DEMYSTIFYING COPYRIGHT

Historically, creativity was the foundation of human expression. Imitating other peoples work was considered the greatest form of flattery, thus people could memorize and copy other peoples works as a form of recognition of the authors work and as a ‘compliment. Shakespeare was indeed one of the greatest such ‘plagiarists’, at that time the culture allowed massive lifting of other people’s  works to create new works without necessarily attributing the original creators.[1]

Come 1709, things changed. The Statute of Anne essentially meant that publishers would have full copyrights in their printed works for a period of 14 years therefore, nobody could copy content without their permissions. This emerging shift to a market economy would enable creators and owners to economically benefit from their works and prevent others from lifting from their works without explicit permissions to do so.

Copyright is therefore a theory over 300 years old, aiming to protect the creative rights of individuals. As soon as we create an original work, it has automatic copyright protection meaning that, we get to have exclusive control and dictate how that work is to be used by others (reproducing/copying it, distributing it/selling it, performing it, broadcasting it and adapting/ making changes to it). All rights are reserved to the owner.

The types of works created and protected by copyright include literary works (anything written like books, journals and magazines), dramatic works (theatrical plays, dances and choreography), musical works and sound recordings, artistic works (paintings, drawings and sculptures), photographs, audio-visual works (movies and films) architectural works (the design of buildings).

It is important to understand that copyright will only protect the way an idea is expressed and this has to be recorded in any of the above forms. Put simply, we may all have an idea about how Kenya will look in fifty years, copyright cannot protect those ideas because they are only in our heads. We have to express those ideas by recording them either thorough paintings, films, sculptures and even making a song about it. As soon as we record those expressions in a tangible medium, copyright instantly comes in to ensure only we can control how our works are used and people thus have to ask permissions before they use the work. Using someone else’s work without getting their permission is called copyright infringement. In this digital age it is very easy to assume that online content is free. This is not always the case, always check who owns the work and whether it is free to use.

To get copyright protection, all you need to do is to create an original work. It is possible to register a copyright, and this is mostly done for evidential purposes i.e. to prove that one owns the work. This is done by the small payment of a fee and after a search by the national copyright office, a certificate is provided to show proof of authorship or ownership of a work.

An author and an owner do not have to be the same person. An author is one who actually creates the work. By taking a picture, the author could decide to transfer their rights to someone else. That person will not be the new author but will be called the owner of that copyrighted work. An author can also licence people to use their work for a fee or by any other arrangement. More than one person can own copyright in one work either individually or jointly as rights holders.

Copyright is usually confused with the other main areas of intellectual property. Whilst copyright is automatic and no registration is required for protection, Trademarks exist to protect the brand of an individual or organization and to distinguish between or identify the source of products and services. One needs to register a trademark to get protection for a period of ten years. Patents are given to inventors to exclude anyone from making or selling the invention (usually a new technical way of doing something which should be useful to society) and twenty years after registration, the invention will go into the public domain.

The public domain is this wonderful space where things which can freely be used by society/public end up. Copyright laws apply differently to each country and thanks to the Berne Convention of 1886, works will be protected the same way in any of the 176 member countries who have signed the agreement as it would in the home country of the author. It is extremely important to realize just how long copyright lasts. Copyright will last for the life of the author and when they die, the work will still be protected for an extra 50-70 years, depending on the country. After that period of copyright expiry, the works will be completely free to use meaning that they will fall into the public domain. In other instances an author may voluntarily dedicate their work to the public domain and where a work is not valid for copyright protection e.g. it contains very many facts like names of places; that work also goes into the public domain.

Not all works will require users to ask permissions from authors or owners. At times some works can be used freely, thanks to some exceptions and limitations in copyright law. Whereas copyright requires explicit permissions before use, sometimes copyrighted works can be used in limited circumstances. One such way is through the fair dealing and fair use guidelines. When a work is being used for a fair purpose then no permissions are necessary from the owner. The American fair use guidelines has four major factors to help you gauge whether your can use someone else’s work for free and without permissions. Using the acronym P.A.N.E, the first factor is that the Purpose of the work should be in any category for teaching, research, private use, criticizing or commenting on it, making a parody, satire or caricature of the work or for news reporting, next the Amount of work used should be very minimal and limited to around 5-20% of the total work, next in the Nature of the work it is preferable to use something that has been published and preferably facts rather than fictional works like Harry Porter, and finally the  use should not affect the Economic market of the original work such that the owner should still be able to exploit their work normally even after you have used that limited portion of their work without permission.

If you would like to get a semblance of sleep , there are ways you can freely use otherwise copyright protected works. Creative Commons (CC) licences do not reserve all rights to the owner, instead, they allow users the opportunity to use works freely as long as they do what any of the six CC licences tell them to do with those works.

BY NC Elizabeth Oyange

This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.

[1] Giancarlo Frosio, Reconciling Copyright with Cumulative Creativity: The Third Paradigm, Edward Elgar Publishing, 2018.

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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.

 

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.