Wednesday, February 22, 2012
Well, here's another Rights mess you've gotten me into!"
A number of announcements, press articles and incidents have recently occurred, which individually may mean little, but collectively bring us to question whether we are finally addressing some of the copyright challenges we now face, or slipping further into litigation and life in the Wild West.
We read with great interest the Google submission to dismiss the Author Guild’s Class Classification. The submission is a must read for anyone who believes establishing and managing rights is simple. Interestingly, this action was just dealing with primary rights. Having unsuccessfully argued one case, which was found wanting, Google have now apparently had a cathartic moment, and decided to turn everything on its head. They now set out to describe the complexity and ‘grey’ environment in which we actually trade and do so to undermine the Author Guild’s class status. Some would suggest that they were finding it difficult to convince the court on their approach to ‘opt out’ versus ‘opt in’ and on the crucial issue of orphan works and appear to be picking up their bat and ball in a huff and are now arguing that the Author Guild do not represent authors sufficiently to mount a class action. It is somewhat amazing it took Google so long to come to this conclusion and it is hoped that they do not succeed without fundamentally changing their conditions.
Today we read in Techdirt about how the Canadian collection society, Access Copyright, is trying to claim that "posting a link" to a work is the same as making a copy! You would think that this lunacy would be seriously questioned and challenged but some such as the universities of Western Ontario and Toronto have apparently accepted that e-mailing hyperlinks are equivalent to photocopying a document. The result is an annual fee of $27 for every full-time equivalent student and surveillance of academic staff email. Here in the UK we have the PPL music licensing body which issues licenses to any business, such as a shop, bar, office, restaurant, gym, community building, not-for-profit organisation that plays recorded music. This sounds reasonable but PPLs method of establishing and chasing licences may leave a lot to be desired. Some may say its more about harassment, and cold call tactics an acting as ‘wheel clampers’ than education and reasoning. Are these agencies less about protecting and educating on copyright and more about collecting money to support them?
Then we have the ongoing debate and lawsuits over digital rights and what may turn out to be a landmark case between HarperCollins and Open Road. Some suggest it will never be concluded inside the court and an out of court settlement is almost certain. If this were to happen then this would leaving many questions unanswered for others facing the same uncertainty.
On February 17th, Paramount Pictures studio filed a lawsuit accusing the estate of Mario Puzo, who wrote 1969 bestseller "The Godfather," of approving sequels without their permission and in violation of copyright agreements. The studio claim that the 2002 agreement allowed for the publication of only one sequel novel to the movies and that "The Godfather Returns" by Mark Winegardner, was published in 2004. The Puzo estate has opted to publish a second novel "The Godfather's Revenge," and is planning a third book "The Family Corleone." An attorney for the Puzo family, claims Paramount does not have control of book publishing rights. This may prove a straight forward contract breach, but shows that in some cases the rights acquired may go further than a single work and may involve the characters within it, or the theme itself.
However, it is not just the agencies and publishers that are grappling with copyright in today’s changing world, governments are increasingly being involved. On February 22, the French senate will vote on a bill allowing the digitization of works unavailable 20th century. The bill proposed by Senator UMP, Jacques Legendre was adopted in its first reading on 19 January by the National Assembly. The bill covers French orphan works which have fallen into the infamous ‘grey area’ and the Minister of Culture and Communication, Frederic Mitterrand, claims that this amounts to between 500,000 and 700,000 titles. The bill will also establish a public database and management under the BNF (Bibliothèque nationale de France) listing of all the 20th century works. The bill is aimed at protecting authors and also providing universal access to books. Some would suggest a kind of French Book Settlement.
The UK Publishers Association (PA) has in its submission to the UK Digital Copyright Exchange (DCE) feasibility study, called for the development of a new online "one stop shop" for the exchange of license copyright works. . The PA makes the case for a DCE as a fully voluntary, interoperable platform, for use by businesses and the public, which could allow rights to be licensed more efficiently and openly. DCE study follows from recommendations in the Hargreaves Review of Intellectual Property, published in May of last year.
So are we seeing a number of countries acting unilaterally and with different degrees of response or will the acts be rolled up under initiatives such as the EU’s Arrow project?
Publishing at its heart is a rights business and as we embrace the digital age it is illogical that no one can find a rights needle in a haystack. We have been waiting for an eternity for a rights repository which would enable both the searching of ownership and the trading of permissions. But as Google have concluded in their latest court submission rights is a complex business and establishing them is far from simple. The legal wrangling of today may look to be moving forward but as ever the only ones who are gaining from it are the lawyers.