Open Culture and Copyright: CREATe IP Summer Summit 2017

The CREATe IP Summer Summit 2017 took place over the course of last week, Monday 26 June – Friday 30 June. In this inaugural year, the theme of the Summit was ‘Open Science and Open Culture’. A range of speakers from around the globe presented on an array of Open Innovation issues, with attendees travelling from the National Law University in Delhi, IP Australia, the American University and the University of Trento in Italy. Organised by Dr Sukhpreet Singh – Senior Lecturer and CREATe Programme Leader – the Summit explored the benefits of developing openness within our culture, particularly within the global south. Dr Singh is an expert on market based approaches to IP protection and exploitation, and this shone through in the interdisciplinary reach of the Summit, with speakers from industry, government and academia in attendance.  

Background

The granting of property rights in intellectual creations is intended to facilitate scientific and creative progress. The archetypal expression of this approach is probably to be found in Article I, § 8.01.8 of the U.S. Constitution:

Congress is empowered “to promote the progress of science and the useful arts, by securing, for limited times, to authors and inventors the exclusive right to their respective writings and discoveries.”

The rationale behind intellectual property protection is that our society benefits if authors and inventors can generate profit from their work. If authors and inventors were not able to generate profit from their endeavours, why would they go to the trouble and expense to innovate at all?

A view that qualifies the property-based approach posits that where intellectual property rights are exercised in an over-restrictive manner, they can potentially inhibit the advancement of culture and knowledge, thereby undermining the very purpose for which these rights exist. Since all creative innovations are built upon work that has come before, the cultural and scientific advancement of our species relies upon accessing and using existing works.

Creating a counterpoint to an ‘all rights reserved’ culture

The open movement seeks to facilitate the dissemination of knowledge. It can be understood as a cultural shift against an ‘all rights reserved’ culture (where lawfully accessing and using works can pose difficulties for follow-on innovation), to a culture where use of copyrighted material is promoted through licensing or copyright exceptions and limitations. The ‘open’ paradigm is still evolving, with the concept potentially conveying varying meanings depending upon the context. In academia, the open science movement is focussed on making research available to anyone with an Internet connection, as also promoting the transparency of scientific methods. The Creative Commons movement is focussed on creating a standardised legal structure that allows copyright holders to make their works available to content users on a royalty-free basis. In Government, ‘openness’ can mean the use of policy tools that encourage licensing practices:

• The Orphan Works Licensing Scheme in the UK is a tool which facilitates the licensing of copyrighted works for which the rights-holder cannot be found. This licensing scheme reduces the risk associated with making use of orphan works and thereby potentially increases the likelihood of these works being used.

•  IP Australia’s IP Toolkit for Collaboration provides template contracts, guides and collaboration agreements that support collaboration between entities engaged in innovation activities. This tool helps those participating in collaborative projects to develop clear guidelines with partners, thereby promoting open innovation.

• Policy for open access in the post-2014 Research Excellence Framework has been a driver of open access in the academic environment. This policy requires that certain research outputs be made open access to be eligible for submission to the Research Excellence Framework, a framework which is used to measure the quality of research in higher education institutions within the UK. By correlating measures of excellence with a necessity for researchers to take an open access approach, this policy drives the goals of the open access movement.

International co-operation on the importance of a more open approach within culture can be traced back through a number of international efforts, such as the Budapest Open Access Initiative, the Montreal Declaration, the Bethesda Statement, the Berlin Declaration, the Durham Statement of Open Access to Legal Scholarship. These efforts focus on making scholarly knowledge available to anyone with an internet connection. The Berlin Declaration asserts that:

“The Internet has fundamentally changed the practical and economic realities of distributing scientific knowledge and cultural heritage. For the first time ever, the Internet now offers the chance to constitute a global and interactive representation of human knowledge, including cultural heritage and the guarantee or worldwide access.”

The Internet has been the major driver behind the Open Innovation movement. Our ability to share creative works around the globe instantaneously has the potential for our society to work together on a collaborative basis that has never before been possible, and these international efforts have endeavoured to enshrine into law values that will promote the development of culture and science.

The Summit

The Summit ran the gamut of what ‘openness’ can mean within society, as well as the potential benefits it brings. Peter Jaszi from the American University gave the keynote of the Summit, presenting on fair use as a driver in promoting openness within the U.S. jurisdiction. Professor Jaszi argued that the fair use doctrine makes the U.S. economy far more competitive than jurisdictions that employ a closed system of fair dealing. This is exemplified in text and data-mining; the fair use doctrine provided sufficient flexibility to allow for text and data-mining activities to take place in the U.S., whereas within the E.U. for example, text and data-mining exceptions are still being discussed after a dialogue of numerous years (for more, see this IPKat post). It is the flexible nature of the fair use doctrine that promotes a more ‘open’ agenda within the U.S. economy, while jurisdictions that employ a closed list of exceptions and limitations may have a tendency of lagging behind when new innovations are made.

Professor Bajpai of the National Law University of Delhi presented on a hugely ambitious open education project being undertaken in India called ePathshala. The ePathshala resource provides free access to educational materials to anyone with an Internet connection. There is also epg-Pathshala, which provides resources for students of post-graduate courses across a bewildering array of disciplines – readers can feel free to take a look at resources provided for students wishing to study intellectual property law here. Professor Bajpai linked the ePathshala programmes to the Indian government’s obligations under the various international efforts towards Open Access mentioned above (the Budapest Open Access Initiative, et al.), as well as Article 19 of the Universal Declaration of Human Rights:

“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.”

The Open Science movement received particular attention over the Wednesday of the week-long Summit, with Arul George Scaria from the Centre for Innovation, Intellectual Property and Competition with the National Law University of Delhi presenting on open access in science. For Dr Scaria, open science encompasses not only freely accessible scientific papers but also transparency in research methods and data collection. To this end, Dr Scaria discussed Retraction Watch – a blog that monitors retractions and revisions of previously published scientific papers. Transparency and repeatability in data collection are essential factors that will ensure the continued progression of science, with these qualities being more readily attainable in an Open Access environment.

Chris Banks from Imperial College London discussed her driving role in the development of the UK Scholarly Communications Licence (“UK-SCL”). The current practice in academic publishing is that universities generally do not claim copyright in the academic output of staff, with copyright in articles instead being assigned to publishers by academics. This approach entails a number of drawbacks, including restricting the author’s use of his or her own work and making compliance with funder Open Access mandates more cumbersome. In contrast, the UK-SCL would see research organisations retaining a non-exclusive licence to works their academics have generated. The benefits of this licence are numerous, including reducing the necessity for authors to rely of copyright exceptions in order to make use of their own academic works, academics will not have to negotiate with publishers directly and academic output will be freely available faster than ever before. Developments with the UK-SCL will be moving quickly in 2017, and the results should be interesting to observe.

Margaret Haig from the UK Intellectual Property Office (“UKIPO”) discussed the planning and implementation of the UK Orphan Works Licensing Scheme. Orphan works are copyright works for which one or more of the rights-holders is either unknown or cannot be found. The genesis of the UK Orphan Works Licensing Scheme emerged from the Gowers Review (2006) and the Hargreaves Review (2011). A rather pleasant anecdote describing the value that Orphan Works can create for society can be found on page 70 of the Gowers Review:

“Many works that lie unused could create value. For example, the film It’s a Wonderful Life lost money in its first run and was ignored by its original copyright owners. When the owners failed to renew their copyright in 1970, it was broadcast on the Public Broadcasting Service channel in the USA. It is now a family classic, and worth millions in  prime time advertising revenue. The book The Secret Garden, since copyright has expired, has been made into a movie, a musical, a cookbook, a CD-ROM version, and two sequels. For works still in copyright, if users are unable to locate and seek permission from owners, this value cannot be generated.”

It is the purpose of the UK Orphan Works Licensing Scheme to reduce the risk associated with making use of orphan works and consequently creating value within society, rather than merely allowing these works to languish in disuse.

The week-long Summit covered a whole host of important and interesting topics which would be impossible to capture in a single blog post. Over the coming weeks, this writer (hopefully working collaboratively with speakers from the Summit) will be exploring and developing further some of the issues raised in a series of blog posts that will examine the current ‘open’ paradigm and how this interacts with copyright law. It is hoped that this series will generate discussion amongst 1709 readers, as well as creating a legacy resource for the 2017 CREATe IP Summer Summit.

The open graphic is reproduced with the kind permission of Libby Levi.

Shop Till You Drop… Your Claim… Stores’ Layout Protected by French Copyright

After the recent case of the Jimi Hendrix photograph (see here and here), we have another case about the importance of originality in French copyright. This time, the case is whether retail stores’ layouts are original enough to be protected by copyright.

An Italian cosmetics store (K) with stores and France had filed a copyright infringement and unfair competition suit against a French cosmetics and accessories company (F), claiming that it had copied the specific layout of its points of sale. K claimed that its stores’ layout is original and protected by the French droit d’auteur (referred from now on as copyright.) K’s store displays, display panels, cash counters, color coding, the advertising panels on the outside shop windows, were claimed as original.

The first court, the tribunal de grande instance de Lille, ruled in favor of K in May 2015, and F appealed, claiming that K’s layout was not original enough to be protected by copyright, and that in any case, the layout of its stores was similar to the layout of F’s.  On May 16, 2017, the Douai Court of appeals ruled in favor of K (CA Douai n° 15/03286).

French law protects works which are original, regardless of their artistic merit

The Douai Court of appeals cited article L 111-1 of the French Intellectual Property Code, under which the author of a work of the mind has an exclusive right of intangible property which is binding on all. This right includes patrimonial rights as well as moral rights. The court also cited article L 112-1 of the same Code, which provides that the rights of authors on all works of the mind, regardless of the genre, form of expression, merit or destination, can be protected by copyright. This is the so-called théorie de l’unité de l’art, the theory of the unity of art, which prevents judges to assess the artistic value of a work protected by copyright.

Under French law, a work is protected by copyright if it is tangible or if it is fixed, and if it is original, meaning that it bears the imprint of the personality of its author. The Court of appeals explained that “creation is defined by a production of the mind which manifests itself in an effort, no matter how small, but which is certain and demonstrates an aesthetic bias bearing the imprint of the personality of its author, and which are not simple transpositions or declinations, thus conferring on the object a character of originality and novelty.”

The layout of K’s stores

K described its stores’ layout as one which uses clean lines and which organizes the cosmetics in such a way that the customer’s gaze will have no obstacles. K argued that this, “combined with the specific shape of the furniture and the presence of linear elements, gives [the layout of K’s stores] a visual effect very much original which reveals a true creative contribution in the arbitrary choice of the arrangements.”

K uses white display units, which are “arranged on each side of the store and over its entire depth and which have drawers in their lower part.” The upper part of the display units and their lower parts, which are drawers,

“are inclined at different angles, which gives a triangular appearance to the profile of the display.” The colors used in the stores are gradual, and the alternation of products embedded in the white furniture sometimes in a vertical position, sometimes in a horizontal position, [creates] a visual aspect both linear and pictorial.” K argued that the arbitrary combination of all these elements “presents an entirely singular, modern and futuristic appearance, which is therefore original. “

F had argued that the layout did not bear the imprint of the personality of their author, and that the mere combination of these elements, which are not original, is not original either. F also claimed that it had used these elements, particularly the displays and the screens, before K, and that its color code was not the same as the one used by K, which used purple, a color not used at all by F. As for the black and white color used in both stores, F noted that “they are particularly banal colors and [that K] cannot invoke the use of a dark color on the floor to claim any right.”

The layout of K’s stores is protected by the droit d’auteur

The Court recognized that French copyright protects interior design such as

“the rhythm of color and the layout of a store chain” and explained that “[w]hen this protection is contested in defense, the originality of a work must be explained by the person who claims to be the author, that is the only person able to identify the elements expressing his personality…. [and that] the exploitation of a work by a moral entity under its name shall presume that this moral entity [owns the copyright].”

The Court further explained that:

“In the applied arts, originality often arises from a new combination of already known elements, from the creation of original forms, new materials, and decorative effects, which are distinguished from those previously known by their singularity or distinctive character which express the personality of the author by conferring a personal form on his work.”

This was the situation in the present case.

The court thus described K’s stores:

“- the shape of the triangular display case, in lacquered white, in which the drawers containing the products fit completely, is specific, since it has two Inverted slopes, creating a smooth and rounded appearance, reinforcing the aerial and futuristic character,

- the arrangement of these pieces of furniture on each side of the store and the alignment of the products reinforces the infinite unfinished visual aspect and its clean nature,

- the juxtaposition and the choice of colors (purple, white, black) and their regular rhythm (dark floor and white furniture topped with a white headband with LCD black screens and a purple background) reinforce the linear aspect,

- the juxtaposition of colors and in particular the use of black and white contribute to bring to mind the attributes of luxury and enhance the impression of modernity,

- this search for modernity and futurism is accentuated by the layout of LCD screens  on top of the furniture, their presence in showcases of 'advertising lollipops' showing movies, and the use of recessed lighting in the ceiling in the form of circles of different sizes.”

The Court of appeals ruled that the layout of K’s stores, thus described, is protected by copyright because

“K has thus declined and transposed all these elements in a reflective and singular manner with a view to producing a distinctive effect and a clear visual identification in order to satisfy the company's own concept of marketing of make-up products in an environment and a setting which are reminiscent of luxury and modernity.”

“The layout of K’s stores is therefore characterized by an original combination of shapes and shades, which is precisely defined, and which is an aesthetic bias and which reveals a creative effort indeed demonstrating the personality of its author and attests to the search for a distinctive configuration, thus distinguishing itself from layouts which may be of the same style and implementation of simple know-how.”

The Court of appeals also found that F had tried to capture K’s clientele, by taking advantage of K’s “intellectual and financial efforts to set up its distinctive concept, depriving it of its singularity and diluting the specificity of its concept,” which the Court of appeals found to be unfair completion practices. K was awarded damages and ordered F to dismantle its stores’ layout.

Details of new edition of Postgraduate Diploma/Masters in UK, EU & US Copyright Law now available

The 1709 Blog has learned that the 2017-2018 prospectus of the Distance Learning Programme leading to a Postgraduate Diploma/Masters in UK, EU & US Copyright Law is now available online.

Organised by the Centre of European Law at King’s College London, this popular course allows participants to acquire detailed knowledge of copyright in a number of jurisdictions. In addition, it does not require participants to reside in London for the duration of the programme, thus allowing them to continue working and studying in their own cities and countries.  

The programme is spread over 8 months, starting on 2 October 2017 and ending with an examination at King’s College London in May 2018. The units will take students systematically through the whole subject. There will be three optional weekend seminars held in London in December 2017, February 2018 and April 2018 which will provide an opportunity for revision of the programme, for discussion, preparation for the examination and meetings with fellow students an programme tutors.

Probably 'distance-learning'
about some of the latest
copyright cases

As explained by Prof Tanya Aplin (the Course Director),

"The programme provides tuition from one of Europe’s leading centres in European Law and is studied on a distance learning basis, thereby avoiding crucial time spent away from your place of work. Completing this rigorous programme will give you a competitive advantage in a difficult job market. 

The programme aims to provide you with an in-depth and up-to-date knowledge of the general principles of copyright law, mainly focusing on the law in the United Kingdom, the principles of United States copyright law and the major ‘copyright’ Directives of the European Union. Benefit from a highly relevant programme that will: 

• Introduce the main international copyright conventions in the field; 

• Deal with rights in literary, dramatic, musical and artistic works, films, sound recordings, broadcasts, cable programmes, computer programs and databases, performers’ rights and publishers’ rights; 

• Cover both theoretical aspects and questions which arise in practice, in particular concerning infringement and available remedies; 

• Include a unit devoted to the French and German laws on author’s rights and related rights; 

• Examine thoroughly United States Copyright Law in two units; 

• Conclude with the main challenges in the field of copyright, in particular those arising from international communication through satellite and the internet, and from digital technology generally. 

[...]

In 2016 this Diploma/MA received on overall satisfaction rate of 100% (Russell Group average 85%) from the students in the PTES, Postgraduate Taught Experience Survey. The Dickson Poon School of Law, King’s College London was also rated top in the UK for world-leading research in the Research Excellence Framework 2014."

If you wish to learn more about the course and its details, click here [deadline for applications: 4 September 2017].

Olivia de Havilland Files a Right of Publicity Suit against Feud Producers

Legendary actress Olivia de Havilland celebrates her 101^st birthday today. Happy Birthday Miss de Havilland!

If you do not remember who Olivia de Havilland is, you may choose to watch Feud , a television series, which first season details the rivalry between Bette Davis and Joan Crawford, which currently streams in the U.S. and will be shown in the Fall on BBC 2.

But this may not be a good idea, as Miss de Havilland has taken offense of her portrayal in Feud, and filed yesterday a California right of publicity and invasion of privacy (by publicly placing a person in false light in the public eye) lawsuit in the Los Angeles County Superior Court against the producers of Feud (Hat Tip to Hollywood Reporter).

Miss de Havilland, played by Catherine Zeta-Jones, is featured in the opening sequence, as she is being interviewed during the 1978 Academy Awards. During the interview, Catherine Zeta-Jones, as Olivia de Havilland, is portrayed as saying: "There was never a rivalry like theirs [Davis and Crawford]. For nearly a half a century, they hated each other, and we loved them for it." The complaint alleges that Miss de Havilland portrayal in Feud “creates the public impression that she was a hypocrite, selling gossip in order to promote herself at the Academy Awards.”

The Complaint argues that Miss de Havilland never gave such interviews “and never made these statements about Miss Davis and Miss Crawford or their relationship. The interview is fake and the statements attributed to OLIVIA DE HAVILLAND are false. This interview itself and the statements attributed to OLIVIA DE HAVILLAND are contrary to her public and private image and reputation and have caused her economic, reputational, and emotional damages, including distress, anxiety, and humiliation.”

Miss Zeta-Jones wears a dress similar to the one won by Miss de Havilland that night, similar jewels, and hairdo. According to the complaint, the Welsh actress has even been fitted a chin prosthetic to make her look like Miss de Havilland. The complaint argues that “by meticulously including specific details from real life, [Defendants] intended for the audience to believe that the events depicted and the statements made by role players in "Feud" were accurate, and were actually quotes from real people, including OLIVIA DE HAVILLAND.”

The complaint anticipates a First Amendment defense, arguing that “[t]here is no public interest to be protected by putting false statements into the mouth of a living person, using their name and identity for a false and unauthorized purpose, damaging their reputation. The First Amendment does not protect the false, damaging, unauthorized use of the name and identity of a real, living celebrity merely because the perpetrators cloak the work in the title of pure fiction, much less a pseudo-documentary film.”

The California statutory right of publicity claim

California provides a statutory right of publicity, Cal. Civ. Code § 3344(a), under which “[a]ny person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services” must first obtain the person’s consent . The complaint alleges that Miss de Havilland did allow authorize Defendants to use her name, identity or likeness in the Feud series and its promotional materials, and further alleged that Defendants knew that she has not given her consent for such use.

The California common law right of publicity claim

California also recognizes a common law invasion of privacy by appropriation of name or likeness, “that brings injury to the feelings, that concerns one's own peace of mind, and that is mental and subjective,” Dora v. Frontline Video at 542. Therefore, it is not necessary at common law for the use of likeness or name to have been commercial, and plaintiff can seek mental stress damages.  Indeed, the complaint alleges that the interview featured in Feud  “and the statements attributed to OLIVIA DE HAVILLAND are contrary to her public and private image and reputation and have caused her economic, reputational, and emotional damages, including distress, anxiety, and humiliation.”

How will this legal feud end? Stay tuned…