Francis Davey on E-Books and DRM

One of the things I like about volunteering for the Open Rights Group is that you get to meet smart and interesting people like Francis Davey. A query on one of ORG's mailing lists has prompted Francis to write a review of the law surrounding DRM and e-books, likely to be of interest to anyone thinking of buying an e-book or e-reader.

Star Wars II: Ainsworth Strikes Back

Nearly a year and a half ago my first substantive entry was about the High Court judgment in Lucasfilm v Ainsworth, alias the Stormtrooper Armour Case. I said at the time:

"Both sides will want to appeal; Lucasfilm against the decisions on copyright and enforceability of the US judgment, Ainsworth against the decision that he is liable under US copyright law. If permission to appeal is granted - and the legal issues are controversial enough that I would be astonished if it is not - then we are unlikely to see a hearing until the middle of 2009 or so."

Ah, such naive optimism! The appeal hearing wasn't until November, and the judgment (Rix, Jacob and Patten LLJ) was handed down last Wednesday. Other minor matters (plus my job) have been occupying me since then, during which time several bloggers far more informed and eloquent than me have given excellent summaries of the outcome. I fully endorse the IPKat's disappointment that the meaning of 'Work of Artistic Craftsmanship' was not further discussed, whilst I still feel that the array of (not inexpensive) Star Wars memorabilia on sale at such geek emporia as Forbidden Planet lend some support to The 1709 Copyright Blog's nagging anxiety that something as iconic as the Imperial Stormtrooper must have some element of artistic merit. But that was not quite the question Their Lordships were being asked to rule on, and in the end Lucasfilm v Ainsworth stands as an illustration of how trying to draw a boundary between Industrial Design and Artistic Copyright is bound to lead to cases where a work that would seem to belong on the fact of it in one category ends up being placed in the other.

This is very much borne out by the reaction of web sites and blogs aimed at science fiction fans, as seen in this post on io9. Almost without exception the reaction is one of disbelief that the armour was not deemed to be a work of art, although it seems that few commentators appreciate that this judgment has a relatively narrow scope - it is certainly not the end of all IP protection for Lucasfilm, for instance. Meanwhile, for a perspective from the movie prop and memorabilia business, see this write-up from The Original Prop Blog.

Andrew Sharpe of Charles Russell probably has the best title of any write-up of this case; yes, I know Jeremy Phillips beseeches us not to use dreadful puns for IP reports, but I can't help but liking "Obi-Wan Jacobi"! As well as an excellent summary of the issues at hand, he also notes that Lucasfilm have very strong motivation for seeking a further appeal to the Supreme Court, and not just on the basis that its Star Wars productions tend to come in trilogies...

Meddle Not in the Affairs of Wizards

As you might notice from the updated profile I am no longer swelling the ranks of the unemployed. (In fact, since for various reasons I wouldn't have qualified for any benefits I never signed on, so strictly speaking never did, but I'm allowed the odd metaphor now and again.) I am now an RA in QMUL's Law Department, working at the Centre for Commercial Law Studies on a project looking at the legal issues relating to cloud computing.

More on that some other time, perhaps, but for now I see that IP is back in the news again with the story of 'Ms Marmite Lover', who is being threatened by Warner Bros for planning to put on a Harry Potter themed dinner. For once we have more than newspaper stories (written, with the best will in the world, by someone who probably doesn't know much about trade marks or copyright*) as Ms M-L has kindly reproduced the cease-and-desist letter in question.

[*I'm not suggesting reporters or staff writers are legally ignorant. However, most are probably hottest on subjects such as defamation and privacy.]

I'm afraid I can see W-B's point. It looks like this is not quite a domestic dinner party, but rather an openly ticketed event, so Ms M-L is arguably using the phrase 'Harry Potter' - a trade mark of Warner Bros - in the course of trade. Now, she understandably claims that from her point of view she is using it purely as a sign of being a fan rather than a suggestion that her food is somehow from, or endorsed by, either Warner Bros or J K Rowling herself. Unfortunately this is a buoy we've all sailed round before during the voyage of Arsenal v Reed, with its ECJ ruling, endorsed by the Court of Appeal, that 'badges of affiliation' can and do infringe trade marks. Having said that, Ms M-L's use seems rather de minimis and there is a risk that Warner Bros' action may be seen as yet another example of Big Business using IP rights to squash what most people would see as harmless fun. As a supporter of and believer in IP I think it needs all the good publicity it can get, but these days it only ever seems to get the other sort no matter how hard the IPO tries to rope in the services of Wallace and Gromit.

ORG Debate on Three Strikes - London, Fri 2 Oct

If you're interested in the whole ongoing mess about the threat to cut off the net access of alleged file-sharers (see my earlier posts on three strikes) then come along if you can to the Open Rights Group's forthcoming public debate on the issue. It's on the evening of Friday 2 October near Farringdon, and if you book in advance it costs £10 if you're an ORG supporter or £15 otherwise. Or if you book now and become and ORG supporter by the time of the event, admission is free!

3 Strikes: Here We Go Again

A little while back I blogged about how the Digital Britain report appeared to accept that delivery of government services by internet was so important that disconnection as a sanction for filesharing was a step too far. (For earlier discussions of Three Strikes and Amendment 138, see here, here, here and here.) Well, as is being extensively reported (Guardian, Technollama, BoingBoing) it now appears that there has been if not exactly a U-turn then certainly a sharp veer in the direction of harsher measures - 'harsher' meaning 'including disconnection from the internet'.

So what exactly is being said? This release from the Central Office of Information announces not new laws but rather a revised consultation process regarding sanctions for filesharing. It seems that following feedback from rightsholder organisations (and more on that below) HM Government has decided both that the original timescale - which would not have seen measures implemented until 2012 - was too long, and that it was wrong to rule out disconnection as a sanction.

What we now therefore have is a revised and extended consultation from the Dept of Business, Innovation and Skills (PDF here) seeking further input on a number of these issues. Some parts of this consultation particularly caught my eye. For example:

"Any technical measures deemed necessary and appropriate by the Secretary of State would be introduced by Ofcom via secondary legislation."

It's important to note that 'secondary legislation' means statutory instruments which are not voted on by MPs, although MPs can register objections to them - if they hear about them in advance amidst New Labour's avalanche of secondary legislation. In other words, our MPs won't be asked to vote on this.

"It would be important to ensure as far as possible that innocent people who may be affected by such technical measures would retain access to the Internet services they need, including online public services."

That's jolly nice to hear, although 'as far as possible' includes quite a lot. I may be being unduly cynical, but I can't help wondering if the terminals in local libraries (or as Tower Hamlets now calls them, 'Idea Stores') will be deemed to provide such essential access.

Then we get onto the question of measuring illicit filesharing and defining what is and isn't acceptable. The original plan was for a detailed study of this, on the basis that policy should be based on evidence. Actually, I take my earlier words back - here there is a blatant handbrake turn.

"Evidence – although we have no doubt Ofcom would have carried out their research under the original proposals in their usual thorough manner, measuring unlawful P2P activity across a range of networks and different content is extremely difficult."

This is what a former colleague of mine called 'filing in the TOO DIFFICULT' tray.'

"On reflection, using a precisely defined “trigger” as the basis for introducing technical measures would not be sufficiently flexible (for example it would not allow the wider health of the broadband or content markets to be taken into account), and under-estimated the inherent difficulties of measuring this unlawful activity with precision."

Or, to put it another way, drawing a line in the sand involves awkward questions about where the line should go...

"In reaching his decision, the Secretary of State will have to carefully weigh the evidence available to him and make any order on the basis of defendable information based largely but not exclusively on the reports from Ofcom."

...so instead lets listen largely to Ofcom's general thoughts, plus input from other sources (I can't imagine who.)

"But even so, the Secretary of State can do this much quicker than the process which the regulator would have to go through if acting alone."

Because when a large rights organisation is breathing down your neck, speed, rather than accuracy, is of the essence!

Then we get onto talking about disconnection.

"Since the issue of the consultation some stakeholders have argued strongly that none of those technical measures is powerful enough to have a significant deterrent effect on infringing behaviour."

In other words, the self-appointed gamekeepers are not surprisingly complaining about being denied sufficiently big mantraps.

"Taking those points into account, although we continue to regard the uptake and use of Internet services as essential to a digital Britain, we are considering the case for adding suspension of accounts into the list of measures that could be imposed."

Translation: "Having been told that we're a bunch of wusses, the nuclear option is back on the table."

"...this step would obviously be a very serious sanction as it would affect all members of a household equally, and might disrupt access to other communications, so it should be regarded as very much a last resort."

I can't help but read this as a rearguard sop to the original conclusions of the Digital Britain Report. Once again though we have weasel words; it's all well and good to say that a measure should be 'regarded as very much a last resort' but will that be the case in practise? We lawyers are told to put our client's case at its highest; if disconnection is available, that's what we're going to be expected to push for.

"As ever we would need to ensure any such measure fully complied with both UK and EU legislation."

Well, that's all right then because we have Amendment 138 to the Telecoms Package to protect us. Except, that as the splendid and endlessly energetic Monica Horten has detailed over at IPTegrity.com, the EU Commission is trying very hard to water it down with, as Monica notes, UK Government support. In other words, the Government position is on the one hand that disconnection should be in accordance with UK and EU law, and on the other that UK and EU law should not preclude disconnection.

So where is all this coming from? A number of commentators have observed that only a few weeks ago Lord Mandelson dined with media mogul David Geffen (see this Times report from last week, which nicely anticipates today's developments). I'm not going to speculate, but it is hard to avoid the feeling that more than a little high-level lobbying may have been going on, as evidenced by that line in the new consultation document about how 'some stakeholders have argued strongly'.

As this BBC report explains, the latest proposals are causing considerable consternation, not least among the ISPs who may be forced to implement and enforce such measures, at considerable cost in time, money and in all likelihood customer satisfaction. What can we do? The Open Rights Group, for which I initially researched Amendment 138, is urging people concerned by these developments to write to their MPs. Another option comes out of the fact that, as I've noted above, this is still just a consultation. The DBIS is seeking comment on this proposal; now is the chance to make (reasoned and temperate, please) responses to it.

Cyber-Harassment: Go Directly to Jail

The Guardian reports that Keeley Houghton, 18, of Malvern, has been sentenced to three months' imprisonment for threatening on her Facebook page to kill another young woman. If this sentence sounds a bit harsh for what some might take as childish invective, it was apparently the latest in a long string of instances of Houghton persecuting her victim, including incidents that had led to previous convictions for assault and criminal damage. None of the reports I can find are specific about the offence Houghton was prosecuted for, although the reference to 'Harassment' makes me suspect that the charge was under s.1 Protection from Harassment Act 1997. This requires a 'course of conduct' of two or more incidents that a reasonable person would think was harassment. The report in The Guardian indicates that Houghton had earlier harassed her victim in a pub, so two instances within a few days would certainly be a 'course of conduct' as far as the court was concerned.

This case indicates, probably unsurprisingly, that sending abusive messages on Facebook or via any other social networking site is seen no differently in the eyes of the law from verbal abuse or sending poison-pen letters. But what other legal avenues are open to prosecuting this sort of behaviour?

Another way of prosecuting harassment is under s.5 of the Public Order Act 1986, which defines the offence of causing harassment, alarm or distress. Under s.5(1)(b), an offence is committed if someone

"displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby."


But it is unlikely that a posting on Facebook would be considered to be such a 'display of writing', especially considering that the Act goes on to say at s.5(2) that:

"An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling."

Blackstone's Criminal Practice notes at B11.71 that it was held in Chappell v DPP that receiving an abusive letter at home does not constitute an offence under s.5, because it falls in the exclusion under s.5(2). In the course of giving judgement, Potter J noted that had the Malicious Communications Act 1988 been in force when the acts in question had been committed, they would have certainly comprised an offence against s.1 of it, which (as now amended) provides that:

(1) Any person who sends to another person—

(a) a [letter, electronic communication or article of any description] which conveys—
(i) a message which is indecent or grossly offensive; (ii) a threat; or (iii) information which is false and known or believed to be false by the sender; or
(b) any [article or electronic communication]2 which is, in whole or part, of an indecent or grossly offensive nature,

is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.

This would on the fact of it seem a more fruitful option for charging someone who had made malicious Facebook posts. So, a one-off incident would probably be charged under s.1 MCA 1988, whilst repeated incidents, or one that formed part of a larger course of conduct, would be an offence under s.1 PHA 1997.

Now, it's safe to say that there is a great deal of abusive and harassing material on the Internet. Very little of it ends up in court, and such cases have often been based on defamation rather than harassment. But the impact of bullying should never be underestimated; it can and does ruin lives. Hopefully, this case will show that persistent bullying and harassment, including via online services, can and will be dealt with in the criminal courts.

What it does raise though is the question of what sort of forum such bullying can take place in. If I abuse someone in Second Life, am I harassing them or sending a malicious communication? If I build a large advertising banner in Second Life that displays abusive messages about another user, does that count under s.5 POA? Probably not, for jurisdictional reasons if nothing else, but the question of 'where' the inside of a shared world actually is crops up increasingly often in legal discussions. It's a fascinating topic, so much so that I'd be tempted to write a novel about it - except that my friend Charlie Stross has done so already.

SCRIPTed Vol 6 No 2

There's a new SCRIPTed out - Volume 6 No 2 is now online, with a spread of papers coming out of the recent SCRIPTed conference on governance of new technologies. I'm very pleased to see that papers are already been picked up for wider media attention, with Daithí Mac Síthigh's article on the legal aspects of sharing broadband through wifi having been discussed by The Register and The Telecom.

The Lesser Spotted Hairy Law Clanger

Depending on whether I get Pupillage, and on whether wigs kept on being worn in civil cases, this may be your one and only chance to see me with a full head of hair - even if it is courtesy of Messrs Ede and Ravenscroft!

Congratulations to my fellow BVC students who were Called yesterday - the best of luck to you all.

Machinima and the Law Podcast

Machinima is the use of real-time 3D rendering software - typically that used by computer games - to make cheap but high-quality CGI movies. I recently had the pleasure of being interviewed by Hugh Hancock, leading light in the Machinima community and indeed the originator of the term, regarding the legal issues arising from it. The interview is available as a podcast from Hugh's blog (one hour, 82 MB MP3) - my thanks to him for the opportunity for a fascinating discussion!

(Despite this blog's name, the interview contains no whistling. It does contain one four-letter word, but I am repeating a quotation given by Geoffrey Robertson QC in his text Media Law, so that's all right then.)

NPG v Wikipedia

It’s not often that copyright cases get into the news, although there are notable exceptions, such as Lucasfilm v Ainsworth last year, or the Harry Potter Lexicon case in the USA. But the current spat between the National Portrait Gallery and Wikipedia made the front page of the BBC news website a couple of days ago. At its heart (although there is more to it than this) is a simple copyright question: does a faithful copy of a work – in particular, a work that is now out of copyright – enjoy copyright protection in its own right?

The NPG is complaining that a Wikipedia user, Mr Coetzee, copied high-resolution images of some 3,300 paintings from its website and posted them on Wikipedia. In a letter from its solicitors it asserts that these images are all recent original photographs taken by the NPG and that the NPG therefore holds their copyright, and that Mr Coetzee has infringed this. Mr Coetzee’s position is that the paintings are out of copyright, and since the images he downloaded are quite literally copies rather than original or even transformed or derived works then there cannot be any copyright for him to have infringed.

This is an intriguing issue and for the last few days I have been discussing it with a number of my fellow volunteers for the Open Rights Group. This has been a very interesting experience, especially as several of them are considerably more qualified and experienced in IP law than I am, and I’m grateful for their agreement that I could summarise our discussion in this post. (I should add that ORG is not taking any active role in this dispute, although its legally-qualified volunteers are observing it with keen interest. Furthermore, any legal errors or misconceptions are entirely my own.)

Does the NPG have a case? It is relying on s.1 and s.4 of the Copyright, Designs and Patents Act 1988, which provides that original artistic works, including photographs, enjoy copyright protection. Of course, this leads to the question of what ‘original’ means. Every copyright course I have undertaken has stressed that in English law the originality bar is set very low indeed; in effect, if you create an artistic work such as a photograph, you automatically get copyright in it. In the case of a painting, this is undoubtedly true. It’s even true for a simple drawing; s.4 provides that copyright arises irrespective of artistic quality. It is true for a carefully composed photograph. But if artistic quality is not required, what about skill and effort? The ‘sweat of the brow’ argument, often deployed in considering literary copyright, holds that a certain minimum level of skill and effort must be expended for copyright to arise. What is not clear, particularly in respect of a photograph, is whether that skill and effort applies to all aspects of a work’s creation, or just its originality. This is particularly relevant in the NPG’s claim, as whilst it seems clear that a lot of skill and effort when into photographing its paintings, it was aimed at ensuring that the photographs were as faithful a copy of the paintings as possible – in other words, that no originality was introduced at all.

As early as 1869 it was held in Grave’s Case 4 LRQB 715 that a photograph of an engraving enjoyed copyright under the then-current legislation. However, this view has not invariably been followed; consider, for instance, the comments of Lord Oliver in Interlego v Tyco Industries [1989] AC 217:

“It takes great skill, judgment and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no one would reasonably contend that the copy painting or enlargement was an "original" artistic work in which the copier is entitled to claim copyright. Skill, labour or judgment merely in the process of copying cannot confer originality.”

Now, this was a decision of the Privy Council, and furthermore was strictly obiter. However, it was applied in The Reject Shop Plc v Robert Manners [1995] FSR 870, which was an appeal by way of case stated from a private criminal prosecution under s.107 CDPA 1988. In considering whether copyright subsisted in an enlarged photocopy Leggat LJ held that it did not:

“The process was wholly mechanical and there is nothing to suggest that enlargement was for any purpose of that kind. There was, in short, no evidence before the magistrate of the exercise in the production of what he called the “distorted photocopies” of any relevant skill and labour whatever. It follows that the final images were not original works and so no copyright could subsist in them.”

This is what I term the ‘photocopy argument’ – that if the method of reproduction amounts in nature if not exact technique to photocopying the original artwork, then no new copyright can arise. If the NPG possessed a very large flat-bed scanner and scanned its painting, then it would be hard to argue that the resulting digital image enjoyed independent copyright. If the painting was instead photographed and the image carefully processed to even out any lighting inconsistencies and eliminate distortion, then it would in principle be identical to a scanned image. Is it significant that extra skill and effort went into its creation if the only consequence of that skill and effort was to remove any element that distinguished it from a pure mechanical copy?

The counter-argument, which was originally presented by Kevin Garnett QC in an article in the European Intellectual Property Review (EIPR 22(5) 229-237) considers a photograph of a scene in which no copyright can subsist, such as a landscape. If the photographer exercises no skill or judgement and has limited capacity even to pick a particular viewpoint, then copyright still arises. This image, taken by me from the London Eye, has not been corrected or cropped, and I did not have the option of where to take it from or even, given that I was on a timed ticket, when I took it. Hundreds of similar pictures must be taken daily. But nonetheless, my picture undoubtedly enjoys copyright. So why shouldn’t another picture of a scene without its own copyright, such as an out-of-copyright painting, not also enjoy copyright, especially if the photographer in that instance employed much more skill and effort than I did.

I think it’s fair to sum up our discussion as concluding that the matter is open. There is no recent binding authority either way, although cases such as Interlego and Reject Shop point against copyright arising. Nonetheless, arguments can be made both for and against; my own feeling is that a straightforward application of the law would support the NPG, but that a reasoned argument could well be made against it.

A complicating factor is that Mr Coetzee is not in the UK; he is, as I understand it, in the USA. A US court has ruled on this very issue, in Bridgeman Art Library v Corel Corp. There, it actually sought to apply UK law and interpreted it such that a faithful photographic copy does not enjoy copyright, a position consistent with the US approach to this issue. But if the NPG does go on to sue Mr Coetzee, it would do so in an English court, which might be influenced by Bridgeman but would be under no obligation to follow it.

The NPG makes other claims, including breach of contract, bypassing of technical protection measures and database right infringement. The first would probably run into problems of consideration (or rather lack of it), whilst the second does not seem tenable – the software used by the NPG to display hi-resolution images by increasing the resolution as you zoom in is hardly in the same league as encryption or digital watermarking. The database rights claim is less clear-cut, though.

The usual case referred to in interpreting the sui generis database right is British Horseracing Board v William Hill [2005] RPC 35. The point generally taken from this case is that significant investment in creating the database is necessary for the database right to arise. On that basis, I assumed that irrespective of the copyright point, the amount of effort put into acquiring the images of the paintings for the NPG’s database would give rise to a database right (which would almost certainly have been infringed by abstracting 3,300 entries from it.) However, a friend who manages a large commercial database reminded me when I was discussing this case that the ECJ decision that BHB is based upon also emphasised that this investment must be in the creation of the database itself. As confirmed by the Court of Appeal, the right arises where the database creator has invested effort in creation of a database of existing available data, rather than in creating or approving the data. Indeed, if the data is such that it is only available to the database creator, then the database right does not arise (see Kon and Heide, E.I.P.R. 2006, 28(1), 60-66).

And this could be a fatal hole in the NPG’s database claim. The whole basis of the NPG’s copyright argument is that it does not permit unauthorised copying of its paintings; the only body with legitimate access to the data that has gone into the NPG’s image database is the NPG itself. Nobody else is in a position to lawfully create such a database, no matter how much effort they put into doing so. On this argument, the NPG’s database does not attract database right protection.

It’s not at all clear at this stage what will happen. Mr Coetzee may well not acknowledge the claim in the hope that the NPG, even if it obtains judgment in default, may well not seek to enforce it in the US courts. But if it does come to court in England, then both the copyright and database right claims may well be a lot more open to argument than one might originally think.

Update: At TechnoLlama, Andres Guadamuz has looked in much more detail at the contract claim. I agree with him that formation is probably not in issue, but as I've noted in my comment to his post I think there are very serious problems with consideration (i.e. the NPG has received no payment or benefit from Mr Coetzee.)