5th feb, 2012

Keep the blows above the waist please

For about 2 weeks I have had a post on my slate relating to a BoingBoing post ”Insane copyright ruling”. I have been circling the post not having time to write it up and maybe not having grasped the right angle of the story.
This morning thinking of my last ACTA post about disinformation I suddenly saw the angle. This post is also about disinformation.
In the BoingBoing story there is mention of a UK court ruling limiting free expression and that “The judge here ruled that the idea of the image was the copyright, not the image itself.” The story quotes an article in “Amateur Photographer” and a lawyer in the article.
One of the dangers from not reading the ruling itself but relying on 3rd party reports is that you risk promoting statements that are biased or untrue. This seems to be the case here.

The subject matter is a photoshopped image of a typical London bus in a specific location in London. A tea company has used a very similar picture on their boxes and is sued for copyright infringement. (see pictures below).


 In the case the QC clearly states that he does not accept that the protection does not cover as broadly as they wish it to do (at 62). What the judge does is apply the “why the hell…” test. It’s a test one of my friends formulated many years ago I relation to trademarks but it will work in many other areas. The test involves asking the question “why the hell do you want to design the picture in this way?” The answer in this case is “because I want to piggyback on the original picture. As the judge states “I sympathise with Mr Houghton in his wish to use an image of London landmarks. He is free to do so. There are entirely independent images of the same landmarks available to be used which predate publication of Mr Fielder’s picture. But the defendants do not want to use those, no doubt for their own good reasons. Perhaps they did not look as attractive as the claimant’s image?”
Therefore there is no monopoly of the motifs as a result of this ruling. Likewise the example given in the BoingBoing article about press photographers taking pictures of the same person is very misleading. Also the judge stresses that this is a very specific case and therefore the impact will not be general to English copyright law. I am sure that the outcome would be similar in Denmark although I would try the case as more of a marketing law case than a copyright case.
What both the original article in Amateur Photographer and BoingBoing misses is the fact that the copyright owner and the tea company has been involved in court proceedings
several times the last few years and this is the last attempt of the tea company to avoid paying royalties which they agreed to in 2010.
This is another example of how half-truths or less is used to hack away on the current IP system spreading the idea that the system doesn’t work. I’m not saying that the system works perfectly but it works a lot better than the opposition would like us all to think.

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