IP and Digital Entertainment conference: Part I

Today's CLT conference, IP and Digital Entertainment, held in the lovely setting of Holborn Bars, London, was opened by Gill Grassie (Brodies), giving an introduction to the digital revolution which spanned the relatively short time (in historical terms) between the lead-in to Digital Opportunity (the Hargreaves Review) and today.  Much of Hargreaves consisted of putting into legislative terms that which was already perceived by many computer users as already being the law.  A digital copyright exchange was suggested as a one-stop shop for people to gain legal access to and to use works that were contained in a massive bank. This exchange would also provide for swift, mass licensing of works for commercial purposes and would embrace 'orphan' works, the copyright owner of which could not be identified or traced. This copyright exchange has now morphed into a much less ambitious concept, the Copyright Hub (launched earlier this month: see Katpost here).

It was assumed that easier licensing would lead to the development of new business models, with accompanying economic growth.  Ideally this would be pan-European, but this initiative has yet to come to fruition.

The appointment of Richard Hooper in 2011 to to a feasibility study on the digital copyright exchange soon revealed that the subject was more complex than had at first been imagined.  An industry-led Copyright Hub, capable of linking with European and international rights administrators, was the best that could be hoped for, Gill explained. The Hub , which has been supported by an impressive list of copyright representative organisations, would also provide copyright education and deal with orphan works. Everything the Hub did should be automated: "The answer to the machine is in the machine".

Competition to the Hub already exists and appears to be streets ahead of it. The Global Repertoire Database is one example; Armonia is another. The Holy Grail of a global rights database may never be achieved, given the diversity of local laws and collective licensing practices, though the trend towards international cooperation continues. It remains to be seen, Gill concluded, whether this initiative will ever achieve its stated aims.

Next to speak was Rosie Burbidge (Rouse), who tackled the huge topic of computer games.  Reminding the audience that the UK had a large and valuable games industry, she ran through the principles of copyright that have emerged in recent non-games copyright litigation (notably the SAS and Red Bus cases) and industry reaction to them. PewDiePie's YouTube account consists almost entirely of recordings of a Swedish games player's gameplays, from which he earns considerable advertising revenues.  Rosie also explained the concept of machinima, in which gamers recreate film sequences and place them online.

Distribution of games has moved hugely from physical copies to downloads, partly because of the absence of CD drives in so many new devices and partly because of the decline in retro-compatibility. This brought Rosie to the controversial Court of Justice of the European Union decision in UsedSoft.  Will patents give protection against resale of digital goods? Both Apple and Amazon appear to believe so. In the ReDigi litigation, the court suggested that this was a matter for legislation rather than for case law to determine.

The game community prefers an "always online" approach, which is quite ingenious. Players have to log in each time they play and can only do so if they are using the same password and IP identity.  However, while it is popular with game owners, players hate it. It's inconvenient and can make the game run very slowly in areas where internet speeds are slow and/or lots of players log on at the same time.

What about trade marks? There is lots of misunderstanding about trade marks, how they work, whether they enable the owner to "control" words, and so on. Most horse-trading between game owners ends in an amicable solution. Not all do, though: Space Marines is a trade mark owned by Games Workshop, but it's also a relatively common sci-fi term. A book, in paper and electronic form, called Spots the Space Marine was published, which greatly concerned the owner of the trade mark. The book was initially taken down by Amazon, but was restored after pressure was brought on Games Workshop by the Electronic Freedom Frontier (EFF).

Rosie then moved on to mention China and the various rights protection options available there.  Registration of a trade mark was particularly important, since Chinese companies tend to watch for successful products and register the names themselves. These marks can all be removed on proof of bad faith, but this is still an inconvenience.