Mythbusters: That’s Just Not Fair (Use)

Photo by Sam Teigen, some rights reserved.

Following on from last month’s woo-fest and my recent twitter rant about solicitors who use the terms ‘copyright’ and ‘trade mark’ as if they were interchangeable, the following is an explanation of some common copyright myths.

Consider it a public service announcement brought to you by In-House Hotshot.

Myth 1: You need to register your work before copyright applies.

Copyright is a right that arises automatically upon the creation of a qualifying work. In the uk (and Berne convention countries) no act is required to crystallise your copyright.

Myth 2: If there’s no copyright notice on your work it’s not protected.

Just as there is no requirement for registration of your copyright, there is no requirement that you put any form of notice on your work.

It is however good practice to include (c) [year of creation] [author’s name] on your work as evidence of your claim to copyright in the material. This will be useful in the event of any claim of infringement and also to put any potential infringer on notice that you claim copyright in the work.

Myth 3: Posting yourself a copy of your work will prove you own the copyright in it.

The so-called poor man’s copyright has little or no value. While an unopened envelope (with a postmark) may be considered evidence that you have posted yourself a copy of the material before that date it does not provide any evidence that you created the work and certainly provides no greater evidence than the use of a copyright notice.

There is obviously significant scope for this method to be abused and in any case computer files and emails etc provide a much more useful time stamp.

Myth 4: Copyright subsists in the name of celebrities. OR My business name is protected by copyright.

Copyright will only subsist in a work that demonstrates significant skill or work in its creation. As such, there is no copyright in single words or short phrases (and if there were no one else would be allowed to use that phrase anywhere). Similarly there is no copyright in a person or business’s name although it maybe a valid trade mark.

Myth 5: If I found it online copyright does not apply.

This is a common misconception arising from a misconstruing of ‘public domain’. If a work is in the public domain then copyright does not apply to it. However public domain does not just mean that the work is available to the public. Work has to be deliberately placed in the public domain or allowed to pass into the public domain. As a result articles on the internet, Google image search results and mp3s online will most likely be protected by copyright.

Myth 6: Most infringement can be excused under the principle of fair use.

Fair use is a principle of American copyright law that allows limited use of copyright material without the permission of the owner. Such use may include commentary, criticism, news reporting or research.

The sharper-eyed of my readers will have noticed that I described fair use as a principle of American law. It does not apply in the UK.

UK copyright law does have a principle of ‘fair dealing’ which sounds confusingly similar to fair use but is much less generous and only applies for non-commercial research, criticism or review purposes.

Just because you think your use of copyrighted material is fair does not mean you are not infringing the rights of the creator.

Myth 7: If I make three changes to the work I am not infringing.

Copyright is infringed where a ‘substantive part’ of a copyright protected work is reproduced without the permission of the copyright owner. What constitutes a substantive part will depend entirely on the size of the original work and the circumstances of the reproduction. As a result it is not possible to rely on a one size fits all rule as to how many changes you should make to avoid infringement.

I hope that’s helped. There are plenty more copyright myths so I expect to expand on this in the future as well as looking at some trade mark and patent myths as well.

Thanks to Brett (@BrettTechLawyer), Katherine (@whatKatydidnext) and Barbara (@filemot) for suggestions of some myths to bust!

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Jejune IP – A Postscript

Photo by Sébastien GARNIER, some rights reserved.

One of the (many) frustrating elements of the recent freeman-on-the-land woo-fest  is their ability to pick and choose interpretations of the law to suit their claims.  While this may be the basis of most careers in law, it is far less satisfying to see it done with no consistency and little or no understanding of the underlying principles upon which the claims are based.

One of the more irksome effects of this pick-and-mix approach is the large number of contradictions it produces.  While it is not for me to pick apart every element of the faux-legal arguments advanced (although I must admit I am tempted) I will comment on the copyright issues.

Getoutofdebtfree’s recommend the so-called “declaration of copyright trademark” (which I’ve already debunked here).  This direction holds that by making a simple declaration in a local newspaper you can establish copyright in, and a trade mark of, your name.  Now while this is bollocks on many levels, it also explicitly contradicts another key freeman theory that holds that:

“All registered names are Crown copyright.” – ‘commonly known as dom’, Cif, 15 November 2011.

CKA Dom’s claim is based on a fingers-in-ears interpretation of the Crown copyright notice on a birth certificate.

Copyright in the layout of a blank birth certificate form in the UK belongs to the Crown, as is the case with the layout of most government documents that are to be completed by their users.  This is to ensure that no other body can copy or issue blank versions of these forms – sensible enough.

Ignoring the fact that it is not competent to claim copyright in a person’s name, we can also be sure that  it is a clear bastardisation of copyright law (and common sense) to suggest that by placing a copyright notice on a blank form the Crown can somehow claim to own the rights in the completed form which will necessarily include “work” produced by a third party.

If that is not enough, it is made clear in a number of places that the copyright notice on government forms extends only to the layout of the form.  You don’t need to spend hours in your local law library to work this out, you don’t even need to open Copinger and Skone James on Copyright, as the National Archives’ guide to Copying Birth, Death, Marriage and Civil Partnership Certificates is the first result on Google for “copyright in birth certificate” and helpfully advises in the first paragraph that:

“Copyright in the layout of certificates is owned by the Crown. The Crown does not assert any rights of ownership in the contents of the forms.”

Et voilà: another simple debunking of a freeman copyright theory.

So how is it that the freemen not only propose both of these contradictory interpretations, but also manage to go one step further and claim that despite (claim one) the Crown owning the copyright in your name, you can (claim two) claim this as your own and use it as a threat to stop people seeking repayment of your debts?

Haven’t they missed out some form of assignment?  A “Dear Liz, Please sign the enclosed copyright assignment document so I can seek to exclude myself from the jurisdiction of your treasonous courts.” letter perhaps?  Maybe this is only available to the premium subscribers of getoutofdebtfree.org.

Unfortunately I imagine this is another woo-based question to which we will not receive an answer.  Mainly because Queen Elizard-beth II is too busy hiding her bright green tail in her regal frocks to open her archives of hundreds of assignment documents made out in favour of Joe of the family Bloggs.

Shame.

Jejune IP Law

Photo by Odalaigh, some rights reserved

I wrote last month about examples of bad IP law – articles in the press that misrepresent and confuse the various distinctions of intellectual property law.  A couple of articles this week have moved my thoughts on, ever so slightly, to the prevelance of IP myths.

Legal Bizzle has posted today on two Comment is free pieces that appeared on The Guardian’s Occupy Cif pages today.  Bizzle’s ire was mainly (and rightly) directed at Jon Witterick’s piece on defaulting on your debts as a viable economic option.  The cigar chomping bear has already expertly (and with some panache) deconstructed a number of Witterick’s claims regarding debt collectors and fractional reserve banking so I will turn my cannon on one of the intellectual property issues raised instead.

One of Witterick’s recommended alternatives to actually paying off your debts is what he calls “Option 3: Copyright and Trademark Procedure” – he obviously hasn’t read my last post, else he’d know it’s “Trade Mark”, but that’s really the least of our worries.  It is based on a dubious assumption that if the debt collection agency cannot use your name without your permission, they cannot write to you and ask for the money back.  Or if they do, you can sue them for infringement and claim a massive amount of damages (£10m per use is suggested – quantum? What quantum?)

This procedure, it is claimed, “offers a greater level of protection” (than Witterick’s others) against those pesky debt collectors who have had the gall to ask you to pay back some money you’ve borrowed.  All that you need to do is “take control of your Uppercase/capitalised name or Strawman in Common Law and International Treaty” – whatever that means.

Apparently, this taking control just requires you to make a “Declaration of Copyright Trademark” whatever that may be.  Fortunately a quick Google search turns up a number of examples (alternatively you can sign up to Witterick’s website and get access to his own suggested wording for free (or £5 if you need it in a hurry)):

Declaration of Copyright Trademark.
I am known by the name: ©In-house: Hotshot, Creditor, Trustee, Secure Party, Author of the Copyright Name Trademark Claim autograph (IN-HOUSE HOTSHOT™) or any derivative thereof HEREBY ATTEST THAT, I am competent and capable of handling my private and commercial affairs in my full capacity as Agent for the name IN-HOUSE HOTSHOT™ and will enforce with prejudice any Copyright Name Trademark Claim infringements. ALL RIGHTS RESERVED

Now I’ve worked in trade mark and copyright law for a few years (well, long enough to know they’re not interchangeable terms anyway) and strangely this expertly drafted piece of prose has never come up in my studies or practice of IP law.

This may be because it is, in technical parlance, absolute bollocks.

While the freemen of wherever are correct to say that copyright and trade mark rights can arise without the need for registration, they cunningly gloss over the key requirements for each set of rights.

Photo by 917press, some rights reserved

Copyright protects “original literary, dramatic, musical or artistic works, sound recordings, films or broadcasts, and the typographical arrangement of published editions” (Copyright, Designs and Patents Act 1988, section 1) – see any mention of names there?  No, me neither.

More importantly, copyright will only apply to a work of “independent creative effort” where “sufficient skill and labour has been expanded in its creation” – and I’m sure mummy and daddy straw man put a lot of thought into choosing baby straw man’s name, but I doubt it can be considered a high level of skill and labour (bad birthing puns excepted).  And if they did, well, surely the copyright is theirs as original authors, no?

In case you were starting to have doubts, the UK IPO handily provides a note on its copyright pages that (perhaps Meltwater notwithstanding) “names and titles do not have sufficient substantiality to be original”.

So there is no way that you (or your parents) can own copyright in your name.  Unless your name is coincidentally the first twenty pages of Harry Potter and the Deathly Hallows (or any other literary work), and even then I think JK Rowling and Bloomsbury’s lawyers might want a quick word.

Photo by caitlinburke, some rights reserved

So what about trade marks?  We read plenty of news stories about how Lady Gaga (UK TM registration number 2509635), Sarah Palin (US TM registration number 4005353) and David Beckham (CTM registration number 1796721) have registered their names, and if a name can be registered as a trade mark, surely it can exist as an unregistered trade mark too and then you could base a claim for infringement on these rights?

Well no.  Unregistered trade marks can only be protected through the common law wrong of passing off.  To succeed in a passing off claim you need to show the mark is yours and then establish the ‘holy trinity’ of reputation, damage and confusion:

  • The mark is yours – well that’s easy, we have our beautifully erudite Declaration of Copyright Trademark which has been published in the local newspaper and pasted onto our Facebook page.
  • You have built up a reputation in the mark – simple, I’ve been using mine for twenty-seven years now and it’s what everyone from my girlfriend to HMRC know me as.  What renown!
  • Damage – well of course – you’re using this name as a way to try and get me to pay back the money I owe – that’s pure economic loss right there I’d say.

So success right?  Well no.  What about confusion?  In order to prove confusion you need to show that there has been a false representation to the public which has led them to believe that the goods and services of the defendant (i.e. the debt collection agency) are those of the claimant (our Mr Strawman©™ etc).

This therefore requires a connection between the trade of our straw man and the business of debt collection.  This seems unlikely, unless while resisting the repayment of his own debts he operates a business that has been pursuing others for repayment of their own.  That’s beyond even Morissettian levels of irony, but doesn’t scan nearly as well, or rhyme with “dontchathink”.

So you cannot rely on unregistered trade mark rights in your name (though they may exist) to stop the wretched debt collector from calling unless you yourself are a debt collector, who has himself  run up a debt, and you can establish that the debt collector pursuing you has confused you (as a consumer), or potentially the original lender (as a purchaser of debt collection services), into believing that they are actually you and not an independent, completely unrelated debt collection agency, despite (presumably) their use of their own trading name which is in no way similar to your own name, and their use of your name as a way of addressing letters to you.

And what are the chances of that?  Better or worse than rain on your wedding day if you are a weather forecaster, or a traffic jam when you, as chief town planner, are already late for a meeting about alleviating traffic congestion?

Anyway, I’ve mentioned before that Taylor Wessing have published a list of what they term “Dangerous Intellectual Property Myths” and I think that today has shown us that we can add another one to the list, possibly just after the damaging reliance on ‘poor man’s copyright’:

“Because copyright and trade mark rights can exist without registration, all I need to do is say my name is eligible for copyright protection and is also a trade mark and it is so”

Sadly in this case it isn’t true, as Shakespeare almost said, that nothing is either eligible or ineligible for extensive IPR protection, but thinking makes it so.