Wednesday Whimsies

What is the most annoying thing an IP lawyer can see when logging into Facebook?  No, its not the photo of your long lost acquaintance lounging on a tropical beach on their apparent fourth vacation of the year (you know who you are...)  It is a Facebook status update like that of Fluffy Le Chat to the right.  The AmeriKat is all for asserting rights of copyright ownership and attribution, but unilateral declarations like the one currently doing the rounds (again) on Facebook do not reverse the contractual position which users will have entered into when they have set up their accounts or as they continue to use the platform.  Facebook's terms and conditions specifies that users "own all of the content and information" that they post on Facebook.  What users do provide to Facebook is a "non-exclusive, transferable, royalty, worldwide licence" to use the content that users post (subject to the user's privacy settings).  The licence ends when a user terminates his or her Facebook account.  This is subject to the proviso that if a user's content has been shared by other users and those individuals have not deleted the content then the licence subsists in respect of that work.   The Berne (not Berner) Convention is of no relevance.  The Berne Convention for the Protection of Literary and Artistic Works of 1886 is an international agreement establishing a mutual recognition framework for copyright protection of works of authors from other signatories.  It also provides minimum standards for copyright protection (i.e., copyright protection is automatic) and exceptions (e.g., the Berne three-step test).  There is nothing in the Berne Convention which legislates for the ownership of copyright in this context.

Fluffy Le Chat is having second thoughts
about posting this photo to Facebook
As to the privacy declaration, that again does not amount to much.  Whether content of a Facebook profile is private or confidential will turn on the facts.  Although one might consider that anything published on a Facebook profile points to the information not being confidential or private, the position under English law is not so severe.  In the case of RocknRoll v News Group Newspapers Ltd [2013], Mr Justice Briggs held that the fact that partially nude photographs were posted on a Facebook site did not remove all privacy in the photographs which could be protected by an injunction.  The photographs had not come into the public domain by their mere posting on Facebook.  They were still not easily accessible. You had to be "tipped off" to know that they were there.  See this helpful summary of the case by 5RB.

So why all the hysteria?  Is is it as simple as not understanding exactly what they are signing up to when they log-on to their Facebook accounts?  Or is there a deeper psychological basis - are users trying claw back their loss of control when the temptation to post photos of their their latest drunken antics could not be resisted?   Whatever the reason, a simple explanation would not go amiss to prevent IP lawyers' News Feeds being populated by posts like Ms Le Chat's above.

The Future (literally): Mirai
means "future" in Japanese
Toyota has announced that it will open up its hydrogen fuel cell technology patent portfolio for royalty-free use.  The BBC reports that the portfolio, which consists of 5,680 patents, covers fuel cell stacks, high pressure hydrogen tanks, software control systems and the industrial processes involved in generating and supplying the gas.  After Toyota showcased its new hydrogen powered car, the Mirai, at CES 2015 it made the announcement.  Toyota's senior vice president of automotive operations, Bob Carter, said that "when good ideas are shared, great things can happen."  For more information, see this CNET article.

The Fighting Irish are coming
to London this summer
Looking for something to do this summer?  From the AmeriKat's friend, Dr. Barbara Lauriat (Kings College), comes news that she will be teaching at a 3-week IP law immersion course hosted by the Notre Dame Law School in London (pronounced "Noter Daime", in this context).  The course, which is being run from 20 July - 7 August 2015, promises five courses (you can choose three) which include China IP Law & Policy, Comparative Competition Law, Comparative Privacy and Data Protection Law, the Origins & Development of Copyright Law and Trade Marks and Geographical Indications.  Full course descriptions are available here.

Wednesday Whimsies Wednesday Whimsies Reviewed by Annsley Merelle Ward on Wednesday, January 07, 2015 Rating: 5


  1. Fluffy le chat, a Gallic cousin of Tufty the Cat?

    The Toyota announcement seems like a PR offensive when you notice the strings attached to it:

    Toyota expects other companies using its patents to share their fuel cell technology.
    Further, Toyota puts a stop year of 2020 on royalty-free use of the patents for automakers.

    Companies interested in using the patents will need to sign a contract with Toyota.

  2. The BBC has an article about the Facebook message at going so far as to call it a hoax.


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