Thursday, November 11, 2010

Intellectual Property Trolling?

I hate to quote the website Temasek Review but once in a while, they do raise certain issues worth debating.

I refer to a case in which local website www.transitioning.org, a site that provides information and support for unemployed Singaporeans, received a notice from Singapore Press Holdings demanding payment for what the latter alleged to be copyright infringement.

The same thing happened to another party, an online forum for cyclists, the JoyRiders forum (http://sports.groups.yahoo.com/group/longhouse5am/message/18115)

The transitioning.org and Singapore Press Holdings story may be accessed here: http://www.temasekreview.com/2010/09/21/sph-demands-749-from-local-website-for-copyright-license-and-investigation-fee/ (see? I linked to Temasek Review, something they had not done for the two blog articles they took from me without permission and backlinking, but that's another tale of copyright infringement altogether because my concern was more of proper attribution and acknowledgement).

Before we all get heated under the collar with respect to a story of a big fish eating a small fish, we need to understand what on earth intellectual property is all about.

Not many Singaporeans know what intellectual property is, let alone intellectual property rights and defences against intellectual property infringement. I'm one of them. I AM NOT AN EXPERT! PLEASE CORRECT ME IF I AM WRONG. Thanks!

Layperson users (or unwitting "reproducers") of intellectual property know very little, and so too do some businesses, who appear to leverage on intellectual property laws and our lack of knowledge of it to demand payment for what are perceived as acts of infringement.

Intellectual property rights and law are a symptom of capitalism, and emerged with a view to ensure the exclusivity (often commercial in nature) of original creations, expressions and works.

Intellectual property education is often a romanticised articulation of the need to protect the artist/creator and his/her livelihood, but in actual fact, serves a bigger purpose for the distributors and other exclusive licensees who bought the work/property and want to milk it for its commercial worth. My two cents.

It should be noted (and with reasonable suspicion) that our government, among many other governments, has been investing a lot of time and resources in protecting intellectual property rights and enforcing intellectual property laws. That is public money we are talking about. But there is always this pressure on governments who sign free trade agreements with the United States, or join some international organisation like WTO and World Bank, and are pressured to comply with prevailing intellectual property norms (obviously informed by the standards determined by the United States - big brother or bully?)

What sickens me is that businesses now are looking to intellectual property as a source for revenue. Two cases come to mind - Streetdirectory.com and ODEX.

Streetdirectory has served letters to individuals and companies that reproduce screenshots or copied-and-pasted maps on their websites. This is because these parties have been alleged to have infringed the copyright of Streetdirectory. When many folks get that letter of accusation and demand for payment, they quake in their boots and do the Singaporean thing - stay out of trouble and pay the man.

ODEX served letters too, to individuals whose IP addresses have been detected by their own private investigator (privacy breach, any one?). ODEX then wrote to various Internet Service Providers in SingNet, Starhub and Pacific Net, demanding them to dishonour the privacy agreement with their subscribers and surrender user information to them in view of "intellectual property infringement". The ISPs that were the most "cooperative" complied without questioning the legality of ODEX's demands as well as the legal context of ODEX's business and intellectual property infringement claims.

In Streetdirectory's case, their license from Singapore Land Authority (was that the correct public organisation? Please correct me if I'm wrong) had already expired. Being a licensee does not make you the owner of the copyright, but they acted like one, and it was not as if they created original work or did anything with the maps that would fall under "compilation" (a defence against copyright infringement).

Same case for ODEX. Being a licensee - heck they weren't even the exclusive licensee - for anime did not grant them the full copyright of the anime that have been shared among various users without legitimate purchase.

But ODEX had an edge over the users it tried to demand compensation from. The people at ODEX knew just a little more about intellectual property rights than the people they (pur)sued. Being Singaporean and not wanting trouble, some of the users gave in and paid in the thousands to ODEX.

To be fair to ODEX, it was due to illegal sharing and downloads, that it adversely affected their business (i.e. business of selling and distribution). So this is one condition for an act to constitute copyright infringement. But, again, ODEX was not the owner nor exclusive licensee of the anime they distribute, even though they acted like one and got away with it. The creators/authors of the anime should be the ones pursuing the parties who have illegally distributed the anime.

According to my interpretation of the intellectual property law in Singapore, an act will constitute copyright infringement if it fulfills the following conditions, among others:

1) The act was committed without the permission of the copyright owner
2) Improper attribution in which there was little or nor acknowledge, or that the work has been passed off as the work of another party
3) The act has to affect the commerciality of the work (i.e. an act causing the owner of the work to lose business)
4) The act was committed for the purpose of commercial gain

These are my layperson understanding of the law. I am in the belief that the lack of permission alone cannot constitute infringement, but judging by the actions of different organisations over the years (and them getting away with it), it is not the case.

There are also defences, 3 of which has come to mind:
1) Fair comment (i.e. the reproduction is for research, criticism, commentary)
2) Fair dealing
3) Public interest

Well, more can be accessed here http://www.singaporelaw.sg/content/iplaw2.html.

I fear the worst when a news organisation starts investing time and resources in a competency deviating from its core business objective, just to look for websites that are allegedly infringing their copyright, such that in the case of transitioning.org and JoyRiders, they had demanded payment of "licensing fees" and "investigation fees".

In the case of transitioning.org, a non-profit portal aimed at helping unemployed Singaporeans, I believe the reproduction of one Straits Times article was made with commentary, and in public interest. However, the news organisation, based on a single condition for copyright infringement (i.e. acting without permission), believed it had a case against the website and thus sent the site a letter demanding payment.

The law says one thing. But big organisations are doing another, or are they not? How do we know?

In allowing a large news organisation to make demands and claim payment for alleged copyright infringements, are we sending a signal that, in spite of the law, only one condition is needed to be fulfilled (i.e. acting without owner's permission) for an act to constitute copyright infringement?

Is this permissible? If so, what's the point of listing defences, limitations, fair use, fair dealing articles in the law? What purpose, if at all, do they serve, if large organisations continue to make demands and claim payment from parties that have only "acted without permission" but have not fulfilled the other conditions necessary for an act to wholly constitute a copyright infringement.

Seriously, what is the point of putting in exceptions and defences if the law allows private organisations to determine that an act constitutes copyright infringement based solely on the fact that no permission was sought (amidst all other necessary conditions)?

Is the action of accusing another party of copyright infringement (even though not all the conditions are met) and concurrently demanding payment, a legal action?

Are the terms and conditions (pertaining to copyright) designed by the news organisation legal and in harmony with Singapore's intellectual property laws?

The act of reproduction on transitioning.org, cannot logically and reasonable cause a substantial drop in newspaper subscription. Moreover, reproduction often occurs at least a day after the publication and distribution of the newspaper. And in the age of new media, that is a long time, and hence a reproduction can never be in a position to undermine subscription of a newspaper, because people have access to newspapers first (just like the reproducer of the article) before actually accessing the reproduction. A reproduction logically cannot precede publication!

Moreover, declining subscriptions cannot be solely attributed to even a website that reproduces a couple of articles on an irregular basis. These exist in a context of changing media usage habits and consumption/demand for news. The condition for copyright infringement that requires the act to affect the commerciality of the work is not and cannot be fulfilled in this case.

Transitioning.org also provides commentary and allows for visitors to share their views and criticisms. Can the act of reproduction of a news article then constitute copyright infringement? I think not.

In the case of JoyRiders, they faced the biggest slap in the face. A reporter interviewed them and published an article featuring them. The article was reproduced on the forum and Singapore Press Holdings subsequently sent them a letter demanding payment for alleged copyright infringement.

I believe JoyRiders and Transitioning.org have not earned a single cent while making these "reproductions", and moreover, "reproduced" these articles for the sake of debate amongst a closed and familiar group of people.

The Intellectual Property Office of Singapore is unfortunately merely an administrator that feels no obligation to educate Singaporeans against intellectual property trolling and similarly related issues, as we have seen the instances I have mentioned. I also wonder if the Media Development Authority and Infocomm Development Authority have materials to educate Singaporeans on intellectual property trolling.

I believe even the enforcers of the law that is the police, might prefer to leave such cases to the copyright owners and alleged "infringers" and settle their differences in the civil court.

The law is there. But enforcement isn't really there, because the state believes intellectual property issues are best left to private organisations and the civil court. I believe we need the involvement of the state to ensure that private/business practices are in harmony with intellectual property laws of the land.

I feel there is a need for the administrators and enforcers of intellectual property rights to continually examine the practices of large organisations that border on suspicion of intellectual property trolling, or thuggery, or anything along those lines.

Who can the small fish turn to if no authority wants to help or intervene? And because of this, intellectual property is left to the better lawyers and the big players will always get the better lawyers.

This is obviously a matter of public interest, as many people and businesses are already featuring reproductions of news articles by the Singapore Press Holdings. From websites to hawker stalls, they proudly display to others what the press has covered about them.

In addition, what makes something a legal wrong, does not mean it is ethically wrong too. The act of reproduction exists in a context in which Singapore Press Holdings enjoys substantial market control (almost a monopoly). People still rely on their newspapers for news. It is not as if the laminated reproduction of a quarter page article of a hawker stall, pasted on the stalls window, can threaten or injure the commerciality of the organisation. In fact, the act of reproducing articles as a badge of mainstream media endorsement is indicative that people hold the newspaper in high regard and treat it as a credible source for information.

There are whispers in the wind the news organisation has affiliations and informal relations with people in power, but that does not make it holier or saintlier.

Netizens should be concerned about this matter too, because news articles from Singapore Press Holdings and Mediacorp are regularly reproduced, but for the sake of commentary, criticism and invitation for discussion (defences against intellectual property infringement).

If this continues without state intervention, and considering the advent of new media, social media and word-of-mouth marketing, businesses, merchants and interest groups may decide someday that certain news organisations are no longer worth their time.

If there are instances of intellectual property trolling (or activities that hint at that), what can the government do to protect Singaporeans?

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In the end, I still know nothing about intellectual property law. Sad la.

13 comments:

Agagooga said...

The 4 conditions are not all necessary. Non-commercial infringement still can count as infringement if you copy enough of the work, even if it doesn't affect the copyright holder's sales/commercial interest.

And "IP Trolling" does not describe ODEX. Technically they might not have had the right to do what they did, but the people they sued were still in the wrong, legally speaking. Streetdirectory is more suspect as it looks like fair use would have covered it.

If you look at academic papers, no one reproduces entire papers to comment on/criticise them. They summarise and quote key excerpts. The same applies for online copyright. Just because it is easy to copy articles does not mean that it is legally kosher.

Agagooga said...

http://www.ipos.gov.sg/leftNav/cop/Infringement+and+Enforcement.htm

Infringement of Copyright

Infringement occurs when one has not obtained consent from the copyright owner to do something that only the copyright owner has the exclusive right to do. For example, a person infringes copyright if he photocopies an article without the consent of the copyright owner.

It is important to note that one does not need to have reproduced the entire copyright work before infringement takes place. It is an infringement as long as a substantial amount of the original work, quality wise, has been copied.

In an infringement dispute, a substantial amount is not measured merely in terms of the quantity that has been copied. The Court also takes into account the nature of the portion that has been copied or reproduced. If the portion copied constitutes the primary part or essence of the copyright work, the Court may construe that a substantial amount has been copied.

Sam Ho said...

thanks.

i've taken specific measures not to (even) insinuate that the acts were acts of IP trolling haha.

i don't understand. if an act is deemed infringement because it has be copied/reproduced without permission, that's the point of having all the other articles/statements/conditions?

then the law should just state - "copy and/or reproduce without permission = infringement" and nothing else.

unless, it's about getting discounts for paying damages when we factor in the conditions (is that their purpose?)

Sam Ho said...

"Non-commercial infringement still can count as infringement if you copy enough of the work, even if it doesn't affect the copyright holder's sales/commercial interest."

i think that's the law.

but how is this justified then? if there is no harm or damage caused? what is there to protect?

Agagooga said...

Insinuation: how about the post title?

The other articles/statements/conditions are to give scenarios where it counts as fair dealing or some other exception (e.g. making a backup of a computer program). And also to distinguish between serious and less serious cases of copyright infringement - to determine damages.

The harm principle is not the only one in the law. In this case, it's the moral right of the copyright owner to control what happens to his intellectual property. A parallel case: why is necrophilia illegal?

Sam Ho said...

added a "?" to the title haha.

necrophilia is not intrinsically wrong. but then again, it does offend the relatives of the deceased, whose suffering can be measured by a professional (doctor, psychiatrist)

ya, you reminded me about one aspect of copyright, that is the "moral right". it's now recognised as part of the bundle of rights that make up copyright.

so, in short, consent is the critical factor or the only factor separating right and wrong in copyright law?

Agagooga said...

Homosexual sex offends some people! And their suffering can be measured.

No it's not consent. Gah. Go and read the list of exemptions, and fair dealing!

Sam Ho said...

aiyah i'm getting damn confused.

i know the exceptions. but where do the exceptions stand with respect to an act that has been committed without consent (aka infringement)?

can the exceptions apply when the act is committed without consent? even if the conditions for fair dealing apply, but the act is still committed without consent, is the act still legally wrong? or is it x% wrong and 100-x% not-wrong?

Agagooga said...

Err you can have fair dealing without consent. Then it's not an offence.

With consent - can do anything. 100% right.
Without consent - can do some things, but usually only the things covered under fair dealing (100% right)

I don't think there's less than 100% right or 100% wrong - what is at issue in the cases you're thinking of is damages. Analogy: it is wrong to slap someone, and it is wrong to kill him. In both cases it's wrong. But killing him gets you a higher penalty.

Sam Ho said...

there are 5 conditions for fair dealing stated on IPOS.

if only one of these conditions is fulfilled, does the act constitute a fair dealing? and based on this, the act of "infringement" is 100% right/legal?

Agagooga said...

"Factors that will be taken into account in deciding whether such copying is a fair dealing include the following"

Sam Ho said...

so in the case of transitioning.org and SPH, SPH won't have a case against the website because of fair dealing, as qualified by the condition "effect of the dealing upon the potential market for, or value of, the work", right?

haha. i really appreciate you sharing and clarifying these with me

Agagooga said...

Transitioning.org posted an entire SPH article

This falls foul of one of the criteria of fair dealing, which is "amount and substantiality of the part copied taken in relation to the whole work"

With regard to judging whether an offence has been committed (as opposed to its severity), I would say this is the most important criterion.