Hey dude, that's my photo! Social media, copyright and 'public interest'(?)

This Kat has always marvelled at the ability of social media such as Twitter and FaceBook to provide an almost simaltaneous eye-witness version of newsworthy events. For instance, individuals present at the tragic events in Norway or the riots in England earlier this month could have taken photographs or footage on their mobile phone and uploaded it to their social networking account, where many others could have viewed it. So what happens when media outlets which were not present at these events want to use the photographs or footage? Do normal copyright considerations apply?

The issue has become topical recently owing to an official complaint made by Mr Andy Mabbett to the BBC, claiming that in its coverage of rioting in Tottenham on 6 August 2011 the BBC may have infringed copyright by using photographs from Twitter without permission of the authors and without properly attributing them. The first response by the BBC was a rather surprising statement that:

'Twitter is a social network platform which is available to most people who have a computer and therefore any content on it is not subject to the same copyright laws as it is already in the public domain. The BBC is aware of copyright issues and is careful to abide by these laws'.

A 'speechless' Mr Mabbett drew attention to the issue and the BBC's response on his personal blog 'Pigsonthewing'. Shortly afterwards, the BBC did an about-face and released a statement in which it admitted that its conclusion above was 'wrong' and '[did] not represent BBC policy'.

In this release, the BBC then proceeded to outline its policy:

'In terms of permission and attribution, we make every effort to contact people who've taken photos we want to use in our coverage and ask for their permission before doing so.

However, in exceptional situations, where there is a strong public interest and often time constraints, such as a major news story like the recent Norway attacks or rioting in England, we may use a photo before we've cleared it.

We don't make this decision lightly - a senior editor has to judge that there is indeed a strong public interest in making a photo available to a wide audience.

In terms of attribution, ie giving a credit to the copyright holder, it's something we should always try and do when we use such photos in BBC News output.

But sometimes, in the exceptional circumstances just outlined, it's just not possible to make contact with the person who took the picture, or they don't want to be contacted, or we might consider it too dangerous to try and make contact - a significant issue in our coverage of the recent Arab uprisings.

Even when we do make contact, the copyright holder might give us permission, but ask not to be credited because it puts them in danger or they believe it will be used against them in some way.

So, when we can't credit the copyright holder, our practice has been to label the photo to indicate where it was obtained, such as "From Twitter", as part of our normal procedure for sourcing content used in our output.

We do want to acknowledge the value our audience adds to our output, and hope this sheds light on our editorial decision process made during exceptional circumstances'.

This Kat wonders whether the BBC is setting a bad example to other web users and media outlets by admitting that in certain circumstances it will use a photograph from the internet before it has been properly cleared with the copyright owner. She always thought that there was no public interest defence to copyright infringement and that it was not justifiable to use a copyright work merely because one could not contact the copyright owner ...

Merpel wonders if it is too late to apply the BBC's logic to content on TV and iPlayer. After all, she thinks, television and the internet are platforms available to most people who have a TV set or computer and therefore any content on it is not subject to the same copyright laws as it is already in the public domain. If so, she would not mind recording or downloading all of the BBC's 'Spooks'. Merpel is aware of copyright issues and is careful to abide by these laws.

List Rhapsody? Or is it a case of "Resting on one's Laura ...?"

In the days before computers, social networking
via Twitter and LinkedIn was a real chore ...

It isn't every day that the columns of this weblog are populated with words from an employment lawyer, but today is one of those rare days. One such example of that species is Ben Collingwood, an employment lawyer with solicitors Barlow Robbins, who must have been inspired by productive hours at work spent social networking [Merpel says, I call it 'social not-working'] to send us these thoughts:

"Social Media at Work: Who's in Control?

The explosion of social media usage in recent years has begun to bring with it various legal challenges, particularly in the employment relationship.  It would be reasonable to expect these challenges to be increasingly common where employers encourage use of sites such as LinkedIn and Twitter for business networking purposes, since use of the social media has blurred the boundaries between an employee’s work and personal life. The recent  news that Laura Kuenssberg, the BBC’s Chief Political correspondent, will change from @BBCLauraK to @ITVLauraK has brought these issues to the fore.

Many employers embrace the use of online social networking to promote their business, seeking to benefit from the online activities of employees whose networking generates a positive image, increased business opportunities and employment appeal.  However, risks associated with employees’ online activities include vicarious liability for discrimination or harassment, loss of employment activity during working hours, damage to reputation and the publication of confidential information. 

 The publication of contact or client lists, and the ownership of those lists, is ripe for heated discussion in the Kuenssberg case since the entire list of an employee’s business contacts including clients, customers and suppliers, may be found on their LinkedIn or Twitter account.  Does that client list lose its confidential quality—assuming it has one—as a result of such publication?  Who owns these lists and can an employer insist on accessing them?  After the employment has ended, does an ex-employee breach post-employment restrictive covenants by accessing these  lists and contacting those whose details appear in them? 

 The sudden surge in social networking means  that there is little case law upon which to base detailed analysis of Kuenssberg’s Twitter contact list. 

 In Hays Specialist Recruitment (Holdings) Limited and another v Ions and another [2008] EWHC 745 (Ch), the Chancery Division, England and Wales, concluded that a company would have reasonable grounds for bringing a claim against an employee who transfers confidential client information from the company database to his LinkedIn account during his employment. 

 In the European Union the Database Directive defines a database as a collection of independent works, data or other materials which are arranged in a systematic way and are individually accessible by electronic or other means.  An employer is regarded as the maker of the database made by an employee in the course of employment and is therefore considered the owner of such a database.  In PennWell Publishing (UK) Limited v Ornstein [2007] EWHC 1570 the Queen’s Bench Division, England and Wales, concluded that an address list of clients which is contained in Microsoft Outlook or a similar program on the employer’s systems which is backed up and maintained by the employer belongs to the employer and may not be copied or moved in its entirety by employees for use outside or after employment.  But where an employee keeps a separate private contact address book and selectively adds journalistic contacts (as happened in that case) for personal career purposes, the employee would be entitled as a journalist to develop, maintain and even own the resulting list. 

 If this is still good law, the ownership of Ms Kuenssberg’s Twitter contact list may depend largely upon the manner in which she has compiled it.  If there is a dispute, reference will undoubtedly be made to PennWell as it also concerns  journalistic contacts. Also, if she can show that she has compiled this following outside her employment, she may succeed in claiming ownership.  It may even be shown that Ms Kuenssberg’s existing Twitter following was a deciding factor in the BBC’s initial decision to employ her. 

No doubt the BBC will attempt to muddy those waters and argue that Ms Kuenssberg’s Twitter ID itself, @BBCLauraK, brings those activities within the performance of her duties for the BBC, and that the contact list, or at least the parts which have accrued during her term of employment, belong to the BBC".

Says the IPKat, there are plenty of employment-related IP accidents waiting to happen on Twitter: what would happen, for example, if the BBC had sought to register @BBCLauraK as a trade mark and maintained that @ITVLauraK was confusingly similar for identical services: would the registration strengthen its claim to be entitled to the data associated with that Twitter handle?. There's also the little matter of copyright in tweets  (discussed in various places, including here, here and here) -- and in collections of tweets which may be authored by the same person or may be the compilation of tweets from a multiplicity of sources. And even if the rights in Twitter lists are secured for the employer by specific contractual terms, what happens if the employer is in fundamental breach of the employment contract and wrongfully terminates it? These issues should keep a generation of law school examiners busy for ages.

Resting on one's laurels here
List rhapsody here
Liszt Rhapsody for humans here, for cats here
LinkedIn here
Link Din here

Plumber cleared of internet harassment

This Kat is always amazed at the opportunities, both for good deeds and for bad deeds, that are available due to advances in internet technology. It is on this basis that she was intrigued by the proceedings against Ian Puddick, a plumber from Enfield, North London, in Westminster Magistrates Court concerning claims of harrassing his wife Leena's millionaire lover, Timothy Haynes, over the internet.


Mrs Puddick met Mr Haynes when she joined the global insurance firm Guy Carpenter as a secretary where he worked as a director in 1997. The affair began after a Christmas party in 2002 and would continue for several years. It was alleged that Mr Haynes sent Mrs Puddick some 30 to 40 text messages a day. Some were sexually explicity such as 'Where do you want to have sex next — in the office, al fresco, at the flat, or all three? You greedy girl'. Others said Mrs Puddick was 'the most desirable girl in the world' and 'reassuringly expensive' because of her lavish taste in champagne.


The affair came to light when Mr Puddick discovered one such text whilst he was sunbathing in his garden and a message came through on Mrs Puddick's phone. The message was from Mr Haynes and included graphic references to a sex act he had performed on Leena, ­accompanied by a picture of him performing a sex act on himself. The pictures were accompanied by the words 'You are such a sensual girl'.

Mr Puddick decided publicise the affair. He contacted Mr Haynes’ boss, his clients and his wife to claim that Mr Haynes had abused his expense account to ­seduce Mrs Puddick. Next, Mr Puddick even spoke at Hyde Park’s Speakers’ Corner in London and camped for seven days outside ­Parliament to tell his story to anyone who would listen. Still enraged, Mr Puddick flooded the internet with evidence of the affair. He created numerous websites with his allegations against Mr Haynes (including videos and excerpts from Mr Haynes’ love letters). He detailed the affair on Twitter and FaceBook and created a fake page on LinkedIn in the name of Mr Haynes so that potential clients would learn of Mr Haynes' behaviour.


Was this harassment?

In the UK, the Protection of Harassment Act 1997 provides both civil and criminal remedies for harassment. In relation to civil provisions, section 1(1) provides that a person must not pursue a course of conduct (a)which amounts to harassment of another, and (b)which he knows or ought to know amounts to harassment of the other. According to section 1(2), the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other. In relation to the criminal provisions, section 2(1) states that a person who pursues a course of conduct in breach of section 1 is guilty of an offence. Under section 2(2), a person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both. These provisions are sufficiently wide to cover posting on the internet and 'anti harassment' injunctions have been granted in a number of cases to restrain the publication of material on Wikipedia and Facebook.


Ultimately Mr Puddick was charged with two counts of harassing Mr Haynes and his family on Facebook and Twitter under the criminal provisions in the 1997 Act. After a three day trial in Westmister Magistrates Court, District Judge Elizabeth Roscoe delivered a verdict of not guilty. The judge ruled Puddick's actions did not form a 'course of conduct' and dismissed the charges.

In an interview, Mr Puddick told the Sunday Mirror: 'Haynes abused his position of authority to sleep with my wife, and then he thought he could use his money and influence to bully me all the way to jail. Well this is a ­victory for the little guy over the bullies and it is a victory for free speech'.

The IPKat ponders that in pursuing Mr Puddick for harassment, Mr Haynes gave his philandering such public exposure that it would otherwise have achieved. Indeed, Mr Haynes said in court that 'I think most of the country - thanks to the internet - is aware I had an affair'.

Merpel poses the question: would you have used the internet like Mr Puddick if you found yourself in similar circumstances?

Letter from AmeriKat: Happy Thanksgiving!

Although the AmeriKat was miles away from her computer last week as she was instead kicking up the leaves in Clifton Village (picture, left) while venturing around her old Bristol alma mater, she is back this week in time to spread the Thanksgiving cheer. Thanksgiving is this Thursday, and for those who have followed the AmeriKat will know that it is her most favorite of holidays; copious amounts of roast birds (meow!), mashed potatoes, and pumpkin pie together with very little activity except changing the TV channels between football games - what is not to love?! The joy of Thanksgiving, because it is a non-denominational holiday, is that all Americans can and will celebrate it. Besides the Fourth of July, Thanksgiving is the most participatory and democratic of holidays.

Happy Thanksgiving!

Lone senator stalls the controversial Combating Online Infringement and Counterfeits Act

A reminder of the importance of democracy in the US came late last Friday when a single senator, Senator Ron Wyden (D-Oregon, picture, right) stalled the Combating Online Infringement and Counterfeits Act (COICA) at a committee hearing. The Bill, which would have given the federal government power to shut down or block websites that participate in copyright infringement, had been unanimously approved by the Senate Judiciary Committee on Thursday. Wyden's objection may have the effect of postponing the Bill until the next Congress convenes. Wyden stated that:

"Deploying this statute to combat online copyright infringement seems almost like using a bunker-busting cluster bomb, when what you need is a precision-guided missile."

The Bill provides for the creation of a blacklist of websites that the US Government can seize if based in the US or require an ISP to block if they are located abroad. The Bill, which amends Chapter 113 of Title 18 of the US Code (which deals with stolen property) has the effect of targeting websites which are "dedicated to" and are "primarily designed" for copyright infringing activities or have no other "demonstrable commercially significant purpose or use" - which is one of those lofty definitions which makes the AmeriKat grimace. The actions are brought by a state's Attorney General who will apply to the court for an injunctive order to be served on the website domain registrant directly (if located in the jurisdiction) or on an ISP (if located outside the jurisdiction) with the effect of removing or blocking the website from the Domain Name System. There is no provision in the Bill requiring a hearing, trial or defence from the party served with one of these orders. The Bill also provides powers to stop credit card companies from authorizing transactions that occur on these websites. All court orders will be alerted to the Intellectual Property Enforcement Coordinator, Victoria Espinel (picture, top left), who will post the domain names on a publicly available website with relevant information on the order.

Mr IP Senator himself, Senator Patrick Leahy (D-Vermont) who co-sponsored the Bill said:

"Few things are more important to the future of the American economy and job creation than protecting our intellectual property. That is why legislation is supported by both labor and industry, and Democrats and republications are standing together."

However, critics have blasted the legislation as being overly severe and too broadly worded which would have the effect in practice of censoring websites that the government just doesn't like. The Electronic Frontiers Foundation, who have posted a list of websites that that they believe will be the first targeted if COICA is passed, stated that

"Blacklisting entire sites out of the domain name system is a reckless scheme that will undermine global Internet infrastructure and censor legitimate online speech."

It has been suggested that Senator Wyden will now attempt to put as many procedural roadblocks in the way of the Bill until the new Congress takes session in 2011, at which point the Bill will have to be resubmitted. At the end of September the man credited with technology central to the Internet, Sir Tim Berners-Lee, called the recent spate of bills threatening to block and cut off access to the Internet as a "blight".

The AmeriKat will be watching to see how Senator Wyden's roadblocking progresses.

Supreme Court hears gray goods arguments in Omega v Costco

The US Supreme Court heard arguments last week in the case of Omega v Costco (see previous AmeriKat reports here for detailed analysis of the case and arguments), a case appealed from the Ninth Circuit (California) which has the power to impact the future of the multibillion dollar "gray goods market". The "gray goods market" is where companies sell their products at a cheaper price to distributors based in countries other than where the product is ultimately retailed. Retailers, like Costco, will then buy the products from these overseas distributors and import them into the US to sell at a discount - a third off in the case of Costco's sale of the Omega Seamaster line.

The argument centers on whether Omega can use a copyrighted logo on one of their lines of watches as a mechanism for stopping Costco from selling them at a discount in their US stores. Costco is arguing that the Supreme Court extend their 1998 ruling of Quality King Distributors v L'Anza Research International (1998) which held that copyright owners do not have a right to control the market of their goods that have been imported and re-sold in the US. However, the Quality King ruling was about domestically made goods sold overseas and then imported back into the US. Here the goods are manufactured overseas, sold to overseas distributors and then imported into the US. The question to the Supreme Court is whether the 1998 ruling should be extended to these cases and also to determine the exact scope of the first-sale doctrine.

Although reported that the Justices did not give a clear indication of which way the ruling would go, they did seem concerned that there appears to be a statutory interpretation and a 9th circuit ruling that gives incentive to companies to manufacture goods overseas. Justice Ginsburg (picture, left) stated

"What earthly sense would it make to prefer goods that are manufactured abroad over those manufactured in the United States?"

The Supreme Court's decision will have a substantial impact on what goods retailers, especially those on-line retailers such as eBay or Amazon, can sell and import into the U.S. eBay, Intel, Amazon and Target have all voiced support for Costco. Omega, on the other hand, has support of the Obama administration, the ABA, and of course the music and film industries. The Supreme Court decision is expected in July 2011.

Between a Rock and a Hard place - Hard Rock trade marks hit the courts

Hard Rock Hotel Holdings LLC, which runs the Las Vegas Hard Rock Hotel & Casino, was sued in the Second Circuit for the Southern District of New York (Manhattan) in September by Hard Rock Cafe International Inc, the Florida-based owner of the Hard Rock trade marks. The trade mark owner alleged, amongst other things, that the reality show authorized by the Las Vegas company, "Rehab: Party at the Hard Rock Hotel", was tarnishing the Hard Rock brand. The lawsuit sought cancellation of the Las Vegas hotel's licence to use the marks. The casino has now fired back in a court filing two weeks ago which has claimed that it has done nothing wrong and is only a victim of "systematic legal and business harassment" by the Florida owner. The casino is also counterclaiming for breach of contract and tortious interference with business relations. The casino's filing also says that:

"The Cafe complains about a range of alleged trademark abuses that in many cases it has long known about, tolerated or even approved. Most notably, the Cafe claims to be shocked and disturbed by the popular reality television show 'Rehab: Party at the Hard Rock Hotel,' filmed at the Hard Rock Hotel and Casino Las Vegas – despite the fact that this show and the lively behavior it portrays have already been on the air for two years; depicts an event similar to the 'Detox' party held at one of the Cafe's properties (Biloxi, Miss); and has brought enormous positive publicity to the Hard Rock brand."

For more information see this article in the Las Vegas Sun and Los Angeles Times.

USPTO to make ex parte patent appeals easier and Tweet about it

Last week the USPTO issued a proposal to change the rules for ex parte patent appeals before the Board of Patent Appeals and Interferences and requests for public comment on the changes. The changes will include rescinding the stayed 2008 Final Rule and simplifying the petitions practice in appeals. For more information see this Press Release from the USPTO. Last week also saw the USPTO launch their Twitter account. To follow the USPTO click here, the AmeriKat click here, and the IPKat click here.

Tweets and copyright

This Kat is a bit of a fan of the WIPO MAGAZINE. For those of you that use the social networking service Twitter and share your thoughts online via so called "tweets", the July edition of WIPO MAGAZINE has a nice short article by Consuelo Reinberg which discusses whether tweets can ever be "original" enough to be protected by copyright (see also the AmeriKat's post here and here). For those of you that do not (yet) use Twitter and wonder what this post is all about, WIPO's article also includes some explanatory notes.

There is certainly an argument to be made that a collection of tweets could - under certain circumstances - qualifiy to be protected under database rights. In this regard, the IPKat recommends Dr Carsten Ulbricht's article (only in German) which can be accessed here.

By the way, just like the IPKat, WIPO can also be followed on Twitter (link here).