I have two problems with your argument.
Firstly, where does this leave the boundary between journalism and espionage? If the answer is the first releases the information to the whole world, but the second only releases to another state, then clearly the information being imparted in both cases has different ethical values. The damage done to the NSA by Edward Snowden's public release is exactly the same as if he had just handed it straight to the Russians, or the North Koreans. Do you value your country's security so little that you can justify the one while also accepting that it leads to the same outcome as the other?
My second problem is that you seem to treat all journalism as being equally worhy of some special protection. You will be aware that we in the UK have had over a decade of mass criminality perpetrated by so-called journalists working for some of our largest circualtion dialy newspaper, including burglary, phone hacking and bugging, just to get a few salacious stories about some celebrities. Does that meet your high ethical standards of investigative journalism and if it does, do you therefore condone such behaviour when the motivation is just to sell a few more copies?
Glyn's article implies that the copyright issue was highlighted by the interviewee, Giulia Carla Rossi, in the Guardian article, and that this was viewed as an impediment to the work of the British Library. Not so. The issue of copyright was not mentioned. And for a simple reason. Under UK copyright law it is permissible to copy and decompile software for the purpose of making other software which can oerate with it, such as emulators - see section 50B of the Copyright Designs and Patents Act 1988, as amended. Furthermore section 50C specifically allows a program to be modified in certain circumstances: "(2) It may, in particular, be necessary for the lawful use of a computer program to copy it or adapt it for the purpose of correcting errors in it."
And these two provisions cannot be negated by terms in the software EULA - see section 296A.
The one factor which doesn't apply to users in the USA (some would say correctly), is that in other parts of the world, principally Europe and those countries whose copyright law developed out of European law (like the former colonies of France, Portugal, Spain etc) is the moral right to a credit for the creator of the work.
By linking to a specific image (etc), whether the end result is hotlinking or embedding, it is possible, indeed probable, that any adjacent credit text will not appear with the image and thus any right to a credit is lost.
As is well known, the USA has steadfastly refused to fully implement its obligations under Berne to protect the moral rights of creators (except for the limited exception of VARA) so this immediately polarizes the discussion as far as European creators are concerned.
It is perhaps ironic that since the Europen Union itself has never been able to incorporate (harmonize, in their jargon) moral rights into their copyright legislation due to the wildly differing stances which exist in the member states over the issue, the CJEU shied away from considering this aspect when it gave its opinions in the seminal cases of Svensson, Bestwater and GS Media.
But database right is a thing within the EU and UK. There, it is not a matter of creativity but instead the expenditure of resources (time, effort, money) (somewhat akin to the concept of sweat of the brow) in compiling the database.
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:31996L0009&from=EN
I would go further and say there are no countries "which allow you to put your works directly in the public domain". Certainly no country which is a signatory to the Berne Convention (all 181 of them). Legally speaking, since copyright comes into being automatically once the work has been created, it cannot be renounced. A CC or similar licence provides to only legal route out of this lacuna. Possibly the AC has in mind that is some jurisdictions copyright cannot be assigned and remains the property of the author and their legal heirs. This is certainly true with moral rights.
I think there is way too much confusion caused by mixing references to the 'public domain' and to open licensing systems such as Creative Commons. They are not synonymous. The public domain has no legal definition. In contrast a CC license has legal validity alongside any other type of license.
The truly difficult case is that which occurs when an author effectively abandons his/her work without applying an open license.The default then has to be that the author's rights remain fully intact for their lifetime and 70 years thereafter, even if that is the opposite of their intention.
I appreciate that BestNetTech can never miss an opportunity to bash copyright and its most ardent protectors, but where is the evidence that BigCopyright tried to block or water the EU Orphan Works Directive?
Almost by definition a work owned by a film studio or record comapny willl not meet the definition of 'orphan' since not only will the name of the copyright owner be known, it is highly likely that the current location of the owner will also be known.
What has made the EU approach to Orphan Works licensing such a dismal failure is the excessive EU bureaucracy. Take for example the lists of sources which in some cases need to be checked before a diligent search can be declared to have taken place. In the German implementation of the Directive there are 229 sources listed. This makes it very time consuming and expensive to conduct a diligent search.
It is worth noting that, as the report itself acknowledges, the departure of the UK from the EU seriously reduced the numbers of licensed works by around a third. Furthermore, for some vague reason the report uses the figure of 7,597 works, whereas in June 2020 (ie before Brexit) the database at the EU IPO contained 18,649 entries.
Perhaps one of the main criticisms of the EU Directive (as opposed to the UK's own domestic orphan works licensing scheme) is that the EU Directive exluded all artistic works including photographs. This means that many museums and art galleries cannot use the system to digitize their large collections of art and early photographs by unknown authors. This taken together with the fact that projects like Google books, Gutenberg and Hathii Trust have already digitized a good deal of older European fiction and non-fiction, means that there has been far less emphasis within the EU on making orphan literary works available.
They are just trying to go down a road that the Italians have already travelled: https://ipkitten.blogspot.com/2022/10/uffizi-museum-sues-jean-paul-gaultier.html
"For our part, we have found no case establishing the historical availability of audio recordings of court proceedings when a party can attend a trial, receive a transcript, and request the right to record the proceedings themselves. We are not the only court to come back empty-handed in this regard."
I suggest the bench in this particular appeal should consider returning to law school and re-sitting the module on the common law. The absence of any relevant precedent concerning an issue is no bar to the court creating a precedent if it feels that is warranted by the facts in the case they are hearing. How do they think precedents come about, via some sort of justice fairy?
maximalism is the philosophy or end state espoused by maximalists; maximalis/zation is the process by which it is achieved. cf capitalist, capitalism and capitalisation. I suspect we live on different sides of the Atlantic hence we may differ in the use of our shared language.
Raziel is entirely correct.
No-one infringes copyright by visting a website and reading what's there; similarly someone who knows the foreign language which is in use on a site and translates the contents in his head, does not infringes copyright. Translation software used in the same context is exactly the same.
However pumping the contents of the latest French blockbuster novel through translation software and then publishing the English version without permission would infringe copyright, but the same would apply if a human translator did that, so no change in the law there.
Any one doing the the latter deserves whatever the law throws at them, and that isn't maximalisation, it's the current situation.
Taking a more real world example, any website which republished verbatim the whole front page of Le Monde would infringe copyright regardless of whether they translated it into English or left it in the original French.
The Internet Archive suggestion is entirely sensible and legal. The same would apply to other archives dedicated to preserving cultural heritage. Section 75 of the Copyright Designs and Patents Act 1988 specifically permits this:
"75 Recording of broadcast for archival purposes
(1) A recording of a broadcast or a copy of such a recording may be made for the purpose of being placed in an archive maintained by a body which is not established or conducted for profit without infringing any copyright in the broadcast or in any work included in it.
(2) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable."
Incidentally, Section 70 of the same Act makes the home recording itself legal. However this section does not allow the recording to be exploited, even for free, by the home user.
We are going somewhat off topic here, but I still fail to see how your proposal that a work has to be first registered before it can gain international recognition is an improvement on what Berne (and the UCC, WIPO Copyright treaty etc) already achieves. Articles 3 and 5 of Berne specifically apply the kind of reciprocal protection, right to royalties etc that you advocate, without requiring pre-registration. Indeed a French (for example) author who finds one of their works is being infringed in the USA can file a claim in the US without first having to register their work with the US Copyright Office, unlike a US citizen who wants to bring a claim there. This is the result of the USA having to apply the no formalities requirement of Berne to non-US citizens.
As you know trademarks and patents continue to operate solely within individual national territorial limits in much the same way as copyright did pre-Berne, but despite the obvious commercial advantages of a worldwide treaty for mutual recognition of patents and trademarks, virtually nothing has been done to bring this about. It is doubtful if we were starting from scratch today whether the nations would be able to achieve for copyright what Berne currently does.
I know you guys were pretty dismissive of Berne, and even spoke about the nuclear option of the US leaving Berne, but Daniel is wrong to say at 37.29 that the Berne Convention allows formalities. Article 5(2) expressly rejects formalities. The reason the USA gets around this currently is because the registration requirement only applies if a person wishes to commence a legal action in the Federal courts. The underlying copyright exists ab initio.
But that whole discussion of Berne missed the point that if the USA was to leave Berne (and by extension TRIPS and the WIPO Copyright Treaty) works produced in the US would no longer attract reciprocal protection outside the US unless bilateral treaties were created. Given the amount of time the USTR spends ensuring that international treaties come up to the level of protection demanded by Hollywood etc, I can't see that working too well.
According to this lawyer, the new CEO of Hertz has admitted they have a problem and says it is his top priority to fix it: https://www.youtube.com/watch?v=oOD9qAQ7wYE
You guys need to stop seeing this particular issue from the American point of view of copyright as an economic bargain between the artist and the public interest. The majority of European countries (less the UK and Ireland) put the honour of the artist at the heart of their concept of author's rights, hence their emphasis on moral rights, which US law chooses to barely acknowedge. It's an apples and pears situation.
And in any case, despite the references in Glyn's piece to copyright, public domain etc, this is all about who can control access and nothing at all to do with either copyright or moral rights as legal or ethical concepts.
Two problems
I have two problems with your argument. Firstly, where does this leave the boundary between journalism and espionage? If the answer is the first releases the information to the whole world, but the second only releases to another state, then clearly the information being imparted in both cases has different ethical values. The damage done to the NSA by Edward Snowden's public release is exactly the same as if he had just handed it straight to the Russians, or the North Koreans. Do you value your country's security so little that you can justify the one while also accepting that it leads to the same outcome as the other? My second problem is that you seem to treat all journalism as being equally worhy of some special protection. You will be aware that we in the UK have had over a decade of mass criminality perpetrated by so-called journalists working for some of our largest circualtion dialy newspaper, including burglary, phone hacking and bugging, just to get a few salacious stories about some celebrities. Does that meet your high ethical standards of investigative journalism and if it does, do you therefore condone such behaviour when the motivation is just to sell a few more copies?
Glyn's article implies that the copyright issue was highlighted by the interviewee, Giulia Carla Rossi, in the Guardian article, and that this was viewed as an impediment to the work of the British Library. Not so. The issue of copyright was not mentioned. And for a simple reason. Under UK copyright law it is permissible to copy and decompile software for the purpose of making other software which can oerate with it, such as emulators - see section 50B of the Copyright Designs and Patents Act 1988, as amended. Furthermore section 50C specifically allows a program to be modified in certain circumstances: "(2) It may, in particular, be necessary for the lawful use of a computer program to copy it or adapt it for the purpose of correcting errors in it." And these two provisions cannot be negated by terms in the software EULA - see section 296A.
The one factor which doesn't apply to users in the USA (some would say correctly), is that in other parts of the world, principally Europe and those countries whose copyright law developed out of European law (like the former colonies of France, Portugal, Spain etc) is the moral right to a credit for the creator of the work. By linking to a specific image (etc), whether the end result is hotlinking or embedding, it is possible, indeed probable, that any adjacent credit text will not appear with the image and thus any right to a credit is lost. As is well known, the USA has steadfastly refused to fully implement its obligations under Berne to protect the moral rights of creators (except for the limited exception of VARA) so this immediately polarizes the discussion as far as European creators are concerned. It is perhaps ironic that since the Europen Union itself has never been able to incorporate (harmonize, in their jargon) moral rights into their copyright legislation due to the wildly differing stances which exist in the member states over the issue, the CJEU shied away from considering this aspect when it gave its opinions in the seminal cases of Svensson, Bestwater and GS Media.
AirTags are for losers
Databases
But database right is a thing within the EU and UK. There, it is not a matter of creativity but instead the expenditure of resources (time, effort, money) (somewhat akin to the concept of sweat of the brow) in compiling the database. https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:31996L0009&from=EN
I would go further and say there are no countries "which allow you to put your works directly in the public domain". Certainly no country which is a signatory to the Berne Convention (all 181 of them). Legally speaking, since copyright comes into being automatically once the work has been created, it cannot be renounced. A CC or similar licence provides to only legal route out of this lacuna. Possibly the AC has in mind that is some jurisdictions copyright cannot be assigned and remains the property of the author and their legal heirs. This is certainly true with moral rights.
Public domain vs CC license
I think there is way too much confusion caused by mixing references to the 'public domain' and to open licensing systems such as Creative Commons. They are not synonymous. The public domain has no legal definition. In contrast a CC license has legal validity alongside any other type of license. The truly difficult case is that which occurs when an author effectively abandons his/her work without applying an open license.The default then has to be that the author's rights remain fully intact for their lifetime and 70 years thereafter, even if that is the opposite of their intention.
Location Stats vs VPNs
"72% of our visits were from the US, with 6% from the UK and 5% from Canada." Not sure how reliable these stats are in these days of VPNs.
I appreciate that BestNetTech can never miss an opportunity to bash copyright and its most ardent protectors, but where is the evidence that BigCopyright tried to block or water the EU Orphan Works Directive? Almost by definition a work owned by a film studio or record comapny willl not meet the definition of 'orphan' since not only will the name of the copyright owner be known, it is highly likely that the current location of the owner will also be known. What has made the EU approach to Orphan Works licensing such a dismal failure is the excessive EU bureaucracy. Take for example the lists of sources which in some cases need to be checked before a diligent search can be declared to have taken place. In the German implementation of the Directive there are 229 sources listed. This makes it very time consuming and expensive to conduct a diligent search. It is worth noting that, as the report itself acknowledges, the departure of the UK from the EU seriously reduced the numbers of licensed works by around a third. Furthermore, for some vague reason the report uses the figure of 7,597 works, whereas in June 2020 (ie before Brexit) the database at the EU IPO contained 18,649 entries. Perhaps one of the main criticisms of the EU Directive (as opposed to the UK's own domestic orphan works licensing scheme) is that the EU Directive exluded all artistic works including photographs. This means that many museums and art galleries cannot use the system to digitize their large collections of art and early photographs by unknown authors. This taken together with the fact that projects like Google books, Gutenberg and Hathii Trust have already digitized a good deal of older European fiction and non-fiction, means that there has been far less emphasis within the EU on making orphan literary works available.
The Italians got there first
They are just trying to go down a road that the Italians have already travelled: https://ipkitten.blogspot.com/2022/10/uffizi-museum-sues-jean-paul-gaultier.html
"For our part, we have found no case establishing the historical availability of audio recordings of court proceedings when a party can attend a trial, receive a transcript, and request the right to record the proceedings themselves. We are not the only court to come back empty-handed in this regard." I suggest the bench in this particular appeal should consider returning to law school and re-sitting the module on the common law. The absence of any relevant precedent concerning an issue is no bar to the court creating a precedent if it feels that is warranted by the facts in the case they are hearing. How do they think precedents come about, via some sort of justice fairy?
maximalism is the philosophy or end state espoused by maximalists; maximalis/zation is the process by which it is achieved. cf capitalist, capitalism and capitalisation. I suspect we live on different sides of the Atlantic hence we may differ in the use of our shared language.
Raziel is entirely correct. No-one infringes copyright by visting a website and reading what's there; similarly someone who knows the foreign language which is in use on a site and translates the contents in his head, does not infringes copyright. Translation software used in the same context is exactly the same. However pumping the contents of the latest French blockbuster novel through translation software and then publishing the English version without permission would infringe copyright, but the same would apply if a human translator did that, so no change in the law there. Any one doing the the latter deserves whatever the law throws at them, and that isn't maximalisation, it's the current situation. Taking a more real world example, any website which republished verbatim the whole front page of Le Monde would infringe copyright regardless of whether they translated it into English or left it in the original French.
Reverse Passing-off has been a thing for over 20 years, so it's no giant leap to reverse confusion.
Neither Fair Use nor Fair Dealing apply here
The Internet Archive suggestion is entirely sensible and legal. The same would apply to other archives dedicated to preserving cultural heritage. Section 75 of the Copyright Designs and Patents Act 1988 specifically permits this: "75 Recording of broadcast for archival purposes (1) A recording of a broadcast or a copy of such a recording may be made for the purpose of being placed in an archive maintained by a body which is not established or conducted for profit without infringing any copyright in the broadcast or in any work included in it. (2) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable." Incidentally, Section 70 of the same Act makes the home recording itself legal. However this section does not allow the recording to be exploited, even for free, by the home user.
We are going somewhat off topic here, but I still fail to see how your proposal that a work has to be first registered before it can gain international recognition is an improvement on what Berne (and the UCC, WIPO Copyright treaty etc) already achieves. Articles 3 and 5 of Berne specifically apply the kind of reciprocal protection, right to royalties etc that you advocate, without requiring pre-registration. Indeed a French (for example) author who finds one of their works is being infringed in the USA can file a claim in the US without first having to register their work with the US Copyright Office, unlike a US citizen who wants to bring a claim there. This is the result of the USA having to apply the no formalities requirement of Berne to non-US citizens. As you know trademarks and patents continue to operate solely within individual national territorial limits in much the same way as copyright did pre-Berne, but despite the obvious commercial advantages of a worldwide treaty for mutual recognition of patents and trademarks, virtually nothing has been done to bring this about. It is doubtful if we were starting from scratch today whether the nations would be able to achieve for copyright what Berne currently does.
Berne convention
I know you guys were pretty dismissive of Berne, and even spoke about the nuclear option of the US leaving Berne, but Daniel is wrong to say at 37.29 that the Berne Convention allows formalities. Article 5(2) expressly rejects formalities. The reason the USA gets around this currently is because the registration requirement only applies if a person wishes to commence a legal action in the Federal courts. The underlying copyright exists ab initio. But that whole discussion of Berne missed the point that if the USA was to leave Berne (and by extension TRIPS and the WIPO Copyright Treaty) works produced in the US would no longer attract reciprocal protection outside the US unless bilateral treaties were created. Given the amount of time the USTR spends ensuring that international treaties come up to the level of protection demanded by Hollywood etc, I can't see that working too well.
Hertz CEO admits problem
According to this lawyer, the new CEO of Hertz has admitted they have a problem and says it is his top priority to fix it: https://www.youtube.com/watch?v=oOD9qAQ7wYE
This is NOT about copyright
You guys need to stop seeing this particular issue from the American point of view of copyright as an economic bargain between the artist and the public interest. The majority of European countries (less the UK and Ireland) put the honour of the artist at the heart of their concept of author's rights, hence their emphasis on moral rights, which US law chooses to barely acknowedge. It's an apples and pears situation. And in any case, despite the references in Glyn's piece to copyright, public domain etc, this is all about who can control access and nothing at all to do with either copyright or moral rights as legal or ethical concepts.
Irony, surely not?
And there are those who say that Americans don't get irony: <a href="https://www.law.cornell.edu/uscode/text/4/chapter-1">Title 4 USC chapter 1</a>