Informationoverlord

On getting back from the Christmas break I found that my user name and password to Intellectual Property Magazine did not seem to be working. I doubled check my details, cleared my temp web pages/cache/cookies for the site. Re-booted, tried again. Nada.

The Magazine is an Informa publication, and under help includes:

My login/password doesn’t seem to work, who do I contact?
If you are a current subscriber to Intellectual Property Magazine but can’t access the online part of your subscription or have any other online queries - please contact our customer services team between the hours of 09.00 - 18.00 GMT (Monday - Friday) on onlineaccess@informa.com or call us on: +44 (0)20 7017 4161.

Now, as the matter wasn’t urgent in a ‘I need access this second’ kind of way – I was more a, ‘as long as sorted tomorrow, that’s fine’ kind of way, I decided to use the email option. This was January 3rd.

Informa have yet to respond to the email.

Last Friday, I decided to send an email – including the text of the Jan 3rd email – to another email address ’subscriptions@informa.com’ in the hope that this email address was a) manned and b) that someone would take the time to respond to what was now an unhappy and unimpressed customer.

Informa have yet to respond to that email.

Now, of course, I know I could have rung the customer service number by now, but surely the point of having an email option is that I shouldn’t have to? Yes, I have an expectation that the email route may be slightly slower to resolve problems, but, it should still be quick, and if you are a subscriber who is unable to access content they are paying for, and who also has the option to cancel their subscription in an upcoming renewal, you’d hope that the response would be reasonably swift.

In one final try before pulling the subscription I have tried Twitter. 18 hours ago I sent a Tweet:

@InformaPLC do you have a complaints email address? as seems emails to ‘onlineaccess@informa.com’ address just ignored (emails sent 3 Jan)

Informa have yet to respond to that Tweet.

Informa are a big company. I’m sure they get hundreds of emails sent to the two addresses I use every day. However, how long do they expect to retain subscribers if they don’t respond to ones who are having problems with their products/can’t access a service they are paying for?

Hello Informa, Is there anybody out there?

I have decided to omit Oscar films that came out this year in the UK, so not including the excellent: The Fighter , Black Swan, The Kings Speech, True Grit, Gas Land, and Welcome to the Giftshop. That did make it much harder to come up with a list of 10 though, as I realised I had missed many of the big films from the later half of the year - Drive, for example. Anyway, with that said the best 10 films (in no particular order) I saw 2011 were:

A Separation - Iranian drama about a couple separating and the husband’s attempts to get someone to look after his Alzheimer-stricken Father. Doesn’t sound like one of the best films of the year, but this is an extraordinary piece of storytelling/filmmaking. Feeling both heartfelt and true it is also an fascinating insight into the Iranian legal system. A must for Best Foreign Language film at the Oscars.
The Artist - Saw this year, but just counts as a last year film as got London release in December. As a fan of silent film it was nice to see it revived so lovingly to show just why many silent stars feared the coming of sound. In lead Jean Dujardin, it was like John Gilbert and Douglas Fairbanks had been blended together and brought back to life. Brilliant stuff, and a dead cert to bag several Oscars.
Arrietty - A lovely reworking of The Borrowers story, which in the hands of Studio Ghibli takes on a special magic all its own.
Real Steel - Ok, so this wasn’t high art, but it was one of the biggest surprises I had at a cinema this year. Enjoyable smatlz of a superior variety.
Tinker Tailor Soldier Spy - Is it or isn’t it a film about spying? Who cares. Whilst this is a very slow film, it is one that does not insult its audience at any point, and has a terrific and very underplayed performance by Gary Oldman that will no doubt be criminally overlooked in the coming Awards season.
The Guard - Brendan Gleeson. Need I say More. Highly enjoyable comedy thriller.
Senna Well deserving of all the praise it received, this is a very well made documentary that explains the rise of Ayrton Senna, and also goes some way to explaining his death. Gripping stuff.
Bridesmaids - A girl version of stupid hollywood lads movie that proved they could not only do it better - not the greatest challenge - but also make it surprisingly likeable.
Skin I Live in Ah Pedro. It is good to see you have not lost the bonkers gene. This was one of the most ridiculous things I saw in a cinema this year. The twist is obvious and some of the acting comes with additional pounds of ham added, but … it did have something that a lot of films lacked this year - bonkersness. Despite myself I liked it.
La Piscine - Restored print of Jacques Deray’s 1969 classic starring Alain Delon and Romy Schneider. A french classic.

TOP 15 Albums 2011

Album of the Year

Bon Iver – Bon Iver - There really wasn’t an album I returned to more in 2012 than this one. Not a dud track on the whole album (although the Bruce Hornsby impersonation was a bit odd) Here’s Bon Iver performing Perth on Later with Jools Holland

And the Rest: -

Ryan Adams Ashes & Fire. One of my favourite songwriters, and this was his best collection in a few years. Mostly stripped down. Great stuff. Lucky Now video
The Civil Wars – Barton Hollow . Not on the album, but they do a good range of covers in addition to their own stuff. Here is them doing Billy Jean on Later with Jools Holland
The Leisure Society – Into the Murky Waters : Pastoral English folk/pop music at its finest. A delightful discovery. Well crafted tunes, and great delivery. Dust on the Dancefloor video
Scoobuis Pip – Distraction Pieces … Video for Let em Come
Abigail Washburn - City of Refuge: Abigail Washburn performing “Chains” live at Music City Roots on 3.02.2011
Decemberists – The King is Dead. “This is Why We Fight” on Jimmy Kimmel Live
Tom Waits – Bad as Me. Video for Satisfied
Todd Rundgren – reProduced No Video’s for this, but Here’s the version of Dancing Barefoot
Lykke Li – Wounded Rhymes – Video for I Follow Rivers Steve Earle – I’ll Never Ger Outta This World Alive - Every Part of Me on Letterman
The Sandman’s Orchestra - Silver Linings. On a bit of a mission to bring this band to wider attention. They are a duo made up of Pierre Laplace, a singer/songwriter from Lille, France, and his 16-year-old niece, Léonie Gabriel, and they make great modern folk music. Listen and buy here http://thesandmansorchestra.com/music
Wilco – The Whole Love. Video for Born Alone
REM – Collapse into Now Video for Mine Smell Like Honey
Foo Fighters - Video for Rope

……………………………………..

Top 10 Gigs 2011
Gig of the year
Abigail Washburn – The Borderline - Friday 20 May 2011

Hard to get over just how magnificent this gig was. A packed venue on a May evening, and with a good portion of the audience not really knowing what to expect. What to expect was Washburn accompanied by Kai Welsh, sat commanding the stage with warmth, humour, and some astonishingly good music (inc Chinese Opera… as you do).

The other 9, in no particular order:

The Hold Steady - Shepherds Bush Empire - Friday 18 February 2011
The Civil Wars – Union Chapel - Tuesday 27 September 2011
Steve Earle & The Dukes (and Duchesses) - Royal Festival Hall - Tuesday 25 October 2011
Todd Rundgren – Jazz Cafe - Monday 3 October 2011
Shelby Lynne – Cardogan Hall - Friday 6 May 2011
The Decemberists – Hammersmith Apollo - Wednesday 16 March 2011
Scroobius Pip – Scala - Monday 8th November, 2011
Jesse Malin – Scala – Monday 28th November, 2011
Sleigh Bells – Heaven - Monday 14 February 2011

Advocate General Mengozzi of the ECJ has recommended that the ECJ rule that a database of football fixtures in the English and Scottish leagues is not protected by copyright law because it is not an original intellectual creation of its author. According to the AG if any intellectual creation happens in this case it is before the database is created and any protection from the database directive concerns the database not its contents, and activities involved in the creation of the data cannot be taken into account for the purposes of that assessment.

The Case ( C-604/10 Football Dataco Ltd ) concerns the English and Scottish football leagues wanting to charge bookies and sites such as Yahoo to use football fixture lists, who currently use the information without paying them for the privilege.

The AG’s opinion is not really a big surprise, as the ECJ has previously made a distinction between the creation of data and obtaining data. In The Fixture Marketing (338/02 (Fixtures Marketing Ltd v Svenska Spel AB),. 444/02 (Fixtures Marketing Ltd v OPAP) and. 46/02 (Fixtures Marketing Ltd v Oy Veikkaus Ab)) and the British Horseracing Board (C-203/02) cases the Court refused to count any investment in creating the data as constituting a substantial investment in the database itself. Indeed these ruling had effectively ruled out any sui generis protection for such databases. The sui generis right states that:”Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilisation of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.” In the case of Fixture Marketing , the ECJ was clear that “neither the obtaining, verification, nor presentation of the contents of a football fixture list attests to substantial investment which could justify protection by the sui generis right provided for by the directive.”

The current case therefore was looking to ascertain whether or not, with sui generis protection ruled out, copyright protection applies and if so under what conditions. The AG is clear that protection focuses on the structure of the database – including selection of data and how presented, but does not extent to the contents – which may be protected separately by copyright, but are not by virtue of being entered into a protected database.

In this case, the AG states that it believes the referring court – English High Court – starts its assumption on whether there is any selection or arrangement of the data in the database with a misreading of the facts. The AG argues that in this case it is not a generic list of teams, possible dates, and times that is entered into the database and then the specifics of each match is generated after that, rather what is entered into the database is all the individual matches to played with the teams, dates and times already finalised. Indeed, even if this were the case as the court ruled in Fixtures Marketing case said, the term database, as used in the directive, refers to any collection of works, data or other materials, separable from one another without the value of their contents being affected. In this case generic lists of teams, dates, times would have no separate value. Only the set of details identifying each match could have such value. That said, the AG goes on to add “the elements which characterise the matches of a football league, however, are all basic data, and are not output generated by the entry of the basic data in a database.”

A football fixture list could be protected by copyright if there was some additional original elements introduced by the creator - graphical/colour elements etc – but the fact would remain that only that means of displaying the data not the underlying data would be protected.

On the question of whether national law could confer protection on a database not covered by the directive, the AG said it was clear the answer was no. The Directive provided for transitional arrangements for databases formerly covered by national rules – for example, in the UK databases were generally protected by copyright before the directive – but it could clearly not be the intension that databases created after the directive came into force could them benefit from those previous national rules.

This, to me, seems a very sound opinion from AG Mengozzi. It is short, concise and to the point. It also makes sense. In the words of the AG ” the very idea of using copyright to protect football fixture lists seems peculiar, to say the least.” However, the AG’s opinion, is just that. It will be forn the ECJ itself to decide whether or not to follow his recommendation or to bring their own interpretation to bear on the facts.

The Database Directive itself has been one of the biggest failures in copyright law. Passed in 1996 its purpose was to help protect the investment in creating a database as thus stimulate the growth of databases in Europe, improving choice and helping content industries ‘innovate’. Recent review of the directive in 2005 showed that ‘innovation’ has resulting in less databases in the EU now than in 1996. Then, as now, there were calls for the Directive to be repealed or rewritten. However, this line from Evaluation of the 1996 Database Directive raises questions” Single Market News Article - (Issue No. 40 - January 2006) may hint at why nothing has happened: “While the empirical evidence, at this stage, cast doubts on the usefulness of the new right, the European publishing industry argued that “sui generis” protection was crucial to the continued success of their activities.” These were the same people who also claimed the directive had “created more business opportunities and facilitated the marketing of databases.”

The evidence however shows the Directive has shrunk and stifled the market rather than stimulating it, and a look to the US where database investment and creation increased over the same period adds weight to the argument of the need for the directive and especially the sui generis right at all. Of course, if the EU did get rid of the Sui Generis right there is an argument that in this case the UK would have conceivably granted this database protection as a “non-original” compilation, which took some effort to create. So, in this case, at least, maybe the flawed directive has returned the correct legal answer.

The European Court of Justice (ECJ) has ruled that a national measure ordering an internet service provider to install a system for filtering and blocking electronic communications in order to protect intellectual property rights in principle infringes fundamental EU rights.

The Court considers that the installation of that filtering and blocking system is a restriction on the right to respect for the privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights, and that the deployment of such a system would restrict freedom of an ISP to conduct its business , which is also protected by the Charter of Fundamental Rights.

This decision comes as part of a long running battle between Belgian copyright society SABAM and Internet service provider Tiscali (now Belgacom’s Scarlet) . Back in 2007 the Belgian Court of First Instance ordered Scarlet to put into place blocking and filtering mechanisms to stop its users sending or receiving music through p2p applications, this was after a lower court had found the ISP liable in 2004 for the unauthorised exchange of music files through its service. SABAM had asked the court to force the ISP to use a filter from Audible Magic to screen out file-sharing traffic. However, a judge later reversed this ruling, after confusion over the purported effectiveness of Audible Magic.

Scarlet argued that and filtering technology was flawed and that even if it were not, then it was being asked to monitor all communications coming across its network in order to identify p2p traffic, which would go against EU law.

The Brussels Court of Appeal took up the case, and decided to refer the matter of whether ISPs can be compelled to filter file-sharing traffic on their networks to the ECJ

It is asked for guidance on:

1. Do Directives 2001/29 [copyright in the information society] and 2004/48 [the IP enforcement directive], read in conjunction with Directives 95/46 [on the processing of personal data], 2000/31 [the e-commerce directive] and 2002/58 [on privacy and electronic communications] and interpreted with regard to Articles 8 and 10 of the European Convention on Human Rights, allow Member States to authorize a national court, seized in a procedure on the merits and on solely on the basis of the legal provision which holds that “They [the national court] can equally impose a prohibitory injunction on intermediaries whose services are relied upon by a third party to infringe copyright or a neighbouring right”, to order an ISP to put into place, vis-a-vis all of its customers, in abstracto and as a preventive measure, at the expense of the ISP and without limitation in time, a system filtering all electronic communications, both incoming and outcoming, passing through its service, in particular by means of peer to peer software, with the aim to identify the circulation on its network of electronic files containing a musical, cinematographic or audiovisual work to which the claimant alleges to enjoy rights and to then block the transfer thereof, either at the request or at the time it is sent?

2. If question 1 is answered in the positive, do these directives require that the national court, seized to rule over a request for injunctive relief against an intermediary on whose services a third party relies to infringe a copyright, applies the principle of proportionality when it is asked to rule over the efficacy and the dissuasive effect of the requested measure?”

The court, essentially confirming the view of Advocate General (AG) Cruz Villalón, earlier this year, is clear that the injunction requiring Scarlet to install a system for filtering and blocking electronic communications in order to protect intellectual property, would require it to actively monitor all traffic across its network, which is prohibited under the e-commerce directive. It agrees that under EU law the protection of IP rights is enshrined, but stresses that nothing in the wording of the provision in the Charter of Fundamental Rights of the European Union or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected. It is a right that has to be balanced against other rights, and national authorities and courts must ensure that they strike a fair balance between conflicting rights. In this case the rights balanced are those of the content owners wanting to protect their IP rights and those of the ISP to have freedom to conduct its business. According to the court, the injunction in this case would seriously infringe the freedom of the ISP to conduct its business as it would require it to install a complicated and costly computer system at its own expense, that would have no time limitation, contrary to IP Directive.

The Court goes on the add that the effects of the injunction would also infringe the fundamental rights of the ISPs customers, in respect to protecting their personal data and their freedom to communicate. The systematic analysis of all communications traffic and the collection and identification of subscribers’ IP addresses would particularly.

Finally the court says the injunction would lead to over-blocking of content including much legal non–infringing content.

How does this judgement affect the situation in the UK? The short answer is it doesn’t really. The ECJ has primarily found that the injunction against Scarlet was too broad in that it imposed an obligation to monitor all communications – which itself would (except in limited circumstances) fall foul of the Regulation of Investigatory Powers Act (RIPA). And in theory at least, the UK’s controversial Digital Economy Act does not require ISPs to monitor communications in a manner that would contradict the provisions of RIPA.

Actions such as the recent court order forcing BT to block access to a particular site, Twentieth Century Fox Film Corp & Ors v British Telecommunications Plc (Newzbin case), is more focused and limited than what happened in the Scarlet case. Indeed, Justice Arnold considered this, then pending decision, in reaching his conclusion. he said ” I consider that the present case is clearly distinguishable from that case. Quite simply, the Studios are not seeking an order that BT “introduce, for all its customers, in abstracto and as a preventive measure, exclusively at the cost of that ISP and for an unlimited period, a system for filtering all electronic communications, both incoming and outgoing, passing via its services, in particular those involving the use of peer-to-peer software, in order to identify on its network the sharing of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold rights, and subsequently to block the transfer of such files, either at the point at which they are requested or at which they are sent”. On the contrary, the order sought by the Studios is clear and precise; it merely requires BT to implement an existing technical solution which BT already employs for a different purpose; implementing that solution is accepted by BT to be technically feasible; the cost is not suggested by BT to be excessive; and provision has been made to enable the order to be varied or discharged in the event of a future change in circumstances. In my view, the order falls well within the range of orders which was foreseeable by ISPs on the basis of section 97A, and still more Article 8(3) of the Information Society Directive. I therefore conclude that the order is one “prescribed by law” within Article 10(2) ECHR, and hence is not contrary to Article 10 ECHR.”

Also, in the BT case, it could be argued that by already having its ‘cleanfeed’ system up and running to deal with blocking access to sites identified as containing child porn images it had already potentially lost any ‘mere conduit’ defence under the e-commerce directive as doing so was a commercial decision not a legislated one.

It is also worth noting that another similar case, with an identical question to the first question in this has been referred to the Court of Justice in Case C-360/10 Belgische Vereniging van Auteurs, Componisten en Uitgevers (SABAM) v NETLOG NV.

This is just a brief note on today’s ‘upgrade’ to Google Reader. For those not aware as of today it has a new ‘look and feel’ – i.e the same one that Gmail etc now has, that looks essentially the same but with more pointless white space.*

The big benefit of this however is it will now let you post to G+. Yippie. No, seriously, this is a wise move and one that I commend Google for. However I don’t commend them for doing it at the expense or removing the sharing capability WITHIN Google Reader. ** Why is this important? A couple of reasons.

1) You now need to leave Google Reader and go into G+ to have a conversation about items you were previously sharing with people inside of Google Reader and which you could ACCESS just like any other feed, as a item in Google Reader until today.

2) Half the people I was sharing with in Google Reader do not have G+ accounts as a result of Google being more interested in advertising that users and only allowing ‘Real Names’ - whatever the fuck they are - to be used to created a G+ account. I say whatever the fuck they are as what google means is a first name / last name convention it decides is ok, even when through deedpoll for example your REAL NAME may actually be ‘Burpy’. Tough Google says, you’re LEGAL name isn’t good enough for us. This is why Google are a bunch of fuckwits with how they have set up and are trying to manage G+. It’s a ‘you betcha we can be just as big a bunch of self interested ad-money obsessed pratts as Facebook, and then some’.

Now Google says, it’s ok, if you’re not happy we recognize you own your data and you can go elsewhere. Thanks. You mean go to one of the millions of other web based rss readers out that that has a sharing facility. Yes, thanks for nothing.

But, that is not all. If you used IE7 (so if you have a day job, there is a decent chance that you still do – around 50% of the folks I know who work in offices still have it) then Google’s new look products don’t really work properly in it. Now, I blame IT departments mostly for this, not google, but the end result is the same. As 98% of my use of Google Reader is in the office: I scan almost 700 feeds in 30mins-1hr each day; Google reader ceasing to function, or doing so in such as way as meaning that time is doubled or more, means that I have no use for it anymore. My favourite Google product in now of no use to me, and I’m left trying to find any alternative – just for reading the feeds – that is not a pile of crap.

All I’ll say Google is you are lucky I can manage my Gmail adequately through my phone, otherwise, I would abandon you totally. I am certainly now considering killing my G+ account (this is not because I don’t think it has promise), as I don’t really use it and until I have a work environment that allows me too – quite possibly a year off, by which time all my interest in G+ and gReader will have died, it is difficult to see a reason for keeping it.

* Seriously, did someone swallow an Apple circa 1980 pill? White is clean, yes. But , when did ANY colour become bad? Looking at it is like going snowblind, and believe me google the equally pointless GREY lines don’t really help. Do you have anyone working there that knows arse from elbow when it come to UI design?

**According to Google Reader’s blog post, users could go to setting and choose to revert to the old version of gReader (for a limited time), but of course, you couldn’t even get that right and if comments on line were anything to go by, most people, like me, saw no such option.

It is always nice to see some common sense from Judges, and we got some this week when the Supreme Court of Canada ruled that ” a hyperlink, by itself, should never be seen as “publication” of the content to which it refers.”

The ruling came in a case that focused on the issue of liability for linking to allegedly defamatory content on the web where Mr Crookes, a member of the Green Party of Canada, had sued Mr Newton on the basis that two of the hyperlinks he created on his website connected to defamatory material about him, and that by using those hyperlinks, Mr Newton himself was publishing the defamatory information.

According to Justice Abella, writing the majority opinion, hyperlinks share the same relationship with the content to which they refer as do references and footnotes. They communicate that something exists, but do not, by themselves, communicate its content. They require some act on the part of the reader to gain access to the content. “The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral – it expresses no opinion, nor does it have any control over, the content to which it refers”. Only when a hyperlinker “presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker”.

Chief Justice McLachlan and Justice Fish substantially agreed with the reasons of the majority however, they said “a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to. A mere general reference to a website is not enough to find publication.” So a ‘did you see what someone said about x’ might mean you are ok, but ‘I totally agree with what Y said about x here’ and you’d probably be in trouble, and it should constitute publication.

Justice Abella correctly, in my view, recognises that the internet and the web cannot function without hyperlinks, and limiting their usefulness would create a potential “chill” in how the Internet functions, making anyone creating web content concerned of the risk of linking to any other articles or websites whose content they did not control. As he puts it ” Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.”

To anyone that actually uses the internet the majority approach to this is, of course ,common sense but, common sense and the issue of the courts and linking have not always gone hand in hand (although to be fair they – in this case the US courts - did laugh BT’s attempt to say it owned the patent for hyperlinking out of court). Just last year, the U.S. Bankruptcy Court for the Southern District of Texas, ruled that that sending an email with a hyperlink to a defamatory blog post can be considered a publication, even though the email contained no comments on the links that were sent [Outlaw.com report].

In the Canadian case, one judge, Justice Deschamps cautioned that excluding hyperlinks from the scope of the publication rule was an inadequate solution to the novel issues raised by the Internet, and suggested instead that Court hold that in Canadian law, “a reference to defamatory content can satisfy the requirements of the first component of publication if it makes the defamatory information readily available to a third party in a comprehensible form. In addition, the Court should make it clear that not every act, but only deliberate acts, can lead to liability for defamation.” He argued, a simple reference, absent evidence that someone actually viewed and understood the defamatory information to which it directs third parties, is not publication of that content. In this case he found that whilst Mr Newton’s hyperlink to the material was deliberate, there was no evidence that someone actually viewed and understood it to be links to defamatory information.

I’m not aware (although if you’re reading this, and you are leave a comment) of the English courts really tackling this question of hyperlink ‘publishing’ as such [Obviously from a copyright point of view the recent decision in Newspaper Licensing Agency v Meltwater did cover the idea that a hyperlink was capable of infringing copyright, if it was a hyperlinked headline and/or an extract of the copyright work.] The closest thing I know of is in Metropolitan International Schools v Designtechnica. Here the High Court ruled that Google was not a ‘publisher ‘of defamatory words appearing in its search results, as these results were automatically created and there needed to a human “mental element” in responsibility for publication. The Court added Google was still not a ‘publisher’ even where it had been put on notice of the defamatory statement as long as it operated an effective notice and take-down procedure.
Here’s to a Canadian victory for common sense.

Good day

How are you? I am Denise

I would like to know you better…

I found your account on a dating site, I don’t remember exact name of it I wanna meet romantic and intellectual man.

I wanna know u closer, so write me something.:p

So, the EU Council of Ministers voted by qualified majority a directive extending the term of protection of the rights of performers and phonogram producers on music recordings within the EU from 50 to 70 years.

Some kudos at least to the The Belgian, Czech, Dutch, Luxembourg, Romanian, Slovak, Slovenian and Swedish delegations who voted against and the Austrian and Estonian delegations who abstained. Yes, the UK voted in favour. We may have just broadly adopted the Hardgreaves proposals on IP that once again stress the importance of evidence based decisions – and there is a serious lack of any justifying the extension – but we need to protect our creative industries folks, so it shows that lobbying works.

Roger Daultrey, from The Who, who along with the likes of Sir Cliff Richard, welcomed the news said “There are thousands of small musicians whose independence relies on the little bit of royalty, for work they did in the 1960s, they get by way of a pension.”

Now leaving aside the size-ist nature of his comment …and the fact it makes me want to remind him of one of the most famous lines – admittedly written by Pete Townsend – which he sings [Maybe it should be “hope I die before the term protection runs out”.] I’ll also try and resist the temptation to just rehash all my issues with this topic (see here , here and here) – and I’ll probably fail - but what it comes down to is that copyright should not be an alternative to a pension plan. Let us not forget what copyright’s original purpose was meant to be. It was meant to provide a limited right for authors/artists to exploit their works – and to benefit financially from them. These rights were granted to act as an incentive to produce new works by allowing those producing works a reasonable period to recoup their investment.

Now, I write – and record – songs. Some people have been kind enough to say that a few of them aren’t bad. Would it be nice to have a big hit with one of them? Yes, of course. Would I still expect myself and family to be benefiting from it 70-90 years down the line?? No. How does that level of protection act as an incentive for me to produce new works exactly? If my level of protection is 5-10yrs, I can see where the incentive would be, because I would need find other songs as good as that last one to make some money. That would be a big incentive. In fact this is pretty much how those that follow a music career work. Paul McCartney didn’t sit down after writing Yesterday and fold his arms and say, yep, my work here is done. No he wrote some more songs, he performed some more songs, because that is who he is. He wasn’t thinking , Christ if I don’t write some more tunes quickly I wont have a pension in x years time. Or maybe , I’m wrong and he did? You would also correctly point out that as the writer of said song, he already has lifetime plus 70yrs on that one, and the current argument is about money from performances (radioplay etc) but on the basic copyright idea itself the point is equally valid. But, back to what this is about.

Some will cry, this is great news for artists surely? Doesn’t the new extension come with “measures in order to ensure that artists who have transferred their exclusive rights to phonogram producers (record companies) actually benefit from the term extension and may recuperate their rights subject to certain conditions.”? I’m glad you asked. Yes, it does, and more than welcome they are to. Only; once you’ve read them, and then read them again, you see that the main beneficiaries of the extension are still the record companies.

A 20% fund for session musicians, paid by the record companies: this remuneration ensures that performers who are forced to sell their rights against a one-off flat fee obtain additional payments during the extended term. The fund would apply to all recordings which benefit from the term extension. Very Nice. Everyone loves this, but why if we – and the ‘industry’ - care about the performers so much, why don’t the rights not just return automatically to the performers after 50 years to allow them to have this extra 20 years?

A ‘use it or lose it’ clause, which means the record company will have to cede control over its copyright to performers if it does not market the sound recording containing the performance. If a record company does not market a recording despite the performers’ request, the performers will get their rights back and can market the recording themselves. Sounds great, but a record company’s ‘marketing’ could be as simple as making it available on iTunes, and for that it would retain its lion share of the copyright for another 20 years.

A ‘clean slate’ provision, which means that producers are not entitled to make any deductions from the contractual royalties due to featured performers during the extended term. This IS good. Essentially if you still owe the label money for making records/marketing they can’t deduct it from these royalties.

Now, even if these new measures were the best thing since sliced bread, I still ask – why the need for an addition 20 years to introduce them?. If you wanted to introduce these three things, fine do them in the context of the 50 year term, which is also by far a big enough period. All this could have kicked in after 30 years, or better still 20 or 10 years.

To be fair to the UK, the last government were at least amongst those countries who stopped this proposal being for 95yrs – but expect the lobbying to re-start for that now. That Beatles catalogue and similar need to be kept out of the public domain – for ever, if possible, but only for the good of the poor artists, you understand.

Allan James, the principal hearing officer, at the IPO has made his mind up, and decided that Heidi Manton is the only person who owns a piece of the action with regards the rights to the name Bucks Fizz. Manton and her husband Bobby Gubby – Bobby G (and original member of Bucks Fizz) were in a dispute with fellow original members Mike Nolan and Cheryl Baker over who had the rights to use the name when promoting their touring bands, and over whether Nolan and Baker could register ‘The Original Bucks Fizz’ as trademark. Mr James ruled Heidi Manton, owned the name Bucks Fizz, having registered it as a trademark in 2001. Key in his decision was a letter from Nolan dating back to June 1981, which ceded the rights to them, and that Nicola Martin on behalf of Big Note Music Ltd, who owned the original trademark and had allowed it to lapse consented to the mark being registered in Heidi Manton’s name.

Nolan claimed he was pressured into dropping his opposition to the re-registering and that he did it only to ensure David Van Day (ex of Dollar) who was currently part of the band would be prevented from getting his own hands on the mark. Nolan’s letter said he confirmed “that I have withdrawn my opposition to the trademark and will cease trading as Bucks Fizz that took immediate effect … I also confirm that I have no objections to you having the sole rights to the name Bucks Fizz being the last of the original line up which was formed in 1981.” Here, it would seem he at least believed that Bobby G would be registering the trademark not his wife.

According to Mr James, it was hard to see that Nolan and Baker have much of a case, finding that on the face of it, it is difficult to see why the use of the trade mark by its lawful owner can be said to mislead the public, essentially because of the residual goodwill from the performances and recordings of the original group. The ruling stated: “The submission that two original members are enough to avoid misleading the public (Nolan/Baker) but that one original member (G) is not enough appears to me to be an arbitrary distinction.”

Key in his thinking seemed to be the concept of partnership. He found the individual members of the current partnership - Original Bucks Fizz - can make no claim to be the owners of the goodwill in Bucks Fizz, because they had al left the band and new partnerships had form as and when they did so. This problem may not have arisen if , for example, the original members had “entered into a partnership agreement which expressly provides for the partnership to continue on the departure of one or more members and which expressly confirms the rights of the continuing and expressly limits the rights of departing partners to make use of the partnership name and goodwill.”

What makes the decision interesting, and one that would probably make no sense to a ‘fan’ is that for the last few years the ‘Original Bucks Fizz’ have been touring featuring 3 of the 4 members of the band when they were in their hit making hayday, first Mike Nolan and Cheryl Baker, and Shelly Preston, and then with Jay Ashton the third ‘original member’ replacing Preston (who had originally replaced her in the band). This ruling now prevents them from performing using the Buck Fizz name. From a fans point of view, I’m sure they would argue Mr James was living in the land of make believe to come to a decision favouring Manton and Bobby G, over 3 original members. However, IP law is on his side.

So, and aspiring bands out there, make sure you have a proper partnership agreement in place for the get-go.

But let’s remember them when they were all on better terms. The band’s first hit was the Eurovision winner, Making your mind up , andtheir final hit single (later a bigger and better known hit for Cher) was Heart of Stone