Less admin, more cash? Viscopy hands operations to CAL

The 1709 Blog has learned from its Australian friend John Walker that Viscopy (the Australian sister to the UK's Design and Artists Collection Society ) is effectively ceasing to operate as an organisation in its own right: its management functions are to be taken over by Copyright Agency Limited -- a body which was appointed by the Commonwealth Attorney General and the Copyright Tribunal to manage various statutory licences. According to a statement released by Viscopy:

"We are contacting you to let you know that Viscopy and Copyright Agency have entered into a services agreement whereby Copyright Agency will provide all services to Viscopy’s members and licensees. Viscopy will retain its board and its membership.

We anticipate the agreement will result in additional income to artists through reduction of administrative fees and expanded licensing services, and simplify the licensing processes for text and images.

The agreement is anticipated to take effect by mid 2012 subject to regulatory approval, and will be reviewed by both organisations in three years. ...."

Copyright Law, Getting in the Way of Getting Copyrighted Works

“The biggest barriers that consumers face in accessing copyright works
are those created by copyright law.”  And with that profound statement, Consumers International begins its exploration into how copyright and consumers interact, investigating the barriers consumers face when attempting to find information.

The book is Access to Knowledge for Consumers: Reports of Campaigns and Research 2008-2010, and it presents the findings of two years of studies conducted by Consumers International.  These studies included surveys of consumers across a wide variety of countries, in-depth reviews of the effects of enacting new flexibilities in the copyright laws of Australia and Israel, and reports from six country groups involved in advocacy at the national level.

Consumer Survey

The global survey looked at potential barriers to access (to knowledge) in four different categories: Political, Economic, Social and Technological.  The book includes a full copy of the survey questions, highlights of notable qualitative answers and full charts of quantitative breakdowns.  Unfortunately, the charts are a bit hard to read sideways on a computer screen.  A surprising finding of the survey was that African consumers have the highest respect for copyright law.  A not-so-surprising finding was that consumers are confused about FOSS (free and open source software) and open licensing.

However, in combination with the other studies, Consumer International also found:

Part of the solution to the access barriers that consumers face is the wider use of open content, such as Open Educational Resources (OER) and free and open source software (FOSS). Our survey found that most consumers are aware of these alternatives, and ready to give them a try.

Based on this information, Consumers International has identified “the need for education of consumers on the unique features of FOSS and (though not covered in the phase one survey) other forms of free licensing such as Creative Commons.” 

Copyright Law Flexibilities

Australia’s 2006 amendments to its copyright act added flexibilities that made time-shifting and formatting-shifting legal.  Before the enactment of the amendments, arguments arose that the amendments would interfere with the markets for legal downloads and a threat to nearly every type of copyright protected work.  Results of the research conducted revealed that the content industry’s nightmares did not come true. 

[T]here was evidence to suggest that the amendments may have increased compliance with the law – not only by legalising the common and harmless consumer practices in question, but by improving some consumers’ respect for the fairness of copyright law in general.

When looking at Australian’s perspectives on whether and when it is ok to download copyrighted material, the book again presents a mix of quantitative data and qualitative information. Some of the justifications of those who feel it is ok to download to their heart’s content are rather amusing.

“Because when I see what happens, when people like Britney Spears
get paid what they do and act like they do. This means to me the
entertainment industry can kiss my arse!!!!!!!!”

Israel introduced fair use into its British-based copyright act in 2007.  To study the effects of the introduction of this provision, researchers compared case law before and after 2007.  The concept of fair use existed in Israeli copyright before 2007, but it was not codified.  Results of the analysis was slightly disappointing but hopeful.  Finding that fair use claims rarely succeeded and that courts were applying the doctrine in disparate ways, the researchers also expressed belief that this will change with the progression of more cases.

In conclusion, we find the law in Israel, while evolving to meet the
new digital creativity landscape, still lacks the balance which will reflect the social understanding of what should constitute a fair use and how copyright can foster creativity and innovation.

Country Group Reports

The book includes reports on national advocacy from Brazil, Cameroon, India, Nigeria, South Africa and Zambia.  Each of these reports discusses activities done in the country to promote access to knowledge and the strengths and weaknesses of these activities.

 

Access to Knowledge for Consumers: Reports of Campaigns and Research 2008-2010 is a 336 page book, but it will not cause you back strain.  The entire book is available in pdf, released under a Creative Commons BY-SA license.

Why you won't find Specsavers in the Thesaurus ...

In "Synonyms – a shortsighted attempt to avoid copyright infringement", Tim Golder and Nadia Guadagno discuss Budget Eyewear Australia Pty Ltd v Specsavers Pty Ltd [2010] FCA 507, a recent Australian Federal Court decision in which interim injunctive relief was granted to restrain the use and publication of an advertising campaign where the alleged infringement consisted of the substitution of synonyms for the plaintiff's original work.

In short, Budget alleged that Specsavers' print ad and itscorresponding terms and conditions infringed copyright in two versions of a print advertisement, a radio script and a set of terms and conditions under which an offer in the advertisements were made, seeking interlocutory relief for infringement. Budget pointed to the following phrases as reflecting originality:

'If your Specsavers glasses break – and we're not saying they will – simply bring them into Budget Eyewear. We'll replace them with [sic] pair from our own range – free of charge';

'We're not saying they will, but if your Specsavers glasses break, we'll replace them for free'; and

'If your glasses aren't all they're cracked up to be, don't worry, we'll come to the rescue. For the next two weeks... you can take any Specsavers glasses to your nearest participating Budget Eyewear store and we'll replace them with a pair from our range – free of charge'.

Specsaver's print ad contained the following phrases:

'If your OPSM glasses happen to break, and we're not saying they're going to, we'll exchange them with a pair from Specsavers with a 2 year guarantee, for free'

'If your prescription glasses aren't what you hoped for, don't stress – we're here to help. From Thursday 13th May to Thursday 27th May, take any broken OPSM glasses to your nearest Specsavers store and we'll give you a pair from our range – for free'.

Did copyright subsist in the works? Before asking whether there had been infringement, Bennett J first had to establish whether copyright subsisted in the works at all. She felt there was sufficient evidence of authorship for the purposes of seeking interim relief, and said Budget had an arguable case that

"the way in which a concept is expressed in an advertisement intended to attract customers may involve originality that attracts copyright protection ... the fact that the words are commonplace does not mean that the way in which they are put together cannot have a degree of originality".

On the issue of infringement, Specsavers acknowledged the a causal connection since it had read and absorbed Budget's advertisement and did not deny it had copied the text of Budget's ad for its own ads; it also accepted that it had copied the idea of the campaign, although this copying did not extend to exact word reproduction. Said Budget, Specsavers had sought to avoid infringement by the simple use of synonyms; Specsavers in return argued that the use and arrangement of the words and phrases in the ads was 'obvious and prosaic' and since there was a lack of any requisite originality.

Justice Bennett agreed with Budget that Specsavers chose to adopt the same expression of ideas where various means could have been used to express the concept. Specsavers could have copied the idea but exercised its own imagination to express that novel concept in new and different language. rather than "using a thesaurus" to substitute a synonym. Accordingly a prima facie case of infringement had been made out.

Says the 1709 Blog, if the original Budget ads had been more imaginative and less prosaic, Specsavers' synonyms might -- at least in an application for interim relief -- been clad with the figleaves of parody and/or commercial free speech. Even so, the message is clear: that well-known Thesaurus Rex no longer rules the world of advertising copy, if indeed it ever did.

News and views: snippets from Russia and Australia

The 1709 Blog's mailbox receives some interesting bits of news and comment. Just in are two items worth sharing with readers:

* Sasha Yelnik writes to tell us that, during a World IP Day meeting, the director of the Russian Authors' Society RAS said that the time has come to establish specialised courts that would deal only with copyright and the related matters. She adds:

"His suggestion was based on the increasing number and complexity of copyright infringement claims. Mr Fedotov from RAS thinks that the main reason for the phenomenon is the "legal nihilism that has become entrenched in the minds of the largest part of the society". Another problem which requires an urgent solution (which was not proposed at the meeting) is licensing music downloads from the internet (see Pravo here, in Russian) I think it is a big achievement that the need for specialised courts has been voiced and recognised but -- knowing the speed with which anything requiring at least a bit of formality is happening in Russia -- the realisation of the idea seems unlikely to take place in the foreseeable future".

* Anne Sanders (AAPT) writes on the subject of artists' resale royalties and asks: "Is the UK aware of the detail of Australian legislation?" She explains:

"It is nothing like the compulsory statutory licence that the the copyright agencies pursued. In fact, it is a poor precedent from their point of view. I believe that the agencies in the EU & UK might mention the royalty being adopted in Australia but forget to mention that:

(a) individual artists have an individual right to waive the royalty on a case-by-case basis (Clauses 22/23).

(b) the royalty will only apply to the first resales of artworks purchased AFTER the introduction of the legisalation. There is no royalty imposed upon the first resales of artworks purchase in the decades before the introduction of the act.

(c) the Australian scheme is sui generis - it is not an extension of copyright because even in its current form it is , too tax-like under our constitution to be part of copyright".