MACAQUE OUTTA HERE!

Macaque   (c) David Slater

 

A man went broke.

He invested cold nights in 2011 in the Indonesian jungle befriending primates, photographing them and apparently cajoling them into taking selfies. One cheeky crested macaque, successfully got baited into the perfect selfie. Mr. Slater forwarded this to his agent for print work and after one newspaper published the image, it went viral and became a free for all.

Amongst those sharing in the spoils, were websites, with some tagging the image as public domain. Mr. Slater no doubt was perturbed by the nature of these events. He sued to get the scavengers off his intellectual property before it was reduced to mere morsels.

Creatives put a lot of effort into their final product. In this case money was spent on travel, bugs were squished, muscles were strained and grit was spawned to befriend the primates. The final product; in this very unfortunate digital world, was a click away for all to claim.

An animal rights organization came into this picture. They sued on behalf of the monkey on the basis that as the ‘thing’ that pressed the button; the monkey, was the actual author and thus the copyright owner.

In copyright, an author is the ‘person’ who creates the work.

Jurisdictional issues aside, it begs the question, were it not for Mr. Slater’s persistence, set up of his camera, being at the right place at the right time and sharing the end product, would the world be graced with this gem of an image?

The prospect of images not necessarily taken by us but by other species or machines, but nevertheless engineered by us, not belonging to us, may be a disincentive for creatives to share gems like this if they believe that they will not be acknowledged for their work or derive any benefit from such creations.

This should not be the intention of copyright law, to act as a hindrance and a barrier to creativity.

There were jabs about which specific monkey it was whose image was in contention and whether the right monkey was suing Mr. Slater for copyright.

Earlier this week, the court finally held that animals can have no copyright. Is this the final, definite, conclusive, long hard nail on the coffin on a battle that has been brewing since 2014?

There is a wad of disappointment here, not because the monkey lost the case, but because we may have missed the chance to give our primal friends (stuck in evolutionary dystopia) the opportunity to finally move on up and own real property in future! Who wouldn’t want to negotiate rent with a primate?

Mr. Slater gave us a Macaque selfie.

May no other human go broke in the creative process.

 

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FAIR USE/ FAIR DEALING

 

We are back on Copyright and this is a fairly big week for one branch of it. It is FAIR USE WEEK, 2018, a chance for debates, discussions and general contribution to the acknowledgement of fair use and its impact on usability. What does Fair use mean for users of copyrighted works?

Remembering the automatic ammunition of copyright upon creation of creative works means that it is a stringent and oft rigid protection which gives the author full control on how their work is used. The notion of copyright is that you need the permission of the owner of that work before making use of it.

Permissions, ah! The path of despair upon which many must face, and few reach nirvana!

Luckily, there lies a “Jack-in-the-box” in one modern hero of copyright exceptions. We shall call her Lady Fair Use (sometimes known as Madame Fair Dealing). Because, only a true lady lays down explicit instructions on how her affairs should be run and expects them to be followed to the letter.

She is a refuge to those who need her but a plague to those whose works are being used.

Lady Fair use, holds those who want to use another’s copyrighted work, close to her bosoms and protects them from copyright infringement, on condition that they meet some explicit conditions (You have to give measure for measure if you are going to lay on the bosom).

And if you meet those factors, you have a free pass to use the work for the intended purpose, without any necessary permissions from the copyright owner. That is the public interest bit of copyright.

So, back to the bosom.

Whilst you are here, with your incriminating material at hand, this is what Lady Fair Use shall ask of you, in order to make peace with the copyrighted work. “PANE it”.

  1. Bring the PURPOSE of your use within any of the categories of personal use, study, research, teaching, criticism, review, comment, parody, satire and news reporting. Non-commercial use of the work will make us have more empathy for you.
  2. Make sure that the AMOUNT you use is minimal in relation to the overall work (anywhere between 5-15%) of the overall work is usually feasible.
  3. Ensure that the NATURE of the work you are using is published (made available to the public) and it is better to use factual works than non-factual (fantasy) works.
  4. Ensure that your use of that limited portion has minimal EFFECT on the economic market of the original work.

If you can bring yourself within the ambit of at least these four factors, you are at liberty to use limited portions of the copyrighted work without further permissions from the owner.

And Lady Fair Use will count her duty discharged.

fair use-fair dealing

CREATIVE COMMONS

What is Creative Commons?

Yamashita_Yohei_-_CC_on_Orange_(by)Yamashita Yohei- CC on orange (BY)

When the old man said No, everybody knew they could not just come into his property and take his oranges without permission; he had a loaded gun, ready to protect and punish.

But his old lady was more open, she did not mind people coming to take some oranges because the people were hungry and they really needed some, so long as they told people where they got the juicy oranges from so that they could be known as the growers of the sweetest oranges in town.

Sometimes, the old lady did not want anybody to get the oranges from her freely and sell them to others. That was wrong and she wanted them to pass on the kindness to others. Sometimes, she did not mind them selling some oranges if it would help them feed their own families.

Sometimes, she did not want others to inter-breed her oranges so that they could come up with new breeds of sweeter varieties, this would destroy the purity of her original oranges. Sometimes, she did not mind. New varieties only meant new knowledge and improvement in science.

Sometimes, she wanted people to take and share the oranges under the same conditions that she had given them, sometimes she did not ask or mind.

And people said the old lady was as sweet as her oranges. Now that’s free promotion.

But the old man! The old man, held on to that gun, and woe unto those who trespassed.

Creative commons is like the open-minded generous lady, who despite tough rules, really does want people to benefit in one way or another.

Copyright on the other hand may be seen as a loaded gun, where one would need to ask permissions before using any work.

Both however, work very well together and in fact, complement each other. This is because creative commons is modelled on the notion that although creator have automatic copyrights to control how their work is used, some people want and can share their works freely without any individual requests for permissions. All one needs to do is use the work according to what the license tells them to do.

CC has designed some fun licences that tell you how to use such works if you see the below logos (and thereby making the sweet old lady happy). http://www.creativecommons.org

 

BY

Say the work is by ‘Author’ (give credit) then you can copy, distribute, remix and perform the work.

BY SA

Say the Work is by ‘Author’, then also share and adapt your new works using the same license as this.

BY ND

Work is by ‘Author’, but if you change it, please do not distribute that new version. Only distribute the original version (unchanged).

BY NC

Work is by ‘Author’ and you can share and adapt into new works as long as they are not for commercial uses.

BY NC SA

Work is by ‘Author’ and you can share and adapt but you must also share you new work with others under the same license as this one.

BY NC ND

Work is by ‘Author’ and you can share and adapt but you can neither distribute the adapted version nor use it commercially. Only share the original work.

 

 

YOUR SOLE IS MINE!

          IP Quail ChronicleIMG_1941

A pressure inducing page turner.”

         IP Quail Times

  “We couldn’t decide who to swing for.”

        IP Quail Observer

 “A warp of philosophical plots.”

The Characters:

  1. Christian Louboutin- [Lu buh tah]: A French fashion design house, a giant in a sea of vultures oozing opulence and the bane of many a wallets.
  2. Yves Saint Laurent [Loh roh]: ‘Un autre’ French fashion house, with grandiose yet wearable threadery.

The Setting:

A musty wooden enclosure fortified by four partitions enjoined centrally by a high ceiling with petrified floors, marble exteriors (variable) and mortals in flowing black robes, white powdered wigs and a gavel; a Court.

The Plot:

A partially wounded bleeding sole vs A fully wounded bleeding shoe, which one was wounded first and can the partially wounded sole have an exclusive right to be wounded to the exclusion of all other fully wounded shoes which would likely confuse regular shoes that the partially wounded heel was the original and first officially bleeding heel? The plot thickens (or clots).

Can a single colour be claimed as a mark of trade in fashion and if so, could a red lacquered sole which contrasted in colour to the rest of the shoe be considered as a distinctive identification for a brand?

The Conflict:

Your sole is my sole, and my sole is all mine. No so? Could Christian Louboutin have the exclusive use of the colour red on the soles of its designer footwear to the exclusion of other brands?

The Resolution:

No, no, no (hand smack!) You can’t do that. You can’t eat all the cookies in front of a drooling pack of vultures. Leave some crumbs! You cannot claim exclusive use of a colour in fashion but wait, just you wait one second, you may be able to claim how you use it; in this case on a sole contrasting with the upper shoe, but only in the designer shoe market.

Consider a scenario. Lady makes straw hats, lines them with purple linen to absorb sweat (and associates purple with royalty). Upper crust ladybirds flock for her hats and she hikes the price. Her twin Ladio when painting the shed knocks over the can of paint emptying half in the middle of his cowboy hat. It dries off and leaves a purple stain. People notice his purple coloured cowboy hat interior and request him to make some for them. No doubt Lady is furious upon finding out that her colour concept has been swiped albeit to a different market. Ridiculous to prevent people using a colour?

Can a single colour serve as a trademark on a product so widely used as a contraption used to protect feet?

In 1992, the red sole was developed by Christian Louboutin for women’s high fashion footwear and over the years became such a hit and was so closely associated to the brand that in 2008, protection for it was granted for that polished red heel in the form of a trademark. Enter YSL who created a collection in 2011 with similar bright red soles but which matched the entire colour of the shoe (monochrome).

Dissection: Can the look of something through colours which are in the public domain for free use (aesthetics) be protected, and secondly can certain elements of something with the special purpose of practicality (functional) as shoes be the subject of legal protection exclusive to one party?

Aesthetics: On the basis that the look and feel of something can distinguish one products from that offered by others and thus can be easily recognized by customers, the contention was whether the red polished colour on the sole of Louboutin’s shoe was distinctive and thus warranted of protection in the high end designer footwear market.

We can appreciate that in fashion, some companies depend on colour for recognition. Think of the Tiffany Blue box (trademarked by the way) which is described as an international mark of style and sophistication. Or the Burberry check pattern where emphasis is not so much on the colour but on the ‘arrangement’ of those colours and how they can create a cult recognition of a brand.

Functionality: For something with the practical use of protecting feet, Louboutin claimed they went further by making their shoe appealing and a signature of their craftsmanship. The red sole is one of the most recognizable brands in high fashion for footwear and is oft associated with a certain level of class and taste.

In the end the court held that it was worth protecting the colour  red sole of the Christian Louboutin shoe BUT only if it contrasted with the colour of the rest of the shoe. This means that other brands (read: designer footwear) are free to use the red colour on their shoes but only if the rest of the shoe is red as well i.e. one colour, (monochrome).

Take away: Fashion is heavily dependent on colour. Which means that a whole season of red stands the risk of being liable for infringement if various parties had the legal right to use the colours in a specific way and others infringed on that right. Contrasting red sole (not fine, don’t do it) One colour red shoe and sole; monochrome (fine, knock yourselves out).

Quail out!

 

Women in IP

Madame_CJ_Walker

In 1867, Madam C.J Walker became the first Female self-made millionaire in the United States. She did so by turning her own problem of hair loss into a business opportunity where she tested, developed and sold Madam Walker’s Wonderful Hair Grower. In just under 8 years following the opening of her business, she was a millionaire. Innovative even for her times.

Is the modern girl innovative?

“A woman is like a tea bag. You can never know the strength of that teabag until you put it in boiling water and you can see whether you are dealing with strong tea.” Mwangwashi Phiyega (First woman South African police Chief). No doubt, more women are being empowered and steered towards innovation. See, IP is an already niche area so the lipstick numbers are fewer here than in most professions.

In 2013, MIP published the Top 250 Women in IP within the United States. Some places do not even have a Top 2, so this list does things. In publishing, it did something which should become a regular occurrence for other locations globally, a recognition of women thriving within intellectual property. Not only will highlighting the women who pioneer in the protection of IP rights inspire others to follow suit, it also expands the innovative platform by allowing women to give a lot more in terms of creativity. It is true that, most educational institutions churn out graduates who upon graduation are on the auto-job seeking and not job creation settings. Naturally, the female is a problem solver and a solution giver, thus the innovation option should come easily with adequate mentoring.

There still remains the challenge in getting the female youth interested in intellectual property. Ideas are rife and in this digital age it is easier to expand knowledge and share experiences within the field, something which empowerment organisations on the internet have began to catch up on.

Here is paying homage to a few women inventors courtesy of women-inventors.com. Mary Anderson (windshield wipers 1903); Marion Donovan (Disposable Diapers 1940’s); Dr. Grace Murray Hopper (COBOL computer language 1959-61); Hedy Lamarr (Wireless communications 1941); Rachel Zimmerman (Blissymbol Printer whilst 12yrs old in 1980’s)…

To all female IP lawyers, practitioners, innovators and teachers, let your efforts shine.

OF THEFT AND IP

Lately, I have been mispacing, actually loosing things at an institution which insists I have to leave my bag in a holding area and take what I need separately. Within a day or hours of remembering the forgotten artefacts, I would retrace them only to find that someone had already given them a compulsory home. This despite there being a lost and found office and posters of my lost goods all over the place. This even after offering rewards upon return. The thieves just never seem to have a change of heart.

The reality is that most people generally like something for nothing (and this has nothing to do with Creative Commons)! Just as much with tangible property as it is with intangible property. The same kind of pain one would feel when they loose their property is the same kind of pain a creative would feel when their intellectual property rights are infringed.

In this region, this is evident of how we think on new music and we automatically think of download links.

We think of Movies and we automatically think of the cheap pirated 50bob ($0.58) dvds peddled in Town.

We want to own what comes our way either freely or at the least cost.

Herein lies the problem of trying to protect intellectual property not only in Africa but globally. A generation that is raised downloading and remixing freely does not understand the concept of walking into a shop and buying a $12 album or movie.

In England a couple of years back I remember a shop that allowed walk in mp3 down loads of individual tracks for £1-2 . This would be one way of mitigating loss to the creatives if encouraged by  certain incentives to that end user.

We need out of the box solutions and can do this by fully engaging the youth on ways of protecting intellectual property coupled with education that such theft is infringement of others sweat of the brow.

Patent Pending?

l007547_b-01

Recently, my door refused to accept the key betrothed to her as her lifelong soul-mate. I could have easily unhinged and thrown out the offending she bit, but I chose to do the inevitable for some; fix it. Well that and the fact that when things get busted around here, most of the guys lingering about do just that, linger…

See I wanted to understand why this she bit had taken this unusual course of key rejection, in the process subjecting one to the serious crime of preventing access to thy slumber chamber!

So bit by bit I unhinged this she bit (that pink part of the diagram) and upon unscrewing the lock, was pleasantly surprised by the sheer genius within.

To most folks, the simple door handle and its various connectors deserves no thought. After all most of us Arts ladies dropped kicked physics/sciences at the first opportunity. But I beg to differ. It took about an hour to figure out where the misplaced cogs on the bottom section would go, and even then, I still couldn’t for the life of Einstein get the bugger to work.

Ladies (and dudes who act like ladies when things get busted), do take an interest in how things work especially when they stop working. Do not be afraid to open them with caution to understand how someone configured the contraption to make your life easier.

That someone sat down and figured out how to keep nosy people out of any chamber with the use of a key and lock embedded on a piece of wood using a design that has stood the test of time. This is more amusing only when an internal inspection is explored to reveal those internal workings of a lock.

My greatest test in knowing whether I can add any value to intellectual property is by asking: If I was to be warped back momentarily to 10 B.C, what things around me presently could I recreate in those tough Neanderthal times?

Better yet, if you were to be warped 200 years into the future, what things around presently can be modified or created to make life easier?

Get inventing and lets see some of those patents pending.