Tuesday tiddlywinks

Thought you wanted
an Appointed Persian ...
Forthcoming events. While the IPKat perennially reminds readers to keep checking his Forthcoming Events page for fresh items, there are always a few events that he gets to hear about so late that he can't leave it to chance as to whether readers check the page or not, so he has to plug them here. One such event is "Non-traditional trade marks", the forthcoming talk by Katfriend, barrister, author and Appointed Person Amanda Michaels, who is presenting her assembled thoughts, unsurprisingly, on non-traditional trade marks.  This talk is under the auspices of the Competition Law Association next Tuesday, 13 November. The venue is the London office of Withers LLP. Full details are available here.

Free Our History through copyright reform. This is the request that forms the title of a media release from CILIP, the UK's Chartered Institute of Library & Information Professionals. The plea reads, in relevant part, as follows:
During the First World War Centenary, a collection of leading museums, libraries and cultural organisations have launched a campaign to provide greater access to important historical works through copyright law reform. Display cases in the Imperial War Museum, National Library of Scotland and University of Leeds sit empty. They should contain letters from the First World War; from a young girl to her father serving as a soldier and from soldiers to their families back home. Because of current UK copyright laws the original letters cannot be displayed. At the moment the duration of copyright in certain unpublished works is to the end of the year 2039, regardless how old the work is. The Free Our History campaign wants the term of copyright protection in unpublished texts to be reduced to the author’s lifetime plus 70 years.

Diane Lees, Director General, Imperial War Museums said:

“During the First World War Centenary commemorations, many organisations want to make original unpublished works such as diaries and letters accessible to the public. Because they are still under copyright protection, they cannot do so without seeking permission from the rights holder. This is even more problematic if the rights holders are untraceable. We are asking everyone who cares about our history, everyone who cares about telling our collective story without restrictions, to join the campaign.”
This campaign calls on the UK Government to reduce the term of copyright protection in certain unpublished works from the end of the year 2039 to the author’s lifetime plus 70 years, in accordance with the Enterprise and Regulatory Reform Act 2013. Supporters are being asked to sign a petition and use #catch2039 on Twitter to spread the word. More details about campaign are available here. There's also a blogpost from Ben Challis on the 1709 Blog, plus readers' comments, here.  The IPKat would like to see the law sorted out since this looks a bit like a well-nigh purposeless form of protection, the sort of thing that gives copyright a bad name in the eyes of the general public.  Merpel is a little bemused by the whole thing: she doesn't see how sticking a letter in a glass case so that people can read it infringes copyright in it and, even if it were an infringement and someone were to come forward and sue, what would the measure of damages be? She thinks some readers may be kind enough to tell her ...

The Parallel Europe.  From a recent PETOSEVIC newsletter this Kat has learned that Belarus, Kazakhstan and Russia have ratified the Eurasian Economic Union (EAEU) Treaty, with Armenia to follow. The Treaty will come into force on 1 January 2015, establishing what is described as "a new form of political and economic union" among the Customs Union members. Armenia will become a member of the EAEU following ratification by its parliament, but not earlier than 2 January 2015. According to this news item:
Among many issues governed by the Treaty are the general principles of intellectual property rights protection in the EAEU. Chapter 23 of the Treaty contains provisions on harmonization of national legislation in the area of IP protection and cooperation between the parties for the purposes of protection of IP rights, including the establishment of effective customs measures and the unitary customs register of IP rights. Moreover, the members of the EAEU agree on introducing a system of trademarks and service marks of the EAEU, as well as of appellations of origin of the EAEU. 
The Treaty contains the list of international agreements on protection of IP, which the members of the EAEU should be parties to, but also allows the members of the EAEU to implement a higher level of protection of IP rights than those prescribed in the mentioned agreements. 
... and growing
The general provisions of Chapter 23 are further elaborated in Annex 26 to the Treaty, the Protocol on Protection and Enforcement of Intellectual Property Rights. The Protocol provides minimal standards [alas, wails Merpel, if the standards had only been minimum ...] of IP protection for copyright and related rights, trademarks and service marks, geographical indications and appellations of origin, patents, selection inventions, topographies of integral circuits and know-how. In addition, the Protocol elaborates on the introduction of trademarks and service marks of the EAEU (further referred to as the “Union Trademark”), which is basically a regional trademark right valid in the territories of all members of the EAEU. The system of Union Trademarks will coexist with the national trademarks registered in the EAEU members. First drafts of the agreement on the Union Trademark were prepared in 2012-2013, but there has been little progress in the development of the agreement (in fact, the latest draft on the website of the EAEU is dated May 16, 2013). Finally, the Protocol establishes the regional regime of exhaustion of trademark rights both for national trademarks of the EAEU members and the Union Trademark. 
According to TASS the Treaty also provides for free movement of labour.  Says Merpel, this should give Russia the option of exporting its labour surplus to the territories of other signatory states in anticipation of their annexation.

Parody as a limitation or exception: an Opinion.  On 1 November the European Copyright Society issued an Opinion entitled “Limitations and Exceptions as Key Elements of the Legal Framework for Copyright in the European Union – Opinion on the Judgment of the CJEU in Case C-201/13 Deckmyn”. According to its abstract:
In this opinion, the European Copyright Society (ECS) puts on record its views on the issues raised by the Judgment of the Court of Justice of the European Union (CJEU) in Case C-201/13, Deckmyn, which departs from the doctrine of strict interpretation of exceptions and limitations in cases in which fundamental rights such as freedom of expression are involved. The opinion welcomes this development for the following reasons: firstly, due to the importance of exceptions and limitations in facilitating creativity and securing a fair balance between the protection of and access to copyright works; secondly, because of the Court’s determination to secure a harmonized interpretation of the meaning of exceptions and limitations; thirdly, because of the Court’s adoption of an approach to the interpretation of exceptions and limitations which promotes their effectiveness and purpose; and, finally, due to the Court’s recognition of the role of fundamental rights in the copyright system: in particular, its recognition that the parodic use of works is justified by the right to freedom of expression. At the same time, the ECS recommends caution in constraining the scope of exceptions and limitations in a manner that may go beyond what might be considered necessary in a democratic society.
Duly noted, says the IPKat, who appreciates the clear, structured approach taken by the authors in laying out their issues and responses to them He is pleased to pass on the request from ECS chair Christophe Geiger that the paper be disseminated to the discerning readers of this and other weblogs.

Merpel is a little puzzled, though. While the ECS was founded in January 2012 to create a platform for "critical and independent scholarly thinking" on European copyright law, on the evidence of this Opinion it looks like an efficient device for achieving consensus behind closed doors since there is little evidence of dialogue or dissent between the eighteen eminent scholars whose names it bears, and whom may of us would gladly pay good money to hear arguing with each other.  Merpel is also not a little proud of the efforts made on this weblog to raise awareness of the issues and generate debate over the position of parody as an exception or limitation on the right of the copyright holder (see eg blogposts here, here, here, here and here).  She hopes that, when ECS Opinions are published in the future, the footnoted sources will also point readers to the very live debate fostered or encouraged within the blogosphere, not just by this weblog but by others (eg the European Law Blog, Inforrm, EU Law Analysis and EU Law Radar).

You can access the ECS's Opinion here or download it here
Tuesday tiddlywinks Tuesday tiddlywinks Reviewed by Jeremy on Tuesday, November 04, 2014 Rating: 5


  1. Other than cashing in on all things First World War, it is hard discern the purpose of the CIILIP campaign at this point. Given that the Orphan Works legislation is now operative, and the IPO have begun their consultation on amending the period of protection for unpublished works, everything CILIP and its members are seeking should be in place by early 2015 without the need for a petition.

    And as for Merpel's thoughts on whether displaying a letter from the First World War infringes copyright, I suggest that firstly, on conservation grounds the IWM would wish to display a facsimile rather than the original (and in any case they would have to copy it for the catalogue (price £XX) available as a companion to the exhibition). And secondly, even if they wanted to display the original, this would amount a breach of s 19 CDPA, unless it was clearly implicit that the letter had been given to the IWM with a licence to do so.
    Which leads me to the slightly disingenuous part of this campaign. One has to assume that if the museums etc knew the names of the authors of such works or their heirs , they would have already sought permission to use them. Since I suspect these artefacts are in the main also orphans as well as unpublished works, these institutions already now have, thanks to Orphan Works Permitted Uses Regulations, all they need to allow them to fully make use of works in question. These Regulations apply equally to unpublished literary works as long as they have been made publicly accessible in the past. If places like the BM, British Library, IWM etc have not been letting scholars and others have access on a limited basis, one has to wonder why not.

  2. Displaying a letter seems to be somewhat removed from the concept of "performing" or am I so out of touch with case law?
    Also, many of the authors will have perished around a hundred years ago - what was the fatal casualty rate? 10%?

  3. It's a stretch of s. 19 to say the least that putting a letter in a glass case is a "performance".

    I think it's s.18 (issuing copies to the public) though which is the concern - especially see 18(4) - copies of the work include the issue of the original.

    I'm not completely sure on this though - in particular is displaying in a museum really "issue"? Is display in a museum really "circulation"?

    Is there real case law on this, does anyone know?

  4. In answer to Anon and Freddie Noble, I would certainly agree, that it's a stretch to cite s 19, but the text does say "infringement by performance, showing or playing of work in public" (my emphasis) and goes on to expand on this in s 19(2)(b) saying that performance "in general, includes any mode of visual or acoustic presentation" (again my emphasis). Since the Act does not provide a special definition for 'showing' it seems reasonable at least to ascribe it its ordinary everyday meaning. Note that s 19 does not apply to artistic works which clearly might well by made available to the public by 'showing' in a gallery etc.
    I am not immediately aware of any caselaw on this specific subject.

  5. Andy J - that is just the heading for the section. Showing relates to films, not all creative works.

  6. I don't have a copy of the current edition of Coppinger ( but I don't think there have been any intervening changes in the law), but the 13th Edition, para 3-12 explicitly says

    "Publication, in relation to a work, means the issue of copies of the work to the public. ... It follows that a work cannot be orally published, and that there can be no publication of a work of which there exists only a single example. Indeed, the issue of copies must be such that it is intended to satisfy the reasonable requirements of the public and not be merely colourable, or else it does not constitute publication. .... For the issue of copies to constitute publication, it must have been done by or with the licence of the copyright owner."

    It follows that displaying the original of a letter does not constitute publication for the purposes of copyright law. Nor would displaying a photocopy of such a letter, as if the author (and therefore the identity of an heir who could give a licence) is not known, the copy cannot have been made by the licence of the copyright owner.

    I therefore do not see what impediment there is to the display of the original letters or facsimilies thereof, as long as no copies are issued to the public. Is this another example of the failure to appreciate the special meaning of "Publication" in the context of copyright?


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