March 25, 2004

Unknown Copyright Owners

The Japanese copyright law gives a compulsory license in the case that the copyright owner can not be found because he is unknown, or for other reasons, see Article 67.

It seems that this system was used widely in World War II, when it was rather difficult to "find" western copyright owners. That difficulty was partly due to the fact that the Japanese drove the German national Dr. Plage out of Japan with some new regulations. He had represented European copyright holders in Japan in the 1930s and was feared and hated by Japanese musicians and translators as "whirlwind Plage".

I googled a bit around and found not much similar in American copyright law. There are some references to unknown copyright holders in 37CFR253.9 and 37CFR260.7

All this might be one efficient way to deal with the problem of "orphaned works". Lessig wants the US to go back to a registration system for copyright to solve that problem.

The Japanese compulsory license does it the other way round. Not the authors shall be subject to formalities forbidden by Article 5 of the Berne Convention, but the person or institution interested in using the work shall need to clear their use with an institution acting as a proxy for the unknown copyright holder. In the case of the Japanese law that is the Commissioner of the Agency for Cultural Affairs.

Lessig's proposal is clearly in violation of the Berne Convention. Of course, it might be unrealistic expecting Americans to obey any kind of treaty. And authors who lose their rights guaranteed in Article 5 of the Convention to some new legislation Lessig calls for can't sue directly based on the Convention in the U.S., since the 1988 Berne Convention Implementation Act states that the Convention is not self-executing and no actions can be brought pursuant to the provisions of the Convention itself.

So violating the Berne Convention might not be a big deal, at least in the internal political discussion in America. However, other countries will take note of such violation and feel free to dump their respective obligations to the U.S. as well.

So maybe it would be a good idea after all to pay some attention to the Berne Convention.

And in that case, a system like the Japanese compulsory license might be an interesting alternative strategy to "save the orphans".

Posted by Karl-Friedrich Lenz at 10:48 PM | Comments (0) | TrackBack

March 23, 2004

Electronic Filing II

Since October last year, the German Patent Office accepts applications filed over the Internet, see this previous post.

From March 22 on, European patent applications can be filed with the German Patent Office electronically as well, see this EPO press release.

Link credit: Axel H. Horns.

Posted by Karl-Friedrich Lenz at 12:13 PM | Comments (0) | TrackBack

March 21, 2004

Flight Data Update

I have blogged before here about the European Parliament opposition to the American passenger name records databases. America requires European airlines to hand over passenger data without providing any meaningful data protection standard as required by European directives.

The Commission seems to have signed a deal with the American side about this question. However, that needs approval by the Parliament, which will be difficult to get. This article reports about the Parliament's citizens' rights committee rejecting the arrangement.

Europeans won't accept easily to have their data handled under the inferior American protection standards.

Posted by Karl-Friedrich Lenz at 10:01 AM | Comments (0) | TrackBack

March 19, 2004

CC Music License

Creative Commons has announced a "Creative Commons Music Sharing License".

It is not a radical new license, since the conditions are just that of an ANN license, which is shorter and easier to say than "Attribution-NonCommercial-NoDerivativeWorks" license.

There are some additions in the legal code that clarify the "NonCommercial" part in Article 4 d) and e) for musical compositions and sound recordings. However, the title of the legal code is not "Music Sharing License", but "Attribution-NonCommercial-NoDerivs 2.0".

There is no warranty as a default.

Evan Prodromou has some critical comments. He says that too many different license options might confuse users and dilute the Creative Commons brand.

On the other hand, the "Music Sharing License" really seems to be only one way to present the ANN 2.0 license, not a different legal code from an ANN 2.0 license the author of a book might use. On the other hand, going to the ANN license over the "choose license" page still leads to an ANN 1.0 license, so right now there is a difference between a "Music Sharing License" and a normal ANN license. We will see if that difference will disappear eventually with the upcoming general update of all licenses to 2.0.

Posted by Karl-Friedrich Lenz at 10:02 PM | Comments (1) | TrackBack

March 14, 2004

Christian Beauprez on Software Patents and TRIPS

Christian Beauprez kindly wrote a comment to my September 26 entry "Horns Blog on Patent Vote".

He points out that the TRIPS treaty requires protecting computer programs as "literary works". Since that is not compatible with protecting them as patents, all countries awarding software patents right now are in violation of TRIPS, in his opinion.

He might be right. On the other hand, I would be surprised if the EU Commission asks for WTO sanctions against America and Japan in this particular case. As a reason for refraining from doing so, the Commission might point to Article 1 Paragraph 1 TRIPS:

Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement.

So, even if Member States are required to provide copyright protection for computer software as literary works, they might still be entitled by Article 1 to provide patent protection on top of that. The contrary view would imply an obligation to reduce the level of protection, which is quite the opposite of the purpose of TRIPS.

Anyway, I think this is an interesting idea. And I haven't seen it anywhere until now.

Posted by Karl-Friedrich Lenz at 06:04 PM | Comments (0) | TrackBack

March 13, 2004

EU Community Patent

is dead, says Axel H. Horns, and describes some background on the latest unsuccessful Council session, as well as citing a statement by Commissioner Frits Bolkestein. For some strange reason many Member States don't seem to like the idea that all patents in the system should be just in English.

I wrote here on March 7 last year:

I'll believe it when I see it in the Official Journal. This is not the first announcement that the EU agrees on joint patent system. Basically the language issue is extremely difficult to solve.

It seems I was right then.

Posted by Karl-Friedrich Lenz at 06:53 PM | Comments (0) | TrackBack

Patent Database Censorship

Dan Gillmor publishes an e-mail from Bruce Schneier complaining about censorship of the American Patent Office database.

Apparently, users of that database have lost the ability to further their valuable research on how to use ricin as a weapon of mass destruction. Requesting the patent in question returns only an error message.

This is not censorship. The government doesn't tell anybody else to shut up in this case. They are only holding information back that they have. And they do so in many other cases as well. Is it "censorship" if there are no instruction manuals for making weapons of mass destruction on the Pentagon website?

On the other hand, Axel H. Horns might be right in commenting that the basic social contract behind the patent system is granting a temporary monopoly in exchange for public information. That would mean that the very fundaments of the patent system require that every lunatic on the planet is served by the Patent Office with information about how to use ricin for the next large scale attack.

That in turn would seem to lead to an excellent argument for wholesale abolition of the patent system, if anybody should get inclined to call for such abolition, for example as a reaction to the mess caused by software patents.

"Look! The patent office is helping terrorists to develop their WMD ability! And we can't even stop that without compromising the basic social contract the patent system is built on."

This is a strong argument. I am personally very much interested in preserving a free Internet. However, I draw a line at pages describing technology to build weapons of mass destruction. Leaving this information freely available can kill people. The level of damage possibly arising from that is extremely high.

I'll be happy to come back to this case if I ever feel that there is no other hope left than calling for abolition.

And, by the way, if the patent in question can still be found in foreign databases, that only proves that it needs to be removed from those immediately as well.

There is some background on the patent at this article (via Ernest Miller).

Update: Axel H. Horns kindly reacts to my comment here. I have nothing much more to add to my above post. However, since Horns stressed the fact that I am on the FFII advisory board, I would just like to clarify that the views expressed above are in no way to be imputed to the FFII, being only my own. If anything, they run against the basic idea of a "Free Information Infrastructure".

Posted by Karl-Friedrich Lenz at 06:37 PM | Comments (3) | TrackBack

March 12, 2004

Nobuhiro Nakayama Interview

Trembling Leaf has a link to an interview with Tokyo University professor Nobuhiro Nakayama. I have blogged before on his criticism of the quality of the debate at the Strategic Council on Intellectual Property.

The interview by Mainichi Shinbun is in Japanese. Some highlights:

"Strengthening of intellectual property is proceeding with viewing speed as important and without the necessary level of debate."

"The operating system Linux has been developed by sharing information. It is necessary to pay attention to the fact that in today's world there are areas where a policy of not to strengthening the protection of information contributes to the development of industry. If we don't understand the direction the world is moving in, we will end up repeating the mistake of building a great battleship Yamato when it was necessary to build aircraft carriers."

"On the question of international exhaustion of the rights for Japanese music CDs, the rightholders favor a prohibition on re-imports, but academics oppose it. This will probably end with a political decision in favor of the rightholders introducing that prohibition."

It is interesting to see a leading Japanese academic like Nakayama voice this kind of sceptical viewpoints in the discussion about "Making Japan an Intellectual-Property Based Nation".

Posted by Karl-Friedrich Lenz at 08:48 PM | Comments (0) | TrackBack

March 07, 2004

Phonogram Treaty Case

Germany is a signatory of the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms of October 29, 1971, the Geneva Phonograms Convention, as is the USA.

The German Federal Court of Justice decided a penal law case on that treaty on March 3rd (press release in German).

A company had reproduced 268.090 CDs without a license and exported them to Bulgaria. The managing director (Geschaeftsfuehrer) of that company was sentenced (suspended) to one year and three months of prison.

The Federal Court of Justice affirmed that sentence and decided that German copyright law protects American music publishers against this kind of piracy under the Phonogram Convention. Article 2 of that Convention reads:

Each Contracting State shall protect producers of phonograms who are nationals of other Contracting States against the making of duplicates without the consent of the producer and against the importation of such duplicates, provided that any such making or importation is for the purpose of distribution to the public, and against the distribution of such duplicates to the public.

The offense was not only one of duplicating without consent, but also one of distributing to the public. The court held for the first time for copyright violations that sending pirated copies to a third country is illegal distribution to the public in Germany, not only in the target country (Bulgaria in this case).

Posted by Karl-Friedrich Lenz at 07:00 PM | Comments (0) | TrackBack

March 06, 2004

Eolas Patent Invalidated

Furdlog points to this article about a preliminary decision of the patent office to invalidate the illegally granted harmful and obnoxious Eolas patent.

As I have pointed out before, the W3C does have some influence to defend the Internet against the most damaging patents.

And invalidating this kind of claim is the only way the patent system as such can survive. If the patent office lets patents like the Eolas patent stand and cripples the Internet in the process, we will see a strong patent abolition movement, since everybody understands that there is no justification for ownership in the concept of a browser plug-in, but most people don't know and don't care about the positive effects of patents in other fields.

Patent attorneys ignore the danger of overextending the system at their own peril. They should be the loudest voices calling for meaningful restrictions, instead of betting everything on unlimited patent inflation.

Posted by Karl-Friedrich Lenz at 04:21 PM | TrackBack

March 05, 2004

Google Downgrading

John Batelle points to this article on spambots that defaced a website dedicated to the memory of a traffic accident victim. The deceased was the best friend of the author of that article, and the author is not pleased about this kind of behavior.

I was interested to read that "Google is known to have taken action to downgrade, or disregard links that it finds in guest books, because they are less trustworthy these days, than in the past, as a guide to relevancy".

That is because I speculated lately about the possibility of having Google downgrading links left by blog comment spam. While I was motivated by the possible deterring effect of such a policy on comment spam, there is another aspect. If someone is inflating their Google rating by comment spam, they are damaging the reliability of the rating system. Therefore, taking them out or setting their rank to 1 only restores what they should have gotten in the first place.

So if Google has some such policy in place for links found in guestbooks, maybe they would be willing to consider a similar policy for blog comment spam.

And one of the comments at Battelle's post points me to this Googleguy post: Apparently Google is already taking action against comment spammers.

If that is true, the most important job now is to educate potential comment spammers that their evil acts are not only extremely annoying to everyone else, but will only harm their Google rank. Please help to spread the word.

Posted by Karl-Friedrich Lenz at 09:22 PM | TrackBack

March 04, 2004

Disclaimer Claim

here. I don't know if the American patent office has already granted this, but I wouldn't be surprised.

The author of that disclaimer claim, patent attorney Stephen M. Nipper, has a blog with many interesting posts on patents here.

Posted by Karl-Friedrich Lenz at 08:34 PM | Comments (0) | TrackBack

March 02, 2004

SCO Germany Settlement

Groklaw points to this Computerwoche article (in German) about a settlement (original German PDF file) between a small German company (Univention) and SCO Germany. There was already an injunction against SCO in May 2003.

What this settlement does not say: SCO agrees not to allege A, B, C, D...

What it does say: SCO agrees not to allege A, B.... unless they have evidence for it. And they agree not to announce having evidence unless they hand over such evidence to Univention within one month after the announcement.

The legal basis for Univention's claims against SCO Germany is Article 1 of the Act against Unfair Competition (UWG). In patent attorney Ralph Beyer's translation:

"Any person who, in the course of business activity and for purposes of competition, commits acts contrary to honest practices may be enjoined from these acts and held liable for damages."

Relevant caselaw is a decision of the Hamburg Higher Regional Court (OLG) of August 31, 2000 (3 U 272/92, WRP 2001, 956-964) and a decision of the Federal Court of Justice of July 7, 1954 (Johann Maria Farina, BGHZ 14, 282). Under that caselaw it is an "act contrary to honest practices" to assert intellectual property rights in public without actually having them.

Now, what exactly would happen if SCO Germany tomorrow started to make all the assertions mentioned in the settlement again in public?

In that case, Univention could sue them under the terms of the settlement for 10.000 Euro.

However, they could sue them under the above Article of the Act against Unfair Competition and caselaw anyway. All the settlement gives Univention on top of that is an easy way to put a number on their damage claims.

That number however is rather low, compared to what is at stake here. I doubt that this will have much of a deterrent effect on SCO Germany. They can always say that they have evidence now, even under the terms of the settlement.

And this settlement is only between SCO Germany and Univention. Every other Linux company in Germany is free to start their own lawsuit based on unfair competition law.

Slashdot thread here.

Posted by Karl-Friedrich Lenz at 10:42 AM | Comments (0) | TrackBack