Copyright in thirteen clips

As part of the wholesome September activity of revisiting past teaching, I was reminded of a class I am not teaching this year, but may be of wider interest (or at least trivia).  It’s a presentation on copyright law to an audience of (mostly) media studies students.  This task came my way a couple of years ago and after a pleasant bit of reading and brainstorming the result was the all-about-copyright playlist, which after further changes looked like this.  Enjoy the links!

La genta esta muy loca

Another Monday, another Ofcom decision on language in songs broadcast on the radio (in Broadcast Bulletin 195). (I’m working on a project this year where I’m looking at Ofcom decisions, but this is just an informal blog post rather than the fruits of that labour). This time around, the controversial broadcast appears to have been a genuine accident, where Capital FM played from a CD (instead of what I presume is a hard disc playout system) and played the unedited version of Loca People instead of the more radio-friendly edited version (all day, all night, what the ….). A sharp producer managed to hit the off button pretty quickly and an apology followed a few minutes later. (Not the first time for this sort of error this year – another Capital station in Leicester played the wrong version of Do It Like a Dude (rather than the edited version which simply leaves you trying to work out the rhyme for dirty dirty dirty dirty dirty dirty sucker, you think I can’t get hurt like you, you mother- (blank) – a tough one to work out).

Some of the cases about language on the radio turn on the protection of under 18s, but fortunately for Capital, this was in the morning during the school term, so all good children were nowhere near a radio. Instead, the clause of the Broadcasting Code being looked at was a general one, “In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context” (rule 2.3), and it was considered ‘resolved’ rather than a breach of the code, given the circumstances and the remedial measures put in place.

The bigger issue here is that new guidance on this matter is, according to reports over the last couple of months, on the way. Ofcom flagged this in BB 189 in September, saying that ‘In view of our concerns about the material in [cases in that bulletin], especially those broadcast when children were particularly likely to have been listening, we will be requesting that a number of radio broadcasters across the industry who transmit such programming attend a meeting at Ofcom to discuss the compliance of such material”.

There has been a number of interesting radio/music cases this year, and BB 189 was a bumper issue for rude words on the radio. It included the already legendary Brick FM decision (the station had already been up for breach of licence obligations in BB 184), where the station entered into a debate about the meaning of punany/punani (a hot sandwich or a sexual swear word?) and also suggested that Ofcom didn’t understand Scottish dialect (re the word ‘fuck’ – perhaps this argument didn’t occur to Capital FM in today’s case). My heart goes out to a Durham station, Bishop FM, who managed to play a rather fruity Eminem track (No Love – full text in the Ofcom bulletin) during a kids’ request show called School’s Out. Oops. And the exact same phrase that is the key refrain of Loca People was also the subject of a case in BB 192, when OnFM (a community station in London) played a version of Fatboy Slim’s Star 69 which repeated that phrase. 41 times (yup, they counted).

Ofcom’s new guidance will be important – we’ve already seen some discussion on music videos and on live pre-watershed performances on TV. Despite some assumptions that there are links between problem language and genre, today’s case is from a (no offence) bland bit of Europop, and the cases mentioned in this blog post do have quite an interesting range. There’s also a mix of major players and shoestring community stations. Watch this (bleep) for more.

Law and policy in Wired UK 2.11

I have a strange relationship with Wired magazine (UK edition; I used to get the US edition, but since the UK version launched, I get that, and look at the website for US-only articles). Its politics (particularly in its earlier days) are fascinating if not really mine, and I find some articles useful, others frustrating, and the ads (and purchase recommendations) are obviously not targeted at junior academics. However, it’s still something I read carefully, not too expensive as a subscription, and provides fairly frequent citations or teaching materials. Anyway, the current issue has a particularly strong group of law-related articles, in particular:

Neil Pollack, ‘Spotify’s celestial jukebox’: on whether Spotify will be able to launch in the US, citing in particular the difference in licensing direct from labels vs (I presume) collective licensing in Europe (print only, p. 37)
David Rowan & Tom Cheshire, ‘Commerce gets social: how your networks are driving what you buy’: touching on a range of consumer and privacy issues on ‘social commerce’ (and defining it quite well), very lively and well-written, although it would have been nice to see a bit more on the problems of endorsement/disclosure laws as well as the specific aspects of data protection law (mentioned but not pursued) that are an issue for the UK and EU (print only, p. 84)
Michael Watts, ‘The intellectual venturer’: a feature on Nathan Myhrvold / Intellectual Ventures, and whether it’s a patent troll or not; it also explains the IV business model in quite some detail, as well as proposed changes to patent law in the US. I’m not a patent person by any means, but it’s a very thorough and revealing article (full text available).

And a number of articles on wider issues that are also legal, such as the story of the Brian Wells ‘collar-bomb’ case (which had appeared in the December issue in the US) and a discussion of technology and refugee protection regarding Refugees United.

Soul-sellers and svengalis: notes on SABIP’s copyright/contract report

The research commissioned by the Strategic Advisory Board for IP Policy (SABIP) in the UK has become an important part of the IP landscape over the last 18 months.  I don’t know how it’s going to fare in this age of quango-criticism, but right now there are various projects in progress.  One of them that I was particularly interested in was about copyright and contracts. This particular project was led by Martin Kretschmer, director of CIPPM at Bournemouth University and its final report, The Relationship Between Copyright and Contract Law, has now been published.  Here’s the executive summary and the full report, or options to download separate chapters.  It’s made up of three long papers / literature reviews and an overall summary.  The bibliography is – as you might expect – extensive.

It’s a very wide-ranging report.  (And bonus points for the first footnote being to Johnson & Post, an old favourite in cyberlaw).  In particular, it should be noted that one of its significant concerns is the type of non-negotiated agreement that governs the relationship between a provider and a user after the purchase of protected creative material, as well as the more conventional territory of the contractual situation of creators, performers and so on.  I intend on using it as student reading material for IT/Internet law and also for a module we teach on Commercial Aspects of Media Law.

Here are some points that I found particularly interesting or useful, in no particular order.  It’s a very thorough piece of work – although it would have been fun to see what the authors made of the contract/license debate, which is certainly coming to a head in a number of US cases (e.g. Jacobsen v Katzer, now settled), or the EULA issues raised in MDY v Blizzard and the issues highlighted through Amazon’s Orwellian mess.  But this could well have been beyond the tender, so we should turn to my recommendations and highlights, which are (with a bias towards paper 3 on end user / Internet issues given my own interests):

  • Helpful ‘creator profiles’ of two examples (an electronica artist and a children’s book illustrator) (Kretschmer, paper 2, pp. 46-7 of full report)
  • A table on ‘unfair DRM’ (Derclaye & Favale, paper 3, p. 139)
  • An analysis of exceptions in the US and EU, with further discussion on member state transposition in UK, Ireland and Portugal (paper 3, pp. 87-104)
  • A very readable summary of the role of contracts in restricting ‘user freedoms’ (paper 3, pp. 105-108)
  • The wonderfully tantalising comment (after discussion of click-wrap cases in the US) that “rulings by European courts on similar circumstances are still to come” (paper 3, p. 116).  And the footnote to this point discussed the NPG/Wikipedia issue with links from Technollama (Andres Guadamuz) and Francis Davey!
  • An argument about the application of ‘fairness’ criteria to copyright contracts (whether through the removal of the exclusion of copyright from the Unfair Contract Terms Act or otherwise (paper 2, p. 77 and paper 3, pp. 122-124).  [On this, note that BIS is currently consulting on the UK’s position regarding fairness in the European directive, informed in particular by the Supreme Court’s decision in OFT v Abbey National]
  • A roundup of developments and academic work on collective societies and copyright, highlighting the cost of administration and the ultimate regulatory role of these agreements (Watt, paper 1, pp. 35-37 )

Full report from the SABIP website.

Uncommon Carrier

I had the pleasure of attending a fascinating talk by Prof. Michael Carrier (of Rutgers School of Law) this week at Emmanuel College in Cambridge. Prof. Carrier was introduced by Prof. Lionel Bently, with the event being promoted by the Centre for Intellectual Property and Information Law (CIPIL) and he spoke to the theme of ‘Pioneering Peer-to-Peer and Other Disruptive Dual-Use Technologies‘. Carrier’s interests include the links between intellectual property and competition law, or in particular the debates regarding copyright, creativity and innovation. His book, Innovation for the 21st Century (OUP, 2009) deals with this, although I have not yet read it. In this context, he dedicated the greater part of his time to an evaluation of the (US) law regarding technologies such as peer-to-peer (which he characterised as both disruptive and dual-use), essentially arguing for the rehabilitation and rediscovery of the approach in Sony v Universal, the famous case where the ‘legality’ of the then-emerging Betamax video recording technology was confirmed.

The talk was divided into five major sections: the idea of dual use technologies, a review of the case law, a discussion of the relationship between creativity and innovation, an argument regarding three asymmetrical issues, and a case for the benefits of P2P and similar technologies.

I’m going to assume that readers are relatively familiar with the first topic (a description of how P2P works) and with the inglorious history of cases like Napster, Aimster and Grokster. Carrier criticised the direction of these cases, reserving particular criticism for the idea of inducement as seen in the Supreme Court’s opinion in Grokster. For the third section, he touched on these points: alternative reason for the apparent decline in CD sales, alternative remedies (to secondary-infringement litigation) such as direct infringement cases, legislative lobbying and technological protection measures, differing concepts of creativity outside major record labels, and – crucially – the role of new technologies as disruptive innovation creating or contributing to new markets.

The next section dealt with what were argued to be three asymmetries, innovation, error cost and litigation. Taking them in order, the discussion of innovation suggested that the less-tangible non-infringing uses (and associated business models) lose out to the heavily emphasised perils of the infringing use; the error costs, borrowing from competition law, in this context highlight the cost of a potentially erroneous decision to stifle the new services; in terms of litigation, this is a particular problem when new entrants lack the deep pockets of incumbents for protracted litigation.

In conclusion, Carrier pointed to the possible benefits of P2P, mentioning again the possible move away from established industry ‘tastemakers’ and the efficiency of BitTorrent as a distribution method, but also referred to ideas like P2P search as an alternative to Google’s strong position. A very lively Q&A included the idea of dual-use technologies as a platform for free expression, problems with policy-making and regulatory capture, how to define innovation and creativity, quantifying the error cost of the ‘wrong’ decision, the differences between music and movie industries, and the ability of market leaders to be both incumbent and insurgent. It was an interesting argument, possibly easier to apply in the case of the music industry than others, but with useful illustrations of the relationship between IP and antitrust/competition law and the ultimate purpose(s) of copyright legislation. However, it is also quite the reminder how far the current parliamentary debate in the UK on the copyright provisions of the Digital Economy Bill is from the various provocative ideas that have been circulating in the academic side of copyright for quite some time now.