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Copyright © 2001, MCB UP Limited
Two recent conversations with old friends convinced me that we live in a world of paradox. One assured me that, as he got older, he found that people took away, one by one, all the things he most valued. The other asserted that the only constant in a world of change was change itself.
This same sense of paradox comes across as you look at recent legal developments. There is the familiar "battle of the balance", between copyright ownership and fair use/dealing. There is the matter of personal privacy and the information economy and what we think we know about what others think they think they know about what we know. There are some more legal niceties about software as "goods" and/or "services". Liability hovers over the information process like one of the sidekicks of the four horsemen of the Apocalypse. Employee surveillance is back on the agenda with a vengeance because of the Human Rights Act.
We abide with well-worn notions of freedom of information, patenting genomes, concerns about consumer protection in e-commerce. And, of course, the ever-increasing growth of information itself. And there's the business of earning a living, sustaining the environment, and developing a lifestyle. Yes, I think we've all been rather busy.
Take Me to MP3
Much has been written, and will go on being written for some time to come, about Napster. They argued that their service was fair use. They based this on several points: permissive distribution of recordings, space shifting (users accessed the sound recording but were just as likely to own, or purchase, the recording in audio CD), and sampling (users made temporary copies of works before buying them). So we then ask whether the new work replaces the original work, transforming it into something different: hardly likely when original works are copied whole and disseminated whole. It's the old idea of retransmission.
Another legal issue here is that of fair use commercial and non-commercial use. No money changed hands but, even so, the service Napster provides is commercial in the sense that users could access material "for free" but would otherwise have had to pay for it. If I copy it for my friend John, he gets it free when he might otherwise have had to buy it. Me too.
There is also the de minimis point. Let's say I write music and, since I've got writer's block, I decide to imitate Billy Joel's "Piano Man". You may know that the first musical phrases and the rest of it too are unmistakable and distinctive. It's still in copyright and not in the public domain. I have the copyright challenge here if I'm honest enough to acknowledge it that even a small (albeit qualitatively important) part of the original work can be recognised by third parties. In all probability "my" song would not explicitly acknowledge its "source". The issue then is whether, as here, even sampling is allowable. Let alone associated issues of creating confusion among potential buyers of "my" and Billy Joel's music, who may be confused and not know about passing off. Recent market research suggests consumers know so little about these things that survey data themselves, used in court, can be highly suspect.
Is It Really Scènes à Faire?
All this reminds me of the scènes à faire arguments about software. Some intricate originality issues lie here. Programs are protectable copyright works. Originality is defined as having at least some minimal degree of creativity. This draws on the famous Feist case of 1991 (where, as you'll recall, Feist lost because his activities did not have this). In the UK originality demands evidence of the compiler's skill, labour and judgement, and that the various elements comprising the collective whole had not been copies in that particular combination. In Europe there's greater emphasis on the author's intellectual creation, that droit d'auteur which characterizes the European approach.
With software we have literal copying (e.g. copying in fact, often substantial) and non-literal copying, where there is substantial similarity, say, between the design and structure of the "new" program and the original one. The issue has been around for over a decade: think back to Lotus Development Corp. v. Paperback Software International in 1990. Substantial similarity also takes on board iterative tests, structure sequences, and total concept and feel tests. This is always difficult territory for the courts.
Scènes à faire occur where there are elements in the situation itself elements which are indispensable and which have commonality with others generically like themselves. Some of the most likely cases have been in television (e.g. soaps, children's TV) where, as it were, irreducibly similar elements or threads appear and recur. What we'd expect from and in creative products similar to generic fiction. So plots involving characters like Sherlock Holmes could and can be replicated in an infinite number of ways. This highlights the grey boundaries between the strictly copyrightable and the many other ways in which potentially copyrightable ideas, taking tangible form, arising independently and (often) innocently, and by way of legitimate competitive trade, can come into being and pose problems.
The case of John Richardson v. Flanders (1993) is often mentioned here. The plaintiffs commenced infringement proceedings. They alleged that the defendants had copied the "look and feel" of their computer software that was developed to enable pharmacists to label prescription drugs and the track their inventories. It's an important case for its analysis of how we assess "substantiality" in copying non-literal elements of a computer program.
It drew on an equally important case Computer Associates v. Altai (1992), where a "successive filtration" test was recommended for non-literal copying. Examine the program for structure and routines (abstraction), sift out the core of protectable expression (usually the source code) (filtration), and compare the remaining protectable expression with competing works for substantial similarity (comparison). This core of protectable expression has to be separated from scènes à faire and from unprotectable elements dictated by efficiency (otherwise the program simply would not function, this last being the doctrine of merger). The so-called "Altai test" directs that a court should break down the allegedly infringing program into its constituent structural parts. It should sift out all the non-protectable material. Then the comparison will be restricted to the core of protectable expression.
All this makes fair use a risky business, something digital rights managers are getting more and more skilled about. The Napster saga continues as we speak: injunctions for the site's closure from the Recording Industry Association of America ("Napster is responsible for a substantial decline in sales of CD singles"), soaring usage by Napster fans (all 50m of them, and some have said they're more to blame), arguments that it does not "really" store song files but merely directs people to other users' hard drives where the music can be downloaded, claims that filtering has been incompetent, ambiguity from numerous content providers, and a pledge (whatever happens in the case) from Napster that it will reinvent itself. Somewhere round the corner are subscription deals, so this story of reinvention sounds plausible to me.
You'll already know more when you read this column. Whatever my two friends said (remember the pessimistic and optimistic ones, but then it could have been worse, think of Job), what goes round comes round, and the issues here are to coin a phrase irreducible constituent parts of the debate, the debate's own "meta-scènes-à-faire", if you like.
Images and Films: High-ish Noon
A sense of déjà vu occurs when we read about the Zinnemann colorizing case. Legendary director Fred Zinnemann made "The Seventh Cross", a classic World War II drama, in 1942. In May 1996 Telemontecarlo, an Italian television station, broadcast a colorized version of the film. Zinnemann objected, claiming they had violated his moral rights (paternity, integrity, etc.) and asking for a public apology. His argument went wider, to the moral rights (and, let's be plain, economic and entrepreneurial rights as well) of other film and multimedia authors and writers, producers and directors. He got no pledge and no apology. Zinnemann died in 1996 but his son continues the crusade.
Zinnemann's record speaks for itself "High Noon", "From Here to Eternity"... Evidence is there that broadcasting colorized versions of films can be risky: Turner Entertainment, which colorized "The Asphalt Jungle", was fined US$74,000 and the French television station which broadcast it was ordered to pay $37,000. Moral rights here centered on the director protect a film from unauthorized changes that are considered damaging to the honor and reputation of the film-maker. The Berne Treaty extends moral rights to authors, and the USA is a signatory. No wonder, around the world, authors' advocate groups are up in arms. I'm trying to keep up, and among others http://www.artistsrights.org/ are helping me to do so, but then, as my pessimistic friend would say, they would, wouldn't they?
Digital images are very much in the news too. People in UK library circles are wondering whether a recent US court judgment could have implications for libraries. Bridgeman Art Library sued a Canadian company, Corel, for copying images that the Library claimed to own. Academic libraries in the UK will know how much care and attention is needed when you give your slide collection a long-overdue look and begin to ask about copyright clearance and the role of DACS (Designers & Artists Copyright Society). RROs (reproduction rights organisations) are a vigorous bunch.
As for Corel, transparencies of artworks in the public domain were registered in the USA as derivative works, so Corel claimed that there was no valid copyright. Most of the original artworks and photos were first published in the UK, so, while the case was tried in New York, it was judged by UK law. Shades of Napster and Altai. The legal principle is that of skill, labor and judgment, and the extent to which the exercise of these can and should confer originality. The argument is that there must be some extra element of material alteration or change that suffices to make the totality of the work original in its own right. It was judged that Bridgeman had not provided evidence of this "alteration or embellishment".
Libraries engaged in copying images, above all digitally to and on the Internet, will look to this judgment, and developments like it. After all, what Bridgeman did not do could be what libraries holding images could also not do, or be held not to do. For libraries thinking of generating income this way, there are commercial factors, about using images, disseminating them, and charging for them. I think my pessimistic friend would need to be told here that, for every challenge, there is a solution, kind of.
Some organisations dealing with digital images deal with this problem by providing good reproductions for subscribers willing to pay a market price (and so cover copyright clearance royalties), and at the same time pro-vide low-resolution images to satisfy free-at-the-point-of-access principles. Because fair use, above all for research and private study, for non-commercial users, still kicks in. It will be interesting to see how art libraries and institutions deal with this. Perhaps readers might like to let me know, and I'll summarize findings next time around.
New Contracts for Old
Then there's Tasini. We have a saying in the UK for new brides something, old, something new, something borrowed, something blue. For reasons of decency, I'll leave out the blue, but in a real sense Tasini has it all. Contracts between authors and publishers have a fascinating and chequered history all of their own. In recent years electronic or e-rights have significantly increased in importance to everyone in the publishing world. Authors and agents have discovered new opportunities to republish out-of-print books in electronic formats. E-book publishers are acquiring e-rights and new contracts are being written.
But what about old contracts which, at the time of writing, didn't know about e-rights? This is at the heart of Tasini. And, of course, it's something old which has taken on new life. It is also about who owns what, who has the right to own what, and infringements are unauthorized borrowing. The metaphor of brides and marriage may not come to mind immediately when you think of the contracts between authors and publishers, but I can think of worse, and both do have their ups and downs.
Publishing agreements contain a grant of rights clause and recent ones take care to ensure that this clause covers e-rights. The "future technology" clause is now recognized as very important, because it permits an author or publisher (it can be both a quick look at the growth of e-vanity-publishing and e-self-publishing will confirm is anyone out there into this?) to exploit a work in any future media that is not currently known of or in existence at the time the publishing contract was executed. Such clauses will take on critical importance in court cases, although so far there have been few.
"New use" takes us into unknown territory, although, like Lewis and Clark, that's no reason to believe that the journey won't be worth making. The Tasini v. The New York Times Co. (District Court Decision, 1997) took place in New York. The court was asked to decide whether a publisher could include in their electronic database and/or CD-ROM articles that were written by free-lance writers (Tasini and others) who had written the material originally for newspaper and magazine publication, and whether a publisher could do this without securing the permission of the author.
The publisher's argument was that they were not republishing, but merely exercising the right of revision. Moreover, they owned the collective works, since they had been published before by them. The focus, then, was on e-rights not specifically granted to the publisher by an author and yet exploited by the publisher in electronic media. Such a case must be of interest to anyone involved, on either side of play, around the world. The ramifications for global intellectual property are interesting. There are also some philosophical and ethical issues, largely those associated with the extent to which we can anticipate and pre-emptively appropriate new uses and new technological applications into the future. A lot of the debate over the centuries has been about the duration of copyright and what it should be. Foucault would smile at the way in which this debate has taken us into the dialectic between capitalism (based, as so much of it is now, on intellectual or intangible assets) and the public interest/public access argument.
In 1997 the court ruled in favour of the publishers and decided that copyright infringement had not taken place. This was despite the fact that the freelance writer had failed to grant the publisher the e-rights in the articles. The publisher was within his rights to republish the article in an electronic format, and this was exercising a legal right of revision for a collective work. No surprise then that it came around again at appeal. Tasini v. The New York Times Co. (Court of Appeals Decision, 1999) overturned the 1997 decision and found that the New York Times and the other publishers had not been granted e-rights by the free-lance writers and were not within their rights to republish it in electronic format.
We have not heard the end of this. Other cases are pending, including one involving the National Geographic Society. International, cross-jurisdictional cases and precedents are going to be interesting. Various social and cultural factors, ironically, are at work to increase the number of free-lance writers in the publishing world. This will make the conventional criterion of "in the course of employment", which applies to so many employees who write for a living, rather limited as a yardstick for cases like these. The "something borrowed" really begins to hit home when we look not just at what parties to an obsolescent contract might seek to do, and what they might imply, or infer is implied, and allow other parties to believe (estoppel), but also what others might do where piracy, plagiarism, and parody are concerned. Another story ...
Privacy on the Agenda Again
Of course, privacy has never gone away. I spent an excellent evening this week reading Richard Spinello's Cyberethics: Morality and Law in Cyberspace (Jones and Bartlett Publishers, Boston, Toronto and London, 2000). I've always liked his stuff, because law without ethics is doctrinaire, and ethics without law tends to get pious. No surprise to find that he, along with lots of others, is talking about regulating Internet privacy. Personal information is more widely available than ever, not just about "us" in government and organizations, but because we, as consumers, actively go out and seek it, disclosing ourselves as we go. CRM (customer relationship marketing) and data mining and the whole infrastructure of information systems management have accelerated everything further. My pessimistic friend here would speak of Foucault and the panopticon.
A recent European Commission study highlights a potentially significant shift in the legal approach to unsolicited commercial e-mails (including spamming) in the EU. It finds that people are simply not clear about the legal implications of such e-mails. It predicts that Europe will follow the USA where data exchange is increasingly based on express user permission. The Commission are at work updating the Directive on Data Protection in the telecommunications sector, advocating a switch to an "opt-in" approach for obtaining consent to process personal data, such as e-mail addresses and fax numbers. Industry calls this permission-based marketing, and claim that it is an effective way of collecting data. Even so, implications for industry will need to be considered, above all setting up existing databases for the new opt-in facility.
Industry have always wanted a self-regulation approach in this area, as we have seen in recent years in reaction to the Electronic Communications Act 2000 (and all it said about cryptography) and, more still, to the Regulation of Investigatory Powers Act 2000 (sardonically acronymed "RIP"). RIP gives law enforcers powers to intercept communications by way of devices to be installed at ISPs and imprison those who fail to hand over keys to encrypted messages. There has been a lot of heat and some light about this in recent months in the UK, particularly from employees concerned about surveillance at work. The Human Rights Act 2000 and what it says about rights over privacy and "correspondence" is being applied to workplace e-mails by some, and case law will move in behind. Watch this space.
Amazon.com, never out of the news, focus of fascinated speculation by financial analysts and booksellers alike, is now facing a breach of privacy claim. Privacy International, a UK privacy campaigning body (http://www.privacy.org), has complained under the Data Protection Act 1998 that Amazon.com is unwilling to comply with its responsibilities under the Act. The precise issue is the transfer of personal information about customers from Amazon.co.uk to Amazon.com in the USA, where the USA "does not have adequate data protection laws". Amazon.com say they adhere to the data protection law, and tell customers that their personal data may be transferred. Anyway, customers can then deal direct with Amazon.com, so where's the beef?
It only goes to show how, when you get an issue like privacy, and two informed opponents, you are likely to get an interesting argument. The debate takes in the "safe harbour" principles that have been a matter of dispute between Europe and the USA. As one UK lawyer said, "it remains to be seen whether US organisations will sign up to the principles, and expose themselves to the legal risks of non-compliance".
We are in the domain of risk here. And my bean counter has just told me that I move into my own personal risk area (that of exceeding copy length) if I go any further. More comments in due course. If you want to contact me, the open sesame is email@example.com