Category: Copyright

Which Law is Relevant? – Lessons from Led Zeppelin’s “Stairway to Heaven” Copyright Case

Ex post facto law, the retrospective application of legislation, is not applied in a number of jurisdictions, including New Zealand.  Because laws do change however, it is important to understand which laws were in force and are relevant to the question you are asking.  The recent outcome of the long running copyright dispute over Led Zeppelin’s “Stairway to Heaven” highlights this.

 

“Stairway to Heaven” Case

The rock band Led Zeppelin has been in a long running copyright dispute over the acoustic guitar intro to their song “Stairway to Heaven”.

The case, originally brought in 2014 by the estate of the band Spirit, asserted that the “Stairway to Heaven” intro had been copied from Spirit’s earlier instrumental work “Taurus”.  In 2016, a jury found in favour of Led Zeppelin, stating that they did not steal the intro, and that their work was original.

However, in 2018, a panel of judges ordered a new trial on the basis that the judge in the 2016 trial had given the jury incorrect instructions, in particular by not allowing them to hear sound recordings of the “Stairway to Heaven” and “Taurus” works for comparison.

The reasoning behind not allowing the sound recordings was that, at the time that the respective works were created (1971 for “Stairway to Heaven”, 1968 for “Taurus”), the US Copyright Act 1909 was in force and the case should be heard according to that law.  Under the requirements of the 1909 Act, copyright only covered sheet music, not sound recordings.  In was not until later in the 1970s that copyright law in the US was extended to include sound recordings.

The 2018 decision to order a retrial was subsequently appealed with a request for a larger panel of judges to rehear the case.  This was heard by a panel of 11 judges earlier this year (March 2020).  They overturned the 2018 ruling, reaffirming that the jury had been instructed appropriately in the 2016 case & that the jury’s decision (in favour of Led Zeppelin) stood.

The case was then taken to the Supreme Court (the highest court in the United States), but a few days ago, the Supreme Court declined to take it up, effectively handing final victory to Led Zeppelin.

 

Applying this Lesson to Effective IP Management in New Zealand

The “Stairway to Heaven” case highlights the importance for businesses to understand which laws were in force at the time of any relevant activities relating to their business strategy, including IP management.

For example, up until a few years ago, patents in New Zealand were prosecuted under the Patents Act 1953.  The New Zealand Patents Act 2013 (which came into force in September 2014), however, introduced many reforms to New Zealand IP legislation.  Amongst other changes, the criteria for patent examination was extended from local novelty only, to absolute novelty, inventive step and utility.

Many patents prosecuted under the old 1953 Act will still be in force and may be relevant for businesses.  For example, if you are pursuing validity analyses of patents of interest, whether for due diligence on the value of patents you wish to license or acquire, or attempting to invalidate a competitor’s patent, it is vital to understand which Act would be applied to test the strength of a patent of interest.  The introduction of the new Patents Act 2013 changed the criteria for patentability significantly.

It is important in business management generally to appreciate the dynamic nature of the legal landscape.

Alistair Curson

 

References

AJ Park. (2014, September). “New Zealand’s new Patents Act 2013: The key differences between the Patents Act 1953 and the new Act”. Retrieved October 09, 2020, from: https://www.ajpark.com/assets/Uploads/New-Zealands-new-Patents-Act-2013-The-key-differences-between-the-Patents-Act-1953-and-the-new-Act.pdf

Bienstock R. (2020, October). “Led Zeppelin emerge victorious in long-running Stairway to Heaven copyright battle”. Retrieved October 08, 2020, from: https://www.guitarworld.com/news/led-zeppelin-emerge-victorious-in-long-running-stairway-to-heaven-copyright-battle

Curson AD. (2018, November 20). “Tech Software and Intellectual Property Protection”. Retrieved October 09, 2020, from: http://adcpatentsearch.co.nz/IP_Analytics_NZ/?p=79

Dixon G. (2014, August 12). “Patent law change in New Zealand – Five reasons to act now!”. Retrieved October 09, 2020, from: http://www.shelstonip.com/news/patent-law-change-in-nz-five-reasons-why-now-is-the-time-to-act/

Kim A. (2020, March 11). “Led Zeppelin wins major copyright battle for ‘Stairway to Heaven'”. Retrieved October 08, 2020, from: https://edition.cnn.com/2020/03/10/entertainment/led-zeppellin-stairway-heaven-lawsuit-trnd/index.html

New Zealand Bill of Rights Act 1990, s26. Retrieved October 08, 2020, from: http://www.legislation.govt.nz/act/public/1990/0109/latest/DLM225528.html

New Zealand Interpretation Act 1999, s7. Retrieved October 08, 2020, from: http://www.legislation.govt.nz/act/public/1999/0085/latest/DLM31471.html

New Zealand Sentencing Act 2002, s6. Retrieved October 08, 2020, from: http://www.legislation.govt.nz/act/public/2002/0009/latest/DLM135540.html

Reed R. (2019, June 11). “Led Zeppelin’s ‘Stairway to Heaven’: Appeals Court to Review Lawsuit Decision”. Retrieved October 08, 2020, from: https://www.rollingstone.com/music/music-news/led-zeppelin-stairway-to-heaven-lawsuit-review-846617/

Ryu J. (2020, October 05). ” Led Zeppelin wins copyright battle after U.S. Supreme Court declines to hear case”. Retrieved October 08, 2020, from: https://www.usatoday.com/story/entertainment/music/2020/10/05/led-zeppelin-stairway-heaven-copyright-lawsuit-supreme-court-ruling/3624384001/

Sisario B. (2020, March 09). “Led Zeppelin Prevails in ‘Stairway to Heaven’ Appeal”. Retrieved October 08, 2020, from: https://www.nytimes.com/2020/03/09/arts/music/led-zeppelin-lawsuit-stairway-to-heaven.html

United Nations. “Universal Declaration of Human Rights”. Retrieved October 08, 2020, from: https://www.un.org/en/universal-declaration-human-rights/

Wikipedia. (2020, September 28). “Ex post facto law”. Retrieved October 08, 2020, from: https://en.wikipedia.org/wiki/Ex_post_facto_law

Wikipedia. (2020, October 07). “Supreme Court of the United States”. Retrieved October 09, 2020, from: https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States

Eternal Copyright – Supporting Artists During and After Covid-19

UNESCO recently launched ResiliArt, a global discussion to raise awareness of the impacts of Covid-19 on the cultural sector, as well as to support artists during and after the crisis.  In the inaugural debate, Jean-Michel Jarre (UNESCO’s Goodwill Ambassador) proposed the concept of “eternal copyright” to protect and support artists and the creative industries, especially in emerging countries.

 

The Cultural Impact of the Covid-19 Pandemic

The current Covid-19 pandemic is changing the lives of everyone on Earth, in ways that affect us all socially, economically, culturally, educationally and environmentally.

It is not only businesses and schools that have shut down, but also many aspects of accessing culture, such as live performances, theatres, cinemas, cultural sites, museums, exhibitions and libraries.  This is having serious impacts upon the livelihoods of cultural professionals, as well as the local communities that depend upon them and their works.

 

What is Copyright?

Copyright protection in New Zealand (for example) is provided for by the Copyright Act 1994 and the Copyright Regulations 1995.

An intellectual property right that arises automatically, copyright protects the expression of ideas known as “works” (not the ideas themselves), that have been fixed somehow (e.g. written down or otherwise recorded).

For a work to attract copyright protection, it must be original (not necessarily new), meaning it originated from the author.  In other words, they didn’t copy the work from another source.  Works that can receive protection are either literary, dramatic, musical, artistic, sound recordings, films, broadcasts or typographical arrangements.

Copyright gives the creator or owner exclusive rights to copy their works; issue copies to the public; perform, play, show or communicate their works to the public; make an adaptation of their works; or authorise a third party to do any of these acts.  A third party doing any of these acts without permission may be infringing the copyright.

Copyright is restricted in life span, which varies according to both the type of work and the jurisdiction where the copyright is enforced.  For example, in New Zealand, literary, dramatic, musical and artistic works are protected for the life of the author plus 50 years.

 

The Concept of Eternal Copyright

UNESCO’s ResiliArt debate is focussed on the impacts upon creative and cultural communities that the Covid-19 lockdowns around the world are having.  The roles of governments, content providers and tech companies in supporting artists and other creators are being discussed.

Jean-Michel Jarre has proposed an eternal copyright, as a practical solution for governments and companies to support artists.  When the current term of copyright protection for an author or owner expires, then the copyright would persist in an “eternal” form with revenue generated going into a central fund.  This fund would be used to support artists and others in the creative communities around the world, with a special emphasis to support those in emerging countries.

 

Opinion

Copyright protection is typically time-limited.  This is part of the balance that copyright law tries to strike between the interests of the rightsholder and the interests of the consumer.  It has parallels in other forms of intellectual property where the monopoly of the right is either time-limited (e.g. patents and designs) or conditional upon continual use (e.g. registered trade marks).

Laws protecting intellectual property rights are supported by a number of principles, including: the right to benefit from one’s own labours and efforts; it being unfair to benefit from the work of others without their consent; being incentivised to make the necessary investment to create without the risk of that investment being nullified as soon as your output enters the public domain; and the contract of temporary protection in exchange for public disclosure.

There are risks and challenges to implementing the concept of eternal copyright.

For an eternal copyright to be effectively managed, it is likely that a “central copyright owner” would be needed.  They would have to decide what was licensed, when, to whom, and for what fees.  Payments would have to be managed, and the copyrights would still have to be enforced against potential infringement.  The whole process could be costly, and there is a risk that the financial rewards could easily be swallowed up in administration rather than going to the intended recipients.

Much of the revenue from copyright-protected works comes from licensing, and the economic value of many works often expires long before the corresponding copyright protection.  Should a work turn out to be one of those that retains significant value over time, then the “central copyright owner” may face challenges from the estate of the original author for a share in the ongoing benefits.

One principle of intellectual property is that knowledge and information eventually enter the public domain for all to freely use, develop and gain inspiration from.  That which does not enter the public domain cannot be freely used without some agreement.  There is a risk that new artists and creators may choose simply not to engage with certain works because of the costs of licensing and the potential risks of infringement proceedings.  This would appear to be contrary to reasonable reward for investment and creation, balanced against the contribution to human knowledge, culture and society.  Ironically, creativity may be stifled by an eternal copyright.

Perhaps an additional time-limited copyright term beyond that of the author / owner would be an alternative.  Operating in the same spirit, and with the same purpose, it could also generate a global fund to support artists around the world.  However, works would eventually enter the public domain in order to continue to support creativity.

Financial support for artists could also be improved by stronger enforcement of their existing rights under copyright law, as well as assistance in contract negotiations to ensure a more fair and equitable reward for their creativity.

It is clear that the cultural aspects of our lives need our support now more than ever, and that the Covid-19 pandemic provides an opportunity to take a new direction.

Alistair Curson

 

References

Bainbridge D. (2012). “Intellectual Property”. 9th edn, Pearson Education Limited, Harlow, England.

Barclay DA. (2016, February 10). “Shouldn’t there be a time limit on Mickey’s copyright?”. Retrieved April 28, 2020, from: https://theconversation.com/shouldnt-there-be-a-time-limit-on-mickeys-copyright-53788

CISAC. (2014, April 07). “President Jean Michel Jarre heralds copyright protection at the Forum de Chaillot”. Retrieved April 29, 2020, from: https://www.cisac.org/Newsroom/Articles/President-Jean-Michel-Jarre-heralds-copyright-protection-at-the-Forum-de-Chaillot

Cooke C. (2020, April 23). “Jean Michel Jarre poses the question “what about eternal copyright to support grassroots creators?”. Retrieved April 29, 2020, from: https://completemusicupdate.com/article/jean-michel-jarre-poses-the-question-what-about-eternal-copyright-to-support-grassroots-creators/

Interlego A.G. Appellant v Tyco Industries Inc. and Others Respondents [1989] AC 217.

Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273.

Masnick M. (2012, October 24). “Economist’s Defense Of Perpetual Copyright: It’s Best To Just Ignore The Economics”. Retrieved April 28, 2020, from: https://www.techdirt.com/articles/20121017/18045220739/economists-defense-perpetual-copyright-its-best-to-just-ignore-economics.shtml

New Zealand Copyright Act 1994. Retrieved April 28, 2020, from: http://www.legislation.govt.nz/act/public/1994/0143/latest/DLM345634.html

New Zealand Copyright Act 1994, s16. Retrieved April 28, 2020, from: http://www.legislation.govt.nz/act/public/1994/0143/latest/DLM345923.html

New Zealand Copyright Act 1994, s22. Retrieved April 28, 2020, from: http://www.legislation.govt.nz/act/public/1994/0143/latest/DLM345932.html

New Zealand Copyright (General Matters) Regulations 1995. Retrieved April 28, 2020, from: http://www.legislation.govt.nz/regulation/public/1995/0146/latest/whole.html

New Zealand Intellectual Property Office. “About IP: Copyright: Legislation”. Retrieved April 28, 2020, from: https://www.iponz.govt.nz/about-ip/copyright/legislation/

ResiliArt. “Artists and Creativity beyond Crisis”. Retrieved April 29, 2020, from: https://srvarcstream3a.unesco.org/ksastream/video/ResiliArt-Debate.mp4

The Public Domain. (2014, July 19). “Mark Twain on the Need for Perpetual Copyright”. Retrieved April 28, 2020, from: https://www.thepublicdomain.org/2014/07/19/mark-twain-on-the-need-for-perpetual-copyright/

UNESCO. (2020, April 11). “ResiliArt Artists and Creativity beyond Crisis”. Retrieved April 24, 2020, from: https://en.unesco.org/news/resiliart-artists-and-creativity-beyond-crisis?fbclid=IwAR11IAeJd2UjCDk7g8HgLaUmzy4GhxwnPvPmuAMFNNfc9beUkIzbgNwxnfw

UNESCO. (2020, April 15). “ResiliArt Artists and Creativity beyond Crisis”. Retrieved April 24, 2020, from: https://srvarcstream3a.unesco.org/ksastream/video/ResiliArt-Debate.mp4

Wikipedia. (2020, March 27). “Statute of Anne”. Retrieved April 29, 2020, from: https://en.wikipedia.org/wiki/Statute_of_Anne

Learning Lessons from Cartographers to Protect Intellectual Property

Most businesses will have copyright-protected works as a part of their overall IP portfolio.  For some, these works may be the core of their business, such as literary works or other documents, music, art or software code.  How can these businesses effectively protect themselves against copyright theft and infringement?

 

Copyright Infringement and Independent Creation

For a work to attract copyright protection, it must be original.  This does not mean that the work is new.  Rather that it originated from the author who displayed reasonable independent labour, skill and judgment to create the work.  In other words, the author didn’t copy the work from another source.

It is possible for two authors to independently create very similar works.  Provided they did not copy from either each other (or from someone else) then there would be no infringement of copyright.

For copyright infringement to occur, the following need to be satisfied:

  1. There needs to be a valid copyright in a work and ownership of it
  2. The alleged infringing work needs to show a level of objective and striking similarity to the copyright-protected work – a clear resemblance
  3. There needs to be a causal connection between the two works – facts that suggest that copying of the copyright-protected work is likely to have occurred in the creation of the infringing work
  4. There should be copying of a “substantial part” of the copyright-protected work – this is based on quality rather than quantity, as well as the relative importance of the copied elements to the copyright-protected work

Any evidence, or that lack thereof, to support an independent pathway of creation will be important in deciding a case of copyright infringement.  This is where copyright traps can be particularly useful, especially for establishing a causal connection between works.

 

Copyright Traps and Paper Towns

Copyright traps are an established technique to address infringement and plagiarism across a range of works.

The practice involves including a small or trivial item of false information within a work, or details and design features that are unique to the work, and are thus highly unlikely to originate at random in a separate work from a third party.  The latter are often used to ensure the integrity of the original work and the information it contains are not compromised nor misleading to the end user.  In both scenarios, these traps provide a strong causal link to demonstrate that copying had occurred.

Within the discipline of cartography (map making), the use of “paper towns” is the inclusion of a non-existent town, or other unique details such as road widths, on a map.

A famous example is the fictitious town of Agloe in New York State, USA.  Included in maps drawn by the General Drafting Company in 1937 as a copyright trap, an actual hamlet with a general store, gas station and two houses, was eventually built on the site (although it has now long since been abandoned).

In another case from the early 2000s, the UK’s Ordnance Survey (national location and mapping agency) won a £20m compensation from the UK’s Automobile Association (the AA) for the unauthorised copying of its maps in the publication of various atlases, town plans and maps by the AA.  In the conclusion to a long running dispute, the Ordnance Survey were able to demonstrate evidence of copying based upon specific style features and design elements included in their maps, which also subsequently appeared in the AA maps.

 

Applications to Other IP Rights

The principle behind copyright traps and “paper towns” can be applied to a number of IP rights to guard against theft and infringement, and to provide important evidence to resolve disputes.

The technique has applications in documentation relating to trade secrets to detect the leakage of the information to third parties.  Within software development (a field of particular relevance to the tech industry here in New Zealand), the practice of embedding a unique identifier within a piece of code is known as “watermarking”.

Such traps can be a standard inclusion within documentation, software code and other works.  Alternatively, they be applied on an ad hoc basis to investigate suspected ongoing theft or infringement by introducing a change or false information and seeing if it is propagated by the alleged infringer.

Proving IP theft and infringement can be difficult, time-consuming and expensive.  Provided the use of “paper towns” and copyright traps do not lessen the quality or integrity of the product or service you provide, then this is a strategy to consider in order to protect your intellectual property.  They can provide you with valuable evidence and put you in a strong position to stop the theft of your IP and the subsequent damage to your business.

Alistair Curson

 

References

Bainbridge D. (2012). “Intellectual Property”. 9th edn, Pearson Education Limited, Harlow, England.

Clark A. (2001, March 06). “Copying maps costs AA £20m”. Retrieved April 02, 2020, from: https://www.theguardian.com/uk/2001/mar/06/andrewclark

Curson A. (2019, August 06). “Copyright – Originality”. Retrieved April 01, 2020, from: http://adcpatentsearch.co.nz/IP_Analytics_NZ/?p=231

Fasthoff Law Firm. (2016, November 27). “Anatomy of a Copyright Infringement Case: Defenses to Allegations of Copyright Infringement”. Retrieved April 01, 2020, from: https://www.fasthofflawfirm.com/anatomy-copyright-infringement-case-defenses-allegations-copyright-infringement/

Grundhauser E. “Agloe, New York”. Retrieved April 03, 2020, from: https://www.atlasobscura.com/places/agloe-new-york

Hamilton J. (2010, July 08). “What is software watermarking?”. Retrieved April 03, 2020, from: https://jameshamilton.eu/research/what-software-watermarking

Interlego A.G. Appellant v Tyco Industries Inc. and Others Respondents [1989] AC 217.

Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273.

McDonald A. (2019). “Copyright Law”. Retrieved April 01, 2020, from: https://www.amcdonald.co.nz/information/copyright-law-barrister/

New Zealand Copyright Act 1994, s16. Retrieved April 01, 2020, from: http://www.legislation.govt.nz/act/public/1994/0143/117.0/DLM345923.html

New Zealand Intellectual Property Office. “Copyright: Ownership and Protection”. Retrieved April 01, 2020, from: https://www.iponz.govt.nz/about-ip/copyright/ownership-and-protection/

O’Connell D. (2020, March 27). “Trade Secrets & Paper Towns”. Retrieved April 01, 2020, from: https://www.linkedin.com/pulse/trade-secrets-paper-towns-donal-o-connell/?trackingId=UPyO0WRnS6GZYnDa8PrRLw%3D%3D

Ordnance Survey. (2020). “About us”. Retrieved April 02, 2020, from: https://www.ordnancesurvey.co.uk/about

Wikipedia. (2020, March 13). “Agloe, New York”. Retrieved April 03, 2020, from: https://en.wikipedia.org/wiki/Agloe,_New_York

Wikipedia. (2020, March 02). “Fictitious entry”. Retrieved April 01, 2020, from: https://en.wikipedia.org/wiki/Fictitious_entry

Wikipedia. (2020, March 26). “Ordnance Survey”. Retrieved April 02, 2020, from: https://en.wikipedia.org/wiki/Ordnance_Survey

Copyright: Access to Literary Works for the Visually Impaired in New Zealand

On the 4th January 2020 the Copyright (Marrakesh Treaty Implementation) Amendment Act entered into force in New Zealand, implementing Aotearoa’s obligations under the Marrakesh Treaty, to which New Zealand acceded last October.

 

What is the Marrakesh Treaty?

The “Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled” came into force in September 2016 following negotiations conducted by the World Intellectual Property Organisation (WIPO).

The primary goal of the Treaty is to increase the accessibility of books and other literary works to the blind, visually impaired, and otherwise print disabled.  It enables this by providing a harmonised international framework (between countries that have ratified the Treaty) for copyright limitations and exemptions that permit the reproduction, distribution, import and export of copyright-protected works in formats such as Braille, audio and large-print.

Under traditional copyright law, the generation and international transfer of works reproduced and adapted in these ways might otherwise be prohibited or significantly restricted.

 

Copyright in Aotearoa

Copyright protection in New Zealand is provided for by the Copyright Act 1994 and the Copyright Regulations 1995.

Copyright owners have the exclusive right to copy their works; issue copies to the public; perform, play, show or communicate their works to the public; make an adaptation of their works; or authorise a third party to do any of these acts.

Aside from certain fair use provisions and other exclusions, for a third party to do any of the above, including potentially reproducing or adapting a work in another format, without the appropriate permissions or authorisation, might constitute copyright infringement, and would thus be prohibited.

Previously, New Zealand’s copyright laws did allow for a relatively limited group of people and organisations to adapt a copyright-protected work into Braille or other formats to assist others with print disabilities.  However, international copyright restrictions created challenges for importing such copies from overseas.

 

What Does the Marrakesh Treaty Enable?

Broadly speaking for New Zealand, the Marrakesh Treaty expands the definition of those entities that can make and obtain these accessible works.  It also facilitates easier importing and exporting of accessible format copies between New Zealand and other Marrakesh Treaty countries.

An “accessible format copy” is defined in the Copyright Amendment Act as: “a copy of a published literary, dramatic, musical, or artistic work, or a part of the work, in an alternative manner or form that gives persons who have a print disability access to the work”.

The following organisations can now apply to be “authorised entities” in order to make and obtain accessible format copies of works:

  • Educational Establishments
  • Educational Resource Suppliers
  • Prescribed Libraries (as defined in the Copyright Act)
  • Charitable Entities (who have a purpose consistent with making accessible format copies available to people with a print disability)

Once authorised, these entities can:

  • Make and distribute, within New Zealand, accessible format copies of literary and artistic works
  • Export these copies to other Marrakesh member countries
  • Import accessible format copies made by authorised entities in other Marrakesh member countries
  • Reproduce copies of accessible format copies of works legally made or imported into New Zealand
  • Provide accessible format copies legally made or imported into New Zealand

Anyone wishing to become an “authorised entity”, and before beginning any of the permitted activities, must notify the New Zealand Ministry of Business, Innovation & Employment first.

Once authorised, there are a number of limitations associated with the permitted activities which include ensuring the accessible format copy respects the integrity of the original work (as far as is reasonably possible), ensuring the copy is only provided to the intended and authorised people or organisations, and keeping good records of all activities in this regard.  Further details are available from MBIE or a copyright attorney.

 

The Accessible Books Consortium (ABC) Global Book Service

WIPO together with a number of organisations that represent the visually impaired, as well as those that represent authors and publishers, launched the Accessible Books Consortium (ABC) in 2014.  Its purpose is to globally increase the numbers and availability of books in accessible formats, thereby helping to facilitate the Marrakesh Treaty.

The ABC accomplishes this is three ways.  Firstly, in sharing the technical skills required to reproduce literary works in accessible formats.  Secondly, it encourages the publication of works in formats accessible to both the sighted and visually impaired from the outset – the concept of “born accessible” publishing.  Thirdly, it has built and maintains the ABC Global Book Service – an international catalogue and database to facilitate the international exchange of accessible content.

Once a New Zealand organisation has been recognised as an “authorised entity”, it will be able to use the ABC Global Book Service to access and internationally share books in accessible format.

 

Visual Impairment in New Zealand and Benefits of the Marrakesh Treaty

As of 2013, an estimated 4% of the New Zealand population (168,000 people) were considered to have some form of visual impairment that could not be corrected by standard assistance devices such as glasses.  Visual impairment was also strongly related to age, with 11% of adults over 65 displaying some form compared with 2% of adults aged 15 to 44.

It is estimated that less than 10% of all written works published globally are published in formats that are accessible to those with a visual impairment or print disability.  This means over 90% of the world’s publications may potentially be inaccessible to this demographic.

As our population both ages and changes in other ways, membership of the Marrakesh Treaty supports access to books, literature and other creative works for everyone, thereby helping to address one potential barrier to all members of society being able to engage in public life.

This can deliver clear benefits through improved access to education, employment and other opportunities to contribute to society, which in turn can raise overall well-being.

Alistair Curson

 

References

Hayes M, Toner E. (2020, January 17). “Law to improve visually-impaired people’s access to copyright works comes into force in New Zealand”. Retrieved February 16, 2020, from: https://www.ajpark.com/insights/ip-updates/marrakesh-treaty-in-force-in-new-zealand/

Ministry of Business, Innovation & Employment. (2020, January 16). “The Marrakesh Treaty”. Retrieved February 16, 2020, from: https://www.mbie.govt.nz/business-and-employment/business/intellectual-property/copyright/the-marrakesh-treaty/

New Zealand Copyright Act 1994. Retrieved February 16, 2020, from: http://www.legislation.govt.nz/act/public/1994/0143/latest/DLM345634.html

New Zealand Copyright Act 1994, s16. Retrieved February 16, 2020, from: http://www.legislation.govt.nz/act/public/1994/0143/latest/DLM345923.html

New Zealand Copyright (General Matters) Regulations 1995. Retrieved February 16, 2020, from: http://www.legislation.govt.nz/regulation/public/1995/0146/latest/whole.html

New Zealand Copyright (Marrakesh Treaty Implementation) Amendment Act 2019. Retrieved February 19, 2020, from: http://www.legislation.govt.nz/act/public/2019/0043/latest/LMS110851.html#LMS110886

New Zealand Copyright (Marrakesh Treaty Implementation) Amendment Act 2019, s4. Retrieved February 19, 2020, from: http://www.legislation.govt.nz/act/public/2019/0043/latest/LMS110867.html

New Zealand Intellectual Property Office. “About IP: Copyright: Legislation”. Retrieved February 16, 2020, from: https://www.iponz.govt.nz/about-ip/copyright/legislation/

New Zealand Intellectual Property Office. (2020, January 06). “Marrakesh Treaty enters into force”. Retrieved February 16, 2020, from: https://www.iponz.govt.nz/news/marrakesh-treaty-enters-into-force/

New Zealand Parliament. “Copyright (Marrakesh Treaty Implementation) Amendment Bill”. Retrieved February 16, 2020, from: https://www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/BILL_80988/copyright-marrakesh-treaty-implementation-amendment-bill

Stats NZ. “Disability Survey: 2013”. Retrieved February 16, 2020, from: http://archive.stats.govt.nz/browse_for_stats/health/disabilities/DisabilitySurvey_HOTP2013/Commentary.aspx

Wikipedia. (2020, February 12). “Marrakesh VIP Treaty”. Retrieved February 17, 2020, from: https://en.wikipedia.org/wiki/Marrakesh_VIP_Treaty

World Intellectual Property Organisation. (2014). “Accessible Books Consortium”. Retrieved February 19, 2020, from: https://www.accessiblebooksconsortium.org/export/abc/abc_brochure.pdf

World Intellectual Property Organisation. “Marrakesh Treaty”. Retrieved February 16, 2020, from: https://www.wipo.int/publications/en/series/index.jsp?id=154

World Intellectual Property Organisation. “Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled”. Retrieved February 17, 2020, from: https://www.wipo.int/treaties/en/ip/marrakesh/

World Intellectual Property Organisation. “The Marrakesh Treaty”. Retrieved February 16, 2020, from: https://www.wipo.int/marrakesh_treaty/en/

Copyright – Originality

Modern copyright law protects works against copying; issuing copies to the public; performing, playing, showing or communicating to the public; or the making of adaptations.

 

Originality versus Novelty

For a work to attract copyright protection, it must be original.  This does not mean that the work is new.  Rather that it originated from the author who displayed reasonable independent labour, skill and judgment to create the work.  In other words, the author didn’t copy the work from another source.

 

Copyright Infringement and Independent Creation

It is possible for two authors to independently create very similar works.  Provided they did not copy from either each other (or from someone else) then there would be no infringement of copyright.

For copyright infringement to occur, the following need to be satisfied:

  1. There needs to be a valid copyright and ownership of it
  2. The alleged infringing work needs to show a level of objective and striking similarity to the copyright-protected work – a clear resemblance
  3. There needs to be a causal connection between the two works – facts that suggest that copying of the copyright-protected work is likely to have occurred in the creation of the infringing work
  4. There should be copying of a “substantial part” of the copyright-protected work – this is based on quality rather than quantity, as well as the relative importance of the copied elements to the copyright-protected work

Any evidence, or that lack of, to support an independent pathway of creation will be important in deciding a case of copyright infringement.

 

A Recent Example: Iron Man 3

For the past three years, Marvel Entertainment and Horizon Comics Productions have been engaged in a copyright infringement lawsuit over the design for Marvel’s Iron Man 3 movie poster.

Horizon asserted that Marvel had copied an image of their character Caliban (from their comic book series “Radix”) shown in a crouched kneeling position, and had used it to depict Robert Downey Jr. as Iron Man in the same pose.  They claimed that six Marvel employees were aware of the Horizon works and had influenced those who had designed the Iron Man 3 poster.

At trial, Marvel were able to provide evidence that their Iron Man 3 poster had been independently designed from photographs taken at photo shoot with Robert Downey Jr.

Horizon, however, did not produce evidence to the Court’s satisfaction to refute this.  Neither were they able to demonstrate a causal connection to copying, including evidence that the employees concerned had seen the Caliban drawing or had been involved in designing the ‘Iron Man 3’ poster.

On 15th July, the U.S. District Court ruled in favour of Marvel.

Alistair Curson

 

References

Bainbridge D. (2012). “Intellectual Property.” 9th edn, Pearson Education Limited, Harlow, England.

Fasthoff Law Firm. (2016, November 27). “Anatomy of a Copyright Infringement Case: Defenses to Allegations of Copyright Infringement”. Retrieved July 26, 2019, from: https://www.fasthofflawfirm.com/anatomy-copyright-infringement-case-defenses-allegations-copyright-infringement/

Horizon Comics Productions Inc v. Marvel Entertainment LLC et al, No. 1:2016cv02499 – Document 121 (S.D.N.Y. 2019). Retrieved July 30, 2019, from: https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2016cv02499/455684/121/

Interlego A.G. Appellant v Tyco Industries Inc. and Others Respondents [1989] AC 217.

Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273.

McDonald A. (2019). “Copyright Law”. Retrieved July 26, 2019, from: https://www.amcdonald.co.nz/information/copyright-law-barrister/

McKeown JS. (2008, January 24). “Independent creation”. Retrieved July 30, 2019, from: https://www.lexology.com/library/detail.aspx?g=0551e374-9c92-4138-973f-69083615ea5b

New Zealand Copyright Act 1994, s16. Retrieved July 26, 2019, from: http://www.legislation.govt.nz/act/public/1994/0143/117.0/DLM345923.html

New Zealand Intellectual Property Office. “Copyright: Ownership and Protection”. Retrieved July 30, 2019, from: https://www.iponz.govt.nz/about-ip/copyright/ownership-and-protection/

Welk B. (2019, July 16). “Marvel Wins Copyright Infringement Lawsuit Over ‘Iron Man 3’ Movie Poster”. Retrieved July 25, 2019, from: https://www.imdb.com/news/ni62550147 and from: https://www.thewrap.com/marvel-wins-copyright-infringement-lawsuit-over-iron-man-3-movie-poster/

E-Books – Owner or Licensee?

In April 2019, Microsoft announced that the books category of Microsoft Store would be closing.  Starting this month (July), all e-books (purchased and free) will no longer be accessible, and all book purchases will receive a full refund.

Some consumers may be surprised to learn that they never actually owned the e-books they’d bought and that their right to view them has gone.

 

Buying a Book

When you buy a book from a physical bookstore, although you’re still bound by various restrictions under copyright law, you own that copy of the work.  You can keep it forever.

When it comes to e-books, the situation may be different.  Purchasing an e-book, particularly one having digital rights management (DRM), usually means that you are not actually buying a copy of the book.  Rather you’re purchasing a licence to view the content, and that licence can expire or be revoked.  If that happens, you may lose access to what you’d paid for.

 

Digital Rights Management (DRM) and Copyright

Enforcing copyright protection upon digital content is relatively difficult.  Modern computers make it easy to copy works, and the nature of the internet readily enables the distribution of those copies.

Digital Rights Management (DRM), also known as Technological Protection Measures (TPM), is a technology to manage copyright protection around digital media.  DRM attempts to address the challenges of copyright enforcement by making the act of infringement much more difficult in the first place.

Typically, it involves a piece of embedded code, the purpose of which is to control and prevent unauthorised use, copying, modification and distribution of copyright-protected digital works (e.g. software, digital media and multimedia content).

DRM may:

  • Prevent copying, or limit copying for authorised back-up purposes only
  • Impose a time-limit upon access
  • Limit the number of devices upon which the work can be accessed

 

Our Relationship With Content

Many forms of software are distributed with DRM protection, and as users we are already familiar with this.  We are usually purchasing a license to use the software rather than purchasing the software itself.

With the internet a primary conduit to access and deliver a wide range of content, it’s important to realise that this can now apply to many forms of digital content, including those that are replacing previously physical items (such as books).

Our relationship with content needs to adapt to ensure ongoing compliance and respect for authors and owners, as well as understanding how we now access and enjoy creative works.  We need to appreciate that we are increasingly purchasing a right to access rather than a right to own.

Alistair Curson

 

References

BBC. (2019, July 01). “The day the e-books stopped working”. Retrieved July 11, 2019, from: https://www.bbc.com/news/technology-48829661

Mardon R. (2019, April 08). “Do we really own our digital possessions?”. Retrieved July 21, 2019, from: http://theconversation.com/do-we-really-own-our-digital-possessions-115003

Microsoft. (2019, April 05). “Books in Microsoft Store: FAQ”. Retrieved July 11, 2019, from: https://support.microsoft.com/en-gb/help/4497396/books-in-microsoft-store-faq

Patrizio A. (2012, November 09). “You Don’t Own Your Amazon Kindle eBooks”. Retrieved July 20, 2019, from: http://www.technologyguide.com/feature/you-dont-own-your-amazon-kindle-ebooks/

Rouse M. (2009, January). “Digital rights management (DRM)”. Retrieved July 13, 2019, from: https://searchcio.techtarget.com/definition/digital-rights-management

Wikipedia. (2019, July 09). “Digital rights management”. Retrieved July 13, 2019, from: https://en.wikipedia.org/wiki/Digital_rights_management

World IP Day 2019

World Intellectual Property Day is celebrated on 26th April every year.  In 2019 the theme is “Reach for Gold: IP and Sports”.

I’ve decided to publish this post a little earlier than usual to coincide with this celebration.  Also, given my base in New Zealand and the importance of sport in Aotearoa, I felt today was a great opportunity to look at how IP is embedded in our sport, and our businesses in general.

 

IP in Sport

Sources:

New Zealand Herald. (2018, June 14). “Rugby: All Blacks name unchanged match-day squad for second test against France”. Retrieved April 20, 2019, from: https://www.nzherald.co.nz/sport/news/article.cfm?c_id=4&objectid=12070171. Image retrieved April 20, 2019, from: https://arc-anglerfish-syd-prod-nzme.s3.amazonaws.com/public/LEEUYOVLUNFVXHSYO22J57Q7YA.jpg

New Zealand Intellectual Property Office. “Patent 227564”. Retrieved April 20, 2019, from: https://app.iponz.govt.nz/app/Extra/IP/Mutual/Browse.aspx?sid=636913719125319979

New Zealand Intellectual Property Office. “Design 422288”. Retrieved April 20, 2019, from: https://app.iponz.govt.nz/app/Extra/IP/Mutual/Browse.aspx?sid=636913726445454609

New Zealand Intellectual Property Office. “Trade Mark 670759”. Retrieved April 20, 2019, from: https://app.iponz.govt.nz/app/Extra/IP/Mutual/Browse.aspx?sid=636913727806433505

New Zealand Intellectual Property Office. “Trade Mark 670762”. Retrieved April 20, 2019, from: https://app.iponz.govt.nz/app/Extra/IP/Mutual/Browse.aspx?sid=636913729034028981

 

The figure above shows a few examples of where IP might potentially be found in a rugby match.  Whereas the examples chosen aren’t necessarily present in this particular picture, the purpose of this illustration is to show that IP is embedded in all aspects of the game; from the branding of a team and the sponsors (trade marks); to the clothes being worn (designs); to the equipment being used (patents); to aspects of the match event and its broadcast beyond the stadium (copyright).

Looking closely at our own businesses, we can find IP through an organisation and its activities in much the same way.

IP is an important strategic asset protecting the products, processes and software your business relies on, the design and appearance of your products and their packaging, your documentation and business development collateral, as well as your brand and the commercial reputation and goodwill embedded within it.

Understanding your business’s IP and the broader IP landscape in which it and your business sits is an important part of any business management and decision making process.

Alistair Curson

 

References

New Zealand Herald. (2018, June 14). “Rugby: All Blacks name unchanged match-day squad for second test against France”. Retrieved April 20, 2019, from: https://www.nzherald.co.nz/sport/news/article.cfm?c_id=4&objectid=12070171.  Image retrieved April 20, 2019, from: https://arc-anglerfish-syd-prod-nzme.s3.amazonaws.com/public/LEEUYOVLUNFVXHSYO22J57Q7YA.jpg

New Zealand Immigration. (2018, November 07). “New Zealand Now: Live in New Zealand: Recreation: Sports”. Retrieved April 20, 2019, from: https://www.newzealandnow.govt.nz/living-in-nz/recreation/sports

New Zealand Intellectual Property Office. “Patent 227564”. Retrieved April 20, 2019, from: https://app.iponz.govt.nz/app/Extra/IP/Mutual/Browse.aspx?sid=636913719125319979

New Zealand Intellectual Property Office. “Design 422288”. Retrieved April 20, 2019, from: https://app.iponz.govt.nz/app/Extra/IP/Mutual/Browse.aspx?sid=636913726445454609

New Zealand Intellectual Property Office. “Trade Mark 670759”. Retrieved April 20, 2019, from: https://app.iponz.govt.nz/app/Extra/IP/Mutual/Browse.aspx?sid=636913727806433505

New Zealand Intellectual Property Office. “Trade Mark 670762”. Retrieved April 20, 2019, from: https://app.iponz.govt.nz/app/Extra/IP/Mutual/Browse.aspx?sid=636913729034028981

Copyright Protection in the Digital Environment in Aotearoa

On 16th January 2019 the Ministry for Business, Innovation and Employment announced that New Zealand had joined the World Intellectual Property Organization’s Copyright Treaty (WCT) and Performers and Phonograms Treaty (WPPT).  New Zealand acceded to both treaties on 17th December 2018, and they will enter into force on 17th March 2019.

Both treaties increase the scope of protection of works, as well as the protection of the rights of authors, producers and performers.  There is a particular emphasis on the digital environment, which is of relevance to a 21st century world.  The accession to these treaties is also of particular importance to New Zealand given its strong and growing tech industry.

 

WIPO Copyright Treaty (WCT)

The Berne Convention for the Protection of Literary and Artistic Works is an international agreement covering copyright as an IP right.  The WIPO Copyright Treaty is a special agreement under the Berne Convention focussing on works and authors’ rights in the digital environment.

In addition, the treaty discusses two additional subject matters, of particular relevance to the digital environment to be protected by copyright – computer programmes and databases.

Computer programmes are protected irrespective of the mode or form by which they are expressed.

Databases cover any compilations of data or other materials, in any form, providing the selection and/or arrangement of their contents may be considered an intellectual creation.  In other words, the selection and/or arrangement of the data must meet the originality requirement of copyright, i.e. originate from the author (not be copied).  If this criterium is not met, then the database in question will not be covered by the treaty.

The treaty also grants authors’ rights (beyond those recognised by the Berne Convention) of:

  • Distribution – authorising the original work and copies to be made available to the public via sale or some other transfer of ownership
  • Rental – authorising commercial rental of computer programmes, cinematographic works and works subsisting in phonograms (subject to certain restrictions)
  • Communication to the public – authorising communication to the public, in particular via on-demand and interactive means over the internet

 

WIPO Performers and Phonograms Treaty (WPPT)

The WIPO Performances and Phonograms Treaty also has focus on the digital environment and is concerned with the rights of two categories of beneficiaries – performers and the producers of phonograms.

Performers include actors, singers and musicians.  The producers of phonograms are the people, or other legal entities, that record (fix) sounds.  The overlap that exists between performers rights and the protection of their recorded aural performances is why these two categories are addressed by the same treaty.

The treaty grants performers the following rights associated with their performances when fixed in phonograms.  These, however, do not apply to audiovisual fixations, such as films or movies.  The same rights are also granted to the producers of phonograms:

  • Reproduction – authorising the reproduction of a phonogram
  • Distribution – authorising the original work and copies of the phonogram to be made available to the public via sale or some other transfer of ownership
  • Rental – authorising commercial rental of the original and copies of a phonogram
  • Making available – authorising wired or wireless access to any performance recorded in a phonogram, at a time and from a place chosen by the public, in particular via on-demand and interactive means over the internet

Where a performance is unfixed, i.e. live, performers are granted the rights of broadcasting (but not rebroadcasting), communication to the public (but not for broadcast performances), and the right of fixation (i.e. to record the work).

Performers also enjoy the moral rights to be identified as the performer and to maintaining the integrity of the work.

The treaty also sets out rights with respect to the remuneration to both performers and producers of phonograms published, broadcasted or communicated for commercial purposes.

 

Term of Protection and Paracopyright

Under both treaties, the term of protection must be at least 50 years.

Further, there is an obligation for contracting parties to provide paracopyright protection – legal remedies to support authors where efforts have been made either to circumvent technological protection measures (TPM), such as encryption; or to interfere with digital rights management (DRM), such as metadata intended to identify works and/or the authors as a means to manage distribution and monetisation of a work.

 

Copyright in Aotearoa

New Zealand’s Copyright Act 1994 is currently under review with an Issues Paper published and available for comment (as of 23rd November 2018).  Written submissions should be made by 17:00 NZ on 5th April 2019.  The review is being undertaken because of the rapid changes to technology and the consequent ways in which copyright-protected works are both created and distributed.

Many of the questions raised in the issue paper relate to performers rights, TPMs, communication to the public, and current or emerging technologies that the law should give additional consideration to.

New Zealand’s accession to the WIPO Copyright Treaty and the WIPO Performers and Phonograms Treaty, together with the outcomes of the review of the existing Act will position the creators of original works in Aotearoa with greater and relevant protection in an ever-evolving digital world.

Details for making submissions in relation to the issue paper may be found here:

https://www.mbie.govt.nz/have-your-say/review-of-the-copyright-act-1994-issues-paper/

 

Alistair Curson

 

References

Ministry of Business, Innovation and Employment. “Review of the Copyright Act 1994”. Retrieved January 28, 2019, from: https://www.mbie.govt.nz/business-and-employment/business/intellectual-property/copyright/review-of-the-copyright-act-1994/

Ministry of Business, Innovation and Employment. “Review of the Copyright Act 1994: Issues Paper”. Retrieved January 28, 2019, from: https://www.mbie.govt.nz/have-your-say/review-of-the-copyright-act-1994-issues-paper/

Ministry of Business, Innovation and Employment. (2018, November). “Issues Paper: Review of the Copyright Act 1994”. Retrieved January 28, 2019, from: https://www.mbie.govt.nz/assets/a28d02fc5c/review-of-copyright-act-1994-issues-paper.pdf

Ministry of Business, Innovation and Employment. (2019, January 16). “New Zealand joins international copyright treaties”. Retrieved January 18, 2019, from: https://www.mbie.govt.nz/about/news/new-zealand-joins-international-copyright-treaties/

New Zealand Copyright Act 1994, s15. Retrieved January 25, 2019, from: http://www.legislation.govt.nz/act/public/1994/0143/117.0/DLM345922.html

Wikipedia. (2018, July 4). “Paracopyright”. Retrieved January 24, 2019, from: https://en.wikipedia.org/wiki/Paracopyright

Wikipedia. (2018, December 24). “Berne Convention”. Retrieved January 23, 2019, from: https://en.wikipedia.org/wiki/Berne_Convention

World Intellectual Property Organisation. (1996, December 20). “WIPO Copyright Treaty”. Retrieved January 24, 2019, from: https://www.wipo.int/treaties/en/text.jsp?file_id=295166#P83_10885

World Intellectual Property Organisation. “Berne Convention for the Protection of Literary and Artistic Works”. Retrieved January 23, 2019, from: https://www.wipo.int/treaties/en/ip/berne/

World Intellectual Property Organisation. “Protection of Non-Original Database”. Retrieved January 24, 2019, from: https://www.wipo.int/copyright/en/activities/databases.html

World Intellectual Property Organisation. “Summary of the WIPO Copyright Treaty (WCT) (1996)”. Retrieved January 23, 2019, from: https://www.wipo.int/treaties/en/ip/wct/summary_wct.html

World Intellectual Property Organisation. “Summary of the WIPO Performances and Phonograms Treaty (WPPT) (1996)”. Retrieved January 23, 2019, from: https://www.wipo.int/treaties/en/ip/wppt/summary_wppt.html

World Intellectual Property Organisation. “Treaties and Contracting Parties: Contracting Parties; WIPO Copyright Treaty: New Zealand”. Retrieved January 18, 2019, from: https://www.wipo.int/treaties/en/remarks.jsp?cnty_id=12548C

World Intellectual Property Organisation. “Treaties and Contracting Parties: Contracting Parties; WIPO Performances and Phonograms Treaty: New Zealand”. Retrieved January 18, 2019, from: https://www.wipo.int/treaties/en/remarks.jsp?cnty_id=12549C

World Intellectual Property Organisation. “WIPO Copyright Treaty (WCT)”. Retrieved January 23, 2019, from: https://www.wipo.int/treaties/en/ip/wct/

World Intellectual Property Organisation. “WIPO Performances and Phonograms Treaty”. Retrieved January 23, 2019, from: https://www.wipo.int/treaties/en/ip/wppt/