REM shoot themselves in the foot

US "rock" giants REM have issued a copyright infringement claim against Danish pop outfit Hej Matematik.

REM's record label Warners accuse Hej Matematik of copying parts of 'Supernatural Superserious' (a track recorded in 2008) in their recent release 'Walkmand'. However the Danish duo have informed Warner's that their track is in fact a cover of a 1980's hit by a Michael Hardinger, Hei Matematik stated:

"We really can't hear the similarity ourselves and if there's any at all, then it would be that 'Walkmand' originated from a sample of Michael Hardinger’s 'Walk, Mand!!' from 1981."

Michael Hardinger is reported to have given the thumbs up to Hei Matematik's version but their is no indication as to any agreement with REM. Hei Matematik are now trying to settle with REM and Warner's, it may well be though that Hardinger gets dragged in to the dispute.

IP Freely never particularly liked REM anyway and waits to see if Hardinger decides to issue against them! It is however unlikely.

Facebook goes a stealing

IP Freely has been made aware (by his good friends over at The Rebel is Down) of a change to Facebook's EULA (End User Licence Agreement although they call it their Terms of Service it is essentially the same thing). The following passage is the most important:

"You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof."

Previous carnations of the EULA allowed users to effectively remove Facebook's rights by deleting their account (check out The Consumerist), but the passage dictating this is no longer there. Later on in the EULA is the following:

"The following sections will survive any termination of your use of the Facebook Service: Prohibited Conduct, User Content, Your Privacy Practices, Gift Credits, Ownership; Proprietary Rights, Licenses, Submissions, User Disputes; Complaints, Indemnity, General Disclaimers, Limitation on Liability, Termination and Changes to the Facebook Service, Arbitration, Governing Law; Venue and Jurisdiction and Other."

So basically if you upload anything onto Facebook then regardless of whether you leave the site and delete your account you give them licence to deal with it pretty much as they wish. Extremely unfair you may think? and for one I agree. However if you look at the EULA's of for example virtual world's then they often do the same for example:
“SOE shall exclusively own all now known or hereafter existing copyrights and all other intellectual property rights to all Submissions and Licensed Content of every kind and nature, in perpetuity, throughout the universe”

This was taken from the EULA of Sony's 'Everquest' (here). Also look at the following extract from the EULA for 'There' (check it out in full here):
“All materials you send to the Company, whether or not at our request, including, but not limited to, e-mail, postings, contest entries, Avatars, There Objects, creative suggestions, ideas, notes, drawings, concepts or other information (except any Developer Submissions as defined in the Developer Addendum) (collectively, “Submissions”), shall be deemed the property of Company and you hereby assign all of your rights, title and interest in and to such Submissions to There.com / Makena Technology Inc”

Contrast the above with that of Linden Lab's infamous 'Second Life':
“You retain copyright and other intellectual property rights with respect to Content you create in Second Life, to the extent that you have such rights under applicable law. However, you must make certain representations and warranties, and provide certain license rights, forbearances and indemnification, to Linden Lab and to other users of Second Life.”

Now we have now moved slightly away from the "privacy" point of view most people will look at in consideration of this change. But consider the intellectual property ramifications of this, for example what if you create some kind of picture or drawing and upload it on Facebook by virtue of their new EULA they have a licence to: "use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute". If you spent hours creating it and they profited from it you would be pretty peeved.

However (and more interestly) what about the opposite view i.e. what about if you rip something off and infringe someone's copyright, stick it up on Facebook, surely if Facebook themselves do any of the things that they have identified then they will be guilty of copyright infringement. One could envisage that should any claim arise then they would attempt to bring the user in as a part 20 defendant (i.e. say look ok we did it but it was his fault, him over there, not us!), with trade mark infringement there is the requirement of 'use in the course of business' the Facebook user wouldn't be doing so but Facebook might do....hence they could easily get sued. Again with copyright there are a number of 'fair use' provision such as education etc if your use was within this but then Facebook used it then they could easily be sued.

So this leaves Facebook surely in the position where yes they can use your stuff if you put it up there, but they'll be too scared to.

Afterthought: What about where your friend sends you a photo, he is the creator so he owns the copyright, he effectively licences you to use it but you cannot sub-licence it without the creators approval. Presumably then Facebook has infringed the creators copyright? (I'll look at this later, it probably says something in the EULA!).

"What do you think? Have Facebook gone too far? Do you think they risk IP infringement claims?"

The music you are downloading is illegal (probably)

95% of music downloads are illegal (according to the International Federation of the Phonographic Industry (IFPI) see original BBC article here) although there has been a 25% rise in legal downloads since last year.

The chairman of the IFPI stated:

"There is a momentous debate going on about the environment on which our business, and all the people working in it, depends."

"Governments are beginning to accept that, in the debate over 'free content' and engaging ISPs in protecting intellectual property rights, doing nothing is not an option if there is to be a future for commercial digital content."

However the Open Rights Group have different views:

"We are worried by the recording industry's desire to clamp down on illicit file sharers."

"We need to see how much better these companies do by getting their services right before governments start pushing drastic and draconian laws forward."

"Growing online sales show the recording industry can win against illicit file sharing."

"If companies go further and offer the same sort of experience as P2P then they will win new revenues, and reduce copyright infringement, which we would welcome."

So where does IP Freely stand? I hear you cry. Well with the Open Rights Group if you must know, where industries have taken action before it has ended disastrously (think the computer game industries ongoing attempts) at present more time should be spent on the technologies involved as opposed to legislating to punish the "theft". All that will happen if legislation comes first is that even before the legislation is pushed through it will be outdated and useless. Before going after their customers the music (and other entertainment) industry need to look at their business models, perhaps by being creative in the way they make their money they won't need to alienate the consumer.

"What do you guys think though? Is it right for the entertainment industries to protect their interests through application of the law or should they pull the proverbial finger out and come up with new ways of doing business?"

Death to DRM

Apple have finally bowed to consumer (and to some extent industry) pressure and will allow users of iTunes to download their favourite tunes free of DRM. Previously those who downloaded via iTunes found that the songs they purchased were locked to Apple products (think ipod etc), check out the Guardian's view here.

The future of copyright

Having just read a very good and thought provoking book 'Little Brother' by Cory Doctorow (check out the site here) I did some internet snooping on the author, and what do I find? some really interesting writing on copyright and creative commons licences. You can find 'Why I Copyfight' here.

Increase in copyright duration in sound recordings....

Now this may be a bit late (i.e. everyone else seems to have reported it on Friday or in fact Thursday in the case of IPKat) but I had an exam so I'm a bit late.

Anyway this is in regards to the extension of copyright term for sound recordings. Regular IPers (I think i've coined a new term) will be aware of the push to extend the copyright term for sound recordings from 50 to 70 years, well actually to "something like 70 years" according to Culture Secretary Andy Burnham. To quote Alan Partridge (a favourite of IP Freely) "that's disconcertigly vague" but in all fairness he is a politician.

Mr Burnham says: "An extension to match more closely a performer’s expected lifetime, perhaps something like 70 years, for example, given that most people make their best work in their 20s and 30s,".

But what seems like the majority of commentators (and IP Freely agrees with them) disagree with Mr Burnham. The legendary Andrew Gowers (the man behind the Gowers review 2006) seems particularly against such a change. In an interview with Out Law last year Mr Gowers stated that far from extending the period: "I could have made a case for reducing it based on the economic arguments," and that "We certainly considered it, and if you look at the report that came from the academics that we commissioned to examine the arguments and examine the evidence they also argued very robustly that 50 years could be arguably more than enough".

In today's Financial Times Mr Gower responded to Mr Burnham's proposals: "You might just as well say sportspeople have a moral case to a pension at 30," he wrote. "All the respectable research shows that copyright extension has high costs to the public and negligible benefits to the creative community." he said.

In summary then, Mr Burnham is none too popular!

Microsoft sue pirates

Microsft have issued a whopping 63 seperate claims against people selling counterfeit software on auction sites (think eBay). The BBC reports that the legal action targets sellers from a total of 12 nations (including all the big boys). The majority of the defendants have been selling fake "Blue" versions of Microsofts XP operating system, it should though be noted that XP has been replaced by Vista (equally nasty to use in IP Freely's humble opinion) although this hasn't been received particularly well by the business world.

Microsoft claim:

"These dealers are peddling bogus products that can put customers and their personal information at serious risk,"

and that:

"Consumers should be aware that the so-called 'Blue Edition' software is nothing more than low-quality counterfeit software burned onto a CD,"

IP Freely says: 1) The people that are ripping off Microsoft are stupid (seriously Bill doesn't like this malarky and willl come after you) and 2) Microsoft only care because Vista has bombed, if it has been a success then this would have never come to light.

On a serious note, with the wave of counterfeit software cases kicking around at the moment people should really be careful with what they download and what they buy.

Snow White gets Dopey

The IP Kat features as interesting story just in time for the panto season. Apparently a production of the family favourite Snow White has fallen foul of copyright law (not TM?). A theatre in Bolton was due to put the show on complete with seven dwarves, that is until Disney got involved. The production has been forced to change the name of six of the seven dwarves (as IP Kat rightly mentioned, why only six of them? what about the seventh?). Now there are a number of issues here: firstly is the original article (from The Bolton News) correct? The media industry as a whole seems to intermingle the terms copyright, trade mark and patent as if they are all the same so perhaps they meant to say trade mark? After all since when did copyright protect a name? Secondly the characters appear to be the same (albeit named differently) now if Disney really were enforcing their rights then the characters would potentially be protected by copyright and finally the story itself has been around since the 19th century so surely copyright would be out of time? (although it should be noted that the IP Kat mentions the dwarves were not named until 1937).

In all honesty if the production company involved were to contest this then it is more than likely that they would be allowed to use the names. As it is they probably don't know their rights / don't think it's worth arguing over! Unfortunately most people don't know their rights and are reluctant to seek professional advice.

You can read the IP Kat article here and the original Bolton News article here.

Copyright and your website

It has become apparent from looking at my Google analytics stats and the emails I have been receiving re this blog that a lot (if not the majority of my readers) are new to the subject of intellectual property; one even said (and I quote) "wow people take these trade mark things seriously" um yes yes people do you fool; but I digress. As a caring sharing kind of guy I will start putting up some more basic material for those new to the IP world, now this doesn't mean i'll stop writing about current affairs!

So here's the first one, 'Copyright and your website' enojoy:

As a website owner it is essential that you consider the various forms of intellectual property in order to protect your website from both being copied and also ensure that material you use does not infringe the rights of another party. In what will be a series of articles I begin by looking at copyright.

• Make sure that all work on the website is original and in order to be protected by copyright it can be shown that it has been created by skill and effort.
• Keep records of who creates the works and when they are created, consider sending to yourself or a copyright bank service.
• In the UK copyright is an automatic right but in some countries copyright must be registered, if this is the case in countries you wish to operate in then ensure your copyright is fully registered in order to protect your rights.
• Include copyright notices both for individual works on the site and the site as a whole. i.e. who owns the copyright for example: © your company name 2007.
• Also include restrictions / instructions on use and copying from the site. Clearly stating what can and cant be used and if material can be copied what notices have to be included. You should also consider whether you want to put valuable work up on the site as whilst you can put up notices etc there is no physical way to stop people stealing your work.
• Keep an eye out for infringements and as soon as you become aware of any put them at notice of your copyright.
• If you are using any third party works on your site then ensure that you have the appropriate licences for it. In the case of work commissioned for the site for example web designing etc then consider a licence or agreement transferring the rights in it to you.
• Where employees create work for the website the copyright would automatically be held by the employer. This is true for this country at least but not for some others, if you are operating a website from outside of the UK then you should consider an agreement whereby the rights in the work are transferred to the employer.

Copyright duration for performers just not enough

Musicians are kicking up a storm over what they see as inadequate copyright durations (see BBC). A video message on behalf of 38,000 UK musicians has been sent to Gordon Brown, at present performer's copyright run's out after 50 years (unlike the composer's which is 70 years after death). This means that session musicians that performed on famous songs in the '60s will soon lose their royalty payments. The EC is backing proposals for a 95 year duration for performers and producers.

The article goes on to say how skint musicians are (so am I!!!!) and that they deserve more. IP Freely supports their campaign and see's no real reason not to increase the protection period to 95 years (well 70 at the least). I mean look at the poor chaps in the picture they obviously haven't bought any new 'threads' (I'm ghetto) for many a year.

But the Department for Innovation, Universities & Skills says: "We are sympathetic to the European Commission's goal of improving the situation for performers but we don't believe that the current proposal achieves this aim...the UK believes the proposal is too complex and most of the benefits will go to the record companies rather than the performers...the UK is still considering the detail of this proposal and it will consider future alternatives that come forward."

Should dead artists still be paid royalties?

Now I must admit to not having heard of this before, it does though seem ridiculous. For those of you who can't be bothered to follow the link it basically refers to royalties for artists. At present (since 2006) artists can claim a portion of the sale price of their work even when it is sold by a third party this is calculated on a sliding scale up to a maximum of €12,500. I cannot see how this is just though, an artist can sell his work to a collector and pocket money at this point then when the collector sells it he claims a cut, then when the next buyer sells it he gains a cut and so on. Quite frankly if I sold my car to someone I wouldn't expect them to pay me more money when they then sold the car on.

But that's the law anyway, the issue now is whether these rights should continue for artists after their death. The dead were due to be brought in in 2010 but the UK IPO are considering delaying until 2012: "All of the artists and artists' estates who expressed an opinion on the derogation have said that they thought that it should be allowed to lapse...All bar two of the often detailed responses from the art trade were in support of extending the derogation until 2012...Several UK collecting societies and representatives of other rights made submissions saying that the derogation should be allowed to lapse in order that resale right is brought into line with the other types of copyright,"