"Mein Kampf" - The Unreadable Book Remains Unreadable

"Mein Kampf" - An unreadable book?

In the ongoing struggle between the Free State of Bavaria (claimant) and British publisher Peter McGee (defendant) over Adolf Hitler's infamous book "Mein Kampf", the Regional Court of Munich I (LG München I) today handed down a judgment confirming its preliminary injunction of 25 January 2012 (press release available here; for the history of the dispute, see previous 1709 Blog and IPKat posts here and here).

In his opposition against the preliminary injunction banning him from publishing annotated excerpts from "Mein Kampf" under the title "Das unlesbare Buch" ("The Unreadable Book"), defendant had argued that despite Bavaria's fervent attempts to prevent publication, the book was legally available in many countries. He contended that "Das unlesbare Buch" constituted a scientific work, which quoted as little as 1% of the original work in order to provide examples for Hitler's propagandistic line of thought and the considerable inconsistencies and confusion immanent in the original text. Consequently, defendant put it to the court that copying the relevant portions of the text was justified under the quotation exception to copyright laid down in § 51 German Copyright Act (UrhG).

 

However, the court held that the planned publication went beyond the scope of the quotation exception. In the opinion of the judges, the presentation, content and market orientation of "Das unlesbare Buch" led to the overall impression that the publication consisted of a copy of excerpts from the original "Mein Kampf", accompanied by informed annotations. The annotations only served the purpose of providing a supplementary explanation of the original text. Primarily, the original text appeared to be supposed to speak for itself.

The court criticised that the formal arrangement of original text and annotations, which had been chosen on purpose, did not ensure a close connection between quotations and annotations. On the contrary, readers would be able to consume the original passages from "Mein Kampf" without having to pay any attention to the annotations. Consequently, there was no sufficient interrelation between quotations and annotations. 

 

Defendant also argued that the Free State of Bavaria had not prevented the reproduction of "Mein Kampf" in previous cases of a similar nature, and therefore granted an implied licence. As a result, it would have to treat defendant in the same way (i.e. grant him a licence). The judges did not share this point of view, distinguishing a work by another author that defendant had produced in evidence as "fundamentally different" from defendant's planned publication.

The judgment (reference: 7 O 1533/12) is not final, so there is bound to be another instalment of the "Mein Kampf Struggle" before long. Why defendant does not just wait for 1 January 2016 is anyone's guess, but it is certainly kind of him to subsidise the legal profession...

By George, We’ve got Ourselves a Washington Declaration

Washington, D.C. is a busy place for copyright these days and not just on Capitol Hill.

At the end of last month, intellectual property experts from around the world gathered in the earthquake and hurricane afflicted city for the Global Congress on Intellectual Property and the Public Interest.  This particular blogger did not attend the Congress, preferring to stick to the earthquake-only danger zone of San Francisco.  However, readers can find a full report of the Congress from attendee Technolama here.

One of the accomplishments of the Global Congress was the creation of the Washington Declaration on Intellectual Property and the Public Interest, a document outlining the importance of reviewing the effects of changes made to the international intellectual property framework over the last few decades.

Summary

1. IP is important, but so are other types of rights, “including human rights, consumer protection, competition and privacy” and IP laws should be drafted within the framework of these other laws. [It’s good to see recognition that people must act within the confines of many different laws, not just IP laws. However, one must wonder about the ranking of these different types of laws. Why should IP laws be drafted within the framework of say, consumer protection laws? Why not the other way around?]
2. The public domain and openness are good things.  The public domain should be protected from further encroachment by term-lengthening and openness should be promoted.
3. Exceptions and limitations to intellectual property rights are important, especially when designed to assist people with disabilities or for creating archives.  Countries should have flexibility to implement them as fit for their jurisdiction.

4. Patent systems are out of wack and need to be redone.  New systems should encourage better incorporation of public interest priorities.

5. Creative contributions to society matter and “rewarding and empowering authors and artists may be needed.”  To this end, new methods need to be explored.  “Such innovation can help to end today’s fruitless disputes over practices like noncommercial file-sharing.”
6. Enforcement should be balanced; the punishment should fit the crime.
7. Development is still a key concern.  Not only should development be considered in new IP laws, developing countries should also be assisted in taking full advantage of existing opportunities.
8. New IP policies and laws should be based on research and evidence “rather than fait or ideology.”

Although the declaration does advocate scaling back some of the recent changes to intellectual property, it is not a pirate party type of manifesto.  The declaration is written and supported by a large group of intellectual property scholars and experts, and it asks for review, not for an overthrow of copyright.  The declaration recognizes the importance of intellectual property laws, “Intellectual property can promote innovation, creativity and cultural development.” But it also calls for a reexamination of current and proposed IP laws.

Many of the suggestions in the Washington Declaration are familiar, having come up in the context of the WIPO Development Agenda, a number of open licensing communities and many conversations this blogger has had with IP experts in Africa and Latin America.  Does this declaration represent a bigger push for change, and if so, are we getting close enough to the tipping point for an actual shift?

Those wishing to comment on or show their support for the Washington Declaration can do so at the above link. 

Photo: Washington D.C. cc-by John-Morgan available at http://www.flickr.com/photos/aidanmorgan/1470415503/

Thuiskopie, Opus and the private copying levy: what next?

Yesterday the Court of Justice of the European Union gave judgment in Case C-462/09 Stichting de Thuiskopie v Opus Supplies Deutschland GmbH, Mijndert van der Lee and Hananja van der Lee, a reference for a preliminary ruling from the Hoge Raad der Nederlanden (the Dutch Supreme Court).  This reference turned on Article 16c(1) of the Dutch copyright law, which provided an exception to copyright in favour of copying for private use. Article 16(2) additionally provides that a maker or importer of an item used for reproduction must pay a private copying levy. Stichting de Thuiskopie is the Dutch body responsible for recovering the private copying levy; Opus, a company based in Germany, sells blank media online via Dutch-language websites that target Netherlands consumers. Opus traded on terms that, where a Dutch consumer placed an order online, that order was processed in Germany and the goods were delivered from Germany to the Netherlands, on behalf of and in the name of the customer, by a carrierg engaged by Opus.

Opus paid no private copying levy in respect of the media delivered to its customers in the Netherlands, either in that Member State or in Germany; the cost of the reproduction media sold by Opus did not therefore include any element corresponding to the private copying levy.

Arguing that Opus had to be regarded as the ‘importer’ and, consequently, responsible for paying the private copying levy, the Stichting sued for payment of that levy. Opus denied liability, saying it couldn't be classified as an importer into the Netherlands of the reproduction media which it sold and that it was individual Dutch consumers who must be classified as importers. The trial court and first appellate court agreed with Opus, following which the Stichting appealed to the Hoge Raad. That court referred the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does [the InfoSoc] Directive [2001/29], in particular Article 5(2)(b) and (5) thereof,  provide any assistance in determining who should be regarded under national law as owing the “fair compensation” referred to in Article 5(2)(b)? If so, what assistance does it provide? 

(2) In a case of distance selling in which the buyer is established in a different Member State to that of the seller, does Article 5(5) of Directive [2001/29] require national law to be interpreted so broadly that a person owing the “fair compensation” referred to in Article 5(2)(b) of the directive who is acting on a commercial basis owes such compensation in at least one of the Member States involved in the distance selling?’

The Court ruled today as follows:

"1. Directive 2001/29 ..., in particular Article 5(2)(b) and (5) thereof, must be interpreted as meaning that the final user who carries out, on a private basis, the reproduction of a protected work must, in principle, be regarded as the person responsible for paying the fair compensation provided for in Article 5(2)(b). 

However, it is open to the Member States to establish a private copying levy chargeable to the persons who make reproduction equipment, devices and media available to that final user, since they are able to pass on the amount of that levy in the price paid by the final user for that service. 

2. Directive 2001/29, in particular Article 5(2)(b) and (5) thereof, must be interpreted as meaning that it is for the Member State which has introduced a system of private copying levies chargeable to the manufacturer or importer of media for reproduction of protected works, and on the territory of which the harm caused to authors by the use for private purposes of their work by purchasers who reside there occurs, to ensure that those authors actually receive the fair compensation intended to compensate them for that harm. In that regard, the mere fact that the commercial seller of reproduction equipment, devices and media is established in a Member State other than that in which the purchasers reside has no bearing on that obligation to achieve a certain result. It is for the national court, where it is impossible to ensure recovery of the fair compensation from the purchasers, to interpret national law in order to allow recovery of that compensation from the person responsible for payment who is acting on a commercial basis."

Public comments from the English-speaking rights management and collection sectors are keenly awaited. Meanwhile, the Court's ruling looks like the source of major headaches for national legislatures (how to provide a scheme which ensures that authors actually receive the fair compensation), courts (how to achieve an appropriate means of enforcing local and EU law in respect of payment which may have to be recovered from a supplier which has no place of business in the jurisdiction or indeed anywhere but cyberspace) and authors and bodies collecting for them (how to identify chargeable uses and then to quantify payments).

Much Ado About Kindergarten - Part 2

Apologies for the delay in posting the promised rundown of the proposed changes to the German Copyright Act – sometimes life really gets in the way of one’s plans... Well, here it is now:

The aim of the draft bill submitted to the Bundestag by “the left party” (“DIE LINKE”) is to extend certain copyright exceptions and limitations to nursery schools (BT Drucksache 17/4876, http://dip.bundestag.de/btd/17/048/1704876.pdf).


Public communication of a published work

Currently, s. 52 subs. 1 sent. 1 German Copyright provides that the public communication of a published work shall be permissible at events that cumulatively meet the following requirements:
- they serve no gainful purpose on the part of the organiser,
- spectators are admitted free of charge, and
- the performers, if any, do not receive special remuneration.

According to s. 52 subs. 1 sent. 2, this is usually subject to payment of an equitable remuneration, but s. 52 subs. 1 sent. 3 contains a number of exceptions. Events by the Welfare Services and school events are exempt from the obligation to pay equitable remuneration, on condition that in accordance with their social or educational purpose they can only be accessed by a specifically limited circle of persons. Not all categories of works are covered, though. S. 52 subs. 3 provides that public stage performances and broadcasts of a work and public presentations of cinematographic works always require the consent of the copyright owner. The draft bill extends the above exception to events by child day-care centres and centres for the after-school care of pupils.

At first glance, such events appear to be similar to school events, which would militate in favour of the proposed amendment. However, things are a bit more complicated. School attendance is both compulsory (at least for nine or ten years) and – more crucially – free of charge. Nursery school attendance is not compulsory, but neither is it free. Even most state-run nursery schools charge fees, e.g. €150 per month per child. While I’m aware that this is probably not enough to recoup costs, let alone make a profit, I still wonder if in respect of events at such nursery schools, spectators (i.e. the children) can be deemed to be admitted free of charge for the purposes of s. 52 subs. 1 sent. 1, and if the public communication might serve a gainful purpose on the part of the organiser (i.e. the nursery school). Does anyone have any thoughts on this?


Reproductions of small parts of printed works or of newspaper articles

The second change proposed by the draft bill concerns s. 53 subs. 3 sent. 1, according to which it shall be permissible to make or cause to be made copies of small parts of a printed work or of individual contributions published in newspapers of periodicals for personal use
- in teaching, in non-commercial institutions of education and further education or in institutions of vocational education in the quantity required for one school class; or
- for examinations in the above institutions as well as for State examinations and examinations in schools and universities in the required quantity. The draft bill extends this exception to education in child day-care centres and in centres for the after-school care of pupils.

I have no objections to this. It should be pointed out, however, that this exception only concerns the making of copies of small parts of a printed work or of newspaper articles. S. 53 subs. 3 sent. 2 (and the proposed sent. 3) expressly stipulates that the reproduction of a work that is intended for teaching purposes at schools (or purposes of education in nursery schools) shall only be permissible with the consent of the copyright owner. Consequently, copying a whole work or substantial parts of a work is still subject to a licence and nursery schools may not, for instance, make free copies of sound recordings either.


Reproduction of graphic recordings of musical works and inclusion in private copying levy

Arguably the most controversial amendment proposed by the draft bill relates to the reproduction of graphic recordings of musical works. At the moment, s. 53 subs. 4 lit. a) provides that reproduction of such works shall only be permissible without the consent of the copyright owner
- if carried out by manual copying;
- for the inclusion in a personal archive, if and to the extent that reproduction is necessary for this purpose and if a personal copy of the work is used as the model for reproduction; or
- for personal use if the work has been out of print for at least two years.

The draft bill adds a second sentence to this that reads as follows: “In the cases of subsection 3, number 3 [i.e. education in child day-care centres and in centres for the after-school care of pupils], by way of derogation from sentence 1 lit. a), the reproduction [of graphic recordings of musical works] shall be permissible without the consent of the copyright owner.”

So there we have it: a special exception just for nursery schools! Schools, universities, music schools, private music teachers, the Welfare Services, choirs, the YMCA, you, me – everybody has to obtain a licence, only nursery schools get a free ride. I find that very peculiar, to say the least.

Finally, to make up for this new exception to a certain extent, the draft bill proposes to amend s. 54 and 54a to include graphic recordings of musical works in the private copying levy. In other words, copyright owners are supposed to receive equitable remuneration for the nursery school copies from the producers and importers of reprographic appliances such as photocopiers and scanners.

To my mind, this is all quite messy. The reason why the current exceptions do not include graphic recordings of musical works anymore – they did until 1985 – is that there was a dramatic rise in the number of copies due to the advances in reprographic technology. Choirs and other groups would not buy a copy of the work for each member, but only buy or even borrow a single copy and then make the required number of photocopies. Since the production of sheet music is expensive, the legislature deemed this unacceptably detrimental to authors and other copyright owners and prohibited the reproduction of graphic recordings of musical works except in the abovementioned cases (BT Drucksache 10/387, http://dipbt.bundestag.de/dip21/btd/10/008/1000837.pdf).

Cynics might say that in practice probably nothing much changed and choirs (and kindergarten teachers...) continued their copying frenzies regardless or even in ignorance of the law (one has to admit that, being an exception from an exception that again has exceptions, it is rather complicated). Prosecution would be both impracticable and unpopular. Perhaps, then, it would be better to create a proper private copy exception for sheet music and give composers and lyricists a fair share in the private copying levy. After all, nowadays it is possibly even easier to copy a sound recording than to copy sheet music, but there is no exception from the exception for sound recordings. On the other hand, that would be one more stone paving the way to a "culture flat rate", and I'm not sure that I should like that.

I'll keep an eye on the fate of the draft bill while I continue to make up my mind...

The translations of the relevant provisions from the German Copyright Act are a combination of the WIPO translations (http://www.wipo.int/wipolex/en/text.jsp?file_id=126254#JD_DE080_S53) and my own.

The Impact of DRM on Access to Exceptions: First Empirical Assessment

"The Impact of DRM on Access to Exceptions: The First Empirical Assessment" is the title of a talk which Dr Patricia Akester (Centre for IP and Information Law, University of Cambridge) gives next Wednesday, 1 July 2009. I'm chairing the event, which is kindly hosted in the London office of law firm McDermott Will & Emery.

Right: some forms of digital management leave the customer feeling distinctly manipulated ...

According to information provided by the Intellectual Property Institute -- whose seminar this is:

"Dr Akester will be talking about a project she undertook looking at the impact of technological measures on the ability of users to take advantage of certain statutory exceptions to copyright. When technological measures were under consideration in the mid 1990s two stark scenarios presented themselves: on the one hand, an ideal world where copyright owners could use DRM to make their works available under a host of different conditions in a way that responded to the diversity of consumer demand; on the other, a more bleak environment where all users of copyright material (and much non-copyright material) would be forced to obtain permission and pay to access material that previously would have been available to all.

In the face of these two extreme visions, the European legislature developed a compromise position, embodied notoriously in Article 6(4) of the Information Society Directive. The legislature appeared to be hoping that rightholders would voluntarily make material within certain specified exceptions available to users.

Based on a series of interviews with key organisations and individuals, involved in the use of copyright material and the development and deployment of DRM, Dr Akester examined how these issues are working out in practice".

This will be a lovely event, so don't miss it. You can get all the details from the IPI's website here. It's £60 for casual attendees, £30 for IPI members and IPKat readers. If you're a student or an academic, entry is free. If you're coming in order to sound off about Digital Britain, you pay double. See you there?