Planned increase in maximum fine for on-line copyright infringement

Story from Outlaw that the Government plans to increase the maximum fine that Magistrates' Courts can award for online copyright infringement from £5,000 to £50,000.

The UK Government and the Intellectual Property Office (UK-IPO) are consulting on plans, which would allow Magistrates' Courts in England and Wales to issue summary fines of £50,000 for online copyright infringement. The larger fine is proposed for commercial scale infringements, where the person involved profits from the infringement.

The plan would implement another of the recommendations of the Gowers Review of Intellectual Property, the 2006 report by former Financial Times editor Andrew Gowers which has been the foundation of intellectual property policy since its publication.

"This consultation takes forward Gowers Review recommendation 36, which recommended matching penalties for online and physical copyright infringement by increasing sanctions for online infringements," said the UK-IPO in a statement.

The courts in Scotland and Northern Ireland operate differently from those in England and Wales, and there is no equivalent sentencing guideline system there, but the consultation suggests that those courts could still implement maximum fines (para 14 of the Executive Summary).

See the full story at Outlaw.

The consultation is open until 31 October. You can take a look at the consultation paper here. The questions they are consulting on are:

OPTION 1 – MAKE NO CHANGE TO THE LAW

• Do you think that POCA already provides an effective means of depriving offenders of the profits from IP crime?

OPTION 2- INTRODUCE EXCEPTIONAL STATUTORY MAXIMA OF £50,000 FOR COPYRIGHT OFFENCES

• Should exceptional summary maxima be introduced for all copyright offences in the CDPA?
• Do you agree that one level (not to exceed £50,000) of exceptional statutory maxima should be set for all offences in the CDPA?
• Do you have any general comments on how the magistrates’ courts deal with copyright offences?
• Do you think that different levels of exceptional statutory maxima should be set for the various copyright offences?

OPTION 3- INTRODUCE EXCEPTIONAL STATUTORY MAXIMA OF £50,000 FOR ALL IP OFFENCES

• Do you think exceptional statutory maxima should be introduced for all IP offences and should different levels be set for the various IP offences?

New DCC Legal Watch Paper Published

As promised, I wanted to let you know that the DCC has just published its latest Legal Watch Paper. The topic for this one is Creative Commons Licensing. The paper can be found in the Resource Centre section of the DCC website (as can many other useful things….)

What topics would you like to see covered in future Legal Watch Papers?

Legal Issues from the JISC Innovation Forum (JIF)

Another thing that the Open Access overview highlighted is that OA is not limited to literature. It can apply to any digital content including raw and semi-raw data.

This reminded me of some of the discussion at the recent JISC Innovation Forum (JIF). The event was split into three themes and I was attending Theme b: Research data - Whose problem is it? The first session in our theme was ‘legal and policy issues’. The session took the form of a debate where Charles Oppenheim and I were debating the motion:

“Curating and sharing research data is best done where the researcher’s institution asserts IPR claims over the data”.

Charles was speaking for the motion and I was against. An open approach to data featured heavily in both the initial debate and the group discussion that followed.

A very brief summary of my argument in the debate is:

1. It is often best that IPR is not asserted because:

a. Often there is no IPR to assert in the data. Facts are not copyrightable therefore data that is merely fact is not copyrightable. We must also consider the database right but it should be noted that this is not as wide reaching as initially thought and covers databases not data.

b. Where IPRs do exist in the data, collaborations involving different jurisdictions, large numbers of institutions etc can make unravelling the ownership of those rights complicated. Large amounts of resources are spent/wasted agreeing these.

c. Open data has distinct advantages for downstream innovation. Look at the example of US public data. Science Commons now advocating waiving all rights and placing data in the public domain.

2. Answering counter argument of - don't we need IPRs as incentive to create? Well, in academic circles it is often more about attribution than economic advantage. As data merged and new data created this becomes more difficult. Answer for attribution lies in technology not IPR.

Mahendra Mahey kindly produced notes from the session (including coverage of Charles’ argument for the motion) which you can find by clicking on the link on the Legal and Policy Issues home page or by linking directly here.

What do you think? Do you agree with my argument (some of which is overstated for the purposes of the debate)? Or do you notice some flaws? I’m particularly interested in your thoughts on the legal aspects of sharing data.

Open Access continued....

What I omitted to say the other day when I posted about Peter Suber’s Open Access Overview was that I found it really useful. I learnt a lot, confirmed a lot and am very grateful to Peter for producing it.

I had only two queries about what was written. The first was from the third paragraph which started “The legal basis of OA is either the consent of the copyright holder or the public domain, usually the former.” This went on to say that:

“Because OA uses copyright-holder consent, or the expiration of copyright, it does not require the abolition, reform, or infringement of copyright law.”

Or does it? I agree with Peter to a great extent but I also think we must remember the difficulties that can arise in establishing ownership of copyright whether that is in case of multiple contributors, academic/university produced works, funder requirements or orphan works. In my view reform in this area would be helpful to the OA cause.

What do you think?

The other area was in the paragraph about OA serving the interests of many groups. I was particularly interested in the funding agencies part of this and pleased to see that Peter had identified two benefits for them. The description went as follows:

“Funding agencies: OA increases the return on their investment in research, making the results of the funded research more widely available, more discoverable, more retrievable, and more useful. OA serves public funding agencies in a second way as well, by providing public access to the results of publicly-funded research.”

I’m very possibly missing something but aren’t these two the same thing? I’d be ever so grateful if someone could point out anything I’m missing.

IP Conference – free registration

Here’s an interesting looking conference taking place in Helsinki, Finland this October.

ONE RIGHT SYSTEM FOR IP – VISION IMPOSSIBLE?

International Conference

1 – 3 October 2008
Hotel Rantapuisto, Vuosaari, Helsinki

Hosted by IPR University Center and the INNOCENT Graduate School


Globally, the intellectual property (IP) system has become fragmented and complicated. It is contested by the internet generation and many academics for outdated protection schemes. It is contested by developing countries for its imbalance. It is contested by rightholders for providing mainly national protection and weak enforcement mechanisms in a global economy.

The future structure of IP system has been widely debated for years. IPR University Center (University of Helsinki) wants to give a contribution to this important debate by organising a high level academic conference in October 2008.

One Right System For IP – Vision Impossible? is a multidisciplinary conference focusing mainly on legal aspects. It is aimed at European researchers in law, economics and technology, as well as practitioners interested in intellectual property rights.

You can take a look at the programme here. A number of the papers look like they could be very good. In particular, the two taking place late morning on Thursday 2nd could have some relevance for digital curation:

The Changing Purposes of IP Protection: A Basis For Convergence?
Professor Graeme Dinwoodie, Chicago-Kent College of Law

and

Evolving New Markets for IP and its Implications
Dr Ilkka Rahnasto, Vice President, IPR, Nokia Corporation

What’s more - the conference is free of charge!