Friday fantasies

Please don't forget to check out the list of forthcoming events on the IPKat's little list. You'll find a selection of fascinating seminars, talks and conferences here. On the subject of forthcoming events, the IPKat's seminar on "IP Enforcement in the UK: appraising the new American model" (initial details here) is nearly booked out -- but we're going to open a 'reserve list' so that, if anyone drops out, someone else will be able to come instead.  The discussion panel has now been augmented by Pete Wishart MP, who is Vice-Chair of the All Party Parliamentary Intellectual Property Group, and Nick Munn (Deputy Director, IPO Copyright Enforcement).   The IPKat hopes to publish the final version of this exciting programme early next week.

Around the blogs 1. The question whether video games in the Netherlands are protected by copyright as "computer software" or "works in general" was discussed earlier this year by the Hague Court of First Instance in Nintendo Co. Ltd and others v Snip Webwinkels and others. A note on this ruling, by Willem Leppink and Jeremy Schutte, is carried on the jiplp weblog here.  Meanwhile, IP Tango has finally crept up to the 300 email-subscriber mark: this unusual bilingual IP blog might even go trilingual if it gets Portuguese posts on IP in Brazil.  And now let's welcome a new blog on the block: UK law firm Lawrence Graham LLP has gone public with LG blogs IP,  Powered by a five-lawyer team and with an archive back to April, this looks like a fun product. Good luck, says the Kat!

Around the blogs 2. New Patents County Court (England and Wales) judge Colin Birss QC has wasted no time in showing his mettle, giving some genuinely helpful guidance on which rules govern "old" patent litigation in England and Wales after the new rules come into effect, where there are no transitional provisions: you can read his position on PatLit here. Another judgment from the same judge, same court, is discussed on the IP Finance blog here: it's Nike International v Bateman on costs orders where a tiny infringement by a small defendant is unnecessarily defended by an IP owner who should have pressed for a consent order rather than summary judgment.

Nice one, CIPIL.  Although 26 October is only a few short days away, it's not too late to cancel all your work engagements and pitch up to Emmanuel College, Cambridge (England) for the Centre for Intellectual Property and Information Law's rescheduled Fifth Annual International Intellectual Property Lecture (full details here; email here to reserve your space. The speaker is Professor Graeme W Austin (J. Byron McCormick Professor of Law at the University of Arizona) and the title of the lecture is "Copyright's Private Domain".

A little bit "unhenged". From Dave Woolf comes this link to fotoLIBRA blog's "Stonewalling Stonehenge". For the benefit of non-Brits, and indeed anyone who lives in England and who has recently experienced what jokingly passes for education, Stonehenge is an ancient site of great historical, cultural and technological interest, a bit like the Pyramids in Egypt only a rather different shape. Anyway, fotoLIBRA apparently received the following missive:
"We are sending you an email regarding images of Stonehenge in your fotoLibra website. Please be aware that any images of Stonehenge can not be used for any commercial interest, all commercial interest to sell images must be directed to English Heritage".

The IPKat is not aware of any legal basis upon which English Heritage can claim a monopoly in the use of images of Stonehenge and would be grateful if his more learned friends and colleagues could advise him if he is wrong.  Meanwhile, here's an image of Stonehenge of made of LEGO bricks.  The IPKat advises English Heritage to team up with Lego, since both seem to be quite good these days at asserting the right to control things that aren't theirs (on Lego, click here).
Friday fantasies Friday fantasies Reviewed by Jeremy on Friday, October 22, 2010 Rating: 5


  1. From the excerpts from English Heritage's correspondence which have been published, the FotoLibra issue sounds like the same confusion of contractual terms and intellectual property rights that caused the Royal Opera House to come unstuck several weeks ago.

    What's far from clear is whether English Heritage has actually taken any steps to impose such contractual terms on its visitors, and even then it doesn't follow that photographs of Stonehenge would be in breach - much of the land around Stonehenge isn't held by English Heritage at all.

    It was good to hear Radio 4's PM covering the matter, but disappointing that they failed to do anything to explain the issues and law which underpinned it.

  2. At the risk of the kind of meticulous verbal analysis we are told off about by judges - "any images can not be used for any commercial interest" not "cannot be used".

    But more on topic, is this not one of those cases where by buying a ticket to see stonehenge you agree not to take photos of it for commercial use? I cannot see how they can claim any right to photos taken from the A303...

  3. The licence to enter the site presumably has terms and conditions attached to it, probably on the back of the entry ticket. That contractual remedy is the only way I can see English Heritage can restrict the use of photographs, and only then if the photos are taken on there site (as opposed to surrounding land).

  4. To be fair, I don't think English Heritage's statement is at all opaque. It also seems perfectly reasonable that they (on our behalf) would in some cases seek to share the benefit of commercial activities taking place on the land that they (on our behalf) are looking after.

    The email (or at least the bit of it that is quoted) is pretty dumb though.

  5. As a general statement of principle ("We will try and raise money from the things we look after in order to look after them") it's fine, but this is a press (and public!) statement dealing with a specific incident that has the potential to damage EH's reputation with specific sectors of the public.

    In terms of opaqueness, it fails outright to explain what they were trying to say to FotoLibra, fails to properly explain the context, and fails to properly articulate the underlying EH policy.

    The chap from FotoLibra noted on Radio 4 yesterday that he'd been unable to find out what these mysterious conditions applied to commercial photographers were (I can't immediately find them on the EH site either). As David notes above, it may simply be that the terms are printed on all entry tickets, but you certainly won't get that from the statement.

    How difficult would it have been to say "Visitors to EH properties accept terms and conditions which require the payment of an additional fee before photographs can be used commercially"? (This assumes, of course, that EH has actually managed to impose such terms - that remains unclear; there are certainly none-such on their website.)

    Legal considerations aside, it must surely be good practice to post information about such conditions on your website; many art galleries, imposing similar contractual restrictions, do so.

  6. Well, I sincerely hope English Heritage and Sir Cliff Richard won't join forces to extend copyright terms to 5000 years.

  7. And I wouldn't call the EH statement opaque. It seems pretty transparent to me: "We know we don't have a leg to stand on, but we're going to use some really big words to try to shame and intimidate you into handing over some part of your profits."


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