public interest research organisation”. This may be clarified in the draft legislation to follow in Spring 2016.
In any case, an EU wide exception with some limitations is probably better than no exception. This will free up collaborative TDM projects between researchers in mutiple EU member states which would previously have been hindered by copyright considerations.
By Chris J Holland, on 12 November 2015
In some branches of Science replication studies are common practice. Recently I received a query about possible copyright implications. What happens in general is that the results of an experimental study are published and other researchers seek to test the validity of the results by replicating the study as closely as possible. How about copyright issues?
There is no copyright in the underlying ideas or the methods used in a study although there is copyright in a paper expressing the ideas and describing the methods. There may be a fine line. The replication study may need to quote extensively from the previous paper, for example, raising copyright questions.
There must be an expectation on the part of academic researchers that others will want to replicate their studies. If it is necessary to reproduce work which is protected, then this may be covered by the Quotation exception – one of the recently introduced “fair dealing” exceptions in UK copyright legislation . In case of doubt it will probably be straight-forward to request permission.
There is no intrinsic copyright issue in “re-staging” the experiment, but what if the study itself involves the use of works protected by copyright ? Think of a psycholology study which measures the subjects emotional reactions to a series of videos.
What if the videos were originally “borrowed” from YouTube without any copyright checks? That may create a serious problem for researchers wishing to replicate the study as closely as possible. This is an actual example described in the Guardian which underlines the importance of an awareness of copyright issues in research.
By Chris J Holland, on 14 October 2015
This is a recent ruling by the US Court of Appeals for the ninth circuit in the case of DC Comics v. Mark Towle. Mark Towle supplied full size replica Batmobiles and also kits to make your car look like the Batmobile through his business, Garage Gotham.
DC Comics claimed that Mr Towle had infringed their copyright in the Batmobile as portrayed in the well known comics and television series. Holy copyright law, Batman! (to quote Judge Ikuta’s Opinion).
The court held that the Batmobile was a sufficiently distinctive element of the works (which are themselves protected by copyright) to qualify for copyright protection. The Opinion contains detailed discussion of the traits which help to qualify a character in a comic book or film for copyright protection under US law. Essential reading for Batman fans.
By Chris J Holland, on 3 September 2015
This is an enquiry from one of the UCL Libraries: Would the “Preservation exception” contained in Section 42 of the Copyright, Designs and Patents Act 1988 (CDPA) cover the digitising of their extensive collection of historical videos? The videos were originally published in various countries and are not made available for loan.
The answer is that this collection is a good example of material in a superseded format which could be digitised under the terms of the Preservation exception. The main conditions from CDPA Section 42(2) are that the “work” must be:
“(a) included in the part of the collection kept wholly or mainly for the purposes of reference on the institution’s premises,
(b) included in a part of the collection not accessible to the public, or
c) available on loan only to other libraries, archives or museums”
Despite the ambiguities we can assume that it is enough for one of the conditions to be fulfilled and archival video collections will usually tick the box.
There is a further condition that the exception only applies when it is “not reasonably practicable” to fulfill the preservation need by purchasing a digital copy – CDPA Section 42(3).
What can be done subsequently with the digitised copies is also governed by copyright law. The “Dedicated terminals” exception (CDPA Section 42) would permit the digitised videos to be made available within the Library. Following CJEU case law (Ulmer v. Technical University of Darmstadt ) the Dedicated terminals exception might also cover the digitisation itself.
By Chris J Holland, on 27 August 2015
In an interesting case from the USA, a photographer, Art Dragulis launched an action for copyright infringement against the Kappa Map Group because he objected to the fact that they had reproduced his photograph of a rural scene on the cover of a commercial publication. Kappa had not requested his permission to do that and naturally one would usually require the permission of the copyright holder to re-use their work.
It transpired however that Mr Dragulis had posted the photograph on Flickr in 2008. In doing so he had chosen to make the photograph available under the Creative Commons “CC-BY-SA 2.00” licence. In contrast to some CC licences which include the “NC” stipulation, the CC-BY-SA licence does permit commercial re-use of the work (in this case, the photograph).
The court held that Kappa were justified in using the photograph for the cover of their published atlas, given that they had credited Mr Dragulis as the creator of the work and also included the correct licence information. In doing so they had fulfilled the CC licence requirements.
The court also discussed the “Share alike” requirement: Under the CC scheme only “derivative works” would need to be made available on the same terms (that is free of charge) under the “SA” licence. Kappa had presenting the photograph unmodified as part of a “collection” of copyright works. The only change they had made was some minimal cropping of the photograph which did not make it a derivative work. Therefore Kappa were entitled to reproduce the photograph and also charge for their atlas.
The case illustrates the importance of being careful in your choice of licence, since the photographer could have selected an “NC” licence. There are full reports by Techdirt and the 1709 Blog.