Feeds

Academics must check contracts' effects on user rights

Gov body reviews copyright and contract laws

High performance access to file storage

The use of contracts and technologies to bypass copyright law and users' rights must be investigated by academics, a review of contract and copyright law by a government advisory body has said.

The Strategic Advisory Board for Intellectual Property (SABIP) is an independent but publicly funded body overseen by the Intellectual Property Office. It was set up in 2008 to give the government independent, evidence-based advice on intellectual property issues.

A report produced for SABIP has examined the relationship between contract law and copyright law and has said that some areas should be investigated by academics.

In addition to the question of the bypassing of copyright law by certain technologies, it recommended further research into the reversion to a creator of the ownership of copyright material if it has not been exploited by a licensee, into the possibility of a reform of authors' moral rights under copyright law, and into the relationship between copyright law and competition law.

As cultural material such as music and video was released in digital form it became easier to copy without any loss of quality. Companies whose business was based on the sale of this material began, in the late 1990s, to lock down content through copy-prevention technologies on items such as compact discs.

Copyright law prohibits certain copying activities but not others. Users with visual or hearing impairments or researchers, for example, have the right to copy material without copyright owners' permission.

"The theoretically undesirable effects of overriding some or all copyright limits by contract or by technological protection measures (TPMs) need to be assessed by empirical studies," said the SABIP study (pdf). "The effects of imperative limits could be investigated by focussing on differences between countries having imperative exceptions and countries where freedom of contract prevails."

Creators of works can assign their rights to a company, as musicians do to record companies and writers to publishers. The study said that a way to increase the earning power of creators would be for these rights to revert to the creator if they are not exploited.

"Reversing assigned rights to the author (after a fixed period, or because of non-exploitation) is likely to be an effective way of improving the earnings of the author," it said. "Term reversion should also have access benefits to users from opening up archives of back-catalogues."

Under UK copyright law creators have 'moral rights', which guarantee their right to be identified as the creator of a work, regardless of who the financial beneficiary is. The study said that authors would be in a better position to defend themselves against the financial interests of companies if they were unable to waive those rights.

"Contractual waivers of moral rights are inserted frequently into copyright contracts. If these rights were made unwaivable by statute, such a persisting link between author and work might improve the author’s bargaining power," it said.

The study was conducted by four academics – Estelle Derclaye, Marcella Favale, Martin Kretschmer and Richard Watt – because of the fundamental importance of contract and copyright laws in the realm of digitised cultural material.

"A review of the relationship between copyright and contract law has to address both supply- and demand-side issues," the report said. "On the supply side, policy concerns include whether copyright law delivers the often stated aim of securing the financial independence of creators. Particularly acute are the complaints by both creators and producers that they fail to benefit from the exponential increase in the availability of copyright materials on the Internet.

"On the demand side, the issue of copyright exceptions and their policy justification has become central to a number of reviews and consultations dealing with digital content," it said. "Are exceptions based on user needs or market failure? Do exceptions require financial compensation? Can exceptions be contracted out by licence agreements?"

The academics also said that attention should be paid to whether or not some copyright practices breach competition law. It said that this was a subject for regulatory activity, rather than academic research. "Rather than commissioning a study, SABIP could refer the matter to the European Commission and, in the UK, to the OFT," it said.

Copyright © 2010, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

High performance access to file storage

More from The Register

next story
Android engineer: We DIDN'T copy Apple OR follow Samsung's orders
Veep testifies for Samsung during Apple patent trial
MtGox chief Karpelès refuses to come to US for g-men's grilling
Bitcoin baron says he needs another lawyer for FinCEN chat
Did a date calculation bug just cost hard-up Co-op Bank £110m?
And just when Brit banking org needs £400m to stay afloat
One year on: diplomatic fail as Chinese APT gangs get back to work
Mandiant says past 12 months shows Beijing won't call off its hackers
Don't let no-hire pact suit witnesses call Steve Jobs a bullyboy, plead Apple and Google
'Irrelevant' character evidence should be excluded – lawyers
EFF: Feds plan to put 52 MILLION FACES into recognition database
System would identify faces as part of biometrics collection
Big Content goes after Kim Dotcom
Six studios sling sueballs at dead download destination
Ex-Tony Blair adviser is new top boss at UK spy-hive GCHQ
Robert Hannigan to replace Sir Iain Lobban in the autumn
Alphadex fires back at British Gas with overcharging allegation
Brit colo outfit says it paid for 347KVA, has been charged for 1940KVA
Jack the RIPA: Blighty cops ignore law, retain innocents' comms data
Prime minister: Nothing to see here, go about your business
prev story

Whitepapers

Securing web applications made simple and scalable
In this whitepaper learn how automated security testing can provide a simple and scalable way to protect your web applications.
Five 3D headsets to be won!
We were so impressed by the Durovis Dive headset we’ve asked the company to give some away to Reg readers.
HP ArcSight ESM solution helps Finansbank
Based on their experience using HP ArcSight Enterprise Security Manager for IT security operations, Finansbank moved to HP ArcSight ESM for fraud management.
The benefits of software based PBX
Why you should break free from your proprietary PBX and how to leverage your existing server hardware.
Mobile application security study
Download this report to see the alarming realities regarding the sheer number of applications vulnerable to attack, as well as the most common and easily addressable vulnerability errors.