Butter, but No Rolls

As you can see, Ip's What's Up is going through a face lift and a little url-liposuction.  You can now find us at www.ipswhatsup.com (http://ipswhatsup.blogspot.com will still redirect you here).

We've got this pretty new butter color background, which is much easier to read than the old navy and some easier to navigate sidebars.  However, it turns out the Ippers aren't great at plastic surgery - don't ask us for a new nose, you might lose it altogether.  In the process of creating our new, improved look, we lost the old blog rolls.  We will be redoing the blog rolls in the coming weeks.  If you know of a blog that was on the old blog roll, or should have been, and you don't see it on the new one, please let us know. 

Thanks!
~ the Ippers

Do You Know What Your Field Is?

Intellectual Property is a fascinating area and those working in it can get quite caught up in the glamour of copyright, trademarks and patents.  However, just as intellectual property is constantly moving in on all areas of life, those areas are also moving in on IP.  This was the topic addressed by an INTA panel this week.  (The panel was poorly advertised and not particularly well executed, but the information was important.)

Those working in the intellectual property law field must now also be acutely aware of defamation, free speech and media law issues.  During the panel, Rachel Matteo Boehm explained how these two formerly separate areas of law can sometimes conflict with each other.  Intellectual property laws, especially copyright and trademarks, are viewed in the United States as tolerable encroachments of free speech.  Media law focuses mostly on the protection of free speech.

While we tend to speak of these conflicting issues in terms of the First Amendment in the US, the issues are not particular to one country.  For example, defamation and liable are particularly important when dealing with the UK.

This particular Ipper doesn’t know much more about the particulars of this intersection (and found the panel extremely hard to follow), but she does know this: if you are in a intellectual property field or planning to be in one, you should at least be able to recognize when media law issues arise.  It’s better to get outside help for the problems you can’t address than to not realize they are there in the first place.

Some Good in ACTA?

Sometimes us copyright enthusiasts (on either side of the battle) get so caught up in the fervor of the copyright/copyleft war that they miss some sort of key part of the puzzle.  Ipper goldenrail found herself quite guilty of this during the opening remarks at this year’s INTA (International Trademark Association) meeting when the INTA President mentioned benefits of ACTA.

Several blogs have reported on ACTA, the Anti-Counterfeiting Trade Agreement being worked out in secret between big countries under the influence of big companies.  Most of the posts deal with the copyright and enforcement implications of  the new trade agreement.  (example) 

As it turns out, ACTA might actually have some benefits, it might deal with, gasp, anti-counterfeiting!  Although the trademark battle against counterfeit goods is in the title of the trade agreement, this aspect has often been overlooked.  Anti-counterfeiting protection is important on a different level than copyright protections.  Copyright protections protect right holders.  Anti-counterfeiting measures protect brand owners and the public.

The purpose of a trademark is to let consumers know at a glance what they can expect from a protect.  Consumers associate brand names with certain levels of quality and expect consistency.  Counterfeit goods destroy this reliance and can jeopardize the health and safety of consumers.  The public welfare concerns implicated by counterfeit goods make tougher anti-counterfeit rules a plus for everyone except the counterfeiter. 

[*note: sometimes people confuse counterfeit and generic, especially in regards to pharmaceuticals.  These are not the same thing; generics do not pose the same risks.]

It would be nice to take a look at the anti-counterfeiting provisions in ACTA to see specifically how the trade agreement might help protect against counterfeit goods.  Unfortunately, the secrecy about which many scholars have bitterly (and rightly) complained prevents us from taking a close look.

Happy Thoughts Series: Idea/Expression Dicotomy

Although some argue the idea/expression dicotomy in US Copyright law is a bad thing and others argue it no longer exists, Ip's What's Up would like to add the idea/expression dicotomy to the list of good things about copyright law.

The essence of the idea/expression dicotomy is that an author can copyright his own expression of something but not the underlying idea itself.  For example, if I were to paint a picture of an apple, I would have copyright over that particular apple picture but not over all paintings of apples.  The idea to paint the apple is not protected by copyright.

This dicotomy can sometimes be tricky, but it is still a plus in the US copyright system.  It allows authors to create freely from their surroundings and influences in their lives without risking infringing on someone else's work.  Some ideas are common and shared among communities, others may be thought of by more than one person.   Different authors may both create television series about a space ship and its crew of different species traveling through space, encountering aliens, visiting strange places and engaging in battles.  Some viewers may prefer this idea in a fairly serious drama expression, other viewers may prefer the idea in the form of a relaxed, and sometimes vulgar, comedy.  The idea/expression dicotomy allows authors to express this space crew idea in both these forms and many more.

By protecting only the expression of the idea, copyright law allows a greater amount of creations.  Authors produce different works based on similar things.  Members of society have the ability to choose the expression they like best.  Authors get more freedom.  Society gets more choices.  That's a happy outcome.

Souter's Mark on IP

United States Supreme Court Justice David Souter announced last week that he will be retiring from the Court at the end of next month. Justice Souter authored several important opinions in the field of IP, including Markman, Grokster, and Campbell.

Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996) changed the face of patent litigation. Markman challenged the Court with the question of whether interpreting patent claims was a question of law or a question of fact. This is an extremely important question because in American court cases, questions of law are decided by the judge but questions of fact are decided by the jury. The Court in Markman held that the interpretation of patent claims was a question of law to be decided by the judge. This led to the development of mini-trials now generally referred to as Markman Hearings. During these hearings, the judge basically determines the meaning of the patent. Sometimes the judge's determinations may lead to a settlement of the case or the plaintiff dropping the case completely, because of how the judge has interpreted the claims of the patent at issue. The value and appropriateness of Markman hearings remain much debated issues. [Some views on Markman hearings here and here.]

MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), is the case that put an end to the popular post-Napster file sharing programs. Grokster, like Napster, was a program made for people to share files. However, in an attempt to avoid the same fate as Napster, Grokster allowed file sharing without owning or running any of its own servers. Grokster was strictly peer to peer. However, in Grokster, the Court held that one who distributes a device or program with the object of promoting copyright infringement may be held liable for the resulting infringement by third parties. Thus, Grokster could be held liable for the infringement of its users. Like Napster before it, Grokster became a set of blue prints for the development of the next stage of file sharing software, eventually leading to BitTorrent and the recently litigated Pirate Bay.

Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) firmly established parody, whether commercial or not, as a fair use of copyrighted material. In this rather infamous case, publishing company Acuff-Rose claimed 2 Live Crew's rap song "Pretty Woman" infringed on their rights in the Roy Orbison hit "Oh, Pretty Woman." The Sixth Circuit had found that 2 Live Crew did commit copyright infringement because of the commercial nature of their song. The Supreme Court overturned this decision, saying that all of the fair use factors need to be considered, not just the commercial nature of the new work. Parody is considered as an aspect of free speech, something American jurisprudence holds in high regard. This case gets the best lawyering award because both Ippers and many scholars do not think Pretty Woman was actually a parody. But it was close enough that the legal argument won the day at the USSC.

Despite his simple lifestyle and his brief, rather uncontroversial, time on the Court, Souter has made a large impact on intellectual property law in the United States and the future of technology development in the country.

Nigeria and the Special 301 Report 2009

Last November, Ip's What's Up did a special two-part segment on Nigeria and the United States Trade Representative (USTR) Special 301 Report.  (Part 1, Part 2.)  Nigeria has never appeared on the Special 301 report, and this year, the country continued its good work.

The International Intellectual Property Alliance (IIPA) submits a list of recommendations to the USTR each year.  Despite IIPA's inclusion of Nigeria on their "Special Watch List," the USTR did not feel problems in Nigeria warrant inclusion on the Special 301 list.  This is certainly good news for Nigeria!

[The IIPA report on Nigeria basically contains the same information as previous years' reports.  It is available here.

Infringing Cakes

Last week we looked at whether cakes are copyrightable.  We had several great comments, including one from brandyk, who pointed out that cakes are useful articles.  If viewed as such, then cakes are outside of the realm of copyright.  However, the case law on useable items and copyright is less than crystal clear.  As promised, today we are going to look at how one might infringe a copyrighted cake.  [Justen and Tony got into this a bit in last week's comments, so we'll try to include some of their ideas here.]

Copy Cake

A cake is not something you easily copy by photocopying or uploading to Kazaa.  In order to copy the cake, you would need to bake it and make it look exactly the same.  That is a very difficult task.  Frosting colors may come out slightly different; people have different handwriting; you might not have the right shaped-pan, etc.  For this reason, it is highly unlikely that a cake would be infringed by a direct copy.

What about substantial similarity, as Tony mentioned in last week's comments?  Let's say you walk into a bakery and see a cake you like.  You go home and decide to try making it yourself.  It doesn't come out exactly the same, but you're satisfied with the cake.  (We have to use you as the example instead of me, because my cake would not come out close enough to the bakery cake to be satisfactory.)  Did you infringe on the original cake?

This Ipper would argue no.  (Though she is open to reading other's ideas in the comments.)  There are many similar cakes that are all based on the same concept.  (example)  They may even be based on each other.  If you go to the bakery and see a cake you like and attempt to recreate at it home, you are taking the idea of the cake and making your own cake based on this idea.  Ideas are not copyrightable.

As discussed in last week's post, many of the elements of cake decorations are so common, they are necessary parts to decorating a cake.  There are also common ways in which these elements are arranged on cakes.  Both these elements and their arrangements would have such thin copyright protection, it would be hard to infringe upon them without making an exact replica.  Even then, the arrangement may be too common for protection.

Photographs

A photograph of a cake has its own copyright, but here we are looking at whether the photograph is infringing the cake in the photo.  17 USC 101 defines derivative work:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”

A photograph is not really a recasting or transformation of the cake, although it is a different medium.  A photograph seems unlikely to change the cake any more than gluing cards on ceramic tiles changes the pictures on the cards.  (See Lee v. A.R.T. Co.)  The photo is just capturing the scene at the grocery store, not recasting the cake.

Even if we assume a cake is copyrightable, it seems nearly impossible to actually infringe on the copyright.

Copyrighting Cakes?

Jen over at Cakewrecks runs a very popular blog called, well, Cakewrecks.  Her blog is so popular, that it has led to a book deal.  Obviously, the photos used on her blog and in her upcoming book are protected by copyright.  (Thank you Burrow-Giles Lithographic Company v. Sarony.)  But what about the cakes?

A recent Cakewrecks comment said "There is now a "Copyright" sign up about taking photos and recreating their cakes!"  But are cakes really protected by copyright?  A search for US case law about cakes and copyright infringement led to nothing.  The closest case, Kitchens of Sara Lee v. Nifty Foods Corporation (266 F.2d 541), is about covers for frozen cakes.  However, there are apparently a lot of recording artists attempting to "have their cake and eat it, too."

Unable to find case law directly on topic, this Ipper has decided to do her own little analysis on the copyrightability of cakes under the US Copyright Act.

Analyzing Cake

Copyrightable?

Cake certainly is a fixed in a tangible medium of expression.  (Yummy one, too, usually.)  Otherwise, how would we get to eat it? 

Subject matter (Sec. 102): If a cake fits anywhere here, it would fit under (5) "pictorial, graphic, and sculptural works."  Some cakes are indeed sculptural masterpieces.  Some cakes are the regular geometric shapes, but involve very artistic pictorial and graphical designs on the tops.  (That link may not be the best example since many of the cakes could potentially be copyright infringements themselves, but you'll get the idea.)  Then there are the regular cakes:  "Happy Birthday,"  "Merry Christmas," "It's Legal in Iceland, etc.  These are still pictorial or graphical works.

But, are the cakes original works of authorship?  Of course, this is one of those questions a judge would have to answer in regards to a particular cake in court.  In general, cakes are creations of the baker/decorator.  Some cakes are based on designs that appear in books.  If these designs are copied exactly, then there would be no originality.  Other cakes consist of elements common to cake decoration, sort of scenes-a-fair of cakes.  These are usually not considered copyrightable because they are common and necessary parts to creating the art.  However, even if cakes are based off of a picture, or use only common elements, they can still be very unique (as those links show).

It appears, by this analysis, that cakes are copyrightable.  Although, some with very slim protection.  This Ipper, however, doesn't really like that answer and would much prefer a different one.  So please, feel free to explain why the entire analysis is wrong ;)

The real question though is, even if cakes are copyrightable, does it matter?  How would one infringe a cake?  We'll explore that later.

Celebrating IP and Malaria Days with TRIPs

This weekend included both World Malaria Day (yesterday) and World Intellectual Property Day (today).  In recognition of both, we're taking a look at not-yet-ratified Article 31bis of TRIPs (the agreement on Trade Related Aspects of Intellectual Property).  The aim of Article 31bis is to increase developing countries' access to generic versions of important patented medicines.

[left: stuffed malaria]

TRIPs has always included a special provision allowing for compulsory patent licenses in certain situations.  (Article 31.)  The reason for the addition of Article 31bis was because the original provision limited the licenses to uses "predominantly for the supply of the domestic market."  (Art. 31(f).)  The problem with the original article is that most of the countries needing access to patented medications for deadly diseases do not have the ability to manufacture the drugs in their own countries.  That means even if they get the compulsory license, they will still not have access to the medicines.  [Same problem for countries who are not yet required to patent pharmaceuticals. (Art. 66.1, date of compliance extended to 2016 by Doha.)]

Article 31bis was devised at the Doha round negotiations in 2001.  The General Council adopted the provision in 2005, but it has not yet been ratified by the required number of WTO members and so is not actually part of TRIPs.  However, it is still sort of usable.  A 2003 declaration by the General Council waves the "predominantly for the supply of the domestic market" part of Article 31.  In order to waive this provision, the importing member must be eligible under certain guidelines (mostly Least Developed Countries) and notify the Council for TRIPs of all specifics relating to the medicines it wishes to import.  The exporting member must notify the Council of TRIPs of its willingness to grant the required license and of all particulars relating to its shipment of the medicines.

This all sounds pretty nice and simple, but in practice, it really hasn't turned out that way.  Only one member, Rwanda, has ever used the 2003 declaration to import patented medicines.  The actual legal meaning of this set-up remains a mystery.  First, there is the vague language in the original article, Art. 31, that limits using a patent without first attempting negotiations to "national emergenc[ies]."  (Art. 31(b).)  How likely is a WTO panel to decide something is not a 'national emergency' after a country's government has declared it so? 

Second, Article 31bis has never been ratified and is not part of the TRIPs agreement.  This may seem like it is not that big of a deal since the 2003 declaration waves the problematic part of Article 31.  But the declaration only adds to the confusion, and that brings us to: Third, what is this declaration?  It is not part of the TRIPs agreement.  It is not public international law (which WTO panels look to when deciding cases).  It is a declaration by the Council.  What does that mean?

Logistically, these are concerns that do not matter until someone challenges the use of the declaration.  Rwanda was able to use the declaration without any problems.  Perhaps if any other members should try, they would also encounter no opposition to using the declaration.  Guess we shall just have to wait and see.

April Celebrations

April is a very busy and exhausting month for intellectual property lovers.  What with all these celebrations we are apt to gorge ourselves on cake and expend all our air blowing up balloons.

Happy Birthday TRIPs

Celebrations started last week with the 15th birthday of TRIPs, the Agreement on Trade Related Aspects of Intellectual Property.  The agreement was signed  as part of the Marrakesh Agreement establishing the World Trade Organization on April 15, 1994.  (The agreement did not enter into force until January of 1995.)  Since then, there have been over 100 disputes concerning TRIPs before the WTO (per WTO website).  One interesting note for the 15th anniversary is Article 64, which was intended to last for 5 years and then be reviewed.  It was extended once for 5 more years.  The provision is still active.  Will it ever be removed?

Earth Day

Today is Earth Day.  Although Earth Day did not begin with a focus on intellectual property, it is hard to escape the association now.  A large part of environmental awareness and improvement involves new forms of energy and environmentally friendly inventions.

World Book and Copyright Day

Tomorrow, April 23rd, is World Book and Copyright Day.  UNESCO, the United Nations Educational, Scientific and Cultural Organization, began World Book and Copyright Day as a special occasion for promoting "reading, publishing and the protection of intellectual property through copyright."  Take some time to celebrate your favorite authors and books with the rest of the world!  (This particular Ipper will most likely be curled up in a corner with Jane Austen, if she can find her book.)

World Intellectual Property Day

Sunday is the crowning glory of the month's festivities: World Intellectual Property Day.  This year, WIPO's theme for the April 26th celebration is right in line with Earth Day: promoting green innovation.  A list of suggested celebratory IP activities can be found here.

April 26th also marks the 39th anniversary of the establishment of WIPO.

Can I Get that in Twitter?

According to a recent US cellular company commercial, 26% of people have no idea what Twitter is.  But those of us who do are quite familiar with the little blue twitter bird, the who-goes-there owl, and the most amusing Fail Whale.  We may also be aware that Twitter doesn't really have much of a business model.  There have been the usual discussions of monetization: bringing in advertising, selling to Google, etc.  But, with the popularity of its intellectual property, Twitter may not need to monetize its service.  It can license its icons.

There are already a few Twitter-related products out there.  Zazzle has a complete line of Fail Whale items, including baby onesies.  Walmart has a line of bedding that includes owl and bird shaped pillows that quite resemble the twitter characters, as well as sheets sporting a variety of small twitter-shaped birds.  It is unclear if any of these items are actually licensed from Twitter, but it does show there is a market for Twitter merchandise.

Perhaps it's time to think outside the box and look to sources beyond the internet for revenue.  Twitter has branded itself well and, unlike most internet services, has associated some cute and loveable characters with it.  Fail Whale might not replace Mickey or Hannah Montana, but there are certainly people who like to see more of him and his pals, offline. 

(I for one, would like some twitter-bird covered fabric to make a nice sundress.  But then, I am typing this in a dress printed full of ladybugs.)

Deciding the Fate of Music

A follow-up from the pre-Easter Tenenbaum fair use defense post - a further look at why a court should not address the issue (again) of whether or not file sharing is fair use.  As mentioned in the previous post, legal free music is coming.  A court decision ruling file sharing as fair use would only hasten the inevitable.  This hurrying is unnecessary and would be detrimental to the progress already being made.

Let the People Do It

There are companies in the industry currently working on how to make the music industry work best for everyone, including the fans and artists.   Let the industry play it out a little while longer and figure out where its going.  Forcing the industry's hand never proves good; it freaks out and reacts without taking time to figure out if its actions make sense.   

Allowing the industry players, the musicians, the experts and the fans (yes, they have a say now, too - the musicians are listening) to hammer out a solution that works for all will produce a much better result than a court handing down a decision from on high.  Allowing those who have a stake in the matter to develop a solution fosters more cooperation.  A value our democratic society is supposed to value.  Cooperation in an industry that desperately needs to rebuild its relationship with the rest of us.  It also gives those who participate a deeper connection to the outcome; they find value in the product of their creation and are more likely to support it.

Easter Vacation

It's Easter Time. The Ipper's are on holiday. We will see you again on Wednesday, April 15th. Have a happy Easter, and to all our Jewish readers, a pleasant Passover.

The Tenenbaum Fair Use Defense: Why?

Professor Nesson's plan to use a fair use defense in the Tenenbaum/RIAA trial is causing quite a stir.  The Harvard Law professor heading up Joel Tenenbaum's defense team seems firmly rooted in his position, believing that file sharing is a fair use.  "From my side the path is straight," he said in a serious of tweets discussing ruminating on his point.

Other copyright experts have weighed in on this approach, in part because Nesson has either asked them for their opinions or has asked them to be expert witnesses at the trial.  They do not agree that file sharing is fair use.  Expert squabbles aside, this Ipper has one question: Why use this defense? 

The original, or at least most previously focused on position was that copyright statutory damages are unconstitutional because of their extremely high ratio between value of actual harm and value of punitive damages.  What do you gain by pursuing the fair use defense that you don't get by pursuing the statutory damages position?

File Sharing Becomes Legal - and?...

Legal file sharing is the most obvious outcome of a successful free use defense, but it really doesn't do us any good.  The music industry is moving towards accepting free file sharing (much to my chagrin).  There's the recent deal in China that creates a free legal way for consumers to download music.  There's also the Canadian proposal to add an opt-out-able music license into internet payments.  And many more proposals and trial runs of different ideas around the world.  Yes, the industry is still pushing things like ISP 3-strikes laws, but it's just buying time.  The industry has a plan.

So, free legal music is coming.  If the fair use defense in the Tenenbaum case succeeds, we just get the same outcome (in a less valuable way - more later) a bit early.  Maybe.  With the slow pace of trials, the court might not even have a chance rule on the issue until the matter is completely moot.

The Statutory Damages Claim - Real Benefits

The Copyright Act's statutory damages apply to all infringement, not just file sharing.  So, if the level of statutory damages is found to be unconstitutional, the change in the law affects anyone accused of copyright infringement.  This includes people who post YouTube videos, musicians who use sampling, and Lessig's poster-child: remix artists.

If a court finds the copyright infringement statutory damages to be unconstitutional, we get to make the law fair again.  If a court decides file sharing is fair use, all we get is an even murkier definition of fair use.

A Week of Reflection on LMDS - Is the US the Only Country in the World?

The Leadership Music Digital Summit ended last week Wednesday, but one particular thing from the Summit have continued to weight on this Ipper's mind.  Throughout the entire two days, there were no discussions involving the international aspects of copyright.

Big deal, you might say.  The Summit was about the American music industry, so why should there be any international talk?  Two main reasons: first, many of the panelist spoke about how their various companies are attempting to take advantage of worldwide markets.  Markets around the world means copyright laws around the world. 

Second, and more importantly, several discussions at the Summit discussed changes to the United States Copyright Act.  This is not unusual for these types of gatherings.  The same types of suggestions are made at legal training seminars, in articles, on blogs, and in classrooms.  But one fact always seems to be ignored: the US has international obligations.

The United States cannot just willy-nilly change its copyright law without first understanding the potential implications beyond its own borders.  There are diplomatic concerns: 'if we change this, how will it affect foreign artists? What will countries do and say on behalf of protecting their artists?'  There are trade concerns, 'if we change this, and it violates TRIPs, how much will it cost us?'  (And, there are probably a number of other concerns, which this Ipper would need a great deal more experience in international politics to understand.)

This does not mean the US cannot do anything that violates its international copyright obligations (indeed, the US often does), it just means that those who present ideas about changing the United States copyright law should consider the international side of things: bring the international aspects into the discussions. 

As people who have made suggestions improve and develop their ideas more fully, others can begin to suggest changes that do not interfere with international obligations.  Or, if the changes they want cannot be done without making international waves, maybe they can even begin to suggest changes to the international framework.  This Ipper's plea is simple: don't forget the rest of the world.

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