The Return of Copyright Registration?

"Bring back registration as a requirement for obtaining copyright protection." It's a suggestion that's been floating around quite a bit lately. Suggested by panelists at the Leadership Digital Music Seminar and rumored to being contemplated in Europe, registration is often touted as a great solution to many of the current copyright ills.

How is registration supposed to help?

Orphan Works: those pesky little pieces of art left wrapped in a blanket on your door step. Actually, orphan works are works for which it is very difficult or impossible to find the copyright owner. This is a huge problem for those who focus on licensing works. In order to license a work, the licensee (usually*) must contact and negotiate with the copyright owner. If the copyright owner cannot be found, no license.

The Copyright Office would, through registration, have a database of every copyrighted piece of work and each work's respective copyright owner(s). Potential licensee's could contact the database and easily find out who they needed to see to obtain a license.

Not Everyone Wants Their Works Copryighted: Everyday people post their own photos, stories, and videos to the internet. These creations, at the moment they were fixed in a tangible medium of expression, are copyrighted in the US and most** of the world. But a lot of these authors do not really care if their video of Fluffy chasing a squirrel or their photo of dinner is protected. They have posted these items to share them.

Because all the individual works posted to the internet are covered by copyright, the websites that host the works must include complicated licenses in their Terms of Service. Chances are, most of the users of these sites do not read the Terms of Service, and even if they did, they probably wouldn't understand what the licenses mean.

Requiring registration would result in only authors who really cared about having copyright protection on their works bothering to register. The internet sites would not need the complicated Terms of Service, and others who wanted to use works found on the internet would be able to know if they could use the works without a license.

Problems with registration

International Obligations: The Berne Convention is an old international agreement covering intellectual property. Most of the world is subject to its provisions because of its incorporation in TRIPs, the intellectual property part of the World Trade Organization (WTO) agreement. Article 5 of Berne says that copyright protection "shall not be subject to any formality." Registration is a formality.

The first big problem with requiring registration for copyright protection is that any country implementing this requirement would be violating the WTO agreement (via TRIPs and Berne) and thus subject to be sued in the WTO by other countries. Not fun. Before countries can seriously consider requiring registration for copyright protection, the WTO must adjust the international rules.

Value of the work: Authors' creations are not like other goods. They do not have an innate value. Authors do not immediately know how much they works are worth, particularly authors just starting out. There are many reasons an author might not register every work created. If a work an author has not register becomes a big hit, the author has no right to it, because it was not registered. If every author registers every work out of fear that an unregistered work could become a hit, the copyright office will be inundated with registrations. (And the authors will be very broke.)

Not everyone can register: Many of the creators posting content to the internet are not adults. Some of these young creators produce valuable work. But how likely is it that they'd be able to register their works with the copyright office? "Mommy, can I have an advance on my next 3 months' allowances so I can register my video at the copyright office?" Doubtful.

Registration often sounds like the great copyright solution savior, but it has issues. In the future, we'll take a look as some other options for the problems registration is supposed to solve.

*Some works are covered by compulsory licenses and managed by collecting societies.

**Some countries, like Germany, do not require fixation for a work to be copyrighted. Some countries may require more than just completing the work.

***Note: the US does have some registration requirements for bringing infringement suits, but not for securing copyright.

Labels aren't as Clueless as We Think

The Leadership Music Digital Summit is winding up today at Belmont University in Nashville.  This Ipper had the good fortune to attend many of the panel sessions.  Obviously, two days of digital music discussions produces lots of bloggable material, but today we'll discuss only one thing, the most encouraging part of Tuesday: the Keynote address by Rio Caraeff of Universal Music Group.

When we hear about record labels, especially the big four, we hear the same things over and over again: they're clueless, they can't keep up with the technology changes, they don't understand their audiences, they're evil, etc.  Today, Mr. Caraeff showed us just how wrong those statements are.  (Well, except the last one, jury's still out on that.) 

Caraeff is the head of eLabs at Universal, a team that focus on all aspects of digital development and music: cell phones, downloads, streams, videos, you name it.  They are not focused on content, but on the context.  Music used to be an experience, now it is data.  To Caraeff and Universal, this is a problem.  Where's the value if the product you buy is exactly the same as the product you can download for free?

So, they're working, and they're working hard, to bring back the experiential aspects of music.  The traditional album, with all its neat cover packaging and fancy inserts, is dead.  But, Caraeff explained, Universal's eLabs is working on creating a new type of packaging for digital downloads (and they aren't talking DRM).  Packaging that connects the listener to the music like the old album covers used to do.  And, one of the best parts, they are focused on using open technology, no proprietary software.

Caraeff didn't go into exactly what this new packaging will look like.  They might not even know yet.   But, that doesn't matter.  The encouraging part here is that Universal recognizes the changes in the industry; they're working on solutions; they are innovating, and innovating with a focus on the fans.  They know that access is now more important to consumers than possession.  (Caraeff expects music to be all cloud-source in about 5 years, rather than mp3 downloads.) 

Universal is not sitting back and relying on RIAA lawsuits, or simply trying to hold out until all their artists are signed under 360-deals.  As Caraeff put it, both the artist and the fans are the customers.  Universal's eLabs is focused on creating a new model that benefits all their customers.  And the simple fact that they're trying, that puts a smile on my face.

Is Creative Commons becoming mainstream?

Most readers of this blog know Creative Commons (CC) licensing well.  However, outside of the blogosphere and the IP field, CC is relatively unknown.  Over the last few months, CC has racked up some victories that are pushing it into mainstream culture very quickly.

Late last year, then President-elect Obama made news in the IP world when he announced that the content on Change.gov would be licensed under the CC-by license.  Even before that, Obama placed many photos from his campaign on Flickr.  They are licensed under the CC-by-nc-sa license, including the famous election night pictures that became an overnight sensation.

Now that Obama has entered the White House, licensing of his content is no longer an issue.  All government works are automatically part of the public domain.  17 U.S.C. § 105.  However, Obama took the extra step of making sure all of the information on the White House site would be free by requiring third party content to be under the CC-by license.

Just a few days ago, we reported that Nina Paley released her award winning movie Sita Sings the Blues under a cc by-sa license.  Just a day or two ago, Gawker Media, owners of the highly popular blogs including Lifehacker, Gizmodo,and Gawker, announced that all of their blogs will be licensed under the CC-by-nc license.  Lastly, this blog is licensed under CC-by-nc-sa (see below).

Creative Commons is making great strides in the world of IP.  With so many people adopting CC for their content, we will soon approach a day where CC licensing is the norm.

Sita Sings the Blues Available under CC License

Ip's What's Up is a little late in reporting this, but we wanted to make sure our readers were aware of it.  Nina Paley has released her award winning film, Sita Sings the Blues online under a cc-by-sa (attribution, share alike) license.  The full film is available for download from a variety of sites listed here.

Nina reached an agreement with the rightholders of the musical works used in the film that allows her to distribute the film.  She has chosen to use a cc license for several reasons, one of which is the ordeal she has gone through with respect to copyright licensing. 

It is important to note that while her film is under a cc-by-sa license, the songs within it are not.  What that basically means is you can watch her film, download it, share it, and remix/reuse any of the animation, but not the songs.  The Sita website provides complete details of all musical works included in the song, their rightholders and any other information people might need in order to secure their licenses.

One little piece of irony: Nina became very frustrated with copyright law during her attempts to get her film available for legal distribution.  In some respects, she's become a bit of an anti-copyright spokesperson.  Yet, in choosing to use Creative Commons' share alike license, she's using the full force of the copyright law to control how others use her work.  They must release any derivatives of her work under the same license she has used.  (For more on this type of use of copyright law, see dtrizzle's post on open source software.)

Nina is still looking for sponsors/donators/producers for the film, to help her pay off the large loans she needed to secure the licenses for the musical works.

[image from CC website]

State and Federal Trademarks - What's the Difference?

Today's post from guest Ipper Andrew Flusche.  Andrew is a practicing attorney who helps his clients with their real-life IP problems.  In this post, Andrew addresses one of the most common questions he receives from clients, "what's the difference between state and federal trademarks?"

One issue that complicates trademark law is the fact that the United States has two different levels of trademark protection: federal and state. This makes trademark protection a little confusing for business owners. Here are some key issues to understand when evaluating the two different types of trademarks. Hopefully this will demystify the distinction.

Federalism

We have two levels of trademark protection because the United States has two main levels of government. Each state has its own laws and local sphere of activity that it regulates. Then the federal government regulates international and interstate affairs. (That's over-simplified, but it works for our purposes here.)

Trademarks are no different that other areas of the law. Federal and state governments both have their hands in them.

Protection

The main substantive difference between a federal and state trademark is the geographic sphere of protection.

A state trademark only protects your brand within the state of registration. A federal trademark protects your brand across the entire country.

Importantly, remember that trademarks protect mainly against future users of the registered mark. If you register a state trademark, then a competitor registers the same mark on the federal level, you wouldn't be able to later register the mark federally.

Cost and difficulty

Another difference between these two types of marks is the cost and difficulty of obtaining registrations. You generally own a trademark by using it in commerce. But to obtain the benefits of a registration, you have to jump over some hurdles.

Many states make trademark registration extremely easy and cheap. For example, a Virginia trademark application is simple to fill out and only costs $30 to file.

On the other hand, the federal registration process costs at least $275 in filing fees (sometimes several multiples of $275). Also, the application isn't easy for the layperson to figure out, and there are many technical legal requirements to meet.

Which to use?

But what does all this mean, especially for small business owners? Which trademark do you register?

I counsel clients to focus on their target markets. If you just operate on a local level within your state, a state trademark will probably be all you need.

However, many businesses have broader markets with the use of the internet. If you serve customers outside your state, you really should think about a federal trademark.

At the very least, all these complexities mean that you should consult a trademark attorney to discuss protecting your brand. You don't want to obtain the wrong type of trademark registration.

Andrew Flusche is a Virginia attorney who practices in the areas of intellectual property, estate planning, and reckless driving defense. He can be reached via his website at http://www.andrewflusche.com

Auctioning iPods with Music

Announced earlier this week, Music Rising is raising money to help rebuild New Orleans' music scene by auctioning off celebrity iPods.  These iPods do not just come with autographs, they also come with music.  You can imagine the kinds of questions this news raised in the Ippers' minds.

How is this possible?  Did the auction site or the non-profit obtain distribution licenses for the music contained on the auction iPods?  Do the tracks fall under the first sale doctrine (not normally applicable to digital files) because of iTunes security features that limit how many places a song can be placed?  Does the existence of the music on the iPods not matter at all because the iPod will be cleared when the auction winner sets the iPod to work with their computer?  Maybe the record labels 'donated' the songs to be placed on the iPods.  The playlists are rather small.

Looking at the iPod auction FAQs and Rules didn't answer the question.  The terms of use didn't really help either.  Do any of our readers have an idea of how the organization is allowed to auction the music with the iPods?

More Strange Trademark and Product Placement

Still on Spring Break, this Ipper had the chance to go to an Imax film yesterday.  The last thing she was expecting was strange IP sightings.

On the way to the Imax, sort of in-line with the strange umbrellas, there was a car with a giant Baby Phat logo on its rear window, and a smaller logo on the back side window.  Now, Baby Phat logos on shoes, pants, even earrings, makes sense since it is a clothing company.  But, on a car!?  Somebody must really love that clothing company to put the brand on their car.  (Purchase Baby Phat car decals here).

The Imax film itself brought more unexpected IP joy.  Imax films are usually educational films shown in museums, so the product placement that has become so standard in Hollywood was a bit of a shock here.  The film was about water conservation and followed a group of travelers on a trip down the Colorado river.  As the group travels down the river, they discuss how things have changed since the building of the dams, how much the dam created lakes have shrunk and how the environment has changed.  At the end of the film, the different participants from the trip gave suggestions about how people can save water in their homes.

The film was sponsored by Teva and Kohler.  Every rafter's helmet said "Teva" on the side of it.  In one scene, a guy is shown writing in his journal.  He just so happens to be sitting in a way that clearly shows the bottom of his sandal, complete with Teva logo right in the center.  The real kicker though was one shot near the beginning of the film where a young girl was shown getting ready for her trip.  She was wearing sneakers.  The logo on her shoes was covered with white tape.  Really?  Would showing that logo for a few seconds hurt Teva?

Kohler did not have any obvious logo placements, though it's possible the variety of water saving toilets, shower heads and other fixtures were Kohler.  Personally, I liked it better that way.  The film showed the products, and since Kohler's name was associated with the film, people might think of them first if looking for new water saving fixtures.  The placement of product names in every shot, and especially the covering up of other brand names just seems to make the movie feel so fake.

Umbrella Trademarks

Note: This Ipper is currently on Spring Break, so this post may be a little more light-hearted than usual.

Walking around the very rainy San Francisco Bay Area today, this Ipper noticed something a bit bizarre.  Umbrellas.  In the rain?  Not bizarre you say?  Umbrellas with an assortment of trademarks on them, completely unrelated to rain or umbrellas.  "Why do these people have these trademarks on their umbrellas?  Where did they get these umbrellas?" - just some of the thoughts inspired by these strange sitings.

The UPS umbrella could have a good explanation.  Perhaps the girl carrying it had at one time worked for UPS, or maybe a family member worked there.  It was a large, sturdy umbrella, alternating panels of yellow and brown with the UPS logo itself on one of the yellow panels and the letters "UPS" on another.  It seemed like it might be the type of thing a company would give to its delivery employees, after all, they're moving around outside in the rain.

The Goggle umbrella however, really leaves one scratching their head.  Google isn't a physical delivery service with employees who need to go out in the rain as part of their job.  Plus, the umbrella was a small, regular ol' thing; plain black with the Google trademark on one panel.  Nothing special.  Did this person win the umbrella from Google?  Did they buy it somewhere because they just love Google that much?  (And if this is the case, what made Google decide to start selling Google-branded umbrellas?)

Where do any of these strange branded items come from?  It's not uncommon to see a company's name on products that have nothing to do with the company.  Why?  And how do people wind up using these items?  Are they promotional, given away for free and used because they're free?  Do people buy them in support of a company they really like?  Are they rewards or tokens to show employees some gratitude while allowing the employees to fully represent their company?  Is it just advertising, or is it more than that?

Who Gets to Keep Their Rights?

Last post we looked at some misconceptions held by people about posting content to the internet.  Today, we are going to look at how these misconceptions might influence perceptions relating to online content in general.

The students interviewed for the Vanderbilt article discussed last time held a common belief that once you post your content to the internet, you have given up your rights to the material.  This may explain some common copyright infringement behaviors on the internet.

People commonly run image searches in order to find pictures or graphics.  They then use their findings in a myriad of ways, some that could be infringing and some that would qualify as fair use.  A general assumption that content posted to the internet no longer has any rights attached to it could explain people's willingness to freely use whatever they find.  There are search engines, such as http://search.creativecommons.org that will help users find content pre-licensed exactly for their need.  There are also a large variety of public domain image resources available on the internet.  However, the existence of these resources is not as widely known as something like Google image search.  And, if people think that any image on the internet already comes "rights-free," then why does it matter which search is used to find the image?

One area where the argument that ignorance about rights and posting content online cannot be made is the area of digital music and film downloads.  The respective content industries have, by this point, made it very clear that just because their content is on the internet does not mean the rights-owners have given up their rights.  But, that perception certainly did exist when file sharing and p2p first appeared on the scene.  Many college students (and others) in the late 1990's said of file sharing, "well, if it was illegal, we wouldn't be able to do it."  Thus explaining that since they could do it, it couldn't be illegal.  

While the perception that posting to the internet equals rights-loss has been changed in regards to mainstream, professional, music and video content, it appears the shift has not expanded to cover other professional content, such as images, or amateur content, such as the types of content Facebook users post to their accounts.  The content industries have done a good job of educating users about content-industries' rights.  It's time to educate users about their own rights in their own content.