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.

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.

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.

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.

A Copyright dispute has been the subject of court hearings in Paris, which sheds an interesting light on French copyright law. French sculptor, Jean Cardot was incensed when Nike (together with an events company) organised a publicity stunt which involved dressing Cardot’s statute of Churchill in an oversize basketball jersey to celebrate the success of the French national team in 2011. The statue is situated on Avenue Winston Churchill in Paris.

Nike used images of the statue thus attired in the no. 9 basketball jersey for publicity purposes. For a report with pictures see the Independent. The Tribunal de Grande Instance found that Nike had infringed Cardot’s copyright and also his moral rights as the “auteur” of the statue, since he was not acknowledged as its creator. Interestingly, moral rights are perpetual in French law whereas in the UK they have they same duration as copyright.

Not satisfied with this initial result, Jean Cardot launched an appeal claiming that the damages awarded against Nike should have been higher. He was again successful at the Paris Cour d’Appel and the award was duly increased. Nike and their events company were each ordered to pay Jean Cardot 60,000 Euros for copyright infringement and 7,500 Euros for infringement of moral rights. The court took into account the commercial use which Nike had made of the pictures of the stunt and the fact that the events company had received a substantial fee for their part in organising it.

Would a similar action have succeeded in the UK? It seems unlikely. UK copyright law includes a specific exception for representations of works of art which are on permanent display in public places (Copyright, Designs and Patents Act section 62).

It is interesting to read that the Netherlands Government has passed a law which obliges publishers to have a Green Open Access route available to authors of “short works of science” whose research has been even partly funded by public money. Authors now have the right to publish in an open access repository “after a reasonable time”. Presumably “short works of science” will cover articles in scholarly journal across all disciplines (“Science” in the broader European sense rather than the narrower English meaning). See for example: Kluwer Copyright Blog

The new Dutch measure is very similar to Article 38(4) of the German Copyright Act which specifies a period of 12 months before publishers are required to allow re-publication in an OA repository. Would a UK equivalent assist the Open Access publishing movement in this country or do the relevant publishers generally provide an Green OA route?

Music industry bodies have challenged the legality of the new Private Copying Exception (CDPA, 28B). The British Academy of Songwriters, Composers and Authors (BASCA) along with the Musicians’ Union and UK Music have been seeking judicial review of the Government’s implementation of the exception in 2014. There is no direct relevance to Libraries or HE, but it may be of interest.

The basis of the challenge is that the Government failed to introduce a compensation scheme to make good any loss to the copyright owners following from the new exception, which enables consumers to copy for their own use any recorded music or other content which they have purchased, such as ripping a CD for your smart phone. Yes, of course you were doing that anyway – The new exception legitimises common practice!

In most EU countries there are levies on recording equipment – they work like a sales tax designed to compensate copyright owners for losses resulting from private copying. Levies are found to be unwieldy and bureaucratic in those countries, but they do provide substantial revenue for copyright owners via collecting societies.

There is an argument that the EU Copyright Directive requires compensation and the levies tick that box. 

The Government’s stance is that they have kept the new exception narrow so that harm to copyright owners will be non-existent or minimal – hence no compensation required.

The judgment in the High Court by Mr Justice Green has recently been issued and is available online here . This is a partial victory for the music industry bodies. The court agreed with the claimants on one significant point: The evidence examined by the Government to decide that damage to Copyright owners would be minimal was in fact inadequate. This is enough to make the Government’s action unlawful, but leaves it various options, such as:

• Gather more persuasive evidence
• Introduce levies
• Refer questions to the CJEU
• Repeal the exception (CDPA Section 28B)
• Appeal to a higher court

Watch this space!

A biography of Joseph Goebbels by Peter Longerich, a prominent historian at Royal Holloway College specialising in modern German history, has stirred up a dispute about the copyright in Goebbels’s diaries, which has been widely reported on internet news sites. The original, German version of the biography was published in 2010 and the English language edition is due next month. As you might expect in a biography, Longerich quotes extensively from the diaries kept by Goebbels.

The basic copyright term in Germany is the author’s lifetime plus 70 years (as in the UK), so Goebbels’s works are in copyright until 2016. Nevertheless the publishers were surprised to be pursed for infringement of copyright in the diaries by lawyers on behalf of Goebbels’s estate. It is common knowledge that Goebbels’s immediate family died in Hitler’s bunker, so presumably the estate has been inherited by more distant relatives.

This raises an obvious moral question about family members making money from the diaries of this particular individual but it also illustrates the lengthy duration of copyright under EU legislation. In terms of UK copyright law, the diaries may be caught by the 2039 rule (which is nearly as difficult to understand as the offside rule!). If the diaries are truly an “unpublished work” then it looks as though they would indeed be in copyright for an additional 23 years in the UK.

A statement to promote copyright reform in Europe entitled “the London Manifesto” has been launched by the Libraries and Archives Copyright Alliance (LACA). With the EU carrying out a  review of its copyright legislation this year it is a very timely moment to express some bold recommendations for reforms which would assist users of copyright material, particularly in higher education and research libraries.

Further information can be found here on the CILIP website and the text of the London Manifesto can be found here. It order to give as much impetus to the initiative as possible, LACA are inviting all interested organisations to sign up to the Manifesto if the are in agreement. Following the amendments to UK copyright exceptions in 2014, the EU is the new stage for copyright reform, so it will be important to follow developments and participate. 

The Intellectual Property Office has published a report looking at the available penalties under the criminal justice system for copyright infringement. The report focusses in particular on the differences between the penalties available for online infringement as opposed to “traditional” copyright infringement. Recommendations are made for balancing up the available penalties and it sheds an interesting light on the existing criminal provisions.