"Adaptation", software and databases: can you help?

A PhD candidate in IP law at a very highly-regarded academic institution in Germany has written to ask for a little assistance from this weblog's reasders. He explains:

"I am researching a section of UK copyright law and am reaching out ... for some help. The question I am concerned with is about section 21(3)(ab) and (ac) of the Copyright, Designs and Patents Act 1988. These sections give the authors of computer programs and databases the right to make adaptations, and adaptation is defined as an "arrangement, altered version...or a translation".

My question is: how have these words been interpreted in the UK? I am searching for case law on this provision but currently have not found any.

For the record, the relevant part of the provision reads like this:

"(3) In this Part "adaptation" -
..
(ab) in relation to a computer program, means an arrangement or altered version of the program or a translation of it;
(ac) in relation to a database, means an arrangement or altered version of the database or a translation of it; ..."

Offhand, this blogger couldn't think of any British decision, reported or otherwise, in which the meaning of "adaptation" has been discussed in relation to computer programs and databases.  However, he has the uneasy feeling that he may have missed something quite obvious.  Can anyone else help?

What might also be interesting is to hear of anyone who has based their own decision either not to take legal action or not to defend one on the basis of an interpretation or application of those words in this context.  If you have anything you can usefully add, please do so!

Down, Beuys!

In as dispute between the heir of famous German artist Joseph Beuys and a museum (Schloss Moyland), the Regional Court of Dusseldorf (OLG Düsseldorf) held that the museum would have required permission from Beuys/his heir for an exhibition of photographs by Manfred Tischer showing a live performance by Joseph Beuys. The court held that Beuys’ live performance qualified as an artistic work (there’s no fixation requirement under German law) and the photographs constituted an unauthorised adaptation rather than free use. Please read Birgit’s excellent IPKat post (here) for all the details.

OLG Düsseldorf, 30 December 2011 – I 20 U 101/09, press release (in German) here

Pearl Diving At Your Own Risk

Actual Pearls

Cultural Pearl

The Higher Regional Court of Frankfurt am Main (OLG Frankfurt) has been keeping busy of late. It has not only had to deal with the umpteenth instalment of the bunny wars (for those interested in trade mark law and/or chocolate, see Birgit's IPKat post here), but with copyright issues as well. Almost a year ago, I reported on the 'Perlentaucher' ('pearl divers') decision by the Federal Supreme Court (BGH) (see my earlier post here), concerning abstracts of book reviews and whether such abstracts constitute free use of the original review (section 24 German Copyright Act) or an infringement. The BGH reversed and remanded the case to the OLG Frankfurt after giving some general guidance and reminding all concerned about that old copyright favourite, the idea/expression dichotomy.

In a rare press statement (here), the OLG Frankfurt announced that it partly allowed the claimants' appeal (a change of heart, see its 2007 judgment in the same case here). It held that some of the abstracts were indeed infringements in the form of 'unfree' adaptations of the original reviews because they more or less consisted of especially distinctive and expressive passages from the original reviews, only omitting a few sentences.

The court's press office was quick to state that no general conclusions can be drawn from the case, but that the extent to which a book review may be freely copied or adapted is a matter of fact and degree in each individual case. Since that is certainly correct but not very helpful, I shall take a look at the judgment once it becomes available and let you know if it contains any hidden pearls of wisdom...

Creative Commons License Upheld in Belgian Court

In 2004, the Belgian band Lichôdmapwa released the song “Abatchouck” under a Creative Commons Attribution Non-Commercial No Derivatives license (CC BY-NC-ND). Several years later, one of the band members happened to hear about 20 seconds of the 3:20 song on an advertisement for a theater and festival company. Recently, Lichôdmapwa was awarded 4.500 Euros for the infringement of “Abatchouck”.

When Lichôdmapwa first heard their song on the radio, they contacted the theater company (roughly translated by Bablefish as “Festival of theater of spa”) to see if they could negotiate an outcome favorable to all. The negotiations failed and Lichôdmapwa sued the theater company for copyright infringement in September of 2009.

The Band’s Claims

Lichôdmapwa claimed that the theater company had violated all three of the terms of their chosen CC license. The theater had modified the original work to make it fit in the commercial, violating the No Derivatives provision. The theater violated the Non-Commercial clause by using the work in an advertisement. And the theater violated the attribution requirement by not including any mention of the song’s artist in the commercial.

The band asked for 10,380 Euros in damages, plus to have the theater pay for the publication of the court’s judgment in a magazine called “Dogmagazine.”

The Theater Company’s Defense

The theater company attempted to claim ignorance, arguing that it was unaware of the terms of the license. It appears the theater also argued that since Lichôdmapwa is not a member of the Belgian collecting society, SABAM, the band had no rights to collect payments for the music’s use.

The Court’s Decision

Judge Vandeput did not agree with the theater company’s defenses. She recognized the validity of Creative Commons licenses, citing Dutch, Spanish and American courts as others that have also held CC licenses to be valid. She also confirmed that the musicians’ decision to not join SABAM and instead release their music more openly should not prevent enforcement of the license.

As to the theater company’s claim of ignorance, Judge Vandeput found that this was no excuse for violating the license. As an organizer of festivals and a company involved in using licensing, the company should have known to look for and follow the terms of the license. In addition, the website from which the theater downloaded the music, http://www.dogmazic.net, clearly mentions the terms of the license. There was no reason for the theater company not to know about the license or its terms.

The Money

Even though the band is not part of SABAM, the court held that they still suffered damages. And although Judge Vandeput did not award Lichôdmapwa the 12 Euros per distribution and 1,800 Euros per license term violated that they requested or the magazine print request, she did award the band 1,500 Euros per license term violated. 4,500 Euros and possibly court costs, not bad.

For our multi-lingual readers:

• More about the case by Herkko Hietanen (in Finnish)http://www.turre.com/2010/10/tuomioistuin-tietamattomyys-ei-este-cc-lisenssin-loukkaukselle/
• Full text of the case (in French) http://www.turre.com/wp-content/uploads/2010-10-26-D%C3%A9cision-trib.-Nivelles-Lich%C3%B4dmapwa.pdf

Paterno on Paternity - which Walsh?

Joe Walsh (left and right) - which one has life been good to?

IP litigators, bound to adopt a serious tone on behalf of their clients, may envy the tenor of the recent letter before action on behalf of The Eagles' Joe Walsh to Republican Congressional candidate for Illinois, Joe Walsh. According to Billboard Joe Walsh (candidate) has co-opted the song "Walk Away" by Joe Walsh (musician and songwriter) - albeit with new lyrics - for use in his (Joe Walsh's) election campaign.

Confused? Peter Paterno, The Eagles' Joe Walsh's LA-based lawyer thinks you might be. Or as Paterno puts it in his letter to the the candidate: "Given that your name is Joe Walsh, I'd think you'd want to be extra careful about using Joe's music in case the public might think that Joe is endorsing your campaign, or, God forbid, is you."

Paterno then goes on to tell Joe Walsh a thing or two about US copyright law: "It says a lot of things, but one of the things it says is that you can't use someone else's song for your political campaign promotion unless you get permission from the owner of the copyright in the song. As far as we can tell you didn't do that. Maybe you got so busy with the campaign that you just forgot. But that's not OK.

"Second, under that same United States Copyright Act, you're not allowed to take someone's song and change the lyrics. This is not to say you're not allowed to write silly lyrics, you just have to write them to your own music. Now, I know why you used Joe's music -- it's undoubtedly because it's a lot better than any music you or your staff could have written. But that's the point. Since Joe writes better songs than you do, the Copyright Act rewards him by letting him decide who gets to use the songs he writes."

On January 28th, Joe Walsh wrote an open letter in reply to Peter Paterno about Joe Walsh, which, while emphasising how much Joe Walsh would like to "sit down" with Joe Walsh, included such gems as "first, I am a political candidate, not a rock star (though always dreamed of being one)" and the reassurance that " to be honest, and I mean no disrespect, I am not in this race to win the approval of a Hollywood entertainment attorney." Charming. Joe Walsh goes on to say: "Peter, I have to say that I’m surprised you and Joe Walsh (the rockstar) even made an issue of this. I encourage you and everyone else who is learning about this in the media (because, again, that’s where we first learned of it!) should go watch the video and determine for yourself what it’s all about. I must admit, I’m beginning to think that because I’ve been out there for a few months as a “tea party conservative” candidate, all you liberals out in Hollywood are using this to attack someone whose beliefs you don’t understand and always disrespect (can you say Sarah Palin?). "

Joe Walsh does, however, refer Peter Paterno and Joe Walsh to Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) - the adaptation vs parody dispute over Roy Orbison's Oh Pretty Woman. But you will be unable to judge for yourselves because the YouTube video link carried on the Rolling Stone site has been removed.

The real Joe Walsh here

The other Joe Walsh here

Other disgruntled rockers here