Traditions, Traditions, an Intellectual Property Perspective

The Agence France Presse posted a video on Twitter this month, which shows that the French fashion house Christian Dior had used traditional embroidery motifs in its pre-Fall 2017 collection  (see here too). The embroideries are originally from the Bihor area in Romania and adorn a traditional garment, the “cojoc binşenesc” (more about it here and here).

In this particular instance, the community reacted by taking advantage of this publicity and launched a website, Bihor Couture, which sells traditional Bihor garments and accessories.  As the 1709 Blog is a copyright blog, I will not comment much on the trademark issues which the choice of ‘Bihor Couture’ could raise, but here are my quick two cents. In the U.S., parody is a defense in a trademark infringement case. If you are interested in this topic, you can read about the recent My Other Bag Second Circuit case here and here. French trademark law does not have a parody exception, but courts have recognized such a defense, albeit sparingly, when parody was used as a social/political comment (see for instance this case, where the French Supreme Court held in 2008 that article 10 of the European Convention of Human Rights protects the right of non-profit Greenpeace to parody the Areva brand).

Can embroideries be protected by copyright?

Well yes they can, on both sides of the Atlantic, if they are original enough. Embroidery motifs may, however, be in the public domain, or not original enough to be protected by copyright.

In the U.S., embroideries can be considered fabric designs which are copyrightable. The mere fact that embroideries may adorn a piece of garment does not prevent them to be protected by U.S. copyright, even though a garment is an uncopyrightable useful article.

Since Star Athletica [see our comment on the case here], an artistic work applied on or incorporated into a garment  may be eligible for copyright protection if it: "(1) can be perceived as a two or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work-either on its own or fixed in some other tangible medium of expression-if it were imagined separately from the useful article into which it is incorporated."

In France, the concept of “Unité de l’Art” prevents French copyright law (droit d’auteur) to differentiate art from mere applied art (art appliqué) such as embroideries.

However, traditional embroideries may be in the public domain. The embroideries which inspired Dior may be in the public domain, or they could have been created recently enough to be protected by Romanian law. However, even traditional works in the public domain may soon be protected by intellectual property.

Protection of traditional works by moral rights

WIPO considers that traditional cultural expressions (TCEs), or "expressions of folklore," may include handicrafts, and may be protected by copyright if recently created. It also noted that “[i]n many countries and for many indigenous and local communities, the handicraft sector plays a vital social and cultural function and contributes significantly to communal, local and national economies.”

WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore will hold its 37^th session from August 27 to 31. The Committee published last month draft articles on the protection of traditional cultural expressions, which are part of the session’s agenda and which are aimed to become an international instrument directing member States to better protect TCEs.

One of the policy objectives of the instrument would be to “prevent the misappropriation and misuse/offensive and derogatory use/unauthorized use of their traditional cultural expressions.” This is of particular interest for communities which have created designs attracting the attention of fashion companies eager to satisfy the want of their customers for authenticity.  One may remember, for instance, that a U.K. fashion company used a traditional Inuit motif on a sweater.

One of the principles stated in the WIPO draft articles acknowledges that “traditional cultures and folklore constitute frameworks of innovation and creativity that benefit Indigenous [Peoples], [local communities] [and nations] / beneficiaries, as well as all humanity.”

It also notes “the value of a vibrant public domain and the body of knowledge that is available for all to use, and which is essential for creativity and innovation, and the need to protect, preserve and enhance the public domain.” It would “secure/recognize rights already acquired by third parties and secure/provide for legal certainty and a rich and accessible public domain.”

The instrument would direct “Member States [to] the economic and moral rights and interests of beneficiaries in secret and/or sacred traditional cultural expressions….as appropriate and in accordance with national law, and where applicable, customary laws.  In particular, beneficiaries shall enjoy the exclusive rights of authorizing the use of such traditional cultural expressions.” (my emphasis).

Therefore, even traditional cultural expressions which are in the public domain may be protected by moral rights, which are perpetual. This would be an interesting development for communities wishing to prevent the use of designs, which are in the public domain, but which they consider sacred.

This is certainly worthy of interest at a time when “cultural appropriation” is a hot topic, in many domains. Madonna has been recently criticized for wearing Berber clothes and a choreographer has been criticized for using in one of his works a traditional dance, with dancers in costumes looking like traditional costumes.

Could traditional works be one day perpetually protected by moral rights?

Image is courtesy of Flickr user storebukkebruse under a CC BY 2.0 license.

The beginning-of-winter Copykat!

The Electronic Frontier Foundation is not really happy at this moment

The Electronic Frontier Foundation published recently an article about the problem of the CASE Act of 2017. We will summarize it, but you can find the entire article here !

The CASE Act of 2017 has been criticised for many reasons, but the EFF here is quite clear: they don’t want it. For them, the CASE Act will have several unwanted consequences, and the first of them is the fact that the Copyright Office will become a Copyright Court. This is the worst that could happen for them, because “the Copyright Office it not known for its neutrality on copyright issues”. According to the EFF, this will magnify the problem of copyright’s unpredictable civil penalties.

Indeed, the CASE Act of 2017 would set up a “Copyright Claims Board” within the Copyright Office, staffed by three judges empowered to hear copyright complaints from all over the country. The proceedings will be voluntary, but if a respondent fails to opt-out, the proceedings become binding and the outcome can be enforced in federal court. According to the CASE Act, the board car issue damages award up to $15 000 per work infringed, or €30 000 per proceeding. And of course, if the parties consent, it can issue “agreements to cease infringing activities” … that become binding injunctions.

For the EFF, the opt-in method “would have greater incentive to design proceedings that safeguard the respondent’s interests, and clear standards that everyone can understand. Equally importantly, an opt-in approach would help ensure that both participants affirmatively choose to litigate their dispute in this new court, and help prevent copyright holders from abusing the system to obtain inexpensive default judgments that will be hard to appeal”.

And you, what do you think?

EU Parliament voted for a copyright reform aimed at making more TV shows and films available online across borders

Commercial TV broadcasters, football leagues and film producers scored a win on Tuesday when European Union lawmakers watered down a copyright reform aimed at making more TV shows and films available online across borders.

The EU Parliament

EU Parliament voted to restrict the scope of the copyright proposal to news and current affairs, excluding TV shows and films. It means that broadcasters will be able to show their news content online across the EU, but only after clearing the rights in their home country!

The original proposal was contested by the media industry. According to them, voting this kind of proposal would have lead to “pan-European licensing, diluting the value of exclusive rights and squeezing out smaller broadcasters that would be unable to afford pan-EU rights”. Indeed, films and TV shows are often broadcast when selling exclusive distribution rights on a country-by-country basis.

However, the vote is not final and dissenters still have hope as the EU Parliament will have to find compromise with member states in the coming months. 

Call collect?

A couple of snippets of news from the world of collection societies: First off, The US Copyright Royalty Board is to raises some of the music streaming royalty rates instigating a change based on a cost of living adjustment for the rates paid to copyright holders by online webcasters. The rates increased to $0.0018 for commercial ad-supported non-interactive music streaming services, and $0.0023 per performance for paid services. That's up slightly from $0.0017 and $0.0022, respectively. Additional rate announcements from the CRB are expected in the coming days.  And the collecting societies representing song rights saw the monies they collect worldwide rise by 6.8% to €8 billion last year – a jump in part fuelled by a 52% increase in digital income – according to new figures published by CISAC. Across all its member societies, digital income was up 51.4% at just under €1 billion. CISAC notes that the boost mainly came from premium streaming services. 

Except this? Except that?

The World Intellectual Property Organisation is going to take a long hard look at the issue of limitations and exceptions to copyright, and provide a draft action plans, one each for libraries, archives, museums, educational research institutions, and persons with other disabilities than sight impairment. The plans, being discussed in this week’s committee meeting, include brainstorming sessions, studies, and regional seminars, and conferences to advance understanding and issues related to copyright for those particular actors. The WIPO secretariat has circulated a document [pdf] providing draft action plans for different strands of the discussions for the 2018-2019 biennium.  

Web-blocking in Switzerland and South-Africa?

You may no know what web-blocking is… This is the anti-piracy tactic where rights owners can get injunctions forcing internet service providers to block their customers from accessing piracy websites. For right owners, this is the perfect anti-piracy tool, and they surely hope that this tool would soon be available in more and more countries.

A new Cybercrimes and Cybersecurity Bill is currently on trail in South Africa, and the local entertainment industry asked for web-blocking. The local entertainment industry took the example of some European countries, in which there is already this web-blocking tool, and asked the ISPs to consider adopting this method. Just like in some European countries, such as France with its “Hadopi”, they also asked for the ISPs to send warning letters to suspected online infringers, and maybe even monitor infringement on their networks.

Unfortunately, none of that is going to be included in the Cybercrimes and Cybersecurity Bill. Ministers opposed them that their proposals were not within the remit of the Bill. However, another Bill is coming, based on seeking to amend the country’s copyright law, and these proposals would be better put forward for that legislation.

In Switzerland, we’re focusing on a copyright review. A lot of critics have been going on for some time on the fact that the copyright regime is ill-equipped to deal with infringement. Indeed, in Switzerland, casual downloading and streaming of unlicensed content is covered by the pesky private exception.

Various new anti-piracy measures have been proposed during the current copyright review and an update on which proposals will go forward was published last week. A possible takedown-and-stay-down requirement has been proposed… Is something great coming?

According to Torrentfreak, Swiss lawmakers have already knocked back proposals that web-blocking be introduced there. However, as people will still be able to “pirate” copyrighted material (as long as that content is consumed privately), it does not include videogames and software. And here is something new: any supposed losses will be compensated via a compulsory tax of 13 Swiss francs, levied on media playback devices including phones and tablets.

You may also note that uploading is explicitly ruled out. Rights-holders will be able to capture IP addresses of suspected infringers in order to file a criminal complaint with authorities! That being said, there will be no system of warning notices.

As you see, the news is coming, and it sounds better than before!

This Copykat from Lolita S.

Today the CopyKat pokes a ponderous paw at politics

Stan McCoy, the assistant US Trade Representative who oversaw the creation of the copyright provisions in ACTA and the Trans Pacific Partnership has left the Obama administration for a job at the film industry's lobbying group, the MPAA. The Obama administration has headhunted software industry lobbyist Robert Holleyman  (who supported SOPA) to take over his job. More on this revolving door between the US government and content owners' lobby groups and trade associations on Vox here.

Karl Marx

An unusual copyright spat has caught the attention of a number of blogs who noticed that the radical publishing house Lawrence & Wishart - at one time was connected to Great Britain's Communist Party - was demanding the removal from the Marxists Internet Archive of the "Marx-Engels Collected Works" - a series of US $25-$50 hard cover books - because the texts were their translations - and they had copyright in those translations. The archive has posted a message to its readers informing them that Lawrence & Wishart's material would be removed by April 30 although that "English translations of Marx and Engels from other sources will continue to be available." The Socialist Worker asks "Should Marx and Engels be copyrighted?" quoting an opinion from Andrew Leonard who says  'I wonder — just how angry would Karl Marx get if he learned that the publisher of his collected works, in the name of maximizing profits, was using copyright law to hinder the cause of “equipping the working-class movement with the scientific ideology… for the realization… of communism” ?' More here: http://socialistworker.org/blog/critical-reading/2014/04/26/should-marx-and-engels-be-copy

Reed on oh great minister

Popular Bulgarian musicians have delivered proposals for amendments to the Bulgarian Copyright Act at the Bulgarian Ministry of Culture in Sofia to Bulgarian Minister of Culture Petar Stoyanovich and Deputy Minister of Culture Vasil Vasilev by symbolically handing over their proposals written on papyrus. The proposals for amendments concern five articles of the Bulgarian Copyrights Act: Article 21 (cable re-transmission); Article 26 (free carriers); Article 40 (tariffs regulation); Article 58; and Article 98. At the meeting it was agreed to hold another meeting in two weeks. Different Bulgarian musicians have united under the motto “For REVIVAL of the Bulgarian culture” supporting the cause of establishing stable legal preconditions for development of the Bulgarian culture and the wish of Bulgarian artists to declare their will for the establishment of an optimal mechanism for protection of their rights. The ministers expressed readiness to do their best to establish a normal environment where the Bulgarian artists can work and create. 

Trevor Clarke, Assistant Director General of the World Intellectual Property Organization (WIPO) has told a conference in Tehran that although Iran has taken concrete steps to protect the intellectual property rights, it should join the Universal Copyright Convention. Iran joined the World Intellectual Property Organization (WIPO) in 2001 and approved the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration in 2005.

And the United States has removed the Philippines from its blacklist of countries which fail to properly protect U.S. copyrights and patents, the U.S. Trade Representative said on Monday.
Whilst the Philippines had introduced laws to better protect intellectual property rights and also beefed up enforcement, there was more to be done with the USTR stating "Although significant challenges remain, the commitment of Philippine authorities and the results achieved merit this change in status". 

And finally, PCWorld lets us into a leak from the European Commission which reveals that EU lawmakers believe that micro-licensing could solve copyright problems related to user generated content (UGC). The document, which pre-dates the latest public consultation on EU copyright reform, takes the view that although there are problems with UCG, “legal certainty” may be provided through micro-licences: The document says that “There remain technological obstacles to the ability of UCG generators to identify themselves and reap economic reward for their work”.

WIPO's proposed exception for the blind and visually impaired stalls again

In a world where copyright's constant struggle to keep pace with technology is discussed daily, the more basic copyright issues are often overlooked. Since 2008, the World Intellectual Property Office (WIPO) has been discussing passing a treaty to give blind and visually impaired people easier access to published works. The concept is simple: translation of a copyright protected work into braille* requires the rightsholder's permission. However it seems fair to pass an exception that would give blind and visually impaired people easier access to those works. This blogger cannot find any estimate on what loss this would cause publishing houses, however one imagines that it would not be significant.

© Roland DG

Despite the fact that most will easily agree on the merits of such an exception, progress so far has been sluggish. Last week WIPO reached an agreement on a timeline for completing the treaty, (or instrument). Whilst this blogger can't disagree that WIPO is moving in the right direction, it seems to be doing so excruciatingly slowly. An inter-sessional meeting is to be held between 9 October and 19 November 2012. Then an extraordinary General Assembly to be held in December 2012 to decide whether the visually impaired issue is ready to move to a diplomatic conference in 2013.

The latest draft of the exception, SCCR/24/9, includes brackets around large portions of text that are yet to be agreed, and on top of that, WIPO still has not decided whether the visually impaired negotiations are intended to produce a treaty, recommendations or a declaration. Five years of negotiation for a declaration with no binding effect?

James Love, director of Knowledge Ecology International, has alleged that the EU and the US are blocking the treaty to protect their publishing industries, and that they have been pushing for softer guidelines or recommendations. This blogger completely understand why translation of a book into braille infringes copyright, in the same way that translation into any language infringes copyright. However when you consider that 90% of the world's blind and visually impaired people live in developing countries, where governments have not been able to acquire express permission from copyright holders to translate their works into braille, you have to wonder what loss the proposed exception would really cause EU and US publishers.

The statistics are fairly shocking: "only some 5% of published books are ever made accessible (in braille, audio, large print etc) in richer countries, and less than 1% in poorer ones." Contrast this with the United Nations Universal Declaration on Human Rights which says that:

Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 27 (i): Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

Of course the Declaration on Human Rights is not the answer to everything, and publishers and rightsholders are equally justified in relying on Article 27(ii), however Articles 19 and 27(i) highlight the importance of access to information for all.

Dan Pescod of the Royal National Institute of Blind People has said that the Spanish organisation Once has well over 100,000 [translated] books that it would like to send to Latin American countries, but which it can't because of copyright. He went on to say that libraries in five Latin American countries – Colombia, Nicaragua, Mexico, Uruguay and Chile – have fewer than 9,000 accessible books between them.

Copyright is a hot political issue, with both the EU and US giving it unprecedented attention. It is not surprising that this attention is directed where there is money to be made or lost: new technology, satellite broadcasting, social media and piracy. However it is disappointing that more progress was not made last week, particularly given that such a fundamental exception could have a huge impact both on the lives of individuals and on the development of economies in poorer countries.

The conclusions of last week's WIPO meeting are available here.

*For those who are interested, braille, despite being a language, is not capitalised.

Performers to get new instrument, but will it still be the same old tune?

The definition of audiovisual performance will be
interesting. Belarus tennis star Victoria Azarenka's
televised grunts have been recorded at 95 decibels

At the end of last week, the World Intellectual Property Organization (WIPO) excitedly proclaimed a big breakthrough in terms of international consensus over a topic that has long been beset by sticking-points.  The title of WIPO's media release gives the game away a little -- it's "Agreement on Transfer of Rights Paves Way to Treaty on Performers' Rights".

"WIPO’s top copyright negotiating body will recommend to the September session of the General Assembly to resume a Diplomatic Conference on the Protection of Audiovisual Performances after agreement on the last outstanding issue relating to the transfer of rights. The convening of a diplomatic conference signals entry into the final phase of treaty negotiations, with the objective of concluding a treaty that would shore up the rights of performers in their audiovisual performances [words like 'final' and 'concluding' have a definite end-of-the-process sound to them, but the real end of the story is when WIPO members not only ratify the treaty but actually implement its provisions within their domestic law.  This blogger wonders what proportion of performers in the world today will still be alive when the treaty trickles down from Olympus to the mere mortals below]. 

A diplomatic conference on the protection of performers in their audiovisual performances held in 2000 made significant progress with provisional agreement on 19 of the 20 articles under negotiation. Negotiators at the time did not agree on whether or how a treaty on performers’ rights should deal with the transfer of rights from the performer to the producer and suspended the diplomatic conference.  Member states at the Standing Committee on Copyright and Related Rights,[better known as SCCRR] meeting .. were able to reach agreement ..., thereby paving the way for the conclusion of a treaty.  

The adoption of a new instrument would strengthen the position of performers in the audiovisual industry by providing a clearer legal basis for the international use of audiovisual works, both in traditional media and in digital networks.  Such an instrument would also contribute to safeguarding the rights of performers against the unauthorized use of their performances in audiovisual media, such as television, film and video [for many, the real question is how to safeguard their rights against unauthorised exploitation via the social media, but this is a problem faced on a far wider scale than at the level of audiovisual performances alone].   

Performers such as, singers, musicians, dancers and actors have enjoyed international protection for their performances since the adoption of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (the Rome Convention) in 1961. In 1996, the adoption of WIPO Performances and Phonograms Treaty (WPPT) modernized and updated these standards to cover the rights in respect of the use of their audio performances on the Internet [this is the problem, though: it's easier to cover rights than to find a practical means for their enforcement]. The Rome Convention and the WPPT, however, grant protection mainly in relation to sound recordings of performances. ..."

This blogger feels particular sympathy for performers, especially the very many of them who cannot make a professional living through the commercialisation of their performances. He naturally cannot criticise the content of a Treaty which he has unsurprisingly yet to read.  However, he can hear a chorus of the words "Too little, too late" racing round inside his head and it will take some effort to dislodge them.

The Internet, it’s a Copyright Feature, Not a Bug

Looked at in terms of copyright, the Digital World was perceived as a bug. The ease of copying led to rampant infringement that harmed creators. In contrast, again looked at in terms of copyright, I submit that the Networked World should be embraced as a feature.  ~ Tom Rubin, Chief Counsel for IP Strategy at Microsoft

It seems like a point that ought to be obvious, the internet is a good thing.  But, Mr. Rubin is talking about the internet solely through the eyes of copyright law, and here, it is hard to argue that the internet has been treated as a problem.  The Digital World doesn’t fit neatly into existing copyright law and, for the past two decades the most common approach has been to try to jam it in forcefully, hammering the new round peg into the old square hole.

Mr. Rubin explored this issue as part of the Intellectual Property in the International Arena: WIPO Comes to Stanford conference hosted at Stanford Law School last month.  As part of the panel “Copyright in a Networked World,”  Mr. Rubin discussed two main needs for a working copyright system in the digital world.  First: speed and scalability.  Content users need to be able to find and license works quickly.  Second, and related to the first: working information sources and databases.  Content users need to be able to find out who owns the rights to a work quickly and easily. 

Mr. Rubin’s full recount of his participation on the Copyright in a Networked World panel is available at the Stanford CIS blog.  Full reading of this short and interesting piece is encouraged.

Improved conditions for performers? Here comes another initiative ...

A press release issued by the World Intellectual Property Organization (WIPO) today sounds mildly encouraging for those unrecognised labourers who strut and fret their hour upon the stage and who were formerly heard no more, till mechanical reproduction and cinematography were invented, that is: actors and musicians. The press release goes as follows:

"WIPO Partners with Actors and Musicians to Boost Performers’ Rights

The World Intellectual Property Organization (WIPO) signed on September 23 an agreement with the International Federation of Musicians (FIM) and the International Federation of Actors (FIA) [if it's FIM and FIA, not IFM and IFA, you can be sure the civil lawyers of continental Europe have been busy ...] to support efforts to improve recognition of the significant contributions [The Department of Ambiguity asks whether 'significant' limits the totality of contributions, or suggests that they are significant by virtue of the fact they are contributions] made by actors and musicians around the world [and not elsewhere?].

The agreement, signed by WIPO Director General Francis Gurry, FIA President Agnete G. Haaland and FIM President John Smith, seeks, in particular, to help improve the status of performers in developing countries.

The agreement highlights the connection between IP and labor ["IP is a legal weapon with a worker at both ends of it"] and the special concerns of cultural workers from the viewpoint of development and cultural diversity [does this mean anything to anyone other than the person who wrote it?]. It provides for the organization of joint activities to strengthen performers’ networks and improve their economic and legal status [well, that can't be bad], as well as for raising awareness of the need to support performers. Actors and musicians are an essential element in the development of the creative potential of all economies, particularly in developing countries [Cf doctors, accountants, lawyers, night-club bouncers, career politicians and diplomats? Depends what you mean by 'essential']. It is further anticipated that the agreement will help to galvanize support for the protection of performers at international level [galvanize, initially, is to provide a superficial external surface to cover the substance that lies beneath ...].

Treaty negotiations on the protection of audiovisual performances were deadlocked in December 2000 because of a lack of agreement on the issue of transfer of rights from the performer to the producer [Some would churlishly argue that it is the producer who is "an essential element in the development of the creative potential of all economies", but this is not the place to raise this issue]. Since that time, WIPO has undertaken extensive international consultations to develop information materials on outstanding differences and to improve the flow of information and understanding of the situation of performers [It's good that information materials are being gathered: it's a tedious task but, in the long run, decisions based on fact are likely to be sound than those based on fashionable sentiment, political preference or economic dogma]. Recent consultations among Member States, held in Geneva, allowed for an open debate on this issue, which remains under consideration of the WIPO General Assembly.

FIA and FIM gather, respectively, unions of musicians and actors from all regions in the world. Together they represent hundreds of thousands of professional performers working both in the sound and audiovisual industry [They do indeed, and their task is hard. As much as they toil to better the plight of their members, technology persists in evolving in ways that make it easy to lose any gains they achieve in policy or legal terms]".