Undeath of the author and some re-anchored FOSS: an article

"A regime of droit moral detached from software copyright?—the undeath of the ‘author’ in free and open source software licensing" is the curious title of an article published in the Winter 2014 issue of the International Journal of Law and Information Technology (IJLIT).  The author is Chen Wei Zhu, a Post-Doctoral Research Fellow at the Institute for Advanced Studies in the Humanities (IASH), University of Edinburgh. If the title doesn't appeal to you, here's the abstract:

"This article seeks to understand the authorial personas of free and open source software (FOSS) programmers as shaped by their licensing schemes. It argues that neither the Romantic author-vision nor the postmodern authorless creativity is suitable for defining FOSS programmers’ authorial consciousness. Instead, it finds that the sociologist Richard Sennett’s ‘craftsmanship’ theory—which explains craftsmen’s intrinsic motive to do a job well for its own sake—is more adequate for addressing these programmers’ authorial personas. The craftsmanship persona is also reflected in the prevalent ‘attribution’ clause in FOSS licensing, which enables the peer assessment of the quality of programmers’ work associated with their reputation. It is proposed that FOSS authors’ attributional interests should depart from their copyright ownership and be re-anchored in their stewardship of the relevant projects, which are taken care of under FOSS programmer-craftsmen’s authorial responsibility".

An interesting proposition, this blogger thinks, but how comfortably would this lie with what are regarded as the traditional obligations of nations to protect attributional interests under Article 6bis of the Berne Convention and, if the right of attribution were re-anchored in a FOSS-determined licence arrangement or any comparable scheme, what might be the effect of detaching it from the other moral rights enjoyed by the author? In countries such as the United Kingdom, where software programmers' moral rights are excluded by statute, these questions are of no relevance but, where moral rights attach to all acts of authorship, these issues may be of significance.

Readers: what do you think?

Still thinking of Deckmyn, parodies and EU copyright? You are not alone!

The original work ...

On 3 September 2014 the Grand Chamber of the Court of Justice of the European Union (‘CJEU’) issued its decision in Deckmyn [here, here, here]. 

As 1709 Blog readers will remember, this was a reference for a preliminary ruling from the Brussels court of appeal, seeking clarification as to the notion of parody under Article 5(3)(k) of the InfoSoc Directive. 

This provision allows Member States to introduce into their own copyright laws an exception or limitation to the rights of reproduction, communication and making available to the public, and/or distribution, for the purpose of caricature, parody or pastiche. It does so without providing a definition of these concepts.

Having clarified that ‘parody’ is an autonomous concept of EU law, in its ruling the CJEU held that this must be understood according to its usual meaning in everyday language. A parody has just two essential characteristics: first, to evoke an existing work while being noticeably different from it and, secondly, constitute an expression of humour or mockery. 

... and its alleged parody

The CJEU also stated that the person who owns the copyright to a work has a legitimate interest in ensuring that this is not associated with the message conveyed by its parody if it is discriminatory/racist.

I was very much intrigued by Deckmyn, as it also seems to me that this decision is not limited to parody, but is indeed topical to EU debate on copyright exceptions and limitations in Article 5 of the InfoSoc Directive, as well discourse around activism – rather than mere activity – of the CJEU in this area of the law.

Similarly to what has happened in relation to other aspects of copyright, eg the originality requirement and the notion of work – also in this case the Court might have pursued some sort of de facto harmonization, notably with regard to moral rights.

So, I decided to write an article on this (entitled Just a matter of laugh? Why the CJEU decision in Deckmyn is broader than parody), which has now been accepted for publication in the Common Market Law Review.

My contribution is divided into two parts. The first part explains the background to this reference, and summarizes the Opinion of Advocate General Cruz Villalón on 22 May 2014 [here] and the subsequent findings of the CJEU. The second part discusses specific aspects of the Opinion and the ruling. First, the practical implications of the decision are reviewed. Secondly, the systematic impact of the Deckmyn case is addressed, including the actual harmonizing force of Article 5 of the InfoSoc Directive, as well as whether this ruling has introduced trade marks concepts into EU copyright (notably tarnishment), or even harmonized moral rights.

If you are interested in these issues, you can find my article on SSRN here.

Donaldson v Becket(t): revising the revisionists?

H. Tomás Gómez-Arostegui (Kay Kitagawa & Andy Johnson-Laird IP Faculty Scholar and Associate Professor of Law, Lewis & Clark Law School, Portland, Oregon) has recently sent me a copy of an article that he thought might be of interest: "Copyright at Common Law in 1774", 47 Conn. L. Rev. 1 (2014). This article takes a look at one of the seminal pieces of English litigation on common law copyright: Donaldson v Becket(t). According to the abstract:

As we approach Congress’s upcoming re-examination of copyright law, participants are amassing ammunition for the battle to come over the proper scope of copyright. One item that both sides have turned to is the original purpose of copyright, as reflected in a pair of cases decided in Great Britain in the late 18th century—the birthplace of Anglo-American copyright. The salient issue is whether copyright was a natural or customary right, protected at common law, or a privilege created solely by statute. These differing viewpoints set the default basis of the right. Whereas the former suggests the principal purpose was to protect authors, the latter indicates that copyright should principally benefit the public.

The orthodox reading of these two cases is that copyright existed as a common-law right inherent in authors. In recent years, however, revisionist work has challenged that reading. Relying in part on the discrepancies of 18th-century law reporting, scholars have argued that the natural-rights and customary views were rejected. The modified account has made great strides and has nearly displaced the traditional interpretation. Using a unique body of historical research, this article constitutes the first critical examination of the revision. Ultimately, it concludes that the revision is incorrect and that we must return to the orthodox view.

The article also contains information regarding, more generally, appellate procedure in the House of Lords and the publication of appeals, particularly in newspapers and periodicals. Tomás also includes an appendix that traces the numerous newspapers and periodicals that published material on Donaldson v. Beckett.

I welcome this approach, having sometimes been faced with revisionist propositions that seemed to me to be so far from my recollection of old cases that I have had to return to the original sources in order to reassure myself that my memory was not at fault.

You can read this article via SSRN here.

There's also a spot of further background reading in a very much shorter piece which I wrote several lifetimes ago, noted in "Past historic 5: common law copyright in England".

Copyright protection for diagnostic tests: an article

1709 Blog team member and rising star Eleonora Rosati is far too modest to tell everyone about this but, together with her brother Carlo Maria, she has written a super article, "Copyright in diagnostic tests: not yet the end for fair use" for the Journal of Intellectual Property Law & Practice (JIPLP). According to the abstract:

"The authors tackle the issue of copyright protection under US law for diagnostic tests such as the Folstein Mini-Mental State Examination (MMSE).

The article claims that no copyright vests in such works, these being outside the scope of copyright-protectable subject-matter. Even where copyright is held potentially to subsist in diagnostic tests such as the MMSE, it would be difficult successfully to argue that the MMSE is sufficiently original for the purpose of copyright protection. Even more difficult would be a situation in which clinicians were held liable for copyright infringement, because they had photocopied or downloaded the MMSE. The fair use doctrine could in fact be successfully invoked by potential defendants.

The article concludes by holding that fair use, not licensing models to be adopted on a sole voluntary basis, is the answer to restrictions unduly imposed by copyright to access of diagnostic tests and suchlike".

This article was published online by the Journal of Intellectual Property Law & Practice, on 30 March 2012, doi: 10.1093/jiplp/jps042. The paper version will be available soon. The article can be accessed for a charge on a limited time basis from the JIPLP website here.

The clash between copyright holders and personal data

The International Journal of Law and Information Technology (IJLIT), a three-times-a-year journal from Oxford University Press which is going quarterly in 2010, has asked me to draw the attention of 1709 readers to a pertinent article which considers the clash between two well-recognised rights, copyright and data protection/informational privacy.

The article begins by noting that one of Sweden’s anti-piracy groups, Antipiratbyrån (APB), in its bid to track copyright infringers, allegedly processed the personal data of Swedish peer to peer (p2p) file sharers in contravention of the Swedish Personal Data Act.

It goes on to say that this story is representative of the divergent perspectives that have been adopted by copyright owners and p2p file sharers. On one hand, a review of postings in some of the forums frequented by p2p participants indicates that some file sharers assume that there should be a legal rule by which copyright holders are prevented from invading their privacy. On the other hand, developments in the US go to show that the copyright holders seem to have taken the view that the fight against online copyright infringements should supersede all privacy considerations.

The article considers the clash which occurs when right holders track online infringements and harvest IP addresses and when right holders seek to unmask the infringers behind the harvested IP addresses.

This is undoubtedly a hot topic. The article is available to read online without charge and is called "When Rights Clash Online: The Tracking of P2p Copyright Infringements v the EC Personal Data Directive" by Okechukwu Benjamin Vincents (click here to read).

The IJLIT website contains lots of information about the journal and its distinguished editorial panel, together with instructions for would-be authors, subscription data and the contents of the current edition.