Why UK photographers are upset with copyright reforms

There have been a lot of media reports in recent days about UK photographers’ response to recent changes to UK copyright law: see here, here, here, here and here.

The changes, made by the Enterprise and Regulatory Reform Act, allow for:

• licensing of ‘orphan works’ (works for which a rightsholder cannot be found); and
• ‘extended collective licensing’: a authorisation process to enable a rights management organisation (copyright collecting society) to offer licences that cover works of non-members.

These two amendments to UK copyright legislation were originally part of the Digital Economy Bill, but dropped at the last minute when the rest of the bill was passed in 2010. The changes were particularly opposed by a group of photographers known as Stop43 (named for offending provision of the bill, Clause 43).

In 2011, licensing of orphan works and extended collective licensing were recommended by Professor Ian Hargreaves in his report commissioned by the UK Government, Digital Opportunity: A review of Intellectual Property and Growth. The government broadly accepted all of the 10 recommendations in the Hargreaves report, and began an implementation program, which included the amendments in the Enterprise and Regulatory Reform Act.
Stop43’s concerns

Stop43 has lobbied strongly against the amendments. Its members’ objections are largely centred on commercial uses of orphan works, which they fear will interfere with photographers’ licensing of their works. Stop43 says it:

… would not object to Collective Licensing schemes which occasionally and inadvertently result in orphan works being licensed commercially:

• when such licensing is very clearly the exception rather than the rule;
• when most authors whose works are covered by that collecting society are in a position to know of its existence and function, and be members;
• when the practical effect of the scheme is clearly and obviously to the benefit of authors; and
• when the rights being licensed are secondary rights which clearly and obviously cannot practicably be negotiated as primary licences in the normal way.

It specifically refers to the Design and Artists Copyright Society Payback scheme, and the Kopinor extended collective licensing scheme as unobjectionable.

It also says that it does not object to certain ‘cultural uses’, including online display of items in the collection of a cultural institution such as a library or a museum, provided this is limited to viewing of the items.

Stop43 is also seeking other safeguards for photographers and other creators, including stronger ‘moral rights’, affordable small claims processes for infringement, and effective penalties for infringement.

Stripping of metadata

The photographers’ concerns are exacerbated by processes for uploading images to the internet that strip metadata that identifies the rightsholder and/or sets conditions of use. There are prohibitions against the stripping of metadata in the Australian copyright legislation, and in other countries’ copyright laws, but people uploading images can be unaware both of their legal obligations and that the process they are using is stripping the metadata.

Implications for Australia

As part of its inquiry into copyright and the digital economy, the Australian Law Reform Commission is looking at orphan works and extended collective licensing. Most of the concerns raised by UK photographers could be addressed through safeguards in any legislation introduced, and through an awareness campaign, including through photographers’ professional organisations such as Australian Institute of Professional Photography, specialist trade media, social media and mainstream media.

See also:

• The Enterprise and Regulatory Reform Act 2013: Your Photos and You (UK Intellectual Property Office, May 2013)
• Copyright law: Five ways to protect authorship (Journalis.co.uk, 1 May 2013)
• The copyright orphanage (Mark Goodge, 29 April 2013)

The Corby case and copyright reform

An opinion piece in today’s Sydney Morning Herald links the Corby family’s copyright win in the Federal Court on 24 April to the review of copyright law by the Australian Law Reform Commission (ALRC).

A couple of things to note about the Corby case. The book on Schapelle Corby at the centre of the case included 37 photographs. Various members of the Corby family owned copyright in five of them. The court found that the publisher had chosen not to follow its usual copyright clearance process for these five photographs, and that it had taken a ‘calculated risk’ to use them without permission.

The damages awarded had two components: compensatory damages for each of the five photographs and ‘additional’ damages. The compensatory damages (representing the commercial value of the use) ranged from $500 to $5,000, totaling $9,250. The ‘additional damages’ of $45,000 was for the publisher’s ‘flagrant disregard’ of the rights of the owners of copyright. A court has the power to award additional damages, having regard to matters such as the infringer’s actions after notification of infringement, the benefit to the infringer, and the need to deter similar infringements.

The publisher could have chosen not to include these five photographs. According to the court, it chose to use them without seeking the clearances it knew were required.

There are provisions in copyright law that allow publishers and others to use other people’s work without permission in special cases, such as for criticism, review and reporting news. The publisher did not argue that any of them applied in this case.

Copyright applies to the works of amateur creators as well as to those of professional creators. It allows all creators to choose how to manage others’ use of their work. It allows them, if they choose, to make their work available under an ‘open’ licence, such as a Creative Commons licence. Many do, including on social media platforms. There is a wealth of images available under various forms of licence for publishers and others.

Professional photographers are struggling to make a living in an environment where any publication of an image can lead, in practice, to loss of any opportunity to manage its subsequent use. A key component of the norms underlying copyright law is respect for the work done by others in creating content that we value.

The SMH opinion piece also refers to Google’s submission to the ALRC. That submission is part of Google’s push internationally for copyright exceptions conducive to its business aspirations, including in the UK and Ireland. The UK report on copyright reform was sceptical about Google’s claims that UK copyright law impeded Google’s capacity to innovate in the UK, and Google’s role as an adviser to the UK government has recently come under fire.

The role of copyright in the creation and dissemination of content should be interrogated, and should encompass current technologies and the practices that it allows. But it requires a more considered discussion than is usually seen, and in particular needs to address how we ensure the creation and dissemination of content necessary for the economic and cultural life of Australia

Does viewing content online by clicking a link require a licence?

In a decision handed down on 17 April, the UK Supreme Court has asked the European Court of Justice to determine whether viewing content online by clicking a weblink might infringe copyright if done without a licence.

The case before the Supreme Court is the result of an appeal from a 2011 decision of the UK Court of Appeal regarding a media monitoring service provided by Meltwater. The Court of Appeal held that Meltwater had infringed copyright by reproducing and communicating headlines and extracts from newspaper articles.

The Court of Appeal also held that Meltwater’s customers needed a licence to view the newspaper articles online by clicking links. It is this aspect of the decision that was appealed to the Supreme Court.

The Supreme Court decision does not affect the licensing of media monitoring activities by Newspaper Licensing Agency (NLA), on behalf of owners of copyright in newspaper articles (NLA statement here). A recent District Court decision in the US last week also confirms Meltwater’s need for a licence in the US (see also here). In Australia, licensing arrangements are affected by the Federal Court’s 2010 decision in Fairfax v Reed, which held that the headlines at issue in that case were not protected by copyright.

On the question of temporary copies, the UK Supreme Court reviewed decisions to date of the European Court of Justice (CJEU), and was inclined to overturn the decision of the Court of Appeal. Given the implications of the issue for transnational use of content, however, the Supreme Court has referred the issue to the CJEU for determination. According to the NLA, that may take years.

In Australia, there are provisions in the Copyright Act that allow temporary copies made as part of the technical process of communicating or ‘using’ a work. These provisions may not apply to temporary copies associated with an infringing communications or reproduction.

The Supreme Court decision, and future ECJ decision, do not affect the legal position in Australia, but may be taken into account by the Australian Law Reform Commission as part of its inquiry into copyright and the digital economy.

Some commentary on the case:

• UK Supreme Court refers NLA v Meltwater to CJEU (IPKat)
• NLA v Meltwater: temporary copies issue referred to the CJEU (The 1709 blog)
• The NLA v Meltwater – three things to remember this week (NLA blog)

Copyright licensing developments in Canada

The copyright system in Canada has been in a state of some upheaval following a range of significant copyright amendments introduced by the Copyright Modernization Act, and the ‘pentalogy’ of Supreme Court decisions last year (see here and here).

The amendments affecting educational use of content, and one of the five Supreme Court cases, Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), have changed the landscape for licensing of content for educational use. There are, however, different views about the extent to which the law has changed, and the implications of the amendments and court decisions (see here and here).

It seems that these differing views will at least partly be resolved through litigation. On 8 April 2013, the Canadian rights management organisation for writers and publishers, Access Copyright, announced it was taking legal action on three fronts in relation to the application of ‘fair dealing’ to the education sector. For an author’s take, see here. A different take by academic Michael Geist here.

In another area of licensing, for governments, the Federal Court of Appeal in Canada recently held that the Crown (the government) is bound by the Copyright Act. A number of provincial governments had argued to the Copyright Board of Canada that they did not have pay licence fees for the use of copyright content because, essentially, the copyright legislation did not apply to them.

News aggregators, search engines, implied licence and fair use

The recent US Supreme Court decision in Associated Press v Meltwater raises an some interesting questions about the application of implied licence and fair use.

Meltwater offers a news aggregation service, and was sued by Associated Press (AP) for copyright infringement in AP content. Meltwater argued that it operated like a search engine, and that its activities did not infringe copyright because:

1. There was an implied licence from Associated Press; and
2. They were covered by ‘fair use’.

The District Court rejected each defence.

Meltwater argued that it had an implied licence because the sites that published AP content under licence, from which Meltwater had harvested the content, did not use the robots.txt protocol. The protocol indicates to web crawlers what can and cannot be copied from the site. The court said:

… what Meltwater is suggesting would shift the burden to the copyright holder to prevent unauthorized use instead of placing the burden on the infringing party to show it had properly taken and used content

The court rejected Meltwater’s fair use defence for reasons that included:

• Meltwater’s business competed directly with that of AP and AP’s licensees;
• Meltwater’s use of AP’s content was not ‘transformative’; and
• ‘the rejection of the fair use defense here will further the ultimate aim of the Copyright Act, which is to stimulate the creation of useful works for the public good’.

The court also rejected Meltwater’s argument that it was operating as a search engine. Meltwater may have been using search engine technology, but its business was not that of a search engine.
These comments raise the interesting question of the extent to which the activities of search engines might be covered by implied licence. This is an issue under consideration by the Australian Law Reform Commission (ALRC) in its inquiry into copyright and the digital economy, as it considers whether an exception similar to the fair use defence in the US should be introduced in Australia.

The court said:

It is fair to assume that most Internet users (and many owners of websites) would like crawlers employed by search engines to visit as many websites as possible, to include those websites in their search results, and thereby to direct viewers to a vast array of sites. Adopting Meltwater’s position would require websites concerned about improper copying to signal crawlers that they are not welcome.

Search engine operators and others have argued in favour of introducing a fair use defence into Australian law to cover activities associated with the ‘public good of search’, but an initial question must be the extent to which such activities might already be allowed.

Some commentary:

• A big week in copyright, Kirtsaeng, isoHunt and Associated Press v Meltwater (Barry Sookman, 25 March 2013)
• Meltwater – AP score first victory in the US (1709 Blog, 22 March 2013)
• Sorry Fair Use, Court Says News Clipping Service Infringes On AP Copyrights (TechDirt, 21 March 2013)

And on Meltwater litigation in the UK:

• The NLA v Meltwater – three things to remember this week

Head of US Copyright Office on future of copyright

On 20 March, the US Register of Copyrights, Maria Pallante, made a speech to Congress in which she outlined the Copyright Office’s views about the future development of copyright.

The speech echoes a number of themes from a speech to Columbia University entitled The Next Great Copyright Act.

A number of the issues canvassed are topical in Australia, and have been raised in submissions to the Australian Law Reform Commission (ALRC) as part of its inquiry into copyright and the digital economy.

The public interest

Pallante refers to the role of the ‘public interest’ in copyright reform, but acknowledges the challenge for policy makers of defining the public interest and ‘who may speak for it’. She goes to say:

The issues of authors are intertwined with the interests of the public. As the first beneficiaries of the copyright law, they are not a counterweight to the public interest but instead are at the very center of the equation.

Access to content for education

The Australian copyright environment for educational use of content is often compared to that in the US.
Pallante suggests that ‘in compelling circumstances’, the requirement of prior approval – ‘opt in’ – could be reversed, so that copyright owners would have to object or ‘opt out’ of particular uses. She gives the example of uses by educational institutions or libraries ‘whether paid or unpaid’.

New licensing models

The Copyright Office is open to new licensing models. This includes extended collective licensing, which has been operating for many years in Scandinavian countries, and is being introduced into the UK in accordance with recommendations in the Hargreaves report. Extended collective licensing differs from statutory (or compulsory licensing) as it allows rightsholders to ‘opt out’.

In her paper to Columbia University, Pallante says:

It has become clear, however, that opt-out systems might serve the objectives of copyright law in some compelling circumstances if appropriately tailored and fairly administered, and if created with oversight from Congress. One potential opt-out system is a form of licensing known as extended collective licensing. Extended collective licensing allows representatives of copyright owners and users to mutually agree to negotiate on a collective basis and then to negotiate terms that are binding on all members of the group by operation of law. It has the potential to provide certainty for users and remuneration for copyright owners (for example in mass digitization activities) but would provide some control to copyright owners wanting to opt out of the arrangement.

Copyright term

The US extended its term of copyright protection from life plus 50 to life plus 70, following the European Union (which adopted life plus 70 as part of its harmonisation processes). The standard in the Berne Convention and other international treaties is life plus 50. But many countries, like Australia, have extended their term of protection to life plus 70 as a result of free trade agreements with the US.

Extensions of the terms of protection have been controversial. In Australia, it triggered a review of ‘balancing’ exceptions, which resulted in the introduction of a number of new exceptions in 2006.

Pallante suggests a different level of protection for the last 20 years, with a higher onus on the copyright owner to assert their copyright interest. In Australia, any proposals along these lines would need to be consistent with Australia’s obligations under the Australia–US Free Trade Agreement, unless the US were prepared to renegotiate this aspect of the agreement.

Some commentary

• Head of US Copyright Office wants reform (The 1709 Blog)
• The Next Great Copyright Act: Takeaways (The Future of Music)
• Notes From Today’s Hearing: The Register’s Call for Updates to U.S. Copyright Law (Public Knowledge)
• A good week for copyright (VoxIndie)
  

US Supreme Court allows parallel importation of books

On 19 March 2013, the US Supreme Court delivered an important judgment about importation of books into the US.

The case, Kirstaeng v Wiley, concerned Kirstaeng’s sale in the US of books published by a Wiley subsidiary in Thailand. The books were published legitimately, but sold at a lower price than the US edition. Kirstaeng arranged for the books to be purchased in Thailand, and then imported them into the US and resold them. The case concerned Wiley’s rights in relation to the importation and the resale.

The Supreme Court, reversing the lower court decision, held that the importation and resale did not infringe Wiley’s copyright, because Wiley’s rights in relation to distribution of the books had been ‘exhausted’ with the initial sale in Thailand.

US publishers are reportedly considering seeking legislative change to address the implications of the decision, particularly in relation to segmentation of territorial markets.

Position in Australia

The decision concerned the interrelationship between three elements of US copyright law affecting physical items containing copyright content, such as printed books: rightsholders’ control over importation, rightsholders’ control over distribution, and the ‘exhaustion’ of the distribution right on ‘first sale’.

Australian copyright law works differently. Rightsholders have control over importation in some circumstances, but no copyright rights in relation to distribution of legitimately produced products (they do have rights in relation to distribution of unauthorised or pirate products). See further the Australian Copyright Council’s information sheet ‘Importing Copyright Items’, available here.

The US decision thus does not have any direct implications for the interpretation of the law in Australia.

The provisions in the Australian legislation relating to importation of books have been the subject of many reviews and inquiries since the 1980s. The most recent consideration was by the Book Industry Strategy Group (BISG), which recommended a voluntary undertaking by the Australian publishing industry to enable Australian booksellers to import books that are not published in Australia within 14 days of first publication overseas, and books that the publisher cannot supply within 14 days (see BISG report, recommendation 4).

Implications for digital files

The decision relates to physical products rather than digital files. There has, however, been some commentary about digital files: see for example here and here.

Commentary on the case

Recent commentary on the case includes:

• BREAKING NEWS! US Supreme Court decides Kirtsaeng (IPKat)
• Kagan Concurrence in Kirtsaeng Points Way Forward (CopyHype)
• Supreme Court says copyright law does not protect publishers in discount re-sales (Washington Post)
• SCOTUS in Kirtsaeng: First sale doctrine applies to copies made overseas (Daniel Gervais)