Monthly Archive: July 2019

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

Multimedia Trademarks – Branding for the 21st Century

This year has seen some interesting and exciting changes to trademark law in Europe that opens up new possibilities for branding globally if adopted internationally, including in high-tech economies such as New Zealand.

It is now possible to register animated and audio-animated trademarks, via multimedia files.

 

What is a Trademark?

A trademark is a badge-of-origin that enables consumers to identify the source from which certain goods and services come from.  To qualify as a registered trademark, the mark must (or used to) be:

  • A sign (any message capable of perception by the senses, that can constitute an indication for the consumer)
  • Capable of graphical representation (by images, lines or characters, that is clear, precise, self-contained, easily accessible, intelligible, durable and objective)
  • That distinguishes the undertakings of one business from those of another business, such that the average consumer is unlikely to be confused

 

Changes to EU Trademark Law

EU Directive No. 2015/2436 (16th December 2015) entered into force on 14th January 2019.  It brought about a number of changes to EU trademark law, including:

  • The removal of the requirement for graphical representation
  • The acceptance of multimedia trademarks

Rather than having to be represented graphically, EU trademark registrations now have a relatively less stringent requirement of sufficient clarity, as well as the requirement of being capable of publication in the Official Gazette.

Multimedia trademarks may be represented at registration in audio-visual files, such as MP3 or MP4 format.

There remains the requirement for marks to have distinctive character, and to be presented in a way that enables the consumer to clearly identify and understand the mark.

These changes improve the opportunity and potential to register animated marks, or those incorporating both motion and sound.  This opens the door for a new breed of trademark relevant for the 21st century.

 

Where have such marks already been registered?

There are at least a couple of examples of multimedia trademarks that have already been registered.

On 1st March 2019, intellectual property consulting firm Novagraaf registered this multimedia mark in Benelux (Belgium, Netherlands, and Luxembourg).

A couple of months later, on 3rd May 2019, the UK Intellectual Property Office registered its first moving multimedia trademark to multinational conglomerate Toshiba.

However, since the World Intellectual Property Organisation and other national offices do not yet accept multimedia formats, such marks will still need to be capable of graphical representation if they are to be registered in other jurisdictions.

 

What Are the Implications?

This change paves the way for the evolution of branding in many industries including IT, music, film and marketing, amongst others.

The acceptance of the use of new technologies for trademarks and brand protection offers possibilities for companies to distinguish themselves from their competitors in fresh and exciting ways.

 

Is It Possible to Register Multimedia Trademarks in New Zealand?

Research suggests that the registration of multimedia trademarks is not yet possible in New Zealand.  The Trade Marks Act 2002 (as of 30th December 2018) defines a trade mark as “any sign capable of being represented graphically”, and so the graphical representation requirement appears to remain.

With Aotearoa being a global influencer in hi-tech innovation, an amendment to the Act would enable New Zealand companies to lead with a new form of branding suitable for the digital world and the 21st century.

Alistair Curson

 

References

European Union Intellectual Property Office. (2017, September 22). “Trade mark definition”. Retrieved July 04, 2019, from: https://euipo.europa.eu/ohimportal/en/trade-mark-definition

New Zealand Trade Marks Act 2002, s5. Retrieved June 30, 2019, from: http://legislation.govt.nz/act/public/2002/0049/57.0/DLM164249.html

NOVAGRAAF®. (2019, March 01). Novagraaf Nederland B.V., Hoogoorddreef 5, 1101 BA Amsterdam Zuidoost, Nederland. Retrieved July 04, 2019, from: https://register.boip.int/trademarks/search/bynumber/perform.do?markNumber=1391252&markNumberType=APP

NOVAGRAAF®. (2019, March 01). Novagraaf Nederland B.V., Hoogoorddreef 5, 1101 BA Amsterdam Zuidoost, Nederland. Retrieved July 04, 2019, from: https://www.novagraaf.com/sites/default/files/NOVAGRAAF_LOGO.mp4

Novagraaf, (2019, March 05). “Protecting multimedia trademarks: will your business be next?”. Retrieved July 04, 2019, from: https://www.novagraaf.com/en/insights/protecting-multimedia-trademarks-will-your-business-be-next

Official Journal of the European Union. (2015, December 16). “Directive (EU) 2015/2436 of The European Parliament and of The Council”. Retrieved July 02, 2019, from: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32015L2436&rid=5

Pompe A. (2017, October 25). “Multimedia trademarks open entirely new possibilities”. Retrieved July 02, 2019, from: https://newtech.law/en/multimedia-trademarks-open-entirely-new-possibilities/

Porro MS. (2019, February 25). “8 Keys to Understand the New European Trademark Directive”. Retrieved July 02, 2019, from: https://www.moellerip.com/8-keys-to-understand-the-new-european-trademark-directive/

Sieckmann v Deutsches Patent- und Markenamt [2003] 3 WLR 424, [2004] All ER (EC) 253, [2005] 1 CMLR 40, [2003] RPC 38, [2003] Ch 487, [2002] EUECJ C-273/00, Case C-273/00

TOSHIBA®. (2019, May 03). Kabushiki Kaisha Toshiba, Tokyo, Japan. Retrieved June 30, 2019, from: https://trademarks.ipo.gov.uk/ipo-tmcase/page/Results/1/UK00003375593

TOSHIBA®. (2019, May 03). Kabushiki Kaisha Toshiba, Tokyo, Japan. Retrieved June 30, 2019, from: https://www.ipo.gov.uk/trademark/image/GB50001100003375593.mp4

United Kingdom Trade Marks Act 1994, s1. Retrieved June 30, 2019, from: https://www.legislation.gov.uk/ukpga/1994/26/section/1

Wikipedia. (2017, June 03). “Novagraaf”. Retrieved July 04, 2019, from: https://fr.wikipedia.org/wiki/Novagraaf

Wikipedia. (2019, July 02). “Toshiba”. Retrieved July 04, 2019, from: https://en.wikipedia.org/wiki/Toshiba

Wikipedia. (2019, June 22). “Trademark”. Retrieved July 02, 2019, from: https://en.wikipedia.org/wiki/Trademark

World Intellectual Property Review. (2019, June 26). “UKIPO celebrates British IP Day with first multimedia mark”. Retrieved June 30, 2019, from: https://www.worldipreview.com/news/ukipo-celebrates-british-ip-day-with-multimedia-mark-first-18260