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Legal 500, 2022

Publishing eBulletin: Autumn 2020

15 October 2020

Welcome to the Autumn edition of the Publishing eBulletin. Like many others, we’re watching the change in the seasons from the windows of our homes rather than the office as we settle in for another indefinite period of working from home. Inside our makeshift offices, we’ve been looking at the recent spate of copyright cases (Cofemel and Brompton), The Open Library litigation in the US, and the UK IPO’s consultation on copyright and AI. We share our thoughts on these below, as well as our property and employment teams’ top tips for navigating the new normal.

The Open Library: fair use or copyright infringement?

Back in March the Open Library (run by Internet Archive) started operating an Emergency Library, which allowed those who could not go out to a library to instead borrow books from the Open Library’s online collection of almost 1.5 million digital books. Its collection includes non-fiction and fiction works many of which are still in copyright. The Emergency Library was intended to run to the end of June, or to the end of the US national emergency, if later.

Instead, the Open Library closed the Emergency Library on 16 June 2020, following a copyright infringement lawsuit brought in the New York courts by four publishing houses. Despite the closure, the lawsuit continues.

The lawsuit is significant as it will test the Open Library’s e-lending model. The Open Library scans copies of physical books to make digital versions and then lends these digital versions to its users. The Open Library relies upon the untested theory of “controlled digital lending”, which limits the number of copies lent (whether digitally or physically) to the number of physical copies available. However, it suspended this principle during the Covid-19 pandemic to create the Emergency Library which allowed multiple users to borrow multiple copies for an unlimited period.

The publishers’ lawsuit argues that both The Open Library and its Emergency Library constitute copyright infringement, a view which is supported by many publishers and authors in the UK and the US. In contrast, Internet Archive argues that both are permitted under the United States’ fair use doctrine and that they do not deprive authors of income since they are just substituting the digital version for the print version, and authors have received value on the sale of the print version.

The current trial schedule, which includes a year-long discovery process, means the case will not reach trial before November 2021 but does not preclude an earlier settlement.

Cofemel and Brompton: all change for copyright and clearances?

Two recent EU court decisions could have a big impact on the world of copyright protection. The decision of the Court of Justice of the European Union (‘CJEU’) in the Brompton Bicycle case in June of this year, and in the Cofemel case last year, seem to confirm that almost any object can constitute a copyright work, provided it meets the EU’s standard of originality.

This is different to the long held position in the UK, and some other countries, that only certain categories of objects can be protected by copyright – the main examples being literary, dramatic, musical and artistic works. This was a closed list. Historically, this meant that an object which did not fit into any of those categories would not be protected by copyright.

These decisions potentially mean that vast numbers of functional, everyday objects could now be protected by copyright, provided they are the creator’s own intellectual creation and are identifiable with sufficient precision and objectivity. It also means that UK copyright law is now almost certainly incompatible with EU law. This could turn out to be a moot point, since the Brexit transition period is due to come to an end this year, but it is still relevant if the UK decides that it wants to keep its copyright laws aligned with those of the EU.

This has implications for the clearance of content included in published works, because images of objects which might previously have been viewed as being low-risk (and therefore safe to include) could now be protected by copyright, and could give the owner a basis for making a legal complaint about their use in the publication.

However, it’s not all bad news. Another consequence is that the change in law may make it easier to protect elements of literary works which historically have been difficult to protect, such as characters and formats, and could be a useful tool in infringement claims. This idea is a bit more radical and is yet to be tested, but in principle it is consistent with the EU court’s approach. It remains to be seen who will be the first to deploy it in practice.

UK IPO calls for views on use of copyright works by AI systems

The UK Intellectual Property Office (‘UK IPO’) is calling for views to help it understand both the implications that artificial intelligence (AI) may have for intellectual property (IP) policy, and the impact that IP may have for AI in the near to medium term.

The call for views sets out how the UK IPO believes the IP framework relates to AI at present and poses a number of questions which it believes are of central importance to the future of AI and IP policy. Whilst the UK IPO acknowledges that AI technology plays an important role in the fight against counterfeiting and piracy, the call for views does not consider the use of AI tools to combat IP infringement.

Of interest to publishers, authors, and other rights-holders will be the section on AI and copyright, which looks at the use of copyright works and data (such as books, audio-books and journals) by AI systems. In particular, the UK IPO asks for views and evidence on whether there is a need to:

  • clarify existing copyright exceptions, create new ones, or promote licensing in order to support the use of copyright works by AI systems; and/or
  • provide additional protection for copyright or database owners whose works are used by AI systems.

During a panel event organised by the Publishers’ Association on AI and the Future of Publishing, held on 8 October 2020, Ros Lynch (Director of Copyright and IP Enforcement at the UK IPO) encouraged publishers and other rights-holders to respond with their views and, where possible, practical examples on the following issues:

  • Has the UK IPO got the narrative framework right on the interaction between IP and AI, or are there things it has missed?
  • Has the UK publishing industry come up against barriers and obstacles in respect of using AI?
  • How are AI systems accessing publishers’ and authors’ data – is it via licensing or by other means?
  • Has the UK publishing industry experienced IP infringement by AI systems?

Further details on the call for views and how to respond can be found here. The consultation closes at 11.45 pm on 30 November 2020.

If you would like to find out more about the role of AI in the publishing industry, you can read the new report People Plus Machines: The role of Artificial Intelligence in Publishing by the Publishers Association and Frontier Economics here.

Navigating the ‘new normal’: leases & job retention schemes

Over the past six months, we have advised clients from across the creative industries on the impact of Covid-19 on their businesses.

Following the September quarter rent payment and the UK government’s renewed appeal to work from home where possible, many businesses are considering what to do with their lease. Our property team explore the options available here.

Meantime, our employment team have been helping clients to grapple with the end of the UK government’s Furlough scheme and the newly announced Job Support Scheme. You read their key takeaways from the new Job Support Scheme here and their advice on how to deal with errors and over-payments arising from the Furlough scheme here.

For regular updates on employment and other legal issues arising from the Covid-19 pandemic, please click here to visit our Covid-19 Hub.

Our news

We are delighted that we have been recognised by The Legal 500 as a top tier firm for media and entertainment, corporate, commercial, and reputation management.

Shireen Peermohamed was highlighted as a ‘leading individual’ for publishing matters and Mark Phillips was recognised as an M&A specialist with ‘acknowledged expertise’ in the publishing industry.

Upcoming training and events

Intellectual Property Webinar

Join Shireen Peermohamed and our Intellectual Property group for their upcoming ‘Legal Update‘ on Tuesday 20 October at 2pm (UK).

During the webinar they will be discussing some of the latest developments and trends in the world of IP, and how they will affect creative, technology and retail businesses operating in the UK and EU. Topics will include:

  • Specifying, and challenging, trade mark registrations post-Skykick
  • Practical IP clearance: the impact of Cofemel
  • Joint authorship of copyright after Kogan v Martin
  • What Brexit means for you

Click here to RSVP

Understanding Copyright Course

Zoey Forbes is teaching an online copyright course for the Association of Learned and Society Publishers on 11 & 12 November 2020. Zoey and her co-tutor Anji Clarke will be exploring the fundamentals of copyright law and how they apply in the context of academic publishing.

You can find further details including how to book here.

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