The Photographer of the Westminster Omnibus

Now and again an intellectual property case will result in a decision that causes considerable head scratching within the IP profession. Perhaps more commonly these days such a decision will cause wider confusion and outrage in the online community, especially those parts of it which espouse a sceptical attitude towards IP. In Temple Island Collections v New English Teas [2012] EWPCC 1 HHJ Birss of the Patents County Court seems to have achieved the impressive feat of delivering a judgment that does both.

The case concerned a photograph showing a red double-decker London bus against a monochrome background of the Houses of Parliament. Skimming slightly over earlier litigation, the defendant had declined to licence the claimant's image and instead had sought to arrange a version taken independently. The claimant then asserted that the second version of the image infringed its copyright in the original. HHJ Birss held that it did, even though the second image was a recreation rather than a copy as such of the first.

To say that this decision has caused consternation would be putting it mildly. Reports on the case at sites such as Amateur Photographer and Boing Boing have seized upon the idea that somehow this judgment will stop photographers from taking pictures that replicate any prior similar image and it has been characterised as a precedent that will result in a monumental rights–grab by the owners of large photographic portfolios. Within the profession the response has been somewhat more muted but nonetheless respected commentators have expressed some concern and surprise at the decision. In particular, as Jane Lambert explains in an excellent post at NIPClaw, it seems at first sight hard to reconcile the decision in this case with that of Mr Justice Floyd in Creation Records v News Group Newspapers [1997] EWHC Ch 370. A measure of the interest that this case has given rise to is seen by the way that the 1709 Blog has organised a seminar on the case within weeks of judgement being handed down and to be addressed by leading Counsel for the claimant.

To take the more alarmed views first, it would perhaps have helped if some of the commentators on the case had taken the trouble to read the judgment. HHJ Birss goes to considerable effort to explain how narrow his decision actually it is. To begin with, there is no suggestion that if two people standing next to one another take the same photograph the one who pressed the shutter momentarily later will somehow be infringing the copyright in the photograph taken earlier. Copyright infringement requires copying, and although such copying maybe indirect or even unconscious it is still necessary to show a causal link between the original work and the allegedly infringing copy.

But what about the suggestion that this decision means that any photograph of a bus on Westminster Bridge with the Houses of Parliament in the background infringes the copyright in Temple Islands' image? After all, there are plenty of earlier such photographs. This issue was addressed by HHJ Birss at paragraphs 17 to 29 of his judgment. To somewhat paraphrase the judge’s argument, where a picture is taken of a commonly-photographed scene then, although that picture will no doubt enjoy copyright, the only aspects of that picture whose copyright might be infringed by another, similar image are those where the photographer has achieved originality.

As he explains at paragraph 22 such originality may arise from technical skill in photography (e.g. composition), the staging of a particular scene or from the simple fact of being in the right place at the right time. In other words, although a commonplace photograph will be protected by copyright against simple copying, if there is nothing distinctive about it in comparison with other, similar photographs then there is no copyright in anything distinctive and original that will be infringed by someone taking yet another similar photograph. But if the photograph shows original elements then those elements will be protected by copyright against specific imitation.

As such, neither casually snapping tourists nor enthusiastic photographers need worry about being sued for copyright infringement if they happen to take a photograph of a bus in front of Parliament. HHJ Birss found here that the claimants had a photograph with identifiable specific original features; as he explains at paragraphs 51 to 54 there are particular elements of composition and visual processing that he found to be original in that image. On that basis, given that it was clear from the facts that the defendant had set out to recreate the claimant's image there was a clear causal link between the two and the original elements of the first image had been reproduced in the second. The defendant's image thus infringed copyright in the claimant's.

Put that way the decision seems less unreasonable and the more dramatic claims of what it might prevent clearly have no basis in fact or law. But nonetheless the decision does still give rise to concerns, some legal and some practical. In particular, how does one reconcile it with Creation Records?

Creation Records involved the unauthorised photography of a temporary arrangement of items set up for the cover of a new album by Oasis. The allegedly infringing image was taken by a photographer who had inveigled himself into the main photo session and it was taken alongside the “original" image. As explained at paragraph 3 of Mr Justice Floyd's judgement the unauthorised photographer was standing some 15 to 20 feet to the left of the official one and they were both taking photos at the same time. The question of whether the unofficial photograph infringed the official one was dealt with by the judge very quickly at paragraph 15:

“Next, Mr Merriman contended that Mr Seeburg's photograph was itself a copy of the official photograph taken by Mr Jones, regardless of the order in which the two were taken. I do not see how that can be argued. If the subject matter is not itself copyright, in principle two different photographers can take separate photographs of the same subject without either copying the other. Of course copyright subsists in the official photograph and if it were the only source of the scene it would be an infringement to copy that, either by a direct copying process or by the scene being recreated and a fresh photograph taken of that recreation. But it is a basic proposition of copyright law that two works created from a common source do not by reason of that fact involve copying one of the other, however similar they are. Nothing in Bauman v Fussell [1978] R.P.C. 485 is inconsistent with this.”

The judge’s reference to Bauman v Fussell relates to a case where a painter painted a picture inspired by a photograph, in which it was held that the painting – not a direct copy – did not infringe the copyright in the original photograph. What is more of note is that Mr Justice Floyd specifically addresses the situation where a photograph is restaged and retaken and holds that this is equivalent to direct copying.

It is therefore clear that the situation in Creation Records is rather different to that in Temple Island. This was not the re-enactment or restaging of a photograph but rather an example of simultaneous taking of pictures. Indeed, if one goes on to read the full judgement in Creation Records the bulk of the legal argument was taken up either by attempts to establish that the staged scene being photographed somehow enjoyed its own copyright (unsuccessful) or that there was a duty of confidentiality breached by the unofficial photographer (successful). Although superficially similar in that they both involve one photograph alleged to be a copy of the other, the manner in which the second photograph came about is quite different in the two cases and there is in fact little in Creation Records relevant to Temple Island beyond dicta that actually supports HHJ Birss’ decision in the latter. Indeed, it may be that this was such common ground between the parties and so obvious to the judge that neither he nor counsel thought it necessary to refer to Creation Records, hence explaining its apparently surprising omission from the judgement.

HHJ Birss’ decision thus appears to be legally sound, or at the very least not in conflict with well-established law in the area. But that doesn't mean that it's not problematic. Even on the relatively narrow application that I have outlined above it is still possible to see how a photographer could find himself or herself facing threats of legal action over a seemingly commonplace image.

I am a moderately keen photographer myself and I own a number of books on the subject. Many photographic books and courses clearly aim to teach techniques that involve some level of imitation of the styles and methods of established photographers. For that matter, if as an aspiring photographer you see a particularly striking image it is natural to want to work out how it was taken and to seek to replicate it, or at least some of the more interesting and novel aspects of it.

I can provide a personal example of this. Consider the photograph below, of the Forth Rail Bridge. I consider it to be one of my better photographs and indeed it is by far and away the most heavily viewed picture on my Flickr account; it is also the only picture that anybody else has ever asked to use.



I was inspired to take the picture after I saw similar images in photographic shops in and around Edinburgh. The bridge was shown at or near sunset and the sea had an unusual, almost misty effect that I recognised as being achieved through a long exposure. I thought it would be interesting to try to replicate these elements of the images so I went down to South Queensferry, set up my tripod near the south end of the bridge, and using a graduated neutral density filter I took a number of photographs. After some effort with Photoshop to clean the pictures up and correct the colour I achieve the results above. I don't think that it is perfect; it is not quite as sharp as I would like and would not stand much enlargement, and given the date at which I took it the bridge itself is festooned with scaffolding. But I could not deny that there was a causal link between it and the earlier photographs that had inspired me. Were there a single, specific image with these qualities that it could be shown I had set out to replicate, then on the basis of Temple Island I would be held to have infringed its copyright.

If the decision in Temple Island was such as to deter photographers like me from carrying out such exercises for fear of liability for copyright infringement then I would be concerned at the effect upon the hobby. Photography is in large part a skill that you learn through practice and imitation and I would not want to think that photographers seeking to develop their skills might be deterred from doing so. As a lawyer I am aware that in practice it is commercial exploitation that is likely to attract legal attention but the forthcoming reforms to IP litigation procedure following the Hargreaves Report will substantially lower the barrier to this. Although I am generally very much in favour of the forthcoming Small Claims track for copyright disputes – I know several photographers who until now have had little recourse against blatant copying and commercial reuse of their images – I would be worried if it led to a spate of threats of proceedings in respect of what one might term innocently imitative images.

A tempting target, but a dubious tactic

A few days ago a friend retweeted a link to a campaign that took an unusual approach to expressing distaste at The Sun's campaign against benefit fraudsters.

Pride's Purge - Help Fight Back Against Murdoch’s Benefit ‘Scroungers’ Hotline

The blog's author, Tom Pride, is encouraging people to report 'fat-cat bankers' to the Sun email hotline. Or, more specifically, he is encouraging people to do this so much that the hotline is overwhelmed:

"Simply by repeatedly sending as many emails as possible with the names of scrounging bankers who have used taxpayers money to pay themselves massive bonuses, the hotline can be crashed."

Now I have no love for the Sun - about the only good thing I can say for it is that it is not quite as revoltingly toxic as the Daily Mail. But I do have a concern about Tom Pride's campaign, because it is encouraging people to break the law. My particular worry is that most people who like the look of this and feel tempted to join in probably won't have any idea that this is, in fact, illegal.

When the Computer Misuse Act 1990 was originally enacted its Section 3 created the offence of 'unauthorised modification of a computer'. The intent was clearly to create an offence of hacking, but as time went on it became clear that a computer might be attacked in a manner that was not obviously 'unauthorised modification'. In particular, Denial-of-Service (DOS) attacks were, some commentators suggested, not caught by s.3. Matters came to a head in 2005 when David Lennon carried out a mail-bombing attack on the email server of Domestic & General plc. At his trial Mr Lennon's defence was that his actions had not been unauthorised, because an email server is specifically intended to receive emails, so he had done nothing to it that he had not implicitly been authorised to do. The judge struck out the case against Mr Lennon on this basis, but the Director of Public Prosecutions appealed and so the Court of Appeal considered the meaning of s.3 CMA 1990. Mr Justice Jack, in giving the Court's judgment that the prosecution should continue, considered that the authorisation had implied limits:

"I agree, and it is not in dispute, that the owner of a computer which is able to receive emails is ordinarily to be taken as consenting to the sending of emails to the computer. His consent is to be implied from his conduct in relation to the computer. Some analogy can be drawn with consent by a householder to members of the public to walk up the path to his door when they have a legitimate reason for doing so, and also with the use of a private letter box. But that implied consent given by a computer owner is not without limit. The point can be illustrated by the same analogies. The householder does not consent to a burglar coming up his path. Nor does he consent to having his letter box choked with rubbish. That second example seems to me to be very much to the point here. I do not think that it is necessary for the decision in this case to try to define the limits of the consent which a computer owner impliedly gives to the sending of emails. It is enough to say that it plainly does not cover emails which are not sent for the purpose of communication with the owner, but are sent for the purpose of interrupting the proper operation and use of his system."

Even before the Court of Appeal had given its ruling though, Parliament was already planning to revise the CMA to close this loophole. The Police and Justice Act 2006 amended s.3 CMA 1990 so that the offence it created was instead one of an unauthorised act impairing a computer's operation. No longer was in necessary to show that there had been some change made to a computer; it is now enough to show that the computer, even if doing what it was intended to do (e.g. receive emails) has been impaired in that function. The amendment also extended the offence to include reckless, as well as deliberate, impairment. So, both by statutory amendment and by case law (Lennon) it is now clear that mail-bombing a mail server to the extent that it is no longer usable is a criminal offence (and other forms of DOS attack, including distributed DOS, are similarly offences.)

What this means, I'm afraid, is that fun though it may be to suggest burying the Sun hotline in irate email, it's actually against the law to do this. It's directly illegal to send such emails, although to be pragmatic the likelihood of prosecution for sending a particular email is pretty low. (I wouldn't be so sanguine if anyone used a mail-bombing app, though.) It's also illegal, under the long-standing rule against 'aiding, abetting, counselling or procuring an indictable offence', to encourage other people to do this - as, it seems, the blog author here has. (In the comments to the post, Tom Pride says this isn't a DDOS attack. With respect, as I've tried to explain here, in the eyes of the law it is.)

As the two young men who tried to organise riots via Facebook found, it's very easy to get into a lot of trouble by saying something online. There's a good argument that it's far too easy, as Paul Chambers found out in the ongoing saga of the Twitter Bomb Joke trial. But as it is, it's worth pausing for thought - and perhaps a check of the law - before seeking to unleash the wrath of the Internet on a target, however deserving it may seem.

SCL Conference 2011-Day 2

Balancing risk in outscoring contracts -Mark Crichard, Andrew Collyer, Richard Bligh. Interesting comments on and insights into some of the complexities of developing outsourcing contracts. To what extent has the Centrica case made it necessary to clearly specify what will be considered as direct and indirect losses? Do customers understand the difference between losses that are indirect and those that are simply remote? And how do you cater for customers who want to outsource but to host their data and services on their own systems? (A: with carefully worded exclusion clauses, so it seems.)

Social Media: strategy for business - Gillian Cordall, Nina Barakzai, Chris Reed. How to best use social media? Engage with customers by talking not just about yourself but about developments potential clients are interested in. Dangers of getting it wrong, e.g. recent Toyota social marketing lawsuit - over-focussed campaigns may damage your reputation with other customers. And who 'owns' the contact list for successful social media - the front face of the media, or the employer?

Social media strategy can be reactive and responsive, e.g. Dell's 'Global Listening' - engage with commenters and respond. Does work better if you have the resources to monitor, filter and resound to social media, but for a well-known brand can have significant impact!
It's important to have clear policies and codes of conduct (especially re transparency) and to comply with relevant laws. Above akk, you have to engage, not just broadcast.

Litigation: the cancer of disclosure - Ben Rooney, Alexander Carter-Silk, Edward Rippey, Kim Lars Mehrbrey. A US, English and German lawyer walk into a bar discuss discovery/disclosure. US discovery can take years and cost millions, but you go into a case knowing pretty much everything. German civil law barely has disclosure: parties present their case based on what documents they choose. English disclosure is very much based on proportionality, albeit subject to the risk of costs penalties for improper disclosure. Which is 'best'? Modern search tools make it almost impossible for someone to convincingly hide evidence, but can this lead to over-enthusiastic searching and excessive preparation costs. We are also seeing forum-shopping, as litigants look for the jurisdiction with the disclosure regime most favourable to their case.

SCL Conference 2011 - Day 1

I'm at the Society for Computing and Law's 2011 Conference in Bath, with the theme of New Technology v High Risk. I'll aim to blog updates on the sessions as we go along, so refresh for details.

Technology, Risk and Law - Dr Andrew Martin, University of Oxford.
A heartfelt plea for professionalism in the IT industry, in the context of properly understanding what risk is and what technology can and cannot do. Andrew Martin observed how we are increasingly reliant on security entities we have no knowledge of (eg certification authorities) and, with more and more of our household devices not only being connected to the Internet but having multiple sets of our credentials, this poses risks of security failures it is hard to be aware of, let alone properly quantify. He put forward three wishes for the genie that we have let out of the bottle: better technology, in the sense of understanding and removing vulnerabilities; more realism as to what IT can and can't do; and more focus on reliability and robustness in place of pushing the state of the art.

Cyber-crime - Prof Ian Walden (QMUL), Det Sup Charlie McMurdie (Met Police), Neil Hare-Broom (QCC Forensics)
Cyber-crime is getting more sophisticated; we are seeing seized PCs with over a dozen virtual machines, or more than 8TB of data to be examined. Some suspects have literally dozens of online IDs. The problem is made worse by the declining effectiveness of anti-malware protection, the growing pressure (from economy and convenience) for businesses to allow use of employee devices for work, and the jurisdictional challenges of cloud computing. The panel couldn't offer a simple answer, with views from "it can only get worse" to "we have to do what we can to help ordinary users and shouldn't just accept that this happens". Again, the question of how much we accept poor reliability in software came up - should we extend consumer protection law to cover the quality of software security? Ditto for enforcing pervasive use of encryption to protect payment details. Interestingly, the police officer was wary of adding more and more laws, on the basis that threats of prosecution can deter reporting - carrots are better than sticks.

Dropbox Terms of Service not actually that evil

There's an old saying that there's no such thing as bad publicity, but I'm not sure that Dropbox believe that right now.

It was embarrassing enough a couple of months ago when in response to security concerns Dropbox had to concede that their much-vaunted claim for totally secure encrypted hosting of data via the cloud wasn't quite as totally secure as most people assumed. Dropbox's explanation made sense - in order to allow web-based access, they need the ability to decrypt user files - and they reiterated assurances that there were procedural safeguards against their staff snooping such content. But trust in Dropbox took a dent.

Nothing like the dent it took the other week though, when a technical glitch left all Dropbox accounts open to access for several hours. Dropbox management were at least quick to concede fault and to advise users to check their account logs for unexpected activity, but this incident seriously tarnished Dropbox's reputation.

Which is probably why Dropbox are now in the news again, following a recent revision of their Terms of Service. When you've heard two lots of worrying news about a company, it's easy to believe the worst when a third story comes along. Now, ToS of cloud service providers are a particular interest of mine, so as a somewhat concerned Dropbox user myself I was keen to see whether there was genuine cause for concern.

What Dropbox have done is to make a generally admirable attempt to make their ToS as comprehensive, open and at the same time easy to understand as possible. I can well imagine why, in light of recent problems, they'd want to do this, although it's a difficult balancing act to try to achieve at the best of times. As Facebook found out, with its infamously longer-than-the-US-constitution privacy policy, detail and readability don't always go together. But having said that I think Dropbox have made a pretty good attempt at it, and their revised ToS are certainly a lot more concise and accessible than many I've had to review.

The particularly contentious part comes under the heading Your Stuff and Your Privacy. It says:

We sometimes need your permission to do what you ask us to do with your stuff (for example, hosting, making public, or sharing your files). By submitting your stuff to the Services, you grant us (and those we work with to provide the Services) worldwide, non-exclusive, royalty-free, sublicenseable rights to use, copy, distribute, prepare derivative works (such as translations or format conversions) of, perform, or publicly display that stuff to the extent reasonably necessary for the Service. This license is solely to enable us to technically administer, display, and operate the Services. You must ensure you have the rights you need to grant us that permission.

Is this a massive rights-grap by Dropbox? Well, no. This particular term is very common in cloud, blogging and social-networking services. It arises because in any cloud-based service the provider has to copy your data in order to store it and make it available, and indeed has to publish it if you share that data with friends or the world at large. Whilst there are good legal arguments that you are implicitly granting Dropbox (or any other provider) permission to do this by the act of signing up to the service, for entirely understandable reasons Dropbox prefer to make it clear in your user agreement that this is what they're going to do, and that you the user are happy with it. As one of the comments to the Slashdot story I linked to explains, the scary-looking language is actually quite reasonable given how the service is used:

Worldwide = Dropbox provide a globally-available service.

Non-Exclusive = Dropbox can't and don't prevent you from licensing your data in other ways.

Royalty-Free = You won't charge us for this!

Sublicensable = Dropbox need to allow technology partners to copy your data too.

The caveats in the terms make it clear that Dropbox are invoking this licence only for the purposes of providing the service to users. In that respect it's narrower than, say, Facebook's corresponding term (here, clause 2.1), which sets no limits on the use Facebook may make of data that you share online.

What I know has concerned some people though is the rider at the end of Dropbox's clause about 'You must ensure you have the rights you need to grant us that permission.' Does this mean that you can only store content on Dropbox if you either created it or have licensed it on terms that allow you to copy it?

I think that the practical answer to this is that you are probably fine so long as you don't go beyond the implied scope of what you are supposed to do with the material in question. To take an example, I quite often use my Westlaw access to download a case report or journal article. Westlaw give me the option to email it to myself - an activity which necessarily creates transient and, via webmail, not-so-transient copies of the copyright work in question. But nobody else has access to those, and they are incidental to my approved use of the service. I consider that saving such reports or articles to my Dropbox folder is equally legitimate. What would not be legitimate is sharing or publishing links to them - that would be outside the scope of what Westlaw is letting me use the service for.

In a similar vein, just because Dropbox is in a very technical sense 'publishing' your content back to you when you view it via a web interface, that is not what I, or anyone, would normally regard as 'publishing'. If you store the manuscript of your novel on Dropbox, you aren't publishing it by doing so; indeed, you still aren't even if you share it with a circle of test readers. As such, you're not breaking any exclusivity clause with your actual publishers by doing so.

There's a lot of concern about the security of cloud and social networking services and the fine detail of what can be found in their ToS (often with very good reason). However, if you do find a scary-looking clause, look to see if it's a common one, and if so find out what it actually means. It may well be a lot less alarming than you might at first think.

And it's going to be a Trilogy!

I started this blog with a post about Lucasfilm v Ainsworth, and just over a year ago I discussed the appeal, in which Mr Ainsworth - former prop-maker for the original Star Wars and now manufacturer of replica Stormtrooper attire - had not only maintained his victory on the copyright points but had overturned the decision that Lucasfilm's US judgment was enforceable against him. I felt at the time that there was every prospect of the case going all the way to the then-new Supreme Court and it turns out sure enough the Supreme Court website is now listing Star Wars III: The Revenge of the Claimant to begin on 7th March. (In fact the news came out a good fortnight ago, but I will plead the start of pupillage as an excuse for not noticing at the time.)

More details have been supplied by The Lawyer. George Lucas has deployed the big guns this time around, with Jonathan Sumption QC joing Robert Bloch QC, counsel in the original hearing and the appeal. That Sumption - reputedly one of the most expensive members of the Bar - has been instructed is indicative of the seriousness with which Lucasfilm is taking what it will see as a serious threat to its merchandising rights. As this article puts it, "Hollywood believes the outcome will have major implications for the UK film industry and the movie moguls came out in force in support of Lucas’s fight to have the case heard by the Supreme Court."

It would be a mistake though to see this as a case entirely about copyright. Indeed, my own prediction is that the Supreme Court will not disturb the well-reasoned argument of Mr Justice Mann about the definition of sculpture under CDPA 1988, as endorsed by Lord Justice Jacob, the Court of Appeal's leading specialist on IP matters. What the case may by now be focussing more on is the question of jurisdiction and enforceability of judgments, the area where the Court of Appeal reversed the original decision. Writing in the Cambridge Law Journal, Pippa Rogerson has made a cogent argument that the Court of Appeal misapplied the Brussels 1 Regulation in holding that a copyright dispute in the USA is not justiciable in England. (See CLS [2010] 69(2), 245-247.) If the Supreme Court accepts this view, then Ainsworth may well find his case being assessed under the copyright law pertaining in California, under which it is apparently clear that he would have infringed Lucasfilm's rights. Such a decision could have far wider-ranging implications though, potentially making it far easier for US-based rights-holders to sue for copyright infringement in England.

Whatever happens, one firm prediction I'll make is that this case will get even more coverage this time around. Brace ourselves for more Star Wars themed legal humour, we must.

Cloud, Copyright, Hosting and Jurisdiction

Computerworld UK has published a short piece by me on the jurisdictional issues of copyright and database infringement in the Cloud. I discuss the recent ruling on this point in Football Dataco v Sportradar and suggest an alternative model for determining where material is 'made available'.

Wikileaks - Cloud's First PR Crisis?

This week has seen what may be a first for Cloud computing: the very public termination of service of a major customer for alleged terms-of-service violations. I refer of course to Wikileaks, thrown off of Amazon Web Services for a range of reasons relating to the controversial content Wikileaks was hosting there. Of course, organisations have had Cloud services terminated before, but this is by far the highest profile case I’m aware of. Equally high-profile has been the resulting criticism of Amazon, with many supporters of Wikileaks complaining that a company that is in the very business of promoting the free flow of knowledge is now engated in censorship. So, what was Amazon’s motivation here?

Amazon is still first and foremost an online shopping site (I would have said bookshop, but it is long past being just that). Its web services account for a little over one percent of its turnover, although that fraction is rapidly growing. But this doesn’t mean that Amazon is a bit player in the Cloud computing business. Far from it; Amazon Web Services is one of the market leaders and is the standard against which IaaS (Infrastructure as a Service) Cloud services are judged. A vast number of online services, including many other Cloud-based organisations, use one or more of AWS’s products; EC2 for on-demand computing power, S3 for flexible storage, or one of many others. Amazon lists an impressive array of businesses that use AWS; ironically, it includes Guardian News and Media - one of the main disseminators of the leaked cables - among many others.

It’s not hard to see that Amazon found itself in a difficult position when it became aware that it was hosting Wikileaks. (And yes, ‘became aware’ is probably how it happened – I’ll explain in a moment). Yes, there have been threats of a boycott from those upset that it has dumped Wikileaks. But if it had continued to host it, I don’t doubt that there would have been widespread calls for a boycott from those unhappy with Wikileaks – and there are a lot of people in that camp. On the figures above, Amazon would only have to lose 1% of their online retail business to wipe out their entire income from AWS, and someone in Amazon’s management probably made a pragmatic call that they’d lose a lot more business by continuing to host Wikileaks than by dropping it.

But that’s not the only consideration. Pretty much everywhere that has hosted Wikileaks has sooner or later seen denial-of-service attacks. You don’t even have to ascribe these to conspiracies; there are plenty of people out there who combine a political viewpoint at odds with Wikileaks with the technical knowledge needed to hire a botnet. (Which isn’t much, and in yet another irony botnet-based DDOS attacks are yet another form of Cloud computing). But if you start to DDOS an organisation hosted by a Cloud provider, then you risk causing a lot of collateral damage. We saw a version of this when Spamhaus started to block spam sites that had been set up on AWS, and in doing so inadvertently blacklisted numerous legitimate users of Amazon’s services. A DDOS attack on Wikileaks whilst it was hosted on AWS could well have knocked out many of those sites listed earlier. And if their lawyers could show that AWS knew that it was hosting a prime target for attack alongside them… well, it would be an interesting question as to how liable Amazon would be, but I dare say Amazon’s own lawyers may have suggested that finding out in the courts could be expensive.

In short, Amazon faced a lot of grief if it kept Wikileaks on board. And, under their Terms of Service, they were entitled to drop them. A lot has been written about whether Amazon’s explanation – a breach of Acceptable Use terms – holds water, but at the end of the day Clauses 3.4.1(vii) and (viii) of the AWS Customer Agreement give AWS very broad grounds for summarily terminating the use of even a paid account:

(vii) we receive notice or we otherwise determine, in our sole discretion, that you may be using AWS Services for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party; (viii) we determine, in our sole discretion, that our provision of any of the Services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason;

Now, why didn’t AWS act sooner? This story suggests that Wikileaks started using AWS on Sunday 28 November. But it’s not as if Assange negotiated to use the service; one of the common characteristics of Cloud computing sites is that users can sign up online and pay via credit card. When Joe Lieberman asks, as he apparently has, for details of Amazon’s relationship with Wikileaks, the answer is that it was probably very like Transport for London’s relationship with me concerning my Oyster card. Yes, we have a contract, but it’s one I made by buying credits from a top-up point; TfL are barely aware in any meaningful sense that I exist. Amazon probably only realised they were hosting Wikileaks when they began to get complaints.

So what does this affair tell us about Cloud computing? It’s a big business, but still small in comparison with, for example, online retailing. It’s easy to sign up to, but it’s also easy to get booted off from, thanks to very permissive terms of service (and AWS’s terms are entirely typical of those we saw in the QMUL survey of Cloud terms). But perhaps the most important aspect of Cablegate for Cloud computing is the way that, by drawing attention to Amazon’s Cloud business, it’s put Cloud computing into the public eye.

The Sound of Silence

As a supporter of the Royal British Legion (and an ex-serviceman myself) I'm pleased to see the RBL finding new and innovative ways of raising money. This year they have taken the novel step of releasing a single of the Two Minutes' Silence. You can see a short excerpt from the video here.

Now at this point I was suddenly reminded of John Cage's silent 4'33" and more specifically the legal case brought by Cage's UK publishers against Mike Batt (better known to many for the theme song of The Wombles) for allegedly infringing it. Batt included a one-minute silent track on an LP, crediting it to "Batt / Cage". The case settled out of court, reportedly for a substantial sum, although this denied the chance for some judicial enquiry into the extent to which copyright exists in silence.

For a detailed review of the legal issues see Cheng Lim Saw's very thorough analysis in 'Protecting the sound of silence in 4'33" - a timely revisit of basic principles in copyright law' [2005] EIPR 7:12. Cheng Lim Saw concludes that 4'33" very likely does not attract copyright protection under English law, although the question is not as trivial as it might at first appear. For example, the work is not simply a silent interval; it is meant to be performed (albeit very passively) so an audience will always be aware of background noise and environment. But what copyright was asserted in was not a specific recording of a near-silent performance, but the piece itself, and in Cheng Lim Saw's view this is where the copyright claim fails, for how can there be certainty in the identity of the work copied if the piece has no content to be identified?

So what about the RBL's track? Well, it is not a work of sound - or silence - alone. It is a video, featuring well-known personalities as well as injured soldiers as they observe silence. Although everyone in it is static there is no reason to believe that it is not a dramatic work, in terms of the composition and editing. And, as with 4'33" the soundtrack is not truly silent; rather it records the sounds of someone standing still.

In a sense the RBL video has a very important point in common with 4'33": it is meant to make the audience concentrate and reflect on the attempt at silence, although the two works do so in very different contexts. I agree that if the Batt case had gone to trial the copyright claim might well have failed, but were there other potential heads of claim that could have been more arguable? (False attribution, for instance, or passing off; Batt's real mistake may have been in putting Cage's name to his track.)

I very much doubt that the RBL are going to find themselves following Mike Batt in terms of receiving a claim for copyright infringement. A silent video, even if it's point is the depiction of silence, is not a performance of a 4'33", even if the later does enjoy copyright protection - which it probably doesn't. But part of me wishes that there was another case on this that went to litigation, because I would love to hear the legal arguments put forth.

I Aten't Dead

...as Sir Terry Pratchett's Granny Weatherwax would put it, although one might be forgiven for wondering, looking at this blog of late. My sole excuse is that I've been employed investigating and writing about IT law as my day job for the last few months, which has inclined me less to blog about it as a hobby.

However, that work has now borne fruit and so this is a good point at which to get LawClanger going again. The QMUL Cloud Legal Project has just produced 'Contracts for Clouds: Comparison and Analysis of the Terms and Conditions of Cloud Computing Services', by Simon Bradshaw, Christopher Millard and Ian Walden, and available for download from SSRN.

'Contracts for Clouds' is based upon a detailed survey I carried out of the Terms and Conditions (T&C) for 31 different Cloud computing services from 27 providers. It began as a baseline study to identify how Cloud providers made reference to some of the wider legal issues we are planning to address in other Cloud Legal Project papers, but it soon became clear that the results were worthy of a paper in their own right. Although there have been a few other reports looking at Cloud T&C, we believe ours is the first that provides a detailed, referenced review of a wide set of T&C together with a comparitive analysis of the terms found. And what we found makes for interesting (to put it politely) reading for prospective Cloud customers.

Many Cloud services, for instance, have clauses in their Terms & Conditions that disclaim all responsibility of the provider for keeping the user’s data secure or intact. Often, providers will reserve the right to terminate accounts for apparent neglect (important if they are used for occasional backup), for violation of the provider’s Acceptable Use Policy, or indeed for any or no reason at all. Customers more worried about their data being seen by others than being lost might also be concerned at some of the terms seen in the survey that related to third-party disclosure. Whilst some providers promise only to hand over customer data if served with a court order, others state that they will do so on much wider grounds – including it being in their own business interests to do so.

We also found that providers very commonly exclude any liability for loss of data or for damage arising from it, or seek to strictly limit the damages that can be claimed against them – damages which might otherwise be substantial if loss of data or services brought down an e-commerce web site, for instance. Customers who seek to challenge their Cloud provider in court might also be in for a surprise when they look at the relevant terms: such providers usually claim that the contract is made under the law governing their main place of business, which in many cases is a US state, and that any dispute must be heard in the provider’s local court.

This isn't to say that Cloud services are dangerous, or that providers are especially cavalier. The terms we saw most likely reflect a desire of many Cloud hosts to remain as much a 'mere conduit' of information services (even though they are clearly hosts) as possible, and to keep customers at arm's length. Whether such T&C evolve so as to be more aligned with customer expectations and interestes will be interesting to see, and indeed will be an ongoing point of study for the Cloud Legal Project.

Francis Davey on E-Books and DRM

One of the things I like about volunteering for the Open Rights Group is that you get to meet smart and interesting people like Francis Davey. A query on one of ORG's mailing lists has prompted Francis to write a review of the law surrounding DRM and e-books, likely to be of interest to anyone thinking of buying an e-book or e-reader.

Star Wars II: Ainsworth Strikes Back

Nearly a year and a half ago my first substantive entry was about the High Court judgment in Lucasfilm v Ainsworth, alias the Stormtrooper Armour Case. I said at the time:

"Both sides will want to appeal; Lucasfilm against the decisions on copyright and enforceability of the US judgment, Ainsworth against the decision that he is liable under US copyright law. If permission to appeal is granted - and the legal issues are controversial enough that I would be astonished if it is not - then we are unlikely to see a hearing until the middle of 2009 or so."

Ah, such naive optimism! The appeal hearing wasn't until November, and the judgment (Rix, Jacob and Patten LLJ) was handed down last Wednesday. Other minor matters (plus my job) have been occupying me since then, during which time several bloggers far more informed and eloquent than me have given excellent summaries of the outcome. I fully endorse the IPKat's disappointment that the meaning of 'Work of Artistic Craftsmanship' was not further discussed, whilst I still feel that the array of (not inexpensive) Star Wars memorabilia on sale at such geek emporia as Forbidden Planet lend some support to The 1709 Copyright Blog's nagging anxiety that something as iconic as the Imperial Stormtrooper must have some element of artistic merit. But that was not quite the question Their Lordships were being asked to rule on, and in the end Lucasfilm v Ainsworth stands as an illustration of how trying to draw a boundary between Industrial Design and Artistic Copyright is bound to lead to cases where a work that would seem to belong on the fact of it in one category ends up being placed in the other.

This is very much borne out by the reaction of web sites and blogs aimed at science fiction fans, as seen in this post on io9. Almost without exception the reaction is one of disbelief that the armour was not deemed to be a work of art, although it seems that few commentators appreciate that this judgment has a relatively narrow scope - it is certainly not the end of all IP protection for Lucasfilm, for instance. Meanwhile, for a perspective from the movie prop and memorabilia business, see this write-up from The Original Prop Blog.

Andrew Sharpe of Charles Russell probably has the best title of any write-up of this case; yes, I know Jeremy Phillips beseeches us not to use dreadful puns for IP reports, but I can't help but liking "Obi-Wan Jacobi"! As well as an excellent summary of the issues at hand, he also notes that Lucasfilm have very strong motivation for seeking a further appeal to the Supreme Court, and not just on the basis that its Star Wars productions tend to come in trilogies...

Meddle Not in the Affairs of Wizards

As you might notice from the updated profile I am no longer swelling the ranks of the unemployed. (In fact, since for various reasons I wouldn't have qualified for any benefits I never signed on, so strictly speaking never did, but I'm allowed the odd metaphor now and again.) I am now an RA in QMUL's Law Department, working at the Centre for Commercial Law Studies on a project looking at the legal issues relating to cloud computing.

More on that some other time, perhaps, but for now I see that IP is back in the news again with the story of 'Ms Marmite Lover', who is being threatened by Warner Bros for planning to put on a Harry Potter themed dinner. For once we have more than newspaper stories (written, with the best will in the world, by someone who probably doesn't know much about trade marks or copyright*) as Ms M-L has kindly reproduced the cease-and-desist letter in question.

[*I'm not suggesting reporters or staff writers are legally ignorant. However, most are probably hottest on subjects such as defamation and privacy.]

I'm afraid I can see W-B's point. It looks like this is not quite a domestic dinner party, but rather an openly ticketed event, so Ms M-L is arguably using the phrase 'Harry Potter' - a trade mark of Warner Bros - in the course of trade. Now, she understandably claims that from her point of view she is using it purely as a sign of being a fan rather than a suggestion that her food is somehow from, or endorsed by, either Warner Bros or J K Rowling herself. Unfortunately this is a buoy we've all sailed round before during the voyage of Arsenal v Reed, with its ECJ ruling, endorsed by the Court of Appeal, that 'badges of affiliation' can and do infringe trade marks. Having said that, Ms M-L's use seems rather de minimis and there is a risk that Warner Bros' action may be seen as yet another example of Big Business using IP rights to squash what most people would see as harmless fun. As a supporter of and believer in IP I think it needs all the good publicity it can get, but these days it only ever seems to get the other sort no matter how hard the IPO tries to rope in the services of Wallace and Gromit.

ORG Debate on Three Strikes - London, Fri 2 Oct

If you're interested in the whole ongoing mess about the threat to cut off the net access of alleged file-sharers (see my earlier posts on three strikes) then come along if you can to the Open Rights Group's forthcoming public debate on the issue. It's on the evening of Friday 2 October near Farringdon, and if you book in advance it costs £10 if you're an ORG supporter or £15 otherwise. Or if you book now and become and ORG supporter by the time of the event, admission is free!

3 Strikes: Here We Go Again

A little while back I blogged about how the Digital Britain report appeared to accept that delivery of government services by internet was so important that disconnection as a sanction for filesharing was a step too far. (For earlier discussions of Three Strikes and Amendment 138, see here, here, here and here.) Well, as is being extensively reported (Guardian, Technollama, BoingBoing) it now appears that there has been if not exactly a U-turn then certainly a sharp veer in the direction of harsher measures - 'harsher' meaning 'including disconnection from the internet'.

So what exactly is being said? This release from the Central Office of Information announces not new laws but rather a revised consultation process regarding sanctions for filesharing. It seems that following feedback from rightsholder organisations (and more on that below) HM Government has decided both that the original timescale - which would not have seen measures implemented until 2012 - was too long, and that it was wrong to rule out disconnection as a sanction.

What we now therefore have is a revised and extended consultation from the Dept of Business, Innovation and Skills (PDF here) seeking further input on a number of these issues. Some parts of this consultation particularly caught my eye. For example:

"Any technical measures deemed necessary and appropriate by the Secretary of State would be introduced by Ofcom via secondary legislation."

It's important to note that 'secondary legislation' means statutory instruments which are not voted on by MPs, although MPs can register objections to them - if they hear about them in advance amidst New Labour's avalanche of secondary legislation. In other words, our MPs won't be asked to vote on this.

"It would be important to ensure as far as possible that innocent people who may be affected by such technical measures would retain access to the Internet services they need, including online public services."

That's jolly nice to hear, although 'as far as possible' includes quite a lot. I may be being unduly cynical, but I can't help wondering if the terminals in local libraries (or as Tower Hamlets now calls them, 'Idea Stores') will be deemed to provide such essential access.

Then we get onto the question of measuring illicit filesharing and defining what is and isn't acceptable. The original plan was for a detailed study of this, on the basis that policy should be based on evidence. Actually, I take my earlier words back - here there is a blatant handbrake turn.

"Evidence – although we have no doubt Ofcom would have carried out their research under the original proposals in their usual thorough manner, measuring unlawful P2P activity across a range of networks and different content is extremely difficult."

This is what a former colleague of mine called 'filing in the TOO DIFFICULT' tray.'

"On reflection, using a precisely defined “trigger” as the basis for introducing technical measures would not be sufficiently flexible (for example it would not allow the wider health of the broadband or content markets to be taken into account), and under-estimated the inherent difficulties of measuring this unlawful activity with precision."

Or, to put it another way, drawing a line in the sand involves awkward questions about where the line should go...

"In reaching his decision, the Secretary of State will have to carefully weigh the evidence available to him and make any order on the basis of defendable information based largely but not exclusively on the reports from Ofcom."

...so instead lets listen largely to Ofcom's general thoughts, plus input from other sources (I can't imagine who.)

"But even so, the Secretary of State can do this much quicker than the process which the regulator would have to go through if acting alone."

Because when a large rights organisation is breathing down your neck, speed, rather than accuracy, is of the essence!

Then we get onto talking about disconnection.

"Since the issue of the consultation some stakeholders have argued strongly that none of those technical measures is powerful enough to have a significant deterrent effect on infringing behaviour."

In other words, the self-appointed gamekeepers are not surprisingly complaining about being denied sufficiently big mantraps.

"Taking those points into account, although we continue to regard the uptake and use of Internet services as essential to a digital Britain, we are considering the case for adding suspension of accounts into the list of measures that could be imposed."

Translation: "Having been told that we're a bunch of wusses, the nuclear option is back on the table."

"...this step would obviously be a very serious sanction as it would affect all members of a household equally, and might disrupt access to other communications, so it should be regarded as very much a last resort."

I can't help but read this as a rearguard sop to the original conclusions of the Digital Britain Report. Once again though we have weasel words; it's all well and good to say that a measure should be 'regarded as very much a last resort' but will that be the case in practise? We lawyers are told to put our client's case at its highest; if disconnection is available, that's what we're going to be expected to push for.

"As ever we would need to ensure any such measure fully complied with both UK and EU legislation."

Well, that's all right then because we have Amendment 138 to the Telecoms Package to protect us. Except, that as the splendid and endlessly energetic Monica Horten has detailed over at IPTegrity.com, the EU Commission is trying very hard to water it down with, as Monica notes, UK Government support. In other words, the Government position is on the one hand that disconnection should be in accordance with UK and EU law, and on the other that UK and EU law should not preclude disconnection.

So where is all this coming from? A number of commentators have observed that only a few weeks ago Lord Mandelson dined with media mogul David Geffen (see this Times report from last week, which nicely anticipates today's developments). I'm not going to speculate, but it is hard to avoid the feeling that more than a little high-level lobbying may have been going on, as evidenced by that line in the new consultation document about how 'some stakeholders have argued strongly'.

As this BBC report explains, the latest proposals are causing considerable consternation, not least among the ISPs who may be forced to implement and enforce such measures, at considerable cost in time, money and in all likelihood customer satisfaction. What can we do? The Open Rights Group, for which I initially researched Amendment 138, is urging people concerned by these developments to write to their MPs. Another option comes out of the fact that, as I've noted above, this is still just a consultation. The DBIS is seeking comment on this proposal; now is the chance to make (reasoned and temperate, please) responses to it.

Cyber-Harassment: Go Directly to Jail

The Guardian reports that Keeley Houghton, 18, of Malvern, has been sentenced to three months' imprisonment for threatening on her Facebook page to kill another young woman. If this sentence sounds a bit harsh for what some might take as childish invective, it was apparently the latest in a long string of instances of Houghton persecuting her victim, including incidents that had led to previous convictions for assault and criminal damage. None of the reports I can find are specific about the offence Houghton was prosecuted for, although the reference to 'Harassment' makes me suspect that the charge was under s.1 Protection from Harassment Act 1997. This requires a 'course of conduct' of two or more incidents that a reasonable person would think was harassment. The report in The Guardian indicates that Houghton had earlier harassed her victim in a pub, so two instances within a few days would certainly be a 'course of conduct' as far as the court was concerned.

This case indicates, probably unsurprisingly, that sending abusive messages on Facebook or via any other social networking site is seen no differently in the eyes of the law from verbal abuse or sending poison-pen letters. But what other legal avenues are open to prosecuting this sort of behaviour?

Another way of prosecuting harassment is under s.5 of the Public Order Act 1986, which defines the offence of causing harassment, alarm or distress. Under s.5(1)(b), an offence is committed if someone

"displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby."


But it is unlikely that a posting on Facebook would be considered to be such a 'display of writing', especially considering that the Act goes on to say at s.5(2) that:

"An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling."

Blackstone's Criminal Practice notes at B11.71 that it was held in Chappell v DPP that receiving an abusive letter at home does not constitute an offence under s.5, because it falls in the exclusion under s.5(2). In the course of giving judgement, Potter J noted that had the Malicious Communications Act 1988 been in force when the acts in question had been committed, they would have certainly comprised an offence against s.1 of it, which (as now amended) provides that:

(1) Any person who sends to another person—

(a) a [letter, electronic communication or article of any description] which conveys—
(i) a message which is indecent or grossly offensive; (ii) a threat; or (iii) information which is false and known or believed to be false by the sender; or
(b) any [article or electronic communication]2 which is, in whole or part, of an indecent or grossly offensive nature,

is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.

This would on the fact of it seem a more fruitful option for charging someone who had made malicious Facebook posts. So, a one-off incident would probably be charged under s.1 MCA 1988, whilst repeated incidents, or one that formed part of a larger course of conduct, would be an offence under s.1 PHA 1997.

Now, it's safe to say that there is a great deal of abusive and harassing material on the Internet. Very little of it ends up in court, and such cases have often been based on defamation rather than harassment. But the impact of bullying should never be underestimated; it can and does ruin lives. Hopefully, this case will show that persistent bullying and harassment, including via online services, can and will be dealt with in the criminal courts.

What it does raise though is the question of what sort of forum such bullying can take place in. If I abuse someone in Second Life, am I harassing them or sending a malicious communication? If I build a large advertising banner in Second Life that displays abusive messages about another user, does that count under s.5 POA? Probably not, for jurisdictional reasons if nothing else, but the question of 'where' the inside of a shared world actually is crops up increasingly often in legal discussions. It's a fascinating topic, so much so that I'd be tempted to write a novel about it - except that my friend Charlie Stross has done so already.

SCRIPTed Vol 6 No 2

There's a new SCRIPTed out - Volume 6 No 2 is now online, with a spread of papers coming out of the recent SCRIPTed conference on governance of new technologies. I'm very pleased to see that papers are already been picked up for wider media attention, with Daithí Mac Síthigh's article on the legal aspects of sharing broadband through wifi having been discussed by The Register and The Telecom.

The Lesser Spotted Hairy Law Clanger

Depending on whether I get Pupillage, and on whether wigs kept on being worn in civil cases, this may be your one and only chance to see me with a full head of hair - even if it is courtesy of Messrs Ede and Ravenscroft!

Congratulations to my fellow BVC students who were Called yesterday - the best of luck to you all.

Machinima and the Law Podcast

Machinima is the use of real-time 3D rendering software - typically that used by computer games - to make cheap but high-quality CGI movies. I recently had the pleasure of being interviewed by Hugh Hancock, leading light in the Machinima community and indeed the originator of the term, regarding the legal issues arising from it. The interview is available as a podcast from Hugh's blog (one hour, 82 MB MP3) - my thanks to him for the opportunity for a fascinating discussion!

(Despite this blog's name, the interview contains no whistling. It does contain one four-letter word, but I am repeating a quotation given by Geoffrey Robertson QC in his text Media Law, so that's all right then.)

NPG v Wikipedia

It’s not often that copyright cases get into the news, although there are notable exceptions, such as Lucasfilm v Ainsworth last year, or the Harry Potter Lexicon case in the USA. But the current spat between the National Portrait Gallery and Wikipedia made the front page of the BBC news website a couple of days ago. At its heart (although there is more to it than this) is a simple copyright question: does a faithful copy of a work – in particular, a work that is now out of copyright – enjoy copyright protection in its own right?

The NPG is complaining that a Wikipedia user, Mr Coetzee, copied high-resolution images of some 3,300 paintings from its website and posted them on Wikipedia. In a letter from its solicitors it asserts that these images are all recent original photographs taken by the NPG and that the NPG therefore holds their copyright, and that Mr Coetzee has infringed this. Mr Coetzee’s position is that the paintings are out of copyright, and since the images he downloaded are quite literally copies rather than original or even transformed or derived works then there cannot be any copyright for him to have infringed.

This is an intriguing issue and for the last few days I have been discussing it with a number of my fellow volunteers for the Open Rights Group. This has been a very interesting experience, especially as several of them are considerably more qualified and experienced in IP law than I am, and I’m grateful for their agreement that I could summarise our discussion in this post. (I should add that ORG is not taking any active role in this dispute, although its legally-qualified volunteers are observing it with keen interest. Furthermore, any legal errors or misconceptions are entirely my own.)

Does the NPG have a case? It is relying on s.1 and s.4 of the Copyright, Designs and Patents Act 1988, which provides that original artistic works, including photographs, enjoy copyright protection. Of course, this leads to the question of what ‘original’ means. Every copyright course I have undertaken has stressed that in English law the originality bar is set very low indeed; in effect, if you create an artistic work such as a photograph, you automatically get copyright in it. In the case of a painting, this is undoubtedly true. It’s even true for a simple drawing; s.4 provides that copyright arises irrespective of artistic quality. It is true for a carefully composed photograph. But if artistic quality is not required, what about skill and effort? The ‘sweat of the brow’ argument, often deployed in considering literary copyright, holds that a certain minimum level of skill and effort must be expended for copyright to arise. What is not clear, particularly in respect of a photograph, is whether that skill and effort applies to all aspects of a work’s creation, or just its originality. This is particularly relevant in the NPG’s claim, as whilst it seems clear that a lot of skill and effort when into photographing its paintings, it was aimed at ensuring that the photographs were as faithful a copy of the paintings as possible – in other words, that no originality was introduced at all.

As early as 1869 it was held in Grave’s Case 4 LRQB 715 that a photograph of an engraving enjoyed copyright under the then-current legislation. However, this view has not invariably been followed; consider, for instance, the comments of Lord Oliver in Interlego v Tyco Industries [1989] AC 217:

“It takes great skill, judgment and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no one would reasonably contend that the copy painting or enlargement was an "original" artistic work in which the copier is entitled to claim copyright. Skill, labour or judgment merely in the process of copying cannot confer originality.”

Now, this was a decision of the Privy Council, and furthermore was strictly obiter. However, it was applied in The Reject Shop Plc v Robert Manners [1995] FSR 870, which was an appeal by way of case stated from a private criminal prosecution under s.107 CDPA 1988. In considering whether copyright subsisted in an enlarged photocopy Leggat LJ held that it did not:

“The process was wholly mechanical and there is nothing to suggest that enlargement was for any purpose of that kind. There was, in short, no evidence before the magistrate of the exercise in the production of what he called the “distorted photocopies” of any relevant skill and labour whatever. It follows that the final images were not original works and so no copyright could subsist in them.”

This is what I term the ‘photocopy argument’ – that if the method of reproduction amounts in nature if not exact technique to photocopying the original artwork, then no new copyright can arise. If the NPG possessed a very large flat-bed scanner and scanned its painting, then it would be hard to argue that the resulting digital image enjoyed independent copyright. If the painting was instead photographed and the image carefully processed to even out any lighting inconsistencies and eliminate distortion, then it would in principle be identical to a scanned image. Is it significant that extra skill and effort went into its creation if the only consequence of that skill and effort was to remove any element that distinguished it from a pure mechanical copy?

The counter-argument, which was originally presented by Kevin Garnett QC in an article in the European Intellectual Property Review (EIPR 22(5) 229-237) considers a photograph of a scene in which no copyright can subsist, such as a landscape. If the photographer exercises no skill or judgement and has limited capacity even to pick a particular viewpoint, then copyright still arises. This image, taken by me from the London Eye, has not been corrected or cropped, and I did not have the option of where to take it from or even, given that I was on a timed ticket, when I took it. Hundreds of similar pictures must be taken daily. But nonetheless, my picture undoubtedly enjoys copyright. So why shouldn’t another picture of a scene without its own copyright, such as an out-of-copyright painting, not also enjoy copyright, especially if the photographer in that instance employed much more skill and effort than I did.

I think it’s fair to sum up our discussion as concluding that the matter is open. There is no recent binding authority either way, although cases such as Interlego and Reject Shop point against copyright arising. Nonetheless, arguments can be made both for and against; my own feeling is that a straightforward application of the law would support the NPG, but that a reasoned argument could well be made against it.

A complicating factor is that Mr Coetzee is not in the UK; he is, as I understand it, in the USA. A US court has ruled on this very issue, in Bridgeman Art Library v Corel Corp. There, it actually sought to apply UK law and interpreted it such that a faithful photographic copy does not enjoy copyright, a position consistent with the US approach to this issue. But if the NPG does go on to sue Mr Coetzee, it would do so in an English court, which might be influenced by Bridgeman but would be under no obligation to follow it.

The NPG makes other claims, including breach of contract, bypassing of technical protection measures and database right infringement. The first would probably run into problems of consideration (or rather lack of it), whilst the second does not seem tenable – the software used by the NPG to display hi-resolution images by increasing the resolution as you zoom in is hardly in the same league as encryption or digital watermarking. The database rights claim is less clear-cut, though.

The usual case referred to in interpreting the sui generis database right is British Horseracing Board v William Hill [2005] RPC 35. The point generally taken from this case is that significant investment in creating the database is necessary for the database right to arise. On that basis, I assumed that irrespective of the copyright point, the amount of effort put into acquiring the images of the paintings for the NPG’s database would give rise to a database right (which would almost certainly have been infringed by abstracting 3,300 entries from it.) However, a friend who manages a large commercial database reminded me when I was discussing this case that the ECJ decision that BHB is based upon also emphasised that this investment must be in the creation of the database itself. As confirmed by the Court of Appeal, the right arises where the database creator has invested effort in creation of a database of existing available data, rather than in creating or approving the data. Indeed, if the data is such that it is only available to the database creator, then the database right does not arise (see Kon and Heide, E.I.P.R. 2006, 28(1), 60-66).

And this could be a fatal hole in the NPG’s database claim. The whole basis of the NPG’s copyright argument is that it does not permit unauthorised copying of its paintings; the only body with legitimate access to the data that has gone into the NPG’s image database is the NPG itself. Nobody else is in a position to lawfully create such a database, no matter how much effort they put into doing so. On this argument, the NPG’s database does not attract database right protection.

It’s not at all clear at this stage what will happen. Mr Coetzee may well not acknowledge the claim in the hope that the NPG, even if it obtains judgment in default, may well not seek to enforce it in the US courts. But if it does come to court in England, then both the copyright and database right claims may well be a lot more open to argument than one might originally think.

Update: At TechnoLlama, Andres Guadamuz has looked in much more detail at the contract claim. I agree with him that formation is probably not in issue, but as I've noted in my comment to his post I think there are very serious problems with consideration (i.e. the NPG has received no payment or benefit from Mr Coetzee.)