Quit Playing Around: Monkey Stirs Up Copyright Controversy with Selfie

A brief departure from copyright in the education sector and more a post on copyright education. As you know, I am a big fan of bizarre and random stories, and yesterday saw the return of the 'monkey selfie' story as reported in the Telegraph. Briefly, a British wildlife photographer was photographing crested black macaque monkeys in Indonesia when the monkeys began to show an interest in his equipment and started taking pictures of themselves. One of the photos has found its way on to Wikimedia and now the photographer is threatening to sue for copyright infringement and damages. But if the monkey took the photograph, who really does own the copyright?

First off, let's do some copyright 101: for an artistic work to benefit from copyright, it must be original and a product of intellectual creation, skill and judgement by its author. We will return to questions of ownership shortly, but first let's examine whether this photograph would qualify as an artistic work to benefit from copyright.The Copyright, Designs and Patents Act 1988 (CDPA) states in s.4(1) that an artistic work means, among other types of work, "a photograph,...irrespective of artistic quality". Photographs which are 'selfies' are not new; rather they have become more popular with the widespread use of smartphones. The Oscar selfie earlier this year is a classic example; this was a product of Ellen DeGeneres' creation, bringing together top celebrities into one frame of a photograph, thereby making an original work (it is highly unlikely that photos including all of these celebrities exist). You could argue that the level of skill and intellectual creation is fairly limited, but it is an original work nonetheless and qualifies for copyright. Does the monkey's selfie differ, then, from the Oscar selfie? Particularly as the photograph was not actually taken by Ellen DeGeneres? The problem with the monkey selfie is that, although it is original in the starkest sense of the word, there appears to be little intellectual creation, skill and judgement (although how can we criticise the monkey, given that it can't tell us..?!), unless the shot was set up by the photographer in some way, adjusting settings, focus, filters and so on to capture 'true' likenesses. Additionally, if the photographer has adjusted the image using Photoshop (see the Red Bus case which continues to perplex lawyers), an element of intellectual creation, skill and judgement could be argued.

But what about the question of authorship? The author, as defined by s.9(1) of the CDPA, means "the person who creates [a work]". On first glance this would appear to be the monkey, who quite literally 'created' the work when it touched the trigger and set off the camera. However, animals cannot be authors according to the CDPA, and therefore their works are not subject to copyright. So is there actually a copyright owner in the work, or is the photograph not subject to copyright at all and therefore public domain?

Could it be argued that the photographer did not actually create the work because he did not take the photo? It's not quite as simple as that. Although the CDPA does not go into further detail about the author of an artistic work, leading legal experts have submitted that the author "is the person who made the original contribution and...need not be he who pressed the trigger" (Laddie, Prescott & Vitoria, The Modern Law of Copyright and Designs, 4th ed, 4.61 p.254). 'Original contribution' in this sense can take several forms: there may be originality, for instance, in the use of angle, filters, light, exposure, and so forth which create a photograph. There may be originality in terms of the creation of a scene or subject to be photographed; this certainly is the case in the Oscar selfie, but may also include the set up and control of the illumination of the subject. Finally, it may just be a 'right place right time' type of originality, the photographer capturing a scene because he made a special effort to go and find it. In this respect, the wildlife photographer would appear to qualify as at least a contributor to the photograph. There is an added complication that allegedly the monkeys found the camera by accident and that the photographer did not set up the shots, but even so the serendipity aspect of originality cannot be completely ignored. 

Finally, could this be considered as a computer-generated work? Again, the CDPA in s.9(3) states that the author of a computer-generated work "shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken". It is less likely that this work could be construed as a computer-generated work, but it would appear that the same principles of authorship could apply, in that the photographer would be the author of the work.

It's a fascinating debate and I would definitely want to be in court watching this particular case. It is difficult to say whether the arguments would go in favour of the photographer being the author; this is certainly the verdict in a blog post by our US friends across the pond, who argue that as there was no official creator of the photograph other than the monkey, and the monkey does not qualify as an author, there is therefore no copyright in the photograph. It does however seem a bit unfair to the photographer, who should probably be recognised as a contributor at the very least. Perhaps we should ask the monkey? ;-)

Government’s Response to Hargreaves Review of IP: a good start or more to be done?

Last week the Government released their formal response to the Hargreaves Review of Intellectual Property and Growth . The Response broadly accepts the recommendations made and outlines how the Government proposes to act on each recommendation. Having read the response and taken some time to digest its contents, my overall view is that this is a significant step towards a long overdue copyright reform. However, it is a very ambitious move by the Government, given the tight timescales which have been set to achieve the desired changes to the IP framework. The Government is committed to creating favourable conditions for the encouragement of innovation and growth, but are leaving many of the finer practical details to the wider UK public, most likely those with a vested interest such as consumers, creators and businesses.

So what does the Government actually propose to do? Here’s my brief critical take on what I think are the most ground-breaking of the Government’s plans for action in the areas of copyright:

1. Evidence surrounding the economic issues of IP will be fundamental in shaping policy. Fairness and social impact will also be considered. This is absolutely essential; evidence should drive policy and it is imperative that evidence is high quality and carries no bias. The recognition that fairness and social impact also have a part to play widens the conversation to include moral rights for creators and any potential impact on consumers. Historically, copyright policy has been swayed by opinion and effective lobbying, but the proposals for policy changes will now be looking for hard evidence adhering to Intellectual Property Office (IPO) guidance which will be published later this year.


2. The creation of a Digital Copyright Exchange or similar to enable rights clearance by facilitating copyright licensing. My speculation is that the Government envisages a type of portal incorporating databases of rights information which would allow an organisation or an individual to pick and choose the works they wanted to use and the way they wanted to use them. Similar to a Rights Direct model but on a much larger scale; perhaps a sort of shopping basket approach similar to that of Amazon when you buy multiple items from a range of different sellers. In theory, a great idea - a vast digital marketplace where licensing of works is quick and easy. However, it is not an ideal solution for those rights holders who don't store works in database form already, as uploading individual works into a suitable rights database with metadata and ownership records will take time, skill and effort. It will be interesting to see the development of this proposal. The requirements for the DCE are outlined as follows:
   
   a. It must be free to use
   b. It must attract a ‘critical mass’ of material that is available and readily licensable
   c. Prices to be set or negotiated with rights holders subject to controls on unfair competition
   d. Voluntary scheme, not compulsory
   e. Self-funding, running on licensing transactions


3. Proposals for an orphan works scheme which will allow for both commercial and cultural uses of orphan works. As this topic is prevalent in Europe at the moment, it was always likely that the Government were going to take an active role in tackling orphan works. This will be a hotly contested area, particularly with regards to commercial use of orphan works, but the mention of diligent searches and market rates for the use of orphan works is a good start. The unspoken question though is always going to be: where does the licence fee go? Into the DCE? Perhaps one to muse... The proposals for extended collective licensing are more vague, however, leaving a very unclear picture as to how that aspect will function.


4. Widen the exceptions to copyright within the existing EU framework, provided that harm to rights holders is minimal, EU law and international treaties are adhered to, and that restrictions removed by exceptions are not re-imposed by contract. The exceptions will allow for limited private copying, more materials available to copy under the proviso of non-commercial research, text and data mining, archiving and parody. This will be widely consulted on and the scope of the exceptions will be determined from sound evidence. The proposals to widen copyright exceptions to make use of all the exceptions listed in the EU Information Society Directive will immensely benefit education and research and it is very promising that they have been recognised in such a way.


5. Develop a three-pronged attack comprising enforcement of IP rights, education of users, and appropriation of business models. The Government has outlined in its IP Crime Strategy that it is committed to tackling ‘piracy’ (one hopes with the talk of prosecution under the Copyright, Designs and Patents Act that this report is not referring to file-sharing but rather the more criminal acts of copyright infringement such as mass sale of pirate copies for commercial gain). With civil infringements, rights holders will still have to deal with those themselves, but they (and especially smaller businesses) will be better supported with the introduction of a small claims track in the Patent County Court for claims under £5000 (assuming the cost of introducing one is not prohibitive).For me, the most encouraging aspect of this section is the recognition that business models need to change and adapt to the digital age. As such, the Government has pledged to work with industry to support efforts to develop new legitimate digital markets. File-sharing as an issue is unlikely to disappear, but the availability of high quality desirable digital content at affordable prices in an easy-to-access format should at least provide an incentive to entice people to acquire it via legitimate means.


6. IPO to deliver copyright opinions service to clarify the applicability of copyright law. This may not look like a significant point but it really is. This will give the IPO a role not dissimilar to the Information Commissioner's Office (ICO) in terms of delivering opinions on complex copyright interpretations, and the IPO will become more of a ‘go-to’ service for educators struggling to make judgment calls, particularly in relation to new technology. But more than this: the Government hints that a copyright opinions service may shape the future of copyright legislation, identifying areas of uncertainty and supplementing the judgements of the legal profession and academic community. On the one hand, I see a copyright opinions service being quite fruitful – it’s often useful to be able to go to a public sector body and ask for a definite opinion on a matter. But on the other hand, could this be seen as the more easy way: rather than calling for a large scale review of the Copyright Act, this approach is quite piecemeal, which historically has not benefited copyright law. And how will the IPO interpret the law? Narrowly, as by the precedents set in the ECJ and other significant courts? Or more liberally, applying UK case law and interpretations? One major difference between the ICO and this newly appointed function of the IPO is that Freedom of Information legislation is home-grown and largely unaffected by EU case law, whereas copyright law is hugely influenced by the EU. It remains to be seen whether this will be a viable service or not, particularly where it relates to commercial enterprise.

A longer post than I anticipated, and much more that could be said, but overall it is a good start. Those more cynical than I question whether this will go the same way as the Gowers Review and come to nothing despite the Government’s best intentions. But I remain positive; I think for once a lot of sensible truths based on evidence have been declared and at this difficult point in the economy businesses and the creative industries should be working hard to implement innovative schemes to enable their business to flourish in the digital age. Organised criminal piracy should be countered and prevented, and the Government should take a serious look at the support it needs to offer to creative industries in the form of tax breaks and advice. Education in particular should be able to thrive without fear of infringement of copyright, and the law needs to be brought up to date with digital technology and legitimise activities (i.e. copying a CD to a cassette tape) that have been innocently happening for decades.

Finding the common ground between Wikimedia and the Cultural Sector

On Friday 26th November I set off for the British Museum to attend the first day of the GLAMWIKI conference, which saw cultural sector types mixing with Wikimedians in an effort to discuss issues common to both. A number of worthy speakers were on the agenda, including Jimmy Wales (founder of Wikipedia), Cory Doctorow and Joscelyn Upendran from Creative Commons UK.

Keynote
Cory Doctorow opened proceedings with a keynote speech on the importance of museums, libraries, galleries and archives, coupled with his vision for the cultural use of items housed within them. He claimed that copying is ingrained in our very identities as human beings, and that copying, remixing and sharing has contributed to the flow of expressions and ideas which have shaped our society and provided us with such a rich cultural heritage. Cultural institutions should be encouraged to open their collections so that the public can use these items in a cultural way (sadly he didn’t elaborate on this, as it would have been interesting to hear more). The institutions should not charge the public a fee, as rent-seeking is inconsistent with cultural use. However, cultural institutions are concerned about the ways in which their works are used, keen to protect their “brand” and to ensure they don’t suffer any reputational damage.

Funding and Commercial Interest
Apart from rights clearance issues, the current economic climate makes it almost impossible for institutions to find the money for digitisation projects. As a result, they almost always have to seek out private investment, which unfortunately can come with some commercial strings attached. Another danger is viewing digital cultural assets as money-making tools in themselves - the cultural sector can be in danger of over-estimating the potential commercial gain and under-estimating the public good that digitisation of artefacts would bring.

Creative Commons
Joscelyn’s presentation on the relevance of Creative Commons for the cultural sector provided a snapshot of pros and cons of the licences, leaving the decision to use CC licences firmly with the audience. A number of people were surprised that a CC licence is a legally recognised contract, which requires careful thought as to its application so as to suit the purposes of the institution. Advantages of CC licences are that they openly generate interest (new business models can be designed to plan for their application) and that cultural objects from institutions can be discovered in standard search engines. The biggest threat of CC licences was future-proofing; if an institution wants to commercialise its assets in the future, then having some already available for free under a CC licence could jeopardise that plan. This added to other threats such as misrepresentation of the institution and derogatory use.

The rest of the day encompassed a variety of talks (many from Wikimedians) on collaborative projects happening across Europe in the cultural sector. I found the most interesting of these to be Europeana, an EC funded portal through which digital cultural material can be accessed. The database operates similar to Google, with metadata and a preview – if you click on the item you are taken straight through to the institution which holds it.

Free-conomy and the Cultural Sector – 3 directions for transforming copyright
The highlight for me was the evening keynote by Dr Kenneth Crews and ensuing panel discussion. The panel was formed of individuals from Europeana, the British Film Institute (BFI), the BBC and the National Portrait Gallery (standing in for DACS who could not attend).

The gist of the keynote was contract versus copyright. Copyright law’s fragmentation into different sets of rights (moral rights, performers’ rights, and so on) means there is much confusion and ignorance about it. This has been countered by licences, drafted to try to simplify permissible uses of material. However, in the cultural sector, works which are out of copyright are being digitised and licensed to end users. The licences enforced are non-standard and vary widely depending on the institution deploying them, often containing clauses going into as much detail as the ways in which the item can be placed on a page. The prevailing question is: where does the cultural sector get the right to assert these terms? Surely, it can’t all stem from copyright law. The 1998 case of Bridgeman Art Library held that reproductions of public domain artworks are not copyrightable as they constitute an exact reproduction which doesn’t attract copyright. However, most cultural sector institutions assert rights when licensing the exact same things.

The problem with licences is that they form a contract which in effect overrules copyright law. This includes all of the fair dealing / fair use provisions. So what can be done? If copyright is perpetually overruled by contract, should there be a system of fair contract law in place? Is licensing simply a way to hammer home one party’s interests at the expense of not only copyright law but also the interests of the users?

Responses from the Panel
Responses were varied but sparked a lively and interesting debate. The representative from the BFI (whose funding is split 40/60 government/private) believed that publicly-funded material should be for the public, in essence viewing the public as investors. The public need to connect better with their cultural heritage, which means finding ways of making the collections accessible so that people are both aware of the collections and can appreciate them fully.

Following on from this, the representative from Europeana drew attention once more to the idea expressed in the Digital Economy Act of extended collective licensing (ECL). This is the statutory authority existing in some countries giving an organisation the legal authority to represent all rights holders and act on their behalf. ECL can only work when a strong and effective money flow system is in place, and it is doubtful that such a system could work across Europe.

The representative from the BBC commented that the increased potential for copyright infringement via advanced technologies combined with new ways of creating material poses a serious threat to business models and conflicts with a law which was never written for this sort of purpose. Nobody ever anticipated a world in which copyright was king. People who can afford expensive lawyers can lock up creative copyrighted material, and the introduction of licences for digital material controls use and continues the monopoly. Contract should not replace copyright; indeed, Creative Commons was a scheme introduced to highlight the problems with current copyright law, not solve them.

The National Portrait Gallery’s representative took a more pragmatic approach to the problem. The emphasis of cultural organisations has shifted from the collection of artefacts to the digitisation and use of the digitised objects, bringing the issue of copyright to the fore. They adopt a risk management approach to digitisation, accepting that the works are likely to be in copyright and pursuing a number of avenues in an attempt to discover the copyright owner. However, even with this detailed research, few copyright owners are ever found. The desire to serve the public by opening up collections can outweigh the risk of a copyright infringement claim, and sometimes the decision is taken to accept the risk. The idea of balance is no longer relevant; rather, the key is in making tough decisions to agree on what is right for wider society.

Question & Answer session
Following thoughts from the panel, the debate was open to the floor. Questions ranged from how to re-define the ‘public domain’ in a global society to systems of funding necessary to open collections up to the public. Some solutions given by the panel included sharing data and descriptions of the collections with the public – there is no copyright in metadata as it’s factual and can therefore be used to the cultural sector’s advantage. The public also has a right to know how their money is being used – cultural institutions should highlight the need to preserve their collections by engaging the public with their content.

Final Thoughts
Sadly, the issues with copyright law cannot be solved over the course of an evening’s panel debate. Still, I came away with lots to think about, especially as the coalition government has called for a review of Intellectual Property Law. For me, possibly one of the most frustrating elements of the Copyright Act is that it applies in exactly the same way to oil paintings hanging in a gallery as it does to photographs taken with a camera phone. My feeling would be that the law needs amending so as to clarify that some degree of skill and judgement is required to allow for an artistic work to attract copyright.

In the meantime, we need to be good stewards of copyright so that we start to think now about how we want our created works to be used in the future. As copyright lasts for 70 years after we’re dead and gone, this is indeed food for thought...

Fair Use v Fair Dealing

There’s been a lot of speculation following Cameron’s announcement of a review of IP Law about the implications of moving towards a ‘fair use’ provision in copyright law. Rights holders are against it, educational institutions should be for it, but what does it really mean?

Spot the Difference

Although it’s not easy to do, let’s compare and contrast US Copyright Law with UK Copyright Law:

Both are subject to the Berne Convention

Copyright duration is 70 years from the death of the author/creator in both laws

Copyright is an automatic right in both laws

Both recognise moral rights (to an extent)

Both have exceptions and/or defences to copyright infringement

The US has a system of copyright registration, the UK used to but it was abolished a long time ago

The major difference which Cameron arguably hasn’t taken into account is that the US has a system of Copyright Registration, whereas the UK does not. This system strengthens the hand of the rightsholder and allows them greater protection for their work, enabling them to claim significantly higher damages when infringement occurs. This, in my opinion, could be where an attempt to move towards US law may fail – rightsholders will simply see a move to expand fair dealing exceptions as an excuse for commercial entities to use their works for free.

Fair’s Fair...

So, the burning question.. what’s the difference between fair use and fair dealing?

One major difference is that the US Law lists the factors to be taken into consideration when determining whether the use made of a work is fair. These factors are as follows:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

These factors relate to a wide range of purposes for which use of copyright work is not considered an infringement. These purposes include criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.

In the UK, there is no such definition of ‘fair’ in the Copyright Act. Rather, it is subject to the whims of case law, and since the eleven word infringement case in Denmark, societies and publishers are afraid to define the scope of what is considered ‘fair dealing’. Instead, UK fair dealing sets out provisions for each particular purpose rather than grouping them all together. Thus, criticism and review becomes one, non-commercial research another, and so on. Some fair dealing provisions do not extend to unpublished works (criticism and review, for example), whereas in the US “the fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." (US Copyright Act)

My thoughts...

This may be an ideal opportunity for educational institutions to provide a wish list of extensions to the fair dealing provisions set out in the Copyright Act to the government's review. As such, it should be seized by those working in education. Ideally, we would like to see 'fair' defined in UK law as it is in US law, and an expansion of the educational exceptions so that they are less technology-specific and allow for the use of material for the purposes of teaching/delivery of courses within educational institutions.

However, my cynical side is inclined to think that 6 months is not long enough to undertake a review of IP Law, when the Gowers Review took at least 4 years. And the provisions made there haven't even been implemented yet. My personal feeling is that if Cameron wants to go down the fair use path and widen the exceptions, chances are that he may have to make the process of dealing with copyright infringement easier for rightsholders. Without a system of copyright registration or even a central Copyright Office, the ideals of the fair use provisions may just be a slice of Google pie in the sky...