UK Confidential?

For months the British media has been mired in the phone hacking scandal and today I’ve been thinking about some legal issues it has raised.The first is whether voicemail messages and text are ‘confidential information’ under the Law and the second, wider issue is about whether such CI should be covered by a specific right to privacy under English Law.

As lawyers we are used to the concept of confidential information being a type of intellectual property. CI usually appears as defined term in business contracts and non-disclosure agreements. The definition of it is always more or less the same to cover secret business information, IP, sales & marketing information and business processes but it might occasionally be tweeked by the lawyer drafting it if they know the client has something particular in mind . The question is though, with so much data being created, stored and made freely available by private publication on social media, blogs and even Wikipedia, how do we determine what is “confidential information” and a legally protected form of Intellectual Property and what is personal information and thus not IP? Should we not even try to distinguish the two?

In the recent English Court case of ((i) Coogan and (ii) Phillips v News Group Newspapers and Mulcaire, Coogan and Phillips claimed that their hacked voicemails were confidential information. The Judge decided that the voicemails probably were a type of intellectual property and they probably contained commercial or confidential information. Good, that’s clear then! This leaves the vexed question of whether the content of a voicemail has a bearing on whether the message is CI or not? It seems logical that it should. If the message relates to business or commerce then it probably is CI, right? But what if the message contains personal rather than business information? In the datacentric world of social media, personal data is a commodity and why shouldn’t it also be protected as valuable confidential intangible/intellectual property?

We might cross the line here into arguments for a right to privacy. Under English Law no such right exists. Recent cases such as Douglas v Hello! have conceded that there is a civil right (or tort) against ‘breach of confidence’ and have permitted claims for ‘misuse of private information’ arising from the premise that personal information can also be CI, but these torts have been strained to fit a judgement that seems ‘proper’ where no other law would adequately assist.

In light of the clear failure of Press self-regulation and the exponential growth of data in a myriad of forms, perhaps it’s time we stopped thinking of CI as commercially focused and consider all information as confidential unless it is marked otherwise. CI could come with a ‘Creative Commons’ style license indicating the person or business to whom it relates agrees to share the information and a firm presumption that where there is no license, the information must remain secret and undisclosed. Could this type of ‘self-regulation’ by oneself work and would the Law recognise it?

Advertisements

Devine Justice?

The pre-eminant IPKat (www.IPKat.com) noted an interesting copyright case yesterday where blogging it out on social media took over from slogging it out in Court.

Tatty Devine produces handmade fashion jewellery for the likes of Tate, Selfridges and Gilbert & George. At the other end of the fashion jewellery spectrum is Claire’s Accessories, the high street chain which sells faddish pieces at pocket money prices. So, when TD spotted a necklace in Claire’s Accessories that looked ‘identical’ to one of its own designs, it took issue.

I’d like to think if this happened to my clients they would be straight on the phone to me (you would wouldn’t you?) and before the morning was out we’d have dropped a stop it or drop it (“cease and desist”) letter straight to the MDs inbox.  Tatty Devine’s first call was not to their lawyer though, instead they blogged their discontent to the world and ran a “spot the difference” page on their website.  In any copyright infringement case the claimant has to show that the whole or ‘substantial part’ of their work was copied. What better way to establish if this than a massive straw poll?

While I admire this outpouring of righteous indignation at copyright infringement, there are limits to what can be achieved using social media this way. For a start, Facebook and Twitter can’t award compensation to the claimant as a Court can and they won’t order infringing copies to be destroyed like a Judge might. Also, these public forums can turn from supportive to subversive in a matter of clicks as moderation is nearly impossible.

So, if you think your copyright is being infringed speak to your lawyer. Run a ‘spot the difference’ exercise in your studio or office by all means, but if you can’t tell them apart, don’t tweet your friends, talk to a wise IP owl.

RIGHTS IN THE CLOUD

Did Santa leave an iPhone 4S in your Christmas stocking or an iPad under the tree for you? Did you spend Boxing Day registering with MobileMe and iCloud? I did and whilst waiting for my devices to be registered and inventing ‘strong’ and memorable passwords, I began to wonder about who owns the cloud and legally speaking, who owns and is responsible for the content it contains?

As I looked into this, the answer became more complicated, but using iCloud and iTunes as examples I’ll try to explain.

Apple owns ‘the cloud’ and by this I mean the technology that uploads, streams and pushes the content to you. Apple also owns the physical hardware that runs the cloud ‘service’ and though I’m not sure, I’d like to think that somewhere deep underground in Cupertino there’s a cavernous hall racked with spotless white Macs gently humming with billions of iTunes tracks. Although Apple is responsible for storing your content, be warned that it accepts no liability for loss of it and its Ts & Cs remind you that you are responsible for backing up and managing your own content. In this respect, other companies who offer forms of cloud computing ranging from data storage to business services probably own their own ‘clouds’ too, and provide that the content remains your property and your responsibility.

As a business user, beware of the terms relating to transfer of data from one cloud service provider to another. Some less scrupulous providers may try to retain your business by claiming ownership of the information you store, jeopardising your data if you should try to move to a different cloud source. On a related point, it is worth checking the terms and conditions before you upload content, in case the cloud space actually belongs to a third party that you ultimately have no contractual connection with.

Back to iTunes: The music, film or programme you download to your device comprises a complex arrangement of artists, producers, record, film or TV company rights so of course you never ‘own’ it, rather you buy a license to use it indefinitely across a range of devices. There are certain restrictions in your license which are intended to provide reasonable useage under the Law whilst guarding against exploitation.  When you then upload your music to the iCloud or it is pushed back to your device, there is no change in ownership of it or in the terms of your license to use it.

Having grappled with cloud content ownership, I have two points of caution for the business users of cloud services: First, with any remote service, the supplier puts the responsibility to back up content firmly on you and disclaims most liability for loss of information you upload or stream back, so check your time machine and make space in your time capsule! Secondly, in respect of MobileMe in particular, the Ts&Cs grants Apple a worldwide, non-exclusive, royalty free license to use content for certain purposes, so if it’s private or commercially sensitive consider another means of sharing it and if it’s your copyright work be sure to state this clearly and indelibly.

As you can imagine, with thorny rights issues like this to ponder, the winter nights just fly by for intellectual property lawyers. Now, if I could just remember my passwords…

For intellectual property advice contact jef@jgrlaw.co.uk

Jan 2012

Digital Rights Management and the Law

‘How do I protect my idea?’ is a question I’m often asked. The answer is simple; ‘You can’t protect your idea, but don’t worry because the way you express it will probably be covered by copyright.’ So, the great idea you have for a computer game or the indispensible app that everyone is going to download whilst you sit back and watch your bank balance swell, is not protected until you actually record the idea permanently in code, onscreen or on paper.

Once you’ve done this, you will almost certainly have created a copyright ‘work’ that is protected by a raft of intellectual property laws. That’s reassuring, but do you really want to rely on costly and time consuming legal proceedings to stop people pirating or cloning it or would you rather prevent users copying it from the outset?  As most people do not consider that digital duplication can be theft, and because it is so easily achieved, business sense surely demands some sort of digital rights management (“DRM’) to protect your work.

DRM at its most basic is a way of preventing a copyright work from being used or duplicated by using key codes, online authorisation (usually via a registered account) to activate the work, or in the case of products such as computer games, embedded programs that install themselves onto the end-users hardware before they can play.

Although there is a general public backlash against DRM, it was initially envisaged to protect the revenue stream for the creator of the work by dis-incentivising copying. The World Intellectual Property Organisation demanded such protection as far back as 1996 and the US Digital millennium Copyright Act 1998 was the first piece of legislation to criminalise DRM circumvention. The EU implemented similar laws in the Copyright Directive and Electronic Commerce Directive, again intended to protect the owners’ rights by prohibiting DRM circumvention, but the digital world has moved on and now most of this legislation seems outdated.

Arrangements such as Creative Commons Licenses and Creative Barcode now offer individuals and businesses the chance to determine how their work may be used and to indelibly mark it with their copyright. Is there a downside legally to using these mechanisms rather than DRM? Probably not.  Creative Barcode enables creatives to authenticate, protect and safely disclose their concepts to third parties before commercialisation. The Creative Barcode micro-barcode enables the rights owner to authenticate, protect and communicate their ownership and permit use for completed works displayed on their websites or third party portals.

Creative Commons  on the other hand provides standard licenses from the rights owner permitting use of the work according to pre-determined parameters so that the creator is always acknowledged and a revenue stream may be created.

So when it comes to protecting your copyright you have options. You can record your work and rely on a judge to agree it’s protected. You can install DRM in your work and rely on users not to circumvent – but what do you do to police this and do you want to? Or you can consider Creative Commons and Creative Barcode mechanisms of permitting accredited use. These signal a more open and co-operative approach to commercialisation of copyright works and may even open discussions about collaborative use and development of your work going forward.

If you would like advice about how to protect your creative output, please contact Joanne Frears at jef@jgrlaw.co.uk

STEVE JOBS REMEMBERED

Steve Jobs 1955 – 2011

Few people can be called ‘revolutionary’ without there being some negative connotations, Steve Jobs’ was among that number.  People like Jobs, whose creativity and vision realise potential we never thought existed and who change our lives for the better are rare. Detractors alleged a fanatical attention to detail, but in the culture of secrecy and loyalty that surrounds Apple products, who knows if this is true? Even if it is, surely our love affair with everything Apple is based on its simple perfection; it makes products as beautiful and intuitive as you can imagine they should be.

The story behind the creation of the Apple 1 is computer legend: working from Jobs’ parents garage Steve Wozniak assembled the hardware as Jobs took orders for units and blagged credit for the components. Over the next three years, two more versions (Apple II and Apple III) were launched and by 1982 Steve Jobs had made the cover of Time Magazine, where he was reported as saying “There are only a couple of questions. There are no penalties for wrong answers. The weight of the argument and the heat of the debate are what count”.

The 80’s wasn’t plain sailing for Jobs, being ousted from Apple in 1985, but out of adversity, a new creative direction emerged when he bought a division of George Lucas films and created Pixar was born.

By 1997 Steve Jobs was back as CEO of Apple and the following year, the company turned a profit after years of downsizing and consolidation. 1999 saw the introduction of the first iBook followed by the iPod, iTunes, iPod Shuffle, iPod Nano, MacBook pro and iPhone. Apple’s march across our conciousness had begun.

Despite apparent intransigence, Jobs capitulated eventually to the need for interoperability with Windows; ultimately migrated to the Intel platform and finally agreed a settlement with Apple Corp over a name spat with the Beatles and released the entire Beatles back catalogue to iTunes. commercial mountains that had once seemed immoveable eventually came to Jobs.

From its humble beginnings in a Californian garage, to it’s global reach of over 300 stores with sales of the iPad exceeding 8 million in the last financial quarter alone, I genuinely believe our children will be taught about Jobs just as they learn about Newton, Darwin and Edison.  His loss to the technology community is immeasurable and his passing is truly a loss to us all.

THURSDAY 6th OCTOBER 2011 

 

Link to tributes to Steve Jobs here: http://www.bbc.co.uk/news/world-us-canada-15202484

Link to Apple here: http://www.apple.com

Email Apple’s condolences page here: rememberingsteve@apple.com