After a decade from its beginning, the Google vs. Oracle has ended with Google on the winning side. However, the decision has garnered much controversy due to how it might impact the future of code. One side rooting for Google believing that companies would be forced to implement deliberately incompatible standards (restricting services’ abilities to communicate with one another) to protect themselves from the risk of complex litigation. The other side rooting for Oracle while cautioning that a judgment favoring Google’s position would weaken protection for copyright for software code developers, allowing competitors with better resources to develop improved products from smaller firms, and reduce the motive for innovation within the industry.
On August 13, 2010, Oracle sued Google for copyright and patent infringement, citing that Google was aware that they had developed Android without a Java license and copied its APIs. Oracle also mentioned that Google had no excuse to be unaware of infringing patents, given that they had hired developers that had originally worked on Java. Oracle sought both monetary damages and an injunction to stop Google from using the allegedly infringing materials.
The first phase of the case, which lasted 5 years, was split into three phases, copyright, patent, and damages. The court ruled in favor of Oracle by successfully establishing that APIs are copyrightable, but their claims of patent infringement were rejected.The second phase began in 2016 on whether Google’s actions were fair use given the prior ruling that the APIs were copyrightable. The courts ruled in favor of Google, which Oracle appealed a managed to get reversed in the Court of Appeals.Google appealed before the Supreme Court of the United States in January 2019 seeking to challenge the rulings made by the appeals court in Oracle’s favor. The Court issued its decision on April 5, 2021, letting Google off the hook by overturning the lower court’s decision.
Justice Stephen Breyer, who wrote the majority opinion said that “to allow enforcement of Oracle’s copyright here would risk harm to the public”. So many programmers used and had a deep knowledge of Oracle’s building blocks that such a move would turn computer code into “a lock limiting the future creation of new programs”. “Oracle alone would hold the key,” he warned.
In a dissenting opinion, Justice Clarence Thomas commented that allowing fair use simply because it allows new products to be created effectively redefines the idea. “That new definition eviscerates copyright,” he warned. He also lamented that the majority had decided not to rule on whether code was copyrightable, instead of saving the question for another day and relying on fair use instead.
New measures on Youtube
The most famous content platform has decided to change its management model and harmonize the control tools that authors have to protect their content on this network. This is why, since September, YouTube will stop demonetizing a video if there are small fragments of other songs in them.
Until now, if a user uploaded a video with only a small fragment of a song or other work, the author was enabled to unsubscribe the content or, even worse, demonetize that video. With the new procedure, even small fragments of songs can be used without demonetizing, although the duration of each portion is not objectively established. However, this new measure will allow Youtube users to upload content without the risk of losing everything for a few minutes of a song.
On the authors’ side, they will still have the possibility to block or demonetize videos. Nevertheless, they will not be able to abuse either of these two options. In this regards, they will have to do it manually. Otherwise those owners who continue to make massive manuals claims will be suspended. On the other hand, the famous detection mechanism with Content ID (responsible for the vast majority of claims) will remain unchanged and will continue to allow claims to be appealed by the users if they were made in error.
Reason: New Copyright directive
Surely, these strict policies of YouTube and other platforms respond to the strong protectionist wave that is taking place in Europe after the half-sanction of the new Copyright directive.
In fact, the platform has acknowledged that they have been turning a lot in favor of the rights owners and have left aside a bit of content creators, who are ultimately the ones who keep the platform alive. Therefore, with this change, they claim to have taken an important step towards finding an adequate balance in the long term. Although they have recognized that this change can increase the number of claims in the short term. Only time will tell.
1 European Union Approves Copyright Directive – By Maria Sol Porro – 23 APRIL, 2019 – MOELLER IP BLOG https://www.moellerip.com/european-union-approves-copyright-directive/Read More
Since any student begins to study the law of Copyright in Argentina, we learn that this right protects the expression by a human being of ideas, procedures, methods of operation and mathematical concepts but not those ideas, procedures, methods and concepts in themselves. Typical examples of this exclusion were always weight loss methods, scientific theories and “culinary recipes”.
However, since a few years ago many chefs began to demand some recognition for the recipes and dishes created, according to the first ones, opening the subject to the following debate: does gourmet creation deserve to be protected by copyright? The answer to this basic question will determine if someone who plays the same dish as a chef must pay the author a certain right of remuneration or royalty.
As in any debate, we will always find the two positions: those in favor of recognizing the author’s copyright, basing their thinking on the need to protect the culinary creative act, comparing it with other artistic creations (musical, literary) that do they find protected. While on the other hand, we find the position contaria who argue that only can be considered “author’s dish” to that cooked by its author, and that any reallocation of this dish is by definition different from the first and, therefore, could not be protected.
However, despite the fact that the debate remains in force, a judicial or legislative solution has not yet been found in our country and, if there is a coincidence between both sides, it is difficult to find any of these areas. If we look beyond the borders, we will find that the issue also causes conflict in other countries. For example, in Spain the subject was discussed in the Cultural Federation of Associations of Spanish Cooks and Resposters, where the recognition of the gastronomic work is demanded in order to combat plagiarism among colleagues.
On the other hand, in the Netherlands, we find that the Court settled case law in a case of plagiarism of a box of chocolates (not only had the original recipe been copied, but also the shape and decoration of these) by declaring that the right Author can cover not only the aspect of the recipe (when a recipe is published in a book), but also its content and the successive executions that are made based on it. Finally, it is worth mentioning the denounce of an Australian chef against a Spanish chef, both with three stars Michelin, where the first accused the plagiarist, to which the Spanish chef defended himself referring to a “simple inspiration”.
Returning to Argentina, as mentioned before, our Copyright Law does not protect the recipes themselves, but rather how they are expressed, for example in a book. Thus, the recipe book of Doña Petrona or Narda Lepes (Argentinian chef) are protected as literary works, being forbidden the use by a third party of these works without their consent. However, it should be noted that the recipe itself is not protected. And therefore, anybody could reproduce it, in other words, in another book.
In this way, the debate is ongoing and the line of plagiarism and simple inspiration is very thin and very easy to cross while there is no clear regulation on this subject. Perhaps, with time, we will find ourselves in a future with a new protected work, since as we also learn from the beginning the art. 1 of the Copyright Law is not closed, if not merely exemplary, allowing the incorporation of new works.Read More
The Dominican Association of Intellectual Property (ADOPI) expressed concern about legislative measures to amend Law 20-00 on Industrial Property, which protects trademarks, trade names, patents for their counterfeiting and piracy.
In this regard, ADOPI requested to the president of the Chamber of Deputies and the president of his Permanent Commission of Justice to reject the aforementioned project that aims to modify the “Article 44, numeral 4, of Law 65-00 on Copyright” since it considers that “public communication of works” through television sets in medical clinics as an exception from the payment of royalties.
The aforementioned association deepened by saying that with the proposed exception, it is intended to arbitrarily reduce the rights of the authors, since the communication of works carried out in the “public and private hospital setting” is not private but public and hence the affectation to the normal exploitation of the works and the interests of the authors, which violates art. 30 of Law 65-00. In conclusion, ADOPI stressed that clinics can not be exempted from paying royalties, even though their activity is not the broadcasting of audiovisual works but health services. Also, he added in this regard, that the companies providing television services are not the only ones that must pay the copyright corresponding to the dissemination of works in clinics.
For these reasons, we will have to wait for news about the aforementioned reform and if the Chamber of Legislators will take into account the rejection of the ADOPI and its corresponding foundation.
Source: https://www.diariolibre.com/Read More
The Mexican Senate approved on Thursday, April 26, 2018, an amendment to the Federal Law of Copyright that would possibly affect the right to freedom of expression on the Internet. There was no prior discussion in commissions and without respecting the legislative process by 63 votes in favor, 11 against and 23 abstentions.
The aforementioned amendment adds “Article 213 Bis” to the Federal Copyright Law and attaches a paragraph to “Article 215” of the same law. These modifications would allow judges to dictate measures to “suspend public representation, communication and/or execution” and for “the precautionary assurance of the instruments used in public representation, communication or execution” in order to prevent violations of the rights of author.
Regarding these modifications, Luis Fernando García, Director of the Network in Defense of Digital Rights (R3D), reported that the figure of “precautionary measures” is introduced to the head of the courts when there is only suspicion or risk of a violation of copyrights. This would imply that any court will have the power to order that a public communication, for example a video on the Internet, be censored or that servers, routers or other instruments used in its dissemination be inspected without having been previously proven in a trial that such communication violates copyright.
However, it should be noted that the amendment also determines that before making a judicial request, the copyright holder must give notice to the infringers of his/her rights.
Undoubtedly, these modifications put the confrontation of two rights of equal importance in the discussion focus. On one hand, the right of every author to defend his/her moral interests as patrimonial to be affected by a third party, and, on the other hand, the right to freedom of expression, in this case on the Internet, which allows the free flow of information without borders. Due to the advancement of technology, both rights are in a constant tension and a fair solution for both parties has yet to be developed.
The potential of Artificial intelligence is enormous. The interconnection of A.I. and art is a relatively less explored field, but in this regard the consequences for intellectual protection law are unpredictable and equally interesting.
In 2016, a network of Dutch museums presented a portrait created by a computer that analysed hundreds of Rembrandt paintings, to finally produce a new artwork in the style of the Dutch artist and that looks exactly as if it had been made by Rembrandt himself.
In the same year, a computer software wrote a brief novel that was admitted into a literary prize in Japan, although it didn’t make it to the final round.
Deep Mind, a Google company, has developed a program that creates original new music by listening to old recordings. The first computer-generated musical debuted in London as early as 2015.
While bots have been present in the creation of work of arts since the 1970s, the difference with modern A.I. lies in the fact that, in the past, the human programmer still had a relevant creative input and the machine merely executed, or reproduced his ideas adding an element of randomness. Today, evolved A.I. robots – due to the developments of machine learning -are capable of behaving in a sophisticated way which is almost as indistinguishable from human intelligence and are capable of unpredictable, autonomous decisions.
As copyright law protects original works of art, and the works produced by robots are certainly original, who owns the copyright to those artworks?
The consequences for copyright law
The question is relevant as there may be substantial commercial rights attached to the copyright of a work of art. Who is to benefit from the commercial rights? The developer of the software? What if the activity cannot be tracked down to a developer in particular, but to a whole company – like it usually happens in case of very sophisticated programs? Or is the machine itself to be considered as an author – but again, in that case, who holds the economical rights? And what if, on the contrary, the final work cannot be considered as attributable to anyone – and therefore can be reproduced, modified and commercialized freely?
Most jurisdictions, included South American jurisdictions, are unequipped to deal with artificial intelligence from this perspective. In Mexico, for instance, the concept of copyright is always linked to a person.
Art. 12 of the 1997 Federal Law on Copyright, states that “The author is the natural person who has created a literary or artistic work.”
In other words, the existence of an individual identified as the author is essential; and by the same reasoning, for instance, corporations in Mexico cannot be authors, although they may be the copyright holders.
The same is true for Brazil, where section 11 of the law 9.610/ 1998, establishes that “The author of a literary, artistic or scientific work is the natural person who created it” – negating the status of creator both to companies and to the software itself.
On a global perspective, EU courts have been behaving similarly, in the sense that they attribute the rights only to a human author – see for instance the Court of Justice of the European Union (CJEU) in the decision C-5/08 Infopaq International A/S v Danske Dagbaldes Forening, where it stated that originality must reflect the “author’s own intellectual creation”, implying that a human author is necessary for a copyrighted work to exist.
The United Kingdom adopts a more blurred stance on the matter, as UK copyright law, section 9(3) of the Copyright, Designs and Patents Act (CDPA), states:
“In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken” and this needs to be paired with section 178 of the CDPA defines a computer-generated work as one that “is generated by computer in circumstances such that there is no human author of the work”, admitting, in theory, that computer-generated works may exist. It just needs to be defined who is responsible for the “necessary arrangements”, whether the programmer or the machine itself, which is still under debate in the UK.
Quickly developing technologies have put a strain on most legal systems, and South America needs to keep up with its advancements.