|Gucci nail rings|
Passionate about IP! Since June 2003 the IPKat weblog has covered copyright, patent, trade mark, info-tech and privacy/confidentiality issues from a mainly UK and European perspective. The team is David Brophy, Merpel, Jeremy Phillips, Eleonora Rosati, Nicola Searle, Darren Smyth, Annsley Merelle Ward and Neil J. Wilkof. You're welcome to read, post comments and participate in our community. You can email the Kats here
For the half-year to 31 December 2015, the IPKat's regular team is supplemented by contributions from guest bloggers Jani Ihalainen, Nikos Prentoulis and Mark Schweizer.
Birgit Clark is on Sabbatical till the end of the year
Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.
|Gucci nail rings|
|Prior art? Wolf in sheep's clothing ...|
To all staff
It has been recently brought to our attention that colleagues who turn to SUEPO for their pending legal cases against the Office are asked by SUEPO to sign a standard agreement in order to obtain financial support for the lawyer's fees.
Out of its duty of care towards EPO employees, the Office requested an external legal advice to assess the conformity of this agreement to the applicable national law and has concluded that it does not fulfil the required standards of legality.
Unions may be entitled to provide legal support to colleagues and to propose standard contracts to that effect. However, such contracts must comply with the applicable law and basic fundamental rights as recognised in all European countries and under general principles of law.
More specifically, several clauses of this agreement seem to be against good faith and/or national law under which such contract is signed and are thus unlawful and void.
For example, Article 13 of the agreement reads as follows:‘Where an external lawyer has been retained, as defined above,
- (a) The Applicant shall at all times entrust the whole procedure to the lawyer, either directly or through SUEPO's Legal Advisor.
- (b) The Applicant shall at no time communicate directly with the Office on matters concerning the litigation without the prior and express approval of the external lawyer or the Legal Advisor.
- (c) If the Applicant fails to meet the two requirements (a) and (b) above, financial aid by SUEPO may be revoked at any time and stage of the procedure.'This standard clause prohibiting the staff member from communicating with the administration and therefore from taking any steps without requesting the express prior permission of SUEPO or SUEPO's lawyers restricts unlawfully the staff member's freedom of self-determination of his/her own case, infringes basic principles of the Law on general terms and conditions of employment, restricts his/her freedom of communication and constitutes an infringement of basic rights of occupational freedom in a dubious way.
In case such unlawful clauses are used to block the possibility of amicable settlement or to exercise pressure to file further unjustified or unwanted litigation, this could be considered detrimental to the general interests of justice as well as an infringement of basic human rights of the staff member.As a result, staff may consider contesting such contracts as void.
In view of the above, the Office recommends staff to check with independent external lawyers of their choice the specific agreements they are asked to sign before doing so.
If staff members are already engaged under such contract, they are in the same way and to the same extent also invited to check the lawfulness of the invoicing (proportionality of invoice against services, applicable fees under national law) as cases of overcharged legal fees/ invoices came to the attention of the Office.
Merpel wonders how many employees who are litigating against the EPO, or are contemplating doing do, would wish to take up the offer of the EPO's confidential consultation services.The Office's services remain at the staff's disposal for confidential consultation in case colleagues have already signed such documents and are not certain about the exact legal and financial obligations they have assumed from them. In such a case please contact the Conflict Resolution Unit.
Željko TopićVice-President DG 4 Raimund LutzVice-President DG 5
Amongst the very old school and traditionalist judgments here in the UK, it is always refreshing to read ones that step outside of that dusty judicial demeanor, and often our friends across the pond in the US show us that even judges remember their youth with fondness. Seemingly, as was the case in the recent US Supreme Court judgment in Kimble v Marvel [Katposts here and here], this emerges through cases involving superheroes, and a recent Ninth Circuit decision involving Batman was no exception.
The case of DC Comics v Mark Towle 2:11-cv-03934-RSWL-OP (accessible here) dealt with the copyright protection of the Batmobile, ever-present in the Batman saga, and its infringement through the making of replicas of specific versions of the aforementioned Batmobile [of the full-size variety, not merely toys]. As exclaimed by judge Ikuta, delivering the court's judgment; Holy copyright law, Batman!
|Quickly, to the Katmobile!|
|Some Kats have a secret alter-ego...|
After a quiet summer, Merpel gets the feeling that the impending meeting of the EPO Administrative Council* (AC) on 14-15 October is causing a flurry of activity, which is giving rise to several rumours in relation to the Boards of Appeal.
House Ban update
Regular readers of this blog may recall that, 10 months ago, a member of the Boards of Appeal at the European Patent Office (EPO) was escorted from the premises of the Office on the instructions of the President. It was alleged that this Member was guilty of defamation, and in the rush for pitchforks Mr Battistelli apparently forgot that he had no power to discipline a Board Member.
|If Vienna's too close,|
what about Columbia ...?
4 October is a calendar date that has a resonance with many pianists. In this guest post, Katfriend Mira T. Sundara Rajan -- herself a concert pianist -- has something special to say about one of the most gifted musicians of our generation and an interesting issue in moral rights. This is what she writes:
Glenn Gould's Goldberg Variations recordings here.Today is the 33rd anniversary of the death of Glenn Gould – Canadian pianist and musician extraordinaire, who died in 1982, at the premature age of fifty. One month before he died, Gould completed re-recording the work that had first made him famous, the Goldberg Variations of J.S. Bach. But to say that he revisited an old work in that final recording seems curiously imprecise. The second recording was so utterly novel, so completely reimagined from his first, spectacular, and universally admired, 1955 version of the work that, in its own way, it qualified as a new undertaking. Amazingly, the second Goldberg managed to fascinate and captivate just as fully as the original recording did, but in a completely different way. It holds the work together with what Gould called “a sense of pulse,” and further bolsters Gould’s already stellar reputation as an artist of almost cosmic significance.In the three decades that intervened between the two recordings, Gould developed what may have been the most remarkable career in the history of Western classical music. He hated live performance. At the age of 32, he decided to live life as he wanted to, and undertook the dramatic and unprecedented step of retiring permanently from the stage. He was warned against doing so by his manager, the legendary Walter Homburger, who told him that audiences were fickle and, once gone, he might never be able to come back. But Gould had a plan – to maintain his presence in the world of classical music through recordings – and proceeded to carry out this feat with extraordinary efficiency and effectiveness.The secret of Gould’s success was arguably very simple: it lay in the quality of his recordings. Gould approached recording as no artist had previously done. For him, the goal of recording was not to reproduce his own live performance; rather, it was to create a new, unique work, one that could only have been born in the studio. Live performances were one-off affairs and, if something went wrong, if anything were different from what the artist truly desired, nothing could be done. The failure was complete – a fatality. He called it the “non-take-twoness” of performance. In contrast, the recording studio represented control – supreme, undeniable, artistic control – the ability not so much to excise and avert mistakes (not an issue for Gould) but to re-think and re-conceptualize every instant of a musical interpretation, to exercise creative control over nearly every dimension of the final musical form.He learned about the recording process, was fascinated by it, and attempted to use the technologies of recording to serve his vision of a more perfect work of art. His long-time producer, Andrew Kazdin, wrote a fascinating, if at times bitter, account of the 15 years during which he worked with Gould as his regular producer. As Kazdin tells it, Gould would play many interpretations of his pieces for the microphone before he chose his definitive versions, or constructed them out of pieces of each of his own, perfect takes. Any artist who has worked in the studio can attest to the extraordinary stamina, skill, and concentration that Gould’s recording process must have demanded.Gould loved technology in all its dimensions, admiring Bach as played on the Moog synthesizer, and arguing that the “new listener” of the future would enjoy music by playing it on a sound system that would enable him, or her, to exercise new kinds of manipulation and control. Technology would allow the listener of the future to intervene creatively in the sound, and to take an active part in generating his or her own artistic experience. Ancient Sanskrit thinkers already knew that the human brain, itself, accomplishes this very goal through its experience – individual, shared and transcendent – of musical consciousness. They called the shared artistic experience rasa, and he or she who enjoys art as creatively as the maker makes it, the rasika. Gould’s vision of technology seems almost spiritualized. By a paradox, the man who sought to efface his presence from the concert stage by physically removing himself from it, managed to achieve an almost limitless expansion of personality through his recordings.Recording technology is a fast-growing field, and the changes, even since Gould’s latter days, are tremendous. Yet there is still no other artist like Gould – no classical musician, in particular, who has embraced the possibilities of technology for an “alternative” career to the traditional path of exhausting competitions, Carnegie Hall debuts, and concert tours... The goal of classical music production generally remains the re-creation of an idealized version of the concert-hall experience for the listener at home.Interest in Gould has grown phenomenally since his death. Since the 1980s, there has been an outpouring of work on Gould – but the true explosion of interest in him has taken flight in the internet age. Much of this interest surrounds Gould “the man,” rather than, primarily, the musician. Gould was known for his eccentricities – his solitary lifestyle, late-night phone calls, humorous alter egos, obsessive privacy, terror of illness, and compulsive hand-soaking in hot water, to name only a few of his special “characteristics.” In recent years, Gould’s psychological health has been probed in books, and the secrets of his love life revealed – apparently with the understandable desire to settle public speculation – by his long-time companion.But his music, of course, cannot fail to command attention. In the post-Gould era, recordings of Gould’s playing have proliferated. His original label, CBS Masterworks, was acquired by Sony in 1987, and Sony Classical has remastered and re-released the original recordings. New CDs have also been issued: works that Gould performed but never made into definitive recordings are now available. Throughout most of his life, Gould was not only charismatic, but handsome and photogenic, and his recordings are frequently issued with covers, or even booklets, featuring striking photos. New video footage of his performances is available. Indeed, there is now such a wealth of recorded matter featuring Glenn Gould on the market that even seasoned aficionados of Gould’s playing would be hard-pressed to identify everything.To what extent do these recordings represent the versions originally made, with Gould working alongside his producer? What is the effect of re-mastering, and has it faithfully preserved the defining qualities of the original sound? What would Gould think of the variety of other matter, including live recordings, that is now available? ...What would he think of something like the Zenph company’s attempts to re-create the original sound of his playing through sophisticated software that takes into account his every movement and gesture, and “re-performs” it, eerily, on a piano that plays itself?We can look at it both ways. It’s new technology – Gould would have loved it. And he surely would have loved, and been awed by, the amazing growth of the world’s interest in him and, above all, in his music – to be reaching listeners around the globe through new technology.But, at the same time, there is no question that Gould loved his recordings, and there can be no doubt about the dedication that he brought to the process of creating them. He exercised control, as completely and comprehensively as he could, to make them works of art. Now, they are awash in a virtual universe of matter and material, afloat on an ocean of works both by and about him. What would he think of an environment where his original creations are becoming increasingly difficult to identify, and where his recordings are interspersed with works not “made” by him, in this broader sense – although his playing appears in them? And what about those who worked with Gould, including Mr. Kazdin; how would they see these developments?On September 11, 2015, Sony Classical officially released a remastered set of Gould’s “complete recordings.” The set of 81 CDs is accompanied by a 416 page book. Sony’s website for the project is available at “glenngould.com,” and it notes:“The first generation of Goulds’ [sic] recordings were [sic] available on magnetic tape in the Columbia archives, permitting us to ensure maximum sonic authenticity by applying the high-resolution Direct Stream Digital procedure (DSD). Moreover, in one of the most lavish remastering projects of all time, the listening conditions in the studio were so elaborate that the recordings could be heard there with less distortion and greater clarity than Gould himself was accustomed to when listening to his takes.”These amazing developments raise fascinating questions about the art and artistry of musicians in the digital age. While there are few clear answers, there is an interesting legal dimension that could potentially help to clarify readers’ thoughts. In recent times, the law has come to recognize a moral right of integrity for musical performers. Performers’ moral rights made their first appearance in the WIPO Performances and Phonograms Treaty of 2002 (Article 5; provision first drafted in 1996). However, the right applies to performances; it does not recognize the unique features of a recorded performance, particularly in the sense in which Gould, and his producers, might have understood the term. At the same time, there is no moral right in sound recordings per se. Where a legacy as important as Gould’s is concerned, it is interesting to wonder whether there might be a new and valuable role for the moral right of integrity in the new world of recorded sound – a concept of integrity in recorded music that is totally novel, and adapted to the needs of the technological age (here and here).If the time ever comes when it is difficult to find Gould’s “original” recordings, there is one place where we know that we can look: the spacecraft Voyager, where at least one of them, his Prelude and Fugue in C Major from Bach’s “Well-Tempered Clavier” (Book II), remains, for the time being, safely stowed. It is hurtling away from us through interstellar space, at unimaginable speed and already at an unimaginable distance, but it is there – as close to forever as anywhere can be.
|Thinking of linking?|
|Linking to unlawful content? OK|
Circumventing a paywall? Not OK
|A typical Playboy |
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