Exceptional copyright ... and Werner Heisenberg

It's been good news and bad for the progress of the UK government's widening of copyright extensions. Basically, copyright exceptions are those things you are allowed to do with a copyright work without actually infringing the copyright. Traditionally this has been things like criticism and review ... and for reporting of news. In the UK it's known as fair dealing and in the US as fair use, although they are not exactly the same thing (but don't expect me to even try to explain the difference here ... even if I could).

I'll just remind you that when you publish something, or make it available to the public (again similar but not the same) you need to have the right to do so. On a web site you operate internationally by default, even if your intended audience is only in one country. So everyone building a web site needs to have some basic understanding of intellectual property.

There were five new categories of exception that were supposed to enter UK law this week.

• Public Administration
• Disability
• Research, Education, Libraries and Archives
• Parody
• Private copying

Two of these have proved particularly bothersome to the copyright community (the last two) so they are being further discussed while the others became law on June 1st.

Private copying starts off as putting CDs on your iPhone but has wider implications such as making copies of your wedding photographs.

Parody is more fun.

The UK is not alone in having no parody exception. This surprises many foreigners, given our comic traditions. Generally, being able to parody something has relied on your ability to persuade the real rights owner to let you do so. I always think of the French and Saunders TV show take on Alien 2 in this context (although I have no idea how they got permission to do it). The basic premise was that if you needed some tough people to take on the alien hordes then you got them through the pages of the Spotlight casting directory. The joke-within-a-joke being that in media this is exactly what you do do!

I won't go into the basics on parody. I recommend the IP Kat for that (and regular reading too). Suffice to say that it has to be funny and has to be fair. But then Heisenberg enters the room.

In quantum physics, Heisenberg's Uncertainty Principle basically says the more you know about something's position, the less you know about its momentum/speed. I paraphrase this as meaning that the closer you look the fuzzier it gets.

As the IP Kat points out, adding a parody exception might not necessarily protect you from infringing moral rights or from an accusation of defamation.

There's a great French CD called 4 Beadochons dans le vent which is a collection of what sounds like Beatles songs but which put French lyrics to the melodies. The French lyrics sound rather like the original English. For example Assaut Sur Mon Grand-père to the tune of I Saw Her Standing There. Incidentally, Quatre Garçons Dans Le Vent was the French title for A Hard Day's Night. This hasn't (to my knowledge) been released in the UK but maybe a parody exception would allow it to be? Perhaps not, if it could be argued that the whole CD, with its Sgt Pepper parody cover design, was not fair dealing.

Clearly you (still?) need to tread carefully if you go down the parody path on your web site.

Coda:

Just in case you didn't notice that a British judge asked the European Court to double-check that it was OK to look at a web site on your computer ... it is. The Register reports.

[As usual, nothing on this blog should be taken as legal advice. However much I think I know about copyright, I really know less.]

Update yourself on ‘Creative Commons’ licensing

Legalities were left outdated when the digital revolution took hold of electronic communications. Legal additions or changes to laws on copyright, attribution and ownership etc. have been slow to emerge. The world-wide nature of digital conflicted with country-specific laws. Legal traditions across countries restricted and controlled the use of media – using the equivalent of the ‘all rights reserved’ statement.

Enter ‘Creative Commons’ licensing (CC). This was seen as a breath of fresh air in a murky environment. It grew out of the ‘free access to assets’ mind-set that was prevalent in the online community.

So, what exactly is ‘Creative Commons’. Since it was introduced in 2001, it has grown to include all types of communication: audio, visual, and text. The definition is:

An organization that has defined an alternative to copyrights by filling in the gap between full copyright, in which no use is permitted without permission, and public domain, where permission is not required at all. Creative Commons' licenses let people copy and distribute the work under specific conditions, and general descriptions, legal clauses and HTML tags for search engines are provided for several license options.’

(From PC Magazine Encyclopaedia)

There are other definitions you may care to look up, but this introduces several concepts worth noting.

The definition mentions an organisation and this is Creative Commons itself, where you can get the best understanding of how the licenses developed, what they cover and how to use them. See creativecommons.org. The other concept worth noting from the definition is that these newer licenses work alongside, to complement, existing laws on copyright. They do not supercede them. They fill in the gap of use that digital access created.

Because CC licenses have grown to define various types of use and media, it is handy to get an overview of what is available so you can decide what might suit a particular client for a particular set of circumstances if they and you create new assets. Alternatively, Creative Commons allows you to search and use a variety of assets freely in your projects and this might be of value to you too.

Emma Crowley in the BU Blog, Getting to Grips with Creative Commons Licensing (15.4.14) summarises the current set of licences from Creative Commons using infographs. This gives you a great overview and will help you match the right type of license for the proposed use of your own and your clients’ assets. She defines the common features of all the licenses as allowing: copying, distribution, display, digital use, reuse in digital format, worldwide application, and lasting for the duration of copyright, but not allowing, revocation or exclusivity. She defines each type of the six licenses that form the Creative Commons group of licenses too from the most freely useable to the least free. You embed these licenses freely into your code where they are recognised by digital means.

You might be comforted to think that all your asset use problems are solved now: but not so. You really need to think through exactly where and how people might like to use your assets. Hugh Rundle in his recent blog, Creative Commons, Open Access and hypocrisy (23.3.14), notes a difficulty created for him by a request from a commercial publisher for use of one of his blogs. He chose to rethink and change the license, and in his post explains his thinking about just what non-commercial means to him. We have looked at the commercial/non-commercial divide in an earlier post, and it is one of those things that gets fuzzier the closer you look at it.

Another thing to remember about CC licences is that they can't be revoked and last for the duration of copyright. There may be circumstances where this isn't appropriate. For example you might offer free access to something as a 'loss leader' with the intention of commercialising it later ... or even just change your mind. CC doesn't let you do that because even if you change the licence type there is no way of knowing which licence your end user was subject to when they downloaded the material. None of this is a problem as long as you understand the licence.

So, maybe more types of license have to be created to cover more ‘use’ cases. Keep tuning in to creativecommons.org!

An interesting week in UK image rights

You know that old Chinese curse: 'May you live in interesting times'. This last few days have been interesting for followers of copyright in photographs and other images ... but not necessarily cursed. If you're putting together a web-based project some things just got a lot easier.

We are already well advanced in discussions about how to implement the scheme for using orphan photographs. I've attended a few meetings at the UK Intellectual Property Office (IPO) discussing how the licences might work. One key discussion point is just what constitutes 'non-commercial use'. So I will briefly digress from my main point to refer you to an old document from the Creative Commons people which, based on a survey, does just that.

The reason why this question is important is because there is a significant difference between what rights owners will allow a 'commercial' user to do as opposed to a 'non-commercial' one. And often it is the use itself rather than the user; so it's complex.

Recent UK government legislation made provision for the IPO to occasionally issue 'notices' to explain and clarify aspects of copyright in a way that can be understood by the average person. This is what Lord Justice Greer once famously called the man on the Clapham omnibus back in a 1933 court case. So now there is some suitable reading for that bus journey for the IPO has issued its first such notice ... for photography on the web. They plan to issue more and will link them from this web page. On the whole it's a very good document. There are a few niggles I have with it but it is possibly the first step towards a universally useful Copyright Highway Code, so I'm all in favour.

Images on the web made the news yesterday, when the huge image agency, Getty, announced that it was now providing a service to allow people to embed images from its library, free of charge, on web pages that fit their quite broad definition of 'non-commercial'.  The story broke in the British Journal of Photography and their piece includes helpful elaboration from Getty's senior vice president of business development, content and marketing (must have a very long business card) Craig Peters. He says that a web page or blog with Google ads would not be considered commercial.

The fact today that a website is generating revenue would not limit the use of the embed. What would limit that use is if they used our imagery to promote a service, a product or their business. They would need to get a license.

The question of whether Google ads on the average blog is 'commercial' or not is one issue that makes deciding where to draw the line between the two very difficult. [There is a separate issue of just what Getty's initiative might do for the stock photo market and for stock photographers. However, Getty are being pragmatic: there is a lot of web infringement of their images and they now have a plan to control and eventually monetize this.]

Finally, in case you missed it, the British Library have placed over a million of their scanned images (basically etchings from 'old books') into a Flickr Photostream for anyone to use. The BL have said that they are not aware of any copyright restrictions, which is probably good enough for most of the rest of us. I should add that this project, with definitely out-of-copyright images, should not be confused with scanning of 'out-of-commerce' books, which may well still be in copyright. That's a whole different ball game. The typewriter engraving above is from the BL collection and, good for them, includes title and attribution metadata.

Copyright is ... what? Answers required by Europe.

Copyright is definitely a difficult subject. It's part of a range of intellectual properties and protects your creativity in art, literature, music, photography and such like. It started with literature and music and added new technological things like photographs, sound recordings and movies over time. Other kinds of intellectual properties include designs (for physical objects such as a chair), patents (for processes such as making a new and novel kind of chair), trade marks (such as the chair on the chair-maker's logo) and good will (such as their reputation for making the best chairs). We have just over three hundred years of copyright law trying to keep pace with technological change.

In what seems an attempt to hasten the pace of change the European Commission asked back at the start of December for answers to questions on copyright for Europe with an original deadline of February 5th which was later extended to March 5th. The Europa web page is here. The thought that the Commission want to re-open a broad debate on the European copyright directive is somewhat disconcerting to many; mainly because the directive itself is relatively recent (2001) and took five years to pull together. However, in the intervening thirteen years we've seen an explosion of consumer re-purposing and combining of audiovisual stuff (known as remixing) and widespread web publishing of text, images and even video by consumers.

The key point about intellectual property is that legally (in English law) it is seen as property and the rights holder - who could be the creator or could be someone delegated by the creator - has the right to control how their creative work is used. Now, while no-one would or could take my car and blend it with a cement mixer to produce a new art form without destroying the original, they could do that with some of my photographs. Should this be possible without my permission? That Victorian pastime of cutting out images you liked and pasting them into a scrapbook is strictly illegal if you do it on a computer, and becomes especially contentious if you then publish the result. See ... not simple.

Into the fray launch two web sites, both from 'Copyright is Broken' pressure groups. Fix Copyright! and Copywrongs.eu. This side of the copyright debate suggests that intellectual property law needs to be knocked down and rebuilt from scratch. This is to better balance the rights of creators and consumers (or, as Fix Copyright put it: "public interest in access to knowledge, culture and education".) You note your scope of interest and the sites lead you to the appropriate parts of the 80 question document from the Commission and offer help for your answers. The hints don't show a significant bias one way or the other and will genuinely help you navigate a convoluted form. That said, you are asked about problems you have had rather than positive experiences, which would tend to steer you away from reporting 'no problem' and lead to generally negative responses. The EU form itself has 'no' and 'no opinion' as alternative answers but it too seems biased towards bad experiences.

So, if you want to use either of these web sites to produce a response, please think as broadly as you can about the issues. Or, even better, use the EU form itself. There is now a further month to do so.

As far as I know, organisations representing creators such as writers, musicians and photographers and those representing the conventional public-facing side of copyright such as record companies and book publishers, have not produced any guides to dealing with this form, even though there is general concern about the risks to the creative industries if 'tried and tested' mechanisms for copyright law are shaken about.

Intellectual property law should strike a balance between the rights of the creator and the consumer (noting that consumers and creators can be the same person), but should that always be a strictly equal balance? Should there not be a bias towards the creator because it is the creator who initiates the whole process and everything else derives from that?

Parliament reports on the creative industries and on broadband

Today (Thursday) has seen two reports from the powerful (if somewhat mysterious) UK parliamentary committees: part of the checks and balances of our democracy.

The one that has made the news is on rural broadband rollout. The Commons Public Accounts Committee says that consumers have been "ripped off" due to government mismanagement and that BT, who are the only contender for the money available, haven't been transparent on their costs. The government and BT disagree with this of course.

Are you 'rural'? I find myself in a rural place these days. Whereas my previous Surrey homestead was within range of BT's fibre to the cabinet (FFTC) broadband with its tens of megabits, my current Northamptonshire ranch is totally dependent on copper, albeit with a respectable 6 megabits from ADSL 2+. That's not really my problem however, since BT's broadband isn't an option for me as they don't have a suitable home-office package (I need a fixed IP address) and my otherwise good provider (Demon) does not, as yet, 'do' fibre ... which is apparently leading to many customers jumping ship (if you believe the conversations on the user forums).

Personally I'm not surprised that BT were the only provider willing (or able?) to provide rural fibre. They are a very able company after all and this is 'what they do'. We also seem to forget that fibre is also the future of voice, since before long all telephony will happen over broadband IP circuits, and it's not just thieves who could make good money from selling old copper cable. Ironically, those odd communities who have jumped the gun and sorted out their own rural broadband (such as the innovative Rutland Telecom just up the road from me), will be excluded from any subsidised BT rollout since this is only available where there isn't already a broadband supplier. I'm not clear how this squares with encouraging competition.

We're in the business of electronic communications and the IT Crowd are encouraging us to put 'stuff' in 'the cloud' but you can't really do that unless you're well connected. When you're choosing where to move your office to, what are your priorities ... how far up them is access to fast broadband. Even in cities this is an issue since you may well have other Buck Rogers options such as wide-area ethernet. So there's always a choice ... of some sort.

Report number two comes from the DCMS Select Committee, chaired by the estimable John Whittingdale MP. They've just published a report on Supporting the Creative Economy and since we're in that economy I recommend you have a read (of the summary at least). It doesn't just deal with intellectual property (the bit I went to first) but also includes Olympic legacy (or is it 2012 sustainability?), piracy, taxation and education. Did you know that the IOC's contracts for suppliers forbad them from publicising their involvement? Neither did I. The report also fires two barrels at Google, asking why they don't respond as robustly to copyright infringement as they do to child pornography, and saying that the agenda underlying current government thinking on copyright is partly driven by technology companies including Google and "if pursued uncritically, could cause irreversible damage to the creative sector on which the United Kingdom’s future prosperity will significantly depend."

What is interesting to me is that the committee's stance on copyright often conflicts with that of the Hargreaves Report and they ask whether there is sufficient evidence to justify the new exceptions to copyright being put forward as well as the tendency for them to be bundled together so they can't be discussed independently. They ask the question as to whether the UK needs a champion for copyright but stop short of suggesting that the UK Intellectual Property Office be moved from the business ministry to the culture one. As the Music Ally blog says, "The report represents one long win for rightsholders in terms of convincing the Committee of their arguments. Whether it brings the changes they desire is considerably more open to debate." Spot on!

Orphans ahoy!

I've written in the past about orphan works. These are copyright things (works we call them in the rights biz) whose rights owner is unknown or untraceable. Now the UK Enterprise and Regulatory Reform Act has been passed and the game is afoot. An act name worthy of Yes Minister's Department of Administrative Affairs and one I try not to say out loud. This, amongst stuff about landlords and whistle blowers, gives the government the ability to issue laws to permit the lawful use of orphans and said laws (called statutory instruments or SIs) will be promulgated later this year. The drive from Europe is to allow non-commercial reproduction of orphans to preserve them and to permit access. I know that the boundary between commercial and non-commercial is both hazy and full of large rocks but it does at least draw a line many people find reasonable under the circumstances. However, the UK plan for orphans goes further, notably allowing commercial exploitation.

This is proving particularly unpopular with photographers and illustrators and has even been called the 'end of photographic copyright'. I suspect the debacle will not be as dramatic as many fear but it has to be seen in the context of how photographs and other images are treated on the internet ... posted and reposted and along the way losing any information about their rights ownership. There's a good (and for once non-hysterical) roundup of the issues on the Register.

As designers, builders and managers of web sites we have a responsibility to treat the rights of things on our sites correctly. This doesn't just mean clearing the rights any more. We need to make sure that any images have suitable metadata embedded in them and that any program systems do not remove said metadata. For example, ImageMagick does not carry over metadata when you process an image to, for example, resize it. However, there is a PHP Metadata Toolkit (probably others too) so you can read the metadata and then reinsert it. But you have to actively make sure it will happen.

Remember, as I said before, some day the orphan could be yours.

Copyright in software better defined

I've always understood that there is a difference between form and content. There is no intellectual property in the form and structure of a book but there is in the content of the book: the design of the cover and pages and the words and images it contains. In computing (and hence interactive media) this distinction is less clear cut because everything is 'made' of computer program and we tend to also talk of the form and function (what it looks like and what it does) of a program as well as any content that a user might produce using that program.

A recent decision by the UK High Court has clarified what is protected by copyright when it comes to a computer program. This follows from decisions by the Court of Justice of the European Union and the late Lord Justice Pumfrey.

The case before the High Court was a battle between two software companies, SAS Institute Inc and World Programming Limited where SAS claimed that WPL, in reproducing the functionality of piece of software had infringed copyright.

The whole judgement makes for somewhat arcane reading but one key quote is this:

...copyright in a computer program does not protect either the programming language in which it is written or its interfaces (specifically, its data file formats) or its functionality from being copied.

I must assume that programming language has the obvious meaning here: PHP, C++, Algol ... whatever the application was written in (in the case here it appears to be a bespoke language). The component parts of a computer language are words (albeit ones with very specific meanings) and it is up the the programmers how they use these words to tell the computer what to do. In this sense it is like a recipe written in English. The recipe might be copyright but the English language it uses is not. So the computer program is copyright (as a work of literature if nothing else) but the language is not (although it might have elements that could be patented as covered by this BBC news story). That seems sensible.

The file formats make an interesting case. Finding a linguistic analogy is tortuous but you could say that the format of a haiku is like a file format. If you write your poem in the appropriate way it is a haiku, otherwise it's not. However, that doesn't mean that anyone could claim copyright in the form of a haiku does it? If you're reverse engineering something such as a word processor then you need to be able to write files in the appropriate format; so this judgement clarifies that situation.

Funtionality takes us back to long-standing arguments about copying how a program works and what it does. The graphical and textual elements of an interface can be copyright if either is, as the judgement notes, "... its author's own intellectual creation...". This does not apply to the function: so we can broadly say that form (notably any graphical user interface) may be copyright but function can not be.

As it happens, the only thing that was infringed in this case was copyright in the user manuals, which is a literary work (presumably with a few illustrations) in any case so had to be a slam dunk.

See SCL and Field Fisher Waterhouse's Tech Bytes blog for more detail and the ruling itself for the literal chapter and verse ... and remember that I am not a lawyer and this blog does not constitute legal advice.

Cautionary tales

Two legal items caught my eye this week, and reinforce the care needed when building web sites.

The first is a copyright infringement case heard in the Patents Small Claims Court, which provides a 'low cost' route to justice in intellectual property cases in the UK. In this case (Hoffman v Drug Abuse Resistance Education (UK) Ltd [2012]) a charity web site had included some photographs illustrating types of drug. The web designers and their client believed that the photographs belonged to the UK government (and they had been used on a government drug information site) and as a result could be used on this web site. Unfortunately this was not the case as they were copyright of a long-established photojournalist named David Hoffman and no permission had been given for their use in this way.

The photographer successfully took action for copyright infringement against the charity who published the web site and the judge calculated and awarded damages. The judgement is clearly set out and makes useful and interesting reading.

In the book we recommend that you don't necessarily believe it when your client says that assets are cleared for their web site. You are probably aware that most contracts that involve clearance of assets include some kind of indemnity and that this, in turn, should be covered by professional indemnity insurance. I should add that if whoever had used Mr Hoffman's photos originally had included correct rights metadata with the image this whole show could have been avoided. So that's another good reason for making sure images on your web sites have appropriate metadata.

A few days ago the RNIB initiated legal action against the bmibaby airline over accessibility (or lack thereof) on their web site. Apparently this has been ongoing for some time and the impression I get is that the RNIB felt the airline had been given enough time to fix the accessibility issues but there had been no progress.

I suspect many of us thought that accessibility was no longer the problem it was a few years ago and that the basic techniques were now common practice. In any event, with more and more web sites using content management systems the feeling would be that the CMS would do the heavy lifting on accessibility as it does on other things. Clearly we, and our clients, should not get complacent.

Copyright consultation rumbles on

The next stage of the UK government's copyright consultation is now under way. This follows on from the Hargreaves report and picks up several specific points on which comments are requested via a web page at the Intellectual Property Office.

It's a complex set of proposals and I've only just started to look through it but things I note initially are:

Copyright exception for archiving and preservation
Current law allows limited copying for preservation but this, surprisingly, does not extend to sound recordings, films, broadcasts, or artistic works. The irony here is that material which has most difficulty surviving in a digital age is excluded. The proposal is to extend the exception (to more kinds of work and to allow more copies) and to allow more kinds of institution to do the copying. The consultation refers to 'such as museums and galleries' in this context so we might assume any other kind of organisation or even an individual who feels the need to copy to preserve an artefact they possess would be excluded. Would a music company, for example, be allowed to copy masters to preserve them ... assuming their contractual arrangements did not already allow this. There is also an assumption that this exception would not apply to anything that was otherwise available to be bought.

Exception for use of quotations or extracts of copyright works
This, like other proposals in this consultation, intends to bring UK law into line with a wider European legal framework and, at present, UK law only allows use of extracts for the purpose of criticism, review or reporting current events. I assume that use of an insubstantial portion of a work under fair dealing fails because things worth quoting in this way are probably not insubstantial.

Exception for copying of works for use by text and data analytics
This is the so-called Data Mining exception. The proposal here clarifies the question (for me at least) significantly and applies to cases where you already have legal access to material (by subscription for example) but could make further use of it by copying into a database and running analyses.

Protecting copyright exceptions from override by contract
Primarily this seeks to level the playing field for organisation such as libraries who currently have to either take note of restrictions on individual sources of material or adopt a worse case approach. In the light of the data mining exception above, such protection seems to me to be essential.

Copyright Notices
As Hargeaves suggested, the plan here is for the Intellectual Property Office to produce legally-binding opinions on rights questions, called Notices. There would also be 'a duty on the Courts to have regard to any Notices published'. This is designed to help businesses. While I really welcome this I don't think it goes far enough and a more general set of such notices, forming a kind of copyright Highway Code, should serve the public as well as those small businesses who feel restricted by the cost of legal opinions.

Orphan Works
Yes, TwistCo reares its ugly head once more. In fact, the analysis in the Intellectual Property Office document here seems well-considered. It does however hedge the qualms of the photographic community, of 'active orphaning' by stripping metadata, more than somewhat. Given Hargreaves side-stepped moral rights altogether I am of the opinion that the link between moral rights (particularly attribution) and orphans needs a lot more thought. I also note that the wish of the photographers for any use of orphans to be non-commercial has been ignored.

All the sections (and more) are linked from the main page I linked above.

And that's all from us for 2011. Elaine and I wish you a happy and restful seasonal break and a successful 2012.

Government buys into copyright 'update'

Last week the government response to the Hargreaves report on copyright was published. It seems that they have accepted the report pretty well lock stock and barrel, which may at least save the report from the black hole the Gowers report seemingly fell into. It will also suit many in the interactive industry, who wrote an open letter to the powers that be urging acceptance and then welcoming it.

There is much common sense in the recommendations. Format shifting is something 'we all' end up doing and I have always thought it a bit ingenuous of rights owners in granting a licence that only allows intangible use of something while tying it to a physical artefact such as a CD. There is a circle to square over making this work in a European framework that asks for reasonable remuneration for rights holders in such cases (such as a blank tape levy). A right of parody possibly seems better than it actually is; the existing French right includes a requirement to be funny, which must be an interesting thing to argue in court. Data mining (by which I think they really mean indexing) should be OK as long as you can't reverse-engineer the original from the bits that you mine.

No, the 'were they listening at all?' moment comes over orphan works. In principle, the idea of being able legally to publish a work where you really can't find out who owns it or can't track them down to pay them makes sense. The difficulty is that it could open a hole big enough for unscrupulous or ignorant publishers to drive a bendy-bus through, and that was what really worried the photographers. A compromise solution was to agree to non-commercial use of orphans (whatever 'non-commercial' means exactly), but even this has been ignored. I can't see a compelling case for orphans licensing outside of the heritage sector. If you're the British Library or the BBC and you have an item in a box with no label on it that clearly has an historic relevance to your project then I can be persuaded. Using an orphan photograph of a polar bear instead of getting one from a library is not what such legislation means at all.

Two things could ameliorate this: better treatment of moral rights of authors/photographers (particularly as manifested by metadata attached to photographs on the web) and a better way for an aggrieved photographer to take action. Sadly, Hargreaves had no brief to consider moral rights, so that battle is still on-going. En passant I note that the moral dimension is perhaps more a subject for the Culture minister, Jeremy Hunt, than Business minister Vince Cable. The watchword is that copyright is the means by which culture does business, and it should be a two-way street.

There is an unexpected bit of good news in the government's response. It's on page 12:

The Government will, subject to establishing the value for money case, introduce a small claims track in the Patents County Court [which deals with all kinds of intellectual property, not just patents] for cases with £5000 or less at issue, initially at a low level of resource to gauge demand, making greater provision if it is needed.

This is something I and others have been banging on about for a while: for small (ie SME) creators, the fees you get for an individual publication of your work are relatively small and so a court for such small claims is overdue.

Copyright back on the political agenda

I have written in the past about some of the currently contentious issues in intellectual property, such as orphan works and the use of metadata to preserve a creator's moral rights.

Recently there have been two calls for public input into the copyright process. One was a call for evidence by the Culture select committee, which has been put on hold for the moment, and the other was the Hargreaves Report.

Hargreaves had been touted as the 'Google Report' since it was suggested that one of its issues, changes to our copyright exceptions (called fair dealing) to match the American fair use model, had been somehow suggested to the Prime Minister by Google, by saying that our rights regime prevented the Googles of this world from starting here in the UK. Rory Cellan-Jones at the BBC put that very point to Google's Eric Schmidt, who admitted that getting a business underway in the USA was easier than in Europe but said he was "not aware" of Google saying this was a rights problem.

Elsewhere in Rory's BBC blog, and that of Arts colleague Will Gompertz there were postings on Hargreaves. What I recommend you do is read the comments, for the Battle of Waterloo will these days be won on the playing fields of blog comments. I have chipped in (and bit my tongue on several occasions) but ... within the severe size limits currently imposed by the BBC on such things ... the comments expose a lot of the obsessions and occasional ignorance of what is a very arcane area of law and very difficult for people to understand.

Apart from the fair use and orphan works bits in Hargreaves ... and a welcome call for format shifting and parody exceptions, one theme is of what I might dare call an improvement in fairness and openness in rights dealings. The Intellectual Property Office is urged to give examples of what you can and can't do, which would have some force of law, and the government is encouraged to make it more practical, and cost-effective, for small rights owners who have been infringed to gain redress.

One omission is that moral rights don't get a look-in. There will be areas of the creative industries, including the small corner where I shine my light, that will find that a serious flaw.

Oh, and the report (PDF here) also asks that it doesn't suffer the fate of some previous such reports and that the government acts on its recommendations. It looks as if copyright is back on the agenda.

Should we worry about metadata?

What is metadata? One way to think about it is as data about data. Metadata is to your data file as the contents, index and 'back of the title page' are to a book.

On the web there is metadata provision in every web page, in the form of the meta tags in the header of the html file. Here we can put key words, a description of the page, and a variety of other pieces of information that, to be honest, we often don't include. It is also possible to include metadata in image files, including JPEGs. When you take a photo with a digital camera, the camera will automatically include metadata about the settings when the shot was taken, and in some cameras you can set that to include the photographer's name and copyright information.

The use of metadata in online images is becoming increasingly contentious. One of the problems being that in some cases any metadata, including the data that might identify the copyright in the image, is being removed, by accident or by design. Many in the photographic community are worried that widespread posting of images on websites, especially social media sites, risks creating so-called orphan works; where the author is either not known or cannot be traced. This is because sometimes the internet seems to be viewed as a copyright-free zone. I particularly like the copyright notice on the middle photograph.

So, what should we be doing if we publish images on our web sites?

1. Make sure published metadata includes attribution data (ie who took the photo) and the URL of your web site
2. If you allow user uploading of images be sure to include any metadata in the original file
3. If you resize images make sure any metadata is carried over
4. Don't use images without permission unless you know they are out of copyright

There's a great online tool which can show you metadata for a bewildering range of file types, including the common image formats. It was written by Jeffrey Friedl in 2006 and you can find out about it on his blog and try it out for yourself.

[PS: Jeffrey Friedl wrote the O'Reilly book Mastering Regular Expressions. An essential programmer's read.]

Open => Movies

A friend in Canada sent me a DVD at Christmas. It was a little different to your average DVD in that it contained another example of an open movie, and a very fine one too. But it's an open movie with a cautionary tale attached.

I'll get the good stuff out of the way first. It's called Sita Sings the Blues and tells a story from the ancient Hindu epic, the Ramayana, about the failure of Sita's marriage to Rama and its aftermath. This is juxtaposed with the breakup of another marriage; that of the film's maker Nina Paley. Sita is a goddess separated from her beloved Lord and husband Rama. Nina is an animator whose husband moves to India, then dumps her by email.

It's an amazing film; moving, witty and beautiful. It also includes some lovely music, most notably songs sung by a lady named Annette Hanshaw, on shellac 78s from the 1920s and 30s.

Nina has released this movie under a Creative Commons Attribution-Share Alike licence. As she says on the movie home page, "From the shared culture it came, and back into the shared culture it goes." The reason I'm mentioning it here (other than that I really want you to watch this movie) is to remind you of how convoluted and counter-intuitive copyrights can sometimes be ... especially in music.

Those of you who have been on our course or read the book will no doubt recall that I explain that a recording of a song contains two different copyrights; one for the recording and one for the song itself. In most cases the copyright in a sound recording expires 50 years after it is first published but that other copyright continues until 70 years after the death of the longest-lived composer or lyricist. Nina wasn't aware of this until after she had completed the movie and had to apply for licences from the music publishers retrospectively even though the recordings were out of copyright; never an easy task. She achieved this but it cost her - personally - $50 thousand. The publishers, on the other hand, may have been tied into contracts with their composers that restricted their room for manoeuvre (although they did drop their original fees from over $200K!). I should also add that including music in a movie or TV program involves a thing called the synchronisation right, which is different from the mechanical right which allowed the recording to be made in the first place, and the performance right which would allow it to be played in public.

So Nina has paid personally to allow us to download or stream the movie for our own personal use. It's right there up to 1080p HD resolution ... donations accepted.

While we're discussing open movies, have I mentioned the Blender Foundation to you before? Blender is a very powerful open-source animation package. Someday I really want to get to grips with it. The organisation behind it - based in free-spirited Amsterdam - have made some movie 'shorts' to show it off. There are three so far and they are also really worth a look. They are released under another Creative Commons licence, this time the Attribution one. Elephants Dream is a surreal journey inside a giant machine, Big Buck Bunny is Rambo meets Disney (sort of) with rendered fur ... and Sintel is a cautionary tale about a search for a pet dragon (with fast action). Each movie tests another feature of the software.

You can find the three on Blender's Open Projects page.

My and finally is to ponder whether there is a way of explaining the intricacies of intellectual property (like copyright) so that anyone stands a chance of understanding it. Now that almost everyone is using and creating and publishing (over the internet), rights are no longer something for experts and companies: they directly affect everyone. Maybe we need some kind of Highway Code for copyright. What do you think?

The Moral Imperative

Last week, wearing a Royal Photographic Society hat, I went along to a seminar on moral rights. This was organised by the Strategic Advisory Board for Intellectual Property Policy (SABIP) and aimed to discuss the international perspective on the subject.

Now as I'm sure you remember, moral rights are an adjunct to the economic right of copyright. Rather than your right to control and earn money from your creations, moral rights protect your artistic integrity. They are relatively new to UK law but long-standing in countries like France.

The seminar was interesting and often too technical to go into in detail here but I wanted to flag a couple of things.

The first thing is the subject of attribution. I argued that all other rights stem from this; if you are not known as the author/creator then how are you going to exploit your work or protect its (and your) integrity (another important moral right). UK law does convey a right of attribution but it has to be asserted ... you have to say you assert your right to be identified as the creator of your work. You can, by 'agreement' waive your right of attribution in contract (it doesn't apply to things you do in the course of employment) and there is a big exception for reporting news and current affairs. This latter point is seen by some as something the newspaper and web publishers take advantage of regularly.

In some countries you can't waive your moral rights ... they are yours and you are not allowed to give them up. I hope that the questions and discussions at the seminar made the point that authors need attribution ... you are only as good as your last credit, as they say in TV. Some publishers argue that their business model relies on no individual contributor being credited but, as someone else pointed out, countries like France still have newspapers and web sites. The days of stories being simply credited to 'our reporter' are long gone surely? (Mind you, I once knew a man who edited a girls magazine for a while in the 1960s and the editor was always called Pete Lennon, no matter who he really was ... that was the image.)

My second point is something that only occurred to me after the event, when I looked through the attendance list. There was no one representing software authors and programmers. (Someone was there from Microsoft but I don't count them.) There was no one from BIMA or the BCS or even the games industry.

There is an exception in UK moral rights for computer programs. The argument was that 'computer programs are always written by teams'. Well that is patently untrue and I suspect you only believe that if you have an old-fashioned view of programs and programmers. Personally I think programmers are as creative as the rest of us and deserve their moral rights ... a point I shall be raising with SABIP.

Any thoughts?

More on TwistCo

By a strange twist of coincidence I found myself discussing the orphan works legislation with officials at the UK Intellectual Property Office yesterday. The context was photography, which the IPO recognise has the worst orphan problem.

Firstly, orphan works legislation is required because the practice of trying hard but publishing anyway is actually illegal to the extent of being a criminal offence! The idea is to make it possible to publish an orphan work within the law.

Secondly, the plan, as outlined to us at the meeting, is to make it as hard if not harder to use an orphan work than to licence a known one or even commission something new. Anyone wanting to use an orphan would have to apply for permission to do so (to our hypothetical orphan collecting agency TwistCo ... see the previous post), prove they have diligently tried to find the rightful owner, and pay a fee appropriate to the intended usage.

Thirdly, this is an extension to the way rights are handled. No existing rights are to be compromised. On the other hand, the proposals would only apply to the UK: there is no international aspect to this.

Fourthly, there is no reason or even implied incentive to register your copyright works with TwistCo in order to prevent them being orphaned. That's not the way it works: TwistCo is reactive and reacts to publishers registering orphans they wish to use. TwistCo will probably be obliged to advertise the orphans they have on a regular basis, so that potential relatives have the opportunity to claim them. Falsely claiming ownership would be fraud but the legitimate parent would still need to prove their case; this is the case with a copyright claim under existing law anyway and we would hope that a claim by a copyright owner to TwistCo would be less arduous than a copyright infringement suit.

Personally I feel somewhat reassured by all this, with the caveat that these plans are not written into the bill, they would have to be facilitated by the Secretary of State if and when the bill is passed. The IPO are also aware that tracking photographs on the web will rely on effective image recognition that can cope with cropping, changes in gamma, rotation, inversion ... and so on. Incidentally, keeping the bill vague is apparently a way of giving it a chance of getting through. The discussion going on at the moment is nothing to what would be happening if the bill actually went into detail.

We should be aware that any kind of work can be an orphan. After the meeting I realised that this could just as easily apply to a computer program, or routine from one. With so much JavaScript floating around the web there are lots of opportunities for lines of code to get separated from their copyright notices. Just when you think you've found all the worms in the can you find another can on the shelf.

Orphans cause stir in copyright plans

Sorry for the bad headline! This is related to the Digital Economy Bill that is currently going through parliament and the plans within it to deal with what are called orphan works.

Basically an orphan is a work whose owner can not be found. Publishers are often unable to use things like images because they have a copy but don't know the copyright owner in order to ask permission. Probably the biggest type of rights involved in this are photographs, but it can just as easily apply to a movie or a piece of text or any kind of work.

The bill makes provision for the Secretary of State to determine how to deal with orphan works. I find this, in itself, odd because it seems rather like baldly saying that theft is bad but we will let someone in government sort out the details of what we do about this.

The text of the section is here: www.publications.parliament.uk

My reason for mentioning this is that the internet is leading to a proliferation of orphans. People put their photos (to continue that example) on things like Flickr, other people link to them without attribution and, hey-presto, you have an orphan in the making. The bill seems to make no provision about how much effort needs to be taken to find the owner before the work can be considered an orphan (that's for the Secretary of State to decide). There seems to be no mention of what happens when someone's orphan is returned to the electronic bosom of its family, beyond authorising the Secretary of State to include provisions in whatever regulations may be produced as a result of the bill. This is all very vague for the rights holders but what might it mean for publishers ... such as you and your clients with web sites?

We may find that there is a body who will issue licences and collect fees for the orphans on behalf of their unknown owners so that if you can't track the owner down you will at least be safe from copyright infringement if you get a licence from this new hypothetical body. Let's call it TwistCo. Note that TwistCo would charge a fee, whereas currently if you do your best but decide to publish anyway, you do not have to pay anything; unless and until the rights holder finds you and, probably, asks for a fee. This new process could take a lot more time since you will, presumably, first have to prove to TwistCo that you have tried your best before approaching them for a licence.

It is likely that the orphan provisions will become law in some way but it reinforces not only your need to use reasonable endeavours to get the right permissions up front for everything on a web site; but also to make sure it is correctly attributed ... and that you correctly attribute everything you use. Who knows ... one day the orphan may be yours.

PS: To save you looking it up ... twistco.org and twistco.org.uk are currently available!