All Rights Reserved, A Copyright Relic; Above The Law, October 11, 2018

Krista L. Cox, Above The Law;

All Rights Reserved, A Copyright Relic

This language is no longer necessary for copyright. And yet, it persists.

"PSA: The phrase “All Rights Reserved” isn’t necessary today, but it does have historical origins.

In order to understand why “All Rights Reserved” isn’t legally necessary for copyright protection, it’s important to remember that the Berne Convention for the Protection of Literary and Artistic Works — which has 176 contracting parties — did away with formalities. The Berne Convention, which sets minimum standards for protections, provides automatic copyright protection — that is, copyright exists from the moment of creation and is not dependent on registration or notice. While formalities, like registration, might still be required in order to obtain certain remedies (for example, statutory damages in the United States), the existence of copyright is not dependent on such formalities. While notice is no longer required for works created today, it can still serve a useful purpose, for example, to provide information to users that the work is indeed under copyright protection and provide evidence in a copyright infringement case. “All Rights Reserved,” however, is more of an historical remnant."

The International Fight Over Marcel Duchamp's Chess Set; Atlantic, 9/8/15

Quinn Norton, Atlantic; The International Fight Over Marcel Duchamp's Chess Set:

"Often called Moral Rights, French creators and their heirs are entitled not only to remuneration, but a high degree of creative control on how their works are used or represented in the world. It was this idea, of controlling how the artist's creation is used by others, that brought the estate to issue their Cease and Desist against Kildall and Cera. Farcot is particularly interested in how 3D printing is influenced by the mishmash of Berne laws governing the world. I spoke with him while he was waiting on an Ultimaker print of toys he was giving children in an upcoming weekend workshop he was teaching.

“It’s not black or white,” Farcot said. “It’s not easy for the creators, Kildall and Cera, to... say they should go ahead, go to court and they will win easily.” Facing a ruinously expensive legal fight thousands of miles and an ocean away, Kildall and Cera backed down. They quietly removed the files from Thingiverse, and negotiated a resolution with Duchamp’s heirs.

If the case was too hard to fight in French court, it would have been almost too easy to fight in U.S. court, the jurisdiction that could affect the lives of Kildall and Cera. “So under U.S. law, the chess pieces are absolutely in the public domain... and a U.S. court won’t honor French moral rights. I don’t see any practical way for the Duchamp estate to sue over the 3D-printed chess pieces in a U.S. court,” said Mitch Stoltz, a senior staff attorney at the Electronic Frontier Foundation who specializes in intellectual property."

In a dark corner of the Trans-Pacific Partnership lurks some pretty nasty copyright law; Washington Post, 9/3/15

David Post, Washington Post; In a dark corner of the Trans-Pacific Partnership lurks some pretty nasty copyright law:

"The copyright issue relates to so-called “orphan works.” As a consequence of many factors — the absurdly long term of copyright protection [life of the author plus 70 years — see my comments here on the liberation of Sherlock Holmes, after a lo-o-ong time, from his copyright shackles], along with the elimination of copyright notice, or copyright registration, requirements as preconditions for copyright protection — there are literally millions upon millions of works — books, letters, songs, articles, poems . . . — created in the ’30s, ’40s, or ’50s that are (a) still protected by copyright, and for which (b) it is virtually impossible to ascertain who owns the copyright, or even whether the copyright is still in force...

The solution is pretty obvious — a true legislative no-brainer: Amend the Copyright Act to eliminate statutory damages for these orphan works. Surely even Congress can see how idiotic it is that this class of invisible rights holders can keep this treasure trove of information out of the public’s hands, and there has indeed been significant movement recently (including a Copyright Office proposal to this effect) toward just such a change.

So what does all this have to do with the TPP? I’m glad you asked. It appears that the latest version of the treaty contains, buried within its many hundreds of pages, language that could require the U.S. to scuttle its plans for a sensible revision of this kind.[I say that this “appears” to be the case, because, of course, the text of the TPP has not been revealed to the public, so all we have are leaked versions appearing from time to time on WikiLeaks.]...

These (and other — poke around at the KEI site for more evidence) copyright provisions in the TPP are pretty dreadful and continue the disturbing trend of making copyright bigger, longer and stronger just when public policy demands the opposite...

[And as an ironic footnote to all this, part of the reason we’re in all this mess, as I mentioned at the start, is that we no longer have a sensible regime for copyright notice and copyright registration. Why don’t we? Because of another international agreement, the Berne Convention on Literary Property, that we acceded to in 1989 (and which prohibits all “copyright formalities).”] We would have been much, much better off on our own on that one."

Supreme Court Upholds Law That Pulled Foreign Works Back Under Copyright; Chronicle of Higher Education, 1/18/12

Jeffrey R. Young, Chronicle of Higher Education; Supreme Court Upholds Law That Pulled Foreign Works Back Under Copyright:

"A professor lost his long legal fight to keep thousands of foreign musical scores, books, and other copyrighted works in the public domain when the U.S. Supreme Court ruled against him on Wednesday in a case that will affect scholars and artists around the country.

The scholar is Lawrence Golan, a music professor and conductor at the University of Denver. He argued that the U.S. Congress did not have the legal authority to remove works from the public domain. It did so in 1994, when the Congress changed U.S. copyright law to conform with an international copyright agreement. The new law reapplied copyright to millions of works that had long been free for anyone to use without permission.

The Supreme Court heard the case, Golan v. Holder, No. 10-545, last October, and in a 6-to-2 ruling on Wednesday, the justices upheld the changes in U.S. copyright law."

US Supreme Court Rules On Golan v. Holder, Key Public Domain Case; Intellectual Property Watch, 1/18/12

William New, Intellectual Property Watch; US Supreme Court Rules On Golan v. Holder, Key Public Domain Case:

"The United States Supreme Court today ruled on one of the top intellectual property legal cases expected this year. The case questioned whether the US Congress acted constitutionally when it restored copyright to millions of foreign works that had been in the public domain in the US. And it affirmed Congress’ actions, allowing the US to avoid questions of compliance with its international obligations.
The 18 January decision is here [pdf]. The justices ruled 6 to 2 in favour."

[Op Ed] Will Copyright Stifle Hollywood?; New York Times, 10/4/11

[Op Ed] David Decherney, New York Times; Will Copyright Stifle Hollywood? :

"The Supreme Court is scheduled to hear arguments today in Golan v. Holder, a case challenging the copyright provision of the 1994 act. There are many reasons the justices should conclude that Congress went too far in altering the copyright system."

For whom the net tolls; Guardian, 11/10/09

Cory Doctorow, Guardian; For whom the net tolls:

Rupert Murdoch wants to remake the web as a toll both, with him in the collector's seat, but the net won't shift to his will

"What, exactly, is Rupert Murdoch thinking? First, he announces that all of Newscorp's websites will erect paywalls like the one employed by the Wall Street Journal (however, Rupert managed to get the details of the WSJ's wall wrong – no matter, he's a "big picture" guy). Then, he announced that Google and other search engines were "plagiarists" who "rip off" Newscorp's content, and that once the paywalls are up (a date that keeps slipping farther into the future, almost as though the best IT people work for someone who's not Rupert "I Hate the Net" Murdoch!) he'll be blocking Google and the other "parasites" from his sites, making all of Newscorp's properties invisible to search engines. Then, as a kind of loonie cherry atop a banana split with extra crazy sauce, Rupert announces that "fair use is illegal" and he'll be abolishing it shortly.

What is he thinking? We'll never know, of course, but I have a theory...

Now, what about fair use being illegal? At a guess, I'd say that some Richelieu figure in Newscorp's legal department has been passing some evil whispers to Rupert about international copyright law. Specifically, about the Berne Convention – a centuries-old copyright accord that's been integrated into many other trade agreements, including the World Trade Organisation (WTO), and its "three-step test" for whether a copyright exemption is legal.

Copyright exemptions are all the rights that copyright gives to the public, not to creators or publishers, and "three-steps" describes the principles that Berne signatory countries must look to when crafting their own copyright exemptions.

Three steps limits copyright exemptions to:
1. certain special cases …
2. which do not conflict with a normal exploitation of the work; and …
3. do not unreasonably prejudice the legitimate interests of the rights holder.

Now, arguably, many countries fair dealing or fair use rules don't meet these criteria (the US rules on VCRs, book lending, cable TV, jukeboxes, radio plays, and a hundred other cases are favourite villains in these discussions; but many European rules are also difficult to cram into the three-steps frame). And I've certainly heard many corporate law mover-shakers announce that with the right lawsuit, you could get trade courts to force this country or that country to get rid of its fair dealing or fair use provisions.

But this view of international copyright lacks an appreciation of the subtleties of international trade, namely: big, powerful countries can ignore trade courts and treaty rules when it's in their interest to do so, because no one can afford to stop trading with them.

The US gets $1 trillion added to its GDP every year thanks to liberal fair use rules. If the WTO says that it has to ban video recorders or eliminate compulsory licenses on music compositions (or shut down search engines!), it will just ignore the WTO. The US is an old hand at ignoring the United Nations. The US owes billions to the UN in back-dues and shows no signs of repaying it. The fact that the WTO looks upon the US with disapproval will cause precisely nothing to happen in the American legislative branch.

And, if the WTO tries to get other countries to embargo the US, it will quickly learn that China and other factory states can't afford to stop shipping plastic gewgaws, pocket-sized electronics, and cheap textiles to America. And furthermore, other countries can't afford to boycott China – because those countries can't afford to allow a plastic gewgaw and cheap textile gap to emerge with America.

Of course, the elimination of fair use would present many problems to Newscorp – because, as with all media companies, Newscorp relies heavily on copyright exemptions to produce its own programming. I'm sure that if there's a lawyer who's put this idea into Rupert's head that she knows this, but I'm likewise sure that she's perfectly willing to expand the legal department to the thousands of lawyers it would take to negotiate permission for all those uses if fair use goes away. Especially if all those lawyers report to her.

That's my theory: Rupert isn't a technophobic loon who will send his empire to the bottom of the ocean while waging war on search engines. Instead, he's an out-of-touch moustache-twirler who's set his sights on remaking the web as a toll booth (with him in the collector's seat), and his plan hinges on a touchingly naive approach to geopolitics. Either way, old Rupert shows every sign of degenerating into a colourful Howard Hughes figure in a housecoat, demanding that reality shift to his will."

http://www.guardian.co.uk/technology/2009/nov/10/rupert-murdoch-charging-for-internet