Tag Archives: copyright

May 2, 2018 · 10:15 am

The long copyright battle over a monkey’s selfie

The booklet Understanding Copyright and Related Rights (WIPO, 2016) is an excellent entry-point for learning about the basic copyright principles applying globally. Any monkey would understand it.

Monkey selfie taken by Indonesian macaque named Naruto on equipment set up by photographer David Slater. Sourced from Wikimedia Commons. © disputed.

It explains that ‘copyright’ translates into ‘author’s rights’ in many other languages because it is the creator of the work—the ‘author’ of written works—who holds the right to reproduce their outputs.

The word ‘copyright’ in English refers to that act itself—the ‘right’ to ‘copy’ something you have created. As the holder of that right, you have the legal power to license others to do so as well.

A fascinating international example of the principle that copyright rests with the creator of a work is the Monkey case (2018). In 2011 an Indonesian monkey named Naruto – a crested black macaque – took a ‘selfie’ with camera equipment set up by wildlife photographer David Slater. Monkey see, monkey do.

Slater complained to Wikimedia Commons after the images were posted there, but they refused his demand that he take them down, arguing he did not hold copyright in the images because he did not actually take them – the monkey did (Wikimedia Foundation, 2014).

The basic principle stood: copyright rests with the human creator of a work (Monkey case, 2018).

However, the monkey did not get to claim damages for the photographer’s use of the work. The US Ninth Circuit Court of Appeals denied an application by an animal rights group to have the monkey’s copyright in the images formally acknowledged, stating that animals did not have standing. The photographer and the monkey (represented by animal rights group PETA) negotiated a settlement (Toliver, 2017).

Monkey case: Naruto Monkey PETA v Slater CA9 No. 16-15469 D.C. No. 3:15-cv-04324-WHO Opinion 04 23 18 < https://www.documentcloud.org/documents/4444209-Naruto-Monkey-PETA-v-Slater-CA9-Opinion-04-23-18.html >

Toliver, Z. 2017. ‘Settlement Reached: ‘Monkey Selfie’ Case Broke New Ground for Animal Rights’, PETA (People for the Ethical Treatment of Animals) website. [11 September.] < https://www.peta.org/blog/settlement-reached-monkey-selfie-case-broke-new-ground-animal-rights/ >.

Wikimedia Foundation (2014). ‘Monkey Selfie’, Wikimedia Foundation Transparency Report. https://transparency.wikimedia.org/stories.html

© Mark Pearson 2018

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

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November 23, 2015 · 10:29 am

Drilling down on suppression orders – with a call for reform #mediaiplaw

By MARK PEARSON Follow @Journlaw

Suppression orders should be precise and address imminent publications likely to prejudice the case, not be futile and should only follow a request for removal, University of Melbourne senior lecturer Jason Bosland explained to the 2015 IP and Media Law Conference at the University of Melbourne Law School today (November 23).

Melbourne University’s Jason Bosland calls for reform of suppression orders

However, the courts continue to issue broad suppression orders that lack these qualities. Presenting a paper co-authored with Timothy Kyriakou, he explained that most suppression orders covered prior convictions and the vast majority were made against the “world at large” rather than at specific individuals or organisations.

“This indicates that orders are being made as a general precaution in a lot of cases rather than in response to an imminent publication,” he said.

He suggested reforms limiting magistrates’ court powers, giving all levels of the court system the same suppression order powers. Another anomaly was that the Supreme Court lacked power to issue a suppression order to ensure the safety of a person, a power held by the Magistrate’s Court.

His abstract explained:

In recent years, decisions in Victoria and New South Wales have considered the power of courts under the common law to restrain the publication of prejudicial material by the media, particularly in light of such material being published, or potentially published, on the internet.

This paper distills the principles established in those cases. It also considers whether and to what extent they continue to be relevant following the introduction of the Open Courts Act 2013 in Victoria and the Court Suppression and Non-publication Orders Act 2010 in New South Wales. It then examines the making of such orders in Victoria and assesses whether the courts have been complying with the relevant principles. Finally, some suggestions for reform are presented.

In his paper ‘The media’s standing to challenge departures from open justice’, Curtin Law School’s Michael Douglas argued the media was disadvantaged by suppression orders in ways most other parties were not.

Departures from open justice directly affect the legal rights and interests of media organisations. He argued that at common law, media organisations may intervene as of right, as a matter of natural justice, in any proceedings contemplating a departure from open justice.

“Open justice is essential to the integrity of our justice system. When a court departs from open justice, it is appropriate that media organisations are able to question whether the circumstances warrant the departure,” his paper stated. The paper addressed the issue of non-party media organisations’ standing to challenge departures from open justice.

In several jurisdictions, the issue is resolved by statute, but the position is not uniform around Australia.

The paper explained the position under the differing statutes and at common law. It focused on the common law position which remained in some jurisdictions, where the standing of media organisations was controversial.

“The orthodox view, expressed in older NSW authorities, is that media organisations have no absolute right to be heard at common law,” he stated, challenging that orthodoxy, following a contrary, Western Australian line of authority. The paper explored the link between principles of standing and the principles of natural justice drawn from High Court decisions.

The full conference program is here. Our paper (Pearson, Bennett and Morton) is titled ‘Mental health and the media: a case study in open justice’ (see earlier blog here).

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Tagged as ABC, communication and media law centre, communication ethics, copyright, disruption, ethics, intellectual property, journalism ethics, law, media, media law, Tom Morton, university of melbourne

November 23, 2015 · 9:24 am

How startups focus on the execution of business plans, with less intent on controlling IP

By MARK PEARSON Follow @Journlaw

Entrepreneurs might undertake strategies that abandon formal IP protection in favour of being quicker to market and investing in capabilities – that is, focussing on an idea’s execution – University of Toronto Professor Joshua Gans told the 2015 IP and Media Law Conference, in his keynote address at the University of Melbourne Law School today (November 23).

Professor Joshua Gans delivering the keynote to the Media and IP Law Conference at the University of Melbourne.

He unveiled an economic model developed with colleagues Scott Stern and Kenny Ching featuring two key propositions.

“Execution allows you to maintain market leadership so control buys you only delay,” he said.

“Control only is cost in that regard. It only delays you without giving you additional benefit.

“Even aside from resource constraint issues, control and execution are substitute strategies. The whole is not greater than the sum of the parts. You want to advise firms to pursue control or execution but not both.”

He explained execution-oriented firms will hit key milestones more quickly and will be less dependent on significant venture capital investment.

He argued against what he said was the common assumption of IP analysis that the strength and use of IP is exogenous.

“Here I argue that is is endogenous and depends on the choices of entrepreneurs/innovators in their business strategy,” he promised in his abstract.

“I demonstrate that entrepreneurs can undertake strategies that abandon formal IP protection in favour of being quicker to market and investing in capabilities — that is, focussing on execution.”

Joshua Gans is a Professor of Strategic Management and holder of the Jeffrey S. Skoll Chair of Technical Innovation and Entrepreneurship at the Rotman School of Management, University of Toronto (with a cross appointment in the Department of Economics). Since 2013, he has also been Area Coordinator of Strategic Management. He is also Chief Economist of the University of Toronto’s Creative Destruction Lab. In 2012, Joshua was appointed as a Research Associate of the NBER in the Productivity, Innovation and Entrepreneurship Program.

He has also co-authored (with Stephen King and Robin Stonecash) the Australasian edition of Greg Mankiw’s Principles of Economics (published by Cengage), Core Economics for Managers (Cengage), Finishing the Job (MUP) and Parentonomics (New South/MIT Press). Most recently, he has written an eBook, Information Wants to be Shared (Harvard Business Review Press).

The full conference program is here. Our paper (Pearson, Bennett and Morton) is titled ‘Mental health and the media: a case study in open justice’ (see earlier blog here).

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February 4, 2015 · 1:56 pm

New course helps manage social media risk

By MARK PEARSON Follow @Journlaw

Griffith University has issued the following release on our fully online global social media law course which I will be teaching from March 2015.

New course helps manage social media risk

Managing your social media risk and protecting your brand is the focus of a fully online global social media law course to be offered at Griffith University from March 2015.

Social Media Law and Risk Management is aimed at professional communicators internationally who want an introduction to the laws impacting on social media use and other strategies for strategic social media management.

“It addresses one of the key organisational and crisis communication phenomena of the modern era – engaging effectively and internationally with a range of stakeholders using social media while being cognisant of laws, risks and policies,’’ says course convenor Professor Mark Pearson.

“The course examines the dynamic role of social media law and risk management in a range of social and political contexts internationally, particularly in averting communication crises.

“It provides advanced knowledge and skills in the use of social media by government, non-governmental organisations, business and the general public.”

Professor Pearson is the author of Blogging and Tweeting Without Getting Sued – A Global guide to the Law for Anyone Writing Online, co-author (with Mark Polden) of The Journalist’s Guide to Media Law and the Australian correspondent for Reporters Without Borders. His Twitter handle is @journlaw.

Social Media Law and Risk Management is offered online as a stand-alone course or as part of a suite of four courses in the Graduate Certificate in Crisis Communication for students who can visit Griffith University’s Gold Coast or Nathan campuses for their other three courses.

Media Contact: Deborah Marshall, 0409 613 992, d.marshall@griffith.edu.au

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Please drop me a line at m.pearson@griffith.edu.au if you would like further information after reading the course brochure available here.

© Mark Pearson 2014

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January 19, 2015 · 2:20 pm

Course outline for global social media law course starting in March

By MARK PEARSON Follow @Journlaw

WE have now posted the course profile for our fully online global social media law course which I will be teaching from Griffith University, starting in March 2015.

Titled ‘Social Media Law and Risk Management’, the course is targeted at professional communicators internationally who want an introduction to the laws impacting on social media use and other strategies for strategic social media management including social media policies and risk analysis.

The course can be undertaken as a fully online, stand-alone unit if you just want these skills and may not be able to attend in person, or as part of a suite of four courses in the Graduate Certificate in Crisis Management for students who can visit Griffith University’s Gold Coast or Nathan campuses for their other three courses.

You can read more about the entry requirements, application procedures and fees for the social media law course here.

The course outline, including the learning activities and assessment, can be viewed here.

The course examines the dynamic role of social media law and risk management in a range of social and political contexts internationally, particularly in the averting of communication crises. It provides advanced knowledge and skills in the use of social media by government, non-governmental organisations, business, and the general public. Its special focus is on law and risk management in social media in a global context.

After explaining the basic legal concepts required for effective analysis and understanding, and the elements of stakeholder theory underpinning the course, we then proceed to examine key areas of the law arising internationally when professional communicators use social media. These include defamation, contempt of court, privacy, confidentiality, discrimination, copyright, consumer law and censorship. This feeds into a critical examination of the terms of use of social media providers, effective social media policy formulation and social media risk management – all key skills and understandings for crisis communication.

The course can be completed online with no requirement for on-campus attendance. For on-campus students two meetings per semester will be held on the Nathan and Gold Coast campuses for students to meet colleagues and workshop material with instructors. Learning activities will include video lectures, readings, online discussion board activity, social media interaction, multiple choice quizzes and problem-based learning. Each module is focused upon a social media law or risk scenario where students are challenged to draw upon their readings, case studies and professional experience to map out an appropriate diagnosis and strategic course of action.

‘Social Media Law and Risk Management’ addresses one of the key organisational and crisis communication phenomena of the modern era – engaging effectively and internationally with a range of stakeholders using social media while being cognisant of laws, risks and policies.

The course integrates theory and practice by introducing both stakeholder theory and jurisprudential theory of legal systems in the first module and then applying both in the balance of the course throughout learning activities and assessment tasks. The readings, learning problems and portfolio are designed to allow students to find recent cases from within their own jurisdictions internationally to make their learning most relevant to their particular nation, state or territory of professional practice.

Of course, social media is an international medium and therefore all students need to be broadly aware of the laws and risks applying globally. The course bears a direct relationship to students’ professional needs as crisis communicators in a variety of career roles – public relations, journalism, government communications, corporate communications, social media moderation, marketing, human resources and law.

Assessment includes a reflective learning journal, online multiple choice quizzes, and a written assignment involving the critical appraisal of a social media policy.

Please drop me a line at m.pearson@griffith.edu.au if you would like further information after reading the course brochure available here.

© Mark Pearson 2015

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December 18, 2014 · 3:10 pm

Griffith Uni to offer online global social media law course

By MARK PEARSON Follow @Journlaw

WE are now taking applications for a fully online global social media law course which I will be teaching from Griffith University, starting in March 2015.

You can read more about the entry requirements, application procedures and fees for the social media law course here.

Assessment includes a reflective learning journal, online multiple choice quizzes, and a written assignment involving the critical appraisal of a social media policy.

Please drop me a line at m.pearson@griffith.edu.au if you would like further information after reading the course brochure available here.

© Mark Pearson 2014

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May 26, 2014 · 9:57 am

ABC RN Law Report host @damien_carrick talks privacy with @journlaw

By MARK PEARSON Follow @Journlaw

The interviewer became the interviewee when I had the opportunity to chat with the host of the ABC Radio National Law Report (@LawReportRN), Damien Carrick (@damien_carrick), about the law of privacy and the media in Australia and the UK.

Damien was a visiting journalist fellow at the Reuters Institute for the Study of Journalism at Oxford University where he attended the Leveson Inquiry and interviewed journalists and media lawyers to prepare a report titled ‘Privacy, Regulation and the Public Interest’ which is available at https://reutersinstitute.politics.ox…. .

In this interview he discusses the interaction between the rights of free expression and privacy, the scope for coverage of celebrity news if there is a tort of privacy invasion, the difference between the UK and the Australian contexts, and the feasibility of the Australian Law Reform Commission’s proposal of a new statutory tort for the serious invasion of privacy.

[Recorded 19 May 2014, length 14 mins 54 secs]

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Tagged as advertising, Angus Macinnis, blogging, copyright, fair dealing, fair use, iiNet, intellectual property, IP, journalism, law, media law, PR law, public relations, social media law

May 17, 2014 · 10:53 am

The lowdown on IP from expert Angus Macinnis @AequoEtBono – 15 mins with @journlaw

By MARK PEARSON Follow @Journlaw

Intellectual property law – particularly copyright – can be one of the most complex areas of the law for journalists, bloggers and other professional communicators.

Thankfully, commercial lawyer Angus Macinnis from StevensVuaran Lawyers (@AequoEtBono) makes Australian IP law all a bit clearer in this short interview with me, @journlaw, covering everything from the basics of IP through to whether a simple Tweet might be actionable for breach of copyright.

[Recorded 5-5-14, 14 mins 50 secs]

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Tagged as advertising, Angus Macinnis, blogging, copyright, fair dealing, fair use, iiNet, intellectual property, IP, journalism, law, media law, PR law, public relations, social media law

June 19, 2013 · 2:45 am

Dealing with cybersquatters in your precious domain

By MARK PEARSON Follow @Journlaw

Since the advent of the Internet, profiteers have tried to exploit the registration of domain names of unwitting celebrities, businesses and organisations. Lawmakers are still trying to work out how to deal with this problem, and quite often there is absolutely nothing the courts can do because the offender lives in a different jurisdiction. Disputes often end up in the hands of international and national domain registration agencies who engage in arbitration between the parties to try to resolve the argument over who is really entitled to the name. The Internet Corporation for Assigned Names and Numbers (ICANN) will work with national bodies to withdraw a domain name from a cybersquatter.

It is in your best interests as a blogger to keep a close eye on your domain name registration and to register in advance any close wording variants, especially if you are using your blog to any commercial ends. You never actually ‘own’ your URL – you are only licensed to use it for a certain period by the registration body. Cybersquatters keep a close eye on the registration process and pounce once a popular name becomes available. They then use might use it for selling advertising, stealing your identity theft or trying to sell it back to you at an inflated price.

You can’t register every possible variation on the spelling of your name so some spyware and phishing operators register common misspellings of the URLs of famous people and corporations – a practice known as ‘typosquatting’.

Even trademark law is inconsistent in the area of domain names and courts will often not grant relief unless someone clearly demonstrates an intent in ‘bad faith’ to profit from the deception within the same jurisdiction as the victim.

The international dispute resolution processes for domain names might be less expensive than litigation, but they can be beyond the means of the ordinary blogger or small business. WIPO’s Arbitration and Mediation Center charges between US$1500 and US$5000 for their services, depending how many domain names are contested and the number of independent panelists needed for the adjudication. They claim they can process such claims within two months of filing. The domain name cases they have handled – listed here – make for interesting reading and feature many of the world’s leading brands winning URL registration back from shysters and spammers from remote corners of the planet.

Major social media network and blog hosts like Facebook and WordPress also have rules to deter you from registering under other people’s or corporations’ names. They claim they will act to shut down the offender’s account if the target person or organisation complains. But they are sometimes slow to respond and complaints get lost in their bureaucracies. PBS reported on the difficulties a Georgia mother faced removing a fake Facebook profile on her 13-year-old daughter. This was despite the social network’s Statement of Rights and Responsibilities requiring users to use their real names and not ‘create an account for anyone other than yourself without permission’. On the other hand, Twitter tolerates numerous impersonation ‘handles’ set up for comedic purposes. Its policy allows users “to create parody, commentary, or fan accounts”.

[Adapted from my book, Blogging and Tweeting Without Getting Sued. A Global Guide to the Law for Anyone Writing Online. (Allen & Unwin, 2012).

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May 21, 2013 · 11:47 am

Moral rights – taking the high ground

By MARK PEARSON Follow @Journlaw

International conventions and the laws of many countries grant you ‘moral rights’ over your work in addition to your actionable economic rights over copyright. They give you the right to claim authorship of your work through attribution and also the right to object to any changes others might make to your work that might damage your integrity as the creator.

Even if you transferred the copyright in your work to someone else – as you might have done as a freelance blogger or if you were writing as an employee in a government or media organisation – you would still retain your moral rights as an author. This means you can take action against those who might put their own names to your work or those who have put your name to the work but have changed it to your disadvantage. It operates in part to protect you from unfair attacks and parodies where your work has been mutilated, distorted beyond recognition, or reproduced in a thoroughly inappropriate context that damages your honour.

It won’t protect ‘reasonable’ criticism of your work or any critique you have agreed to. It also does not prevent employers or clients leaving your name off work if you have contracted to allow them to do so. But it sends a warning to others that they shouldn’t mess with your work or republish it without giving you due credit. As a blogger, it also means you should be careful when writing parodies pretending to be someone else or denigrating their content and style by chopping and changing it to your satirical ends.

A recent Australian case resulted in the award of $10,000 in damages over a moral rights breach to international rap/hip-hop recording star ‘Pitbull’ (Armando Perez) by an Australian DJ and promoter who had altered one of his songs and played it automatically when his website was visited and at nightclub performances. Freehills executive counsel Melanie Bouton gives an excellent summary of the case here.

The issue of moral rights also raises copyright issues for the blogger or social media user writing under the name of someone famous – beyond the hazards we considered earlier in this book.

Many parts of the world have limitations on how you can use the name and image of others – particularly if you are making a profit out of it. These are often called ‘personality rights’.

In European and other civil law jurisdictions there are tough limits on how you can use the likenesses of others – all bundled up in the laws of privacy. You can’t just cut and paste someone’s photo from the Internet and use it in your blog – especially if it appears to be endorsing your enterprise in some way.

In common law countries like Australia and the UK there is an action called ‘passing off’ which can be launched against you if you have used someone’s name or likeness to imply they have entered into some commercial arrangement to endorse your product or service in some way. In its basic form, it offers simple protection to businesses against those who pretend to have some connection with them or endorsement from them. It has been extended in the creative arts to protect newspaper columnists from deceptive parodies of their work being published under their names in competing publications and also to protect the ‘pen-names’ of authors being used by their former employers after they have moved on to another title.

The US offers a property right known as the ‘right to publicity’ and several states have passed laws to extend its basic common law protections. It gives people the right to protect their name, image and other identifying features against commercial exploitation by others. However, like so many areas of US law, it is limited by the First Amendment so it usually only encompasses blatant cases of exploitation that lack a free expression rationale.

[Adapted from my book, Blogging and Tweeting Without Getting Sued. A Global Guide to the Law for Anyone Writing Online. (Allen & Unwin, 2012).

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