HUMAN LAW MEDIATION

Recommended article on User Generated Computer Games

Click hereto read this on the WIPO Magazine. "This article, first published on November 14, 2006 in GameDaily BIZ, a division of AOL Entertainment was written by Gabriel M. Ramsey and Michael W. Trinh at the Silicon Valley office of the international law firm, Orrick. Mr. Ramsey specializes in intellectual property (IP) litigation involving high technology and entertainment industries. Mr. Trinh, who is also focused on IP litigation, has a background in information technology and Internet policy issues.

User-created content is a significant force in the online economy. People create and share video sensations on YouTube, publish their thoughts on blogs and collaborate to create online resources such as Wikipedia or open source software. With Microsoft's beta release of its XNA Game Studio Express, this trend will reach the console gaming industry. The XNA Game Studio Express is a suite of programming tools which enables users with relatively basic skills to develop "home-brew" games and run them on an Xbox 360 or Windows-based PC. "

Gowers Review of Intellectual Property is published

As IMPACT and the IPKat report, The Gowers Review of Intellectual Property has just been published.

The IPKat blog has done a detailed post on the Review.

Some provisional observations of the IPKat include: 

• There is no proposal to extend the term of copyright protection for sound recordings from its existing term of 50 years
• Private copying should be permitted
• Directive 2001/29 on copyright in the information society should be amended to allow for an exception for creative, transformative or derivative works, within the parameters of the Berne Three Step Test
• Fast-track trade marks for small businesses

You can read the whole version here.

Gowers Report is out on Wednesday

On Wednesday the Gowers Report on IP Rights will be published. The great man himself, Andrew Gowers has done a little of primer in the Sunday Times and it is quite a good read too.

Interesting comments include: "In Britain, the creative industries are growing at twice the rate of the rest of the economy. IP — if properly enforced — provides the essential framework to promote and protect creativity and innovation by industry, artists and consumers. Without it few, if any, of the innovations that we take for granted would be brought to the market.

Consider that 20 years ago the market value of the top 10 firms listed on the London Stock Exchange roughly equalled their book value — the value of their physical assets in buildings and machinery. Since then, book value has doubled while market value has increased nearly tenfold. "

And as he goes on:

"Today, Britain’s IP system faces two profound changes — globalisation and technological advance. Of course, both of these trends also offer enormous opportunities for businesses reliant on IP.

Globalisation means there are far greater rewards than ever for the most innovative firms to compete in ever-larger markets. And there are greater pressures on firms to innovate to survive in increasingly competitive global markets. Innovation — and the IP rights that protect innovation — is therefore key to seizing the opportunities of globalisation.

Similarly, technological advances, especially on the internet, enable greater dissemination of creativity and innovation, as well as creating new models of knowledge accumulation — for example, the Open Source movement. New technologies enable greater re-use of existing artworks and inventions — as in the spread of sampling in popular music or of collaborative research and development. "

The exposure culture

One of the themes of my work is how the trend of blogging is impacting law.

One way that this manifests is within copyright. Chris Anderson in his book "The Long Tail" refers to a new approach to how creators feel about their intellectual property and cites these words from Tim Wu, a Columbian law professor. 

"What I've called the "exposure culture" reflects the philosophy of the Web, in which getting noticed is everything. Web authors link to each other, quote liberally, and sometimes annotate entire articles. E-mailing links to favorite articles and jokes has become as much a part of American work culture as the water cooler. The big sin in exposure culture is not copying, but instead, failure to properly attribute authorship. And at the center of this exposure culture is the almighty search engine. If your site is easy to find on Google, you don't sue—you celebrate."

Therefore for those thinking about blogging, you need to think less about the law and more about some common courtesy when you refer to others work.

Copyright is a real issue for bloggers

One of the dilemmas facing all bloggers is the extent to which you should publish others material. The law blog, Adam Smith, Esq refers to this as he wrote a long piece about the AM law 100 and the American Lawyer has requested he takes the material down on the basis of copyright infringement. Adam Smith, Esq has requested some guidance from IP lawyers.

Whilst I am not an American attorney, I am in the process of doing a book review of International Libel & Privacy Handbook (editor - Charles J Glasser Jnr) which may provide some sound guidance on this topic.

A key issue is fair use and  in Chapter 23 of Glasser's book, the New York attorney, Nancy E. Wolff of Wolff & Godin, LLP has written an extremely useful piece.

Briefly she asserts that "there are no bright lines in determining whether an unauthorized use would be considered "fair" and non-infringing or simply infringing....In determining whether the use made of a copyrighted work in any particular instance is "fair," the factors include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.

2. the nature of the copyrighted works.

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4 the effect of the use upon the potential market for or value of the copyrighted work."   

Wolff observes that the fourth factor is often given more weight than the others by the US Courts. 

The World Is Flat - Ed Miracle and defendants settle case

I can now inform you that the lawsuit over the cover of the book "The World is Flat" by Thomas Friedman has been settled.      

The United States case was commenced by the painter, Ed Miracle against Jonathan Galassi, Farrar, Straus & Giroux, Thomas L. Friedman, Amazon.com and a number of other parties.   

According to Rose von Perbandt, agent for Mr. Miracle, the litigation has been amicably resolved and the terms of the resolution are confidential.   Eagle eyed readers of this blog will know that I have been acting on behalf of Mr. Miracle within the United Kingdom.

Provision was also made within the settlement which resolved any potential litigation within the United Kingdom so my work is completed.

I would like to express my thanks to Mr. Miracle  and Rose von Perbandt for instructing me and I am very pleased that they can now focus exclusively on developing and promoting Mr. Miracle's art work.                                                                                                                                                                                            

Prince Charles secures initial legal victory against Associated Newspapers

As has been widely reported in the weekend press, Prince Charles managed to secure a legal victory last Friday in his legal battle with Associated Newspapers, publishers of the Mail on Sunday, after a high court judgment ruled that his copyright and confidentiality had been infringed when the newspaper published extracts from his private 1997 journal about the handover of Hong Kong.

The high court had been asked to decide whether the prince's claims that his copyright had been infringed and his confidence breached should be heard in front of a jury at a full trial or could be dealt with summarily by the judge.

As the Guardian reports the judgment concluded that there was no need for a trial. Handing down a 193-paragraph judgment, Mr Justice Blackburne dismissed the newspaper's arguments that in publishing extracts from the prince's journal last November it was legitimately publicising his views on matters of public importance and demonstrating the heir to the throne's interference in political affairs.

The only crumb of comfort for the newspaper was that the judge ruled that he could not make a decision on the remaining seven, so far unpublished, journals.

Associated Newspapers made the standard public interest statement to the press when suffering a defeat "We believe our report and this legal action both raise very serious questions about the constitutional role of the heir to the throne and the freedom of the press. It cannot be legitimate for the prince to claim the right to engage in political controversy and at the same time deny the public the right to know that he is doing so."

Prince Charles should be congratulated on conducting a high risk strategy of taking legal action and thus far pulling it off. I have no sympathy for the newspaper primarily due to the fact that they obtained the journals after they were wrongfully copied by a former employee in the prince's private offices and then made their way into the hands of the Mail on Sunday.

France - An inspired decision to become a safe haven for intellectual property pirates?

I have just returned from a 2 week stay in France and one of the issues causing waves there is the fact that France could be set to allow peer-to-peer sharing of films and music over the Internet - a move that would legalize in the country what is now considered wholesale piracy in virtually every other nation.

The issue has been covered by the UK press including the Telegraph which wrote:

"In a decision that flies in the face of international efforts to crack down on web piracy, the French parliament passed an amendment to permit file-sharing by users willing to pay royalties on top of internet subscriptions.

For a monthly payment of a few pounds, people would be able to download as much material as they wished."

We will have to see whether the law is effectively enforced but the decision is not as mad as it may appear to some.

The fact is that the movie and music studios are losing the war on intellectual property piracy due to the ease with which people can download the material and the difficulty in being traced.

The desperation of the situation was illustrated by the Sony gaffe of sneaking software onto customers computers when they played CDs which had the impact of creating a string of security flaws on the users computers.

Despite facing massive intellectual property piracy, Sony has been cast in the role of the villain.

As a consequence it may just be that France's step may just be the start of something which will happen elsewhere.   

Italians bid to protect panettone

There is an interesting article in today's Guardian on copyright.

Apparently the Italians are attempting to preserve the authenticity of their famous Christmas dessert bread panettone by "copyrighting" the recipe.

Manufacturers in other countries who change the ingredients or do not follow the traditional methods of baking will have to call their products by different names such as "sweet festive bread" or "sweet Christmas cake".

The authorities hope that regulating the use of the word panettone will safeguard the identity of a delicacy created in the Renaissance era.

This is part of a trend towards "copyrighting" Italian food.

The Empire Strikes Back - But Too Hard

Copyright infringement is increasingly a topical issue particularly as the technology exists to eat away at big corporate firms' profits.

Sony in attempting to deal with piracy and illegal copying have turned to a controversial spyware copy-protection software. Placing the CDs, from 50 artists including Ray Charles, Frank Sinatra and Celine Dion leads to users having to download hidden files into the computer which acts as spyware.

As the Telegraph wrote earlier this week "Sony touted the CDs as the latest war to prevent piracy and illegal copying, but the situation has turned into a consumer relations disaster."

The company has now been forced to recall nearly 5m compact discs, a class action lawsuit has been filed against in Sony in California and the State of Texas has joined the fray as well filing a lawsuit as well. Texas is seeking penalties of around $100,000 per violation.