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Friday, 28 August 2009

Getting in a flap over copyright envelopes

A most concerned reader of this august weblog (indeed, it will be august for just a few more days, still September kicks in) raises a most interesting issue:

"I was interested to note in the most recent IP Insight mailout from the IPO [for non-UK readers, that's what we used to call the Patent Office] the following advice on protection of copyright:

"Additionally, a creator could send himself or herself a copy by special delivery post (which gives a clear date stamp on the envelope), leaving the envelope unopened on its return (ensuring you also know what is inside each envelope in case you do this more than once)... It is important to note, that this does not prove that a work is original or created by you. But it may be useful to be able to show the court that the work was in your possession at a particular date".
I am surprised that the IPO are advising this course of action since I believed that it was generally accepted that this is a waste of a stamp and would get nowhere in a sensible court. All that it demonstrates is that an individual sent themselves an envelope at a particular date. That envelope could have been empty and unsealed and a document added later, or could have contained a document, the flap closed by a couple of paper clips and the document replaced by another and subsequently sealed at a later date.
I'd be interested to know if the Kats or anyone has any experience of the "sealed envelope" argument being used in court, successfully or unsuccessfully?"
The IPKat has no experience of copyright enveloppage in court. He does however have a cupboard-full of similar envelopes, personally handed to him over the years by friends who were worried that they couldn't register their copyright in the UK and wanted proof of authorship. He agrees with his correspondent that they are not per se cogent from an evidential point of view (though at a pinch he could give evidence that he was familiar with the concents of each envelope when he received it). However, self-addressed and securely deposited envelopes are a wonderful cure for the sort of insomnia that is generated by the fear that no-one will ever know when the author had indeed created a work.

Merpel says, this could be a great business for the postal service to develop: a special surcharge for legible date-stamping. She adds, this sort of thing may be more use to a defendant, in showing that an alleged infringing work existed earlier in time than the claimant's work, than to the claimant in infringement proceedings.

As usual, readers' thoughts are welcomed.

Pushing the envelope here
The UK Copyright Service, which pours scorn on "poor man's copyright", here (Does anyone know who these people are? This website gives the impression of being somehow official ... )

12 comments:

Anonymous said...

The terms and conditions section of their registration form gives the name of the service provider as Copyright Witness Ltd

Anonymous said...

If you are going to pay for this why not register with the official US Copyright office, http://www.copyright.gov/ - does that have legal advantages for non-US works?

Anonymous said...

Recording at the US Copyright office would be good evidence of the date on which the documents were recorded and would there is no reason why this evidence could not be adduced in the UK courts.

As a solicitor, I have signed and dated documents for clients on the basis that I would then be able to give evidence if required of the date on which I had seen and dated the documents. Of course, my evdidence could be challenged by the other side on cross-examination but, unless they had any evidence to suggest that I was lying (which I would not be), I believe my evidence would be accepted by the court.

Anonymous said...

An answer to the "you just posted an empty envelope" challenge is to use the envelope back-to-front - i.e. to stick the stamp/special delivery sticker over the sealed flap. Simples.

Anonymous said...

It must be pointed out that at least the French IPO (INPI) and the Benelux IPO (BOIP) offer good alternatives for a nominal fee, respectively the "enveloppe Soleau" and the "i-Depot". The i-Depot may even be filed online.

Of course, the value of such an officially certified "date of creation" is limited, and I must continuously warn my clients not to confuse such filings with a design or patent filing, but it certainly seems more reliable than a self-addressed letter, even without the matter of illegible datestamps.

Anonymous said...

Another possibility is to file the creation as a patent application, if you don't object to the world viewing it, of course.

C.E. Petit said...

Oh, dear. First, two notes:

(1) This is a common meme among the unsophisticated in the US. It has been out of date for a century (literally -- it's been meaningless since the 1909 Copyright Act came into effect). It's also completely worthless, because...

(2) This is not a question of copyright. It is a question of evidence, and what constitutes admissible evidence.

Putting these two points together, for a US-based author (I simply am not familiar enough with European evidence issues to opine), all that is necessary is a regularly kept set of business records that comply with the Federal Rules of Evidence; a good example would be a submission log to publishers that includes the postage spent on the submission (a required record for deducting the postage as a business expense), which can then be admitted as evidence of the actual practice. This is something that writers and other creators of copyrighted works should be doing anyway.

So, can a UK-based litigator tell us if there's a similar "business records rule" in the UK? And how about in other European jurisdictions?

Anonymous said...

Copyright Witness Ltd. seems to be run from a quiet suburb of Didcot with their company address being registered to a rental office building. Perhaps someone could enquire with the British Library as to who the company is, since they claim to partners with the British Library on their website. Isn't their some law regarding false or misleading advertising?

Ian P. Hartwell said...

Regarding the post below, and as I am sure others will have mentioned, INPI offer a service called “Enveloppe Soleau” (link below) which “allows you to obtain a creation date for your work and to identify yourself as author”.

http://www.inpi.fr/fr/services-et-prestations/enveloppe-soleau.html

Anonymous said...

In the Netherlands it is possible to receive an official date stamp on certain documents by the Tax-office.
This is free of charge.

http://www.belastingdienst.nl/particulier/registratie_onderhandse_akten/

Anonymous said...

Going back to the "posting" method of date registration for copyright - if you send it registered mail you get a receipt which (I believe) records the weight of the parcel. Granted, for CDs/DVDs etc this is unlikely to change for vastly differing contents, but for a written creation protected in this way it is unlikely that the parcel could be created in advnace with the same weight as an unfinished work. So, wouldn't the weight on the receipt tallying with the weight of the parcel provide enough evidence that the envelope did indeed contain the material at the claimed date of posting?

Mac said...

People have tried using 'Poor man's copyright' in court.

One example is here:

The complaint acknowledged Wallace did not formally copyright his song until 2003. A few weeks after writing it in 1990, he executed what's commonly known as a "poor man's" copyright in which he placed his work in a sealed envelope and obtained a postmark.


He failed miserably.

On the other hand, it might not have been the 'poor man's copyright' that was the problem so much as being caught submitted a forged email to the court as evidence .. he claimed the Britney Spears personally sent him an email saying "I now know for a fact that you wrote 'Sometimes.' But there's nothing I can do about it."

Mac

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