Incorporeana: 2012

Wednesday 14 November 2012

La Vie Privée

I wanted to write about data protection, in France, & look at a case which had reached the highest courts there. However, the recent cases which reached the Conseil d'État, the highest administrative court in France, concerned the powers of the French data protection agency, the CNIL, rather than the substance of data protection or privacy law. More detail about that can be found in records of CNIL's deliberations when taking enforcement action. So I thought I'd write a bit about the CNIL, & look at a recent case where they've taken action against someone for breach of data protection rules. Of course, the Google story is the most prominent at the moment, but that's been well covered elsewhere so I tend to think it's therefore outwith the remit of this blog.

CNIL is the Commission nationale de l’informatique et des libertés, & was founded in 1978 by statute, to protect personal privacy in the age of electronic storage of information, that “information technology may be at the service of the citizen.” The commission consists of 17 members, comprising 6 senior judges, 2 MPs, 2 Senators, 2 members of the Economic & Social Council, 3 appointed by the government & 1 each by the chairmen of the Senate & National Assembly. It elects its own chairmen & is independent of government. The Commission has various functions, such as giving advice & authorising sensitive data processing, but also include enforcement action against those infringing data protection rules, which can include fines levied by the CNIL itself, up to in extreme cases reporting data protection infringers to the public prosecutor. Fines can be up to €300,000.

One instance of enforcement action was taken by CNIL against DSE France, a property surveying company, in January 2012. DSE France had been sending unsolicited text messages to people who had placed property for sale online.
The company had breached the law on postal & electronic communication which prohibited automatic communication of any kind with someone who hadn't consented. They had bought these contact details from online property advertising companies, the problem being not that they had done so, but that they had done so without those sellers having consented to being contacted. The onus was on the company to only buy contact details from people who had agreed to be contacted. CNIL had in 2009 & 2011 taken enforcement action against property selling companies & this had been widely publicised, so DSE couldn't claim ignorance in dealing with the data sellers. Moreover, at least one of the contracts with the sellers had stipulated that the data was to be used for contact by phone only, which wasn't forbidden by the postal & electronic communication law.
DSE had also failed to comply with the data protection law requiring communications to give details of the recipients' rights including rights to see, correct & delete the information held on them. The texts only gave details of how to be taken off the mailing list by replying to the text with “stop”. This wasn't considered sufficient. Other companies had managed to put the required information in text messages, even if it meant sending 2 messages to each person.
It was also unacceptable that the only way to be removed from the lists was by replying to the texts or calling a number given, since these both cost money, & people shouldn't have to pay to exercise their data protection rights. A phone number to call for this purpose should be free.

The CNIL had been alerted to all these problems by 4 complainants who had received these text messages without having consented to receiving them, & had unsuccessfully attempted to have their contact details deleted by DSE, without success. Indeed one person was found by CNIL's investigators to be still on DSE's files, despite 7 requests to be deleted. CNIL began their process by writing to DSE asking for their response to the concerns, in July 2010, & asking them to take action to rectify them. In May 2011, having not received a response, CNIL contacted them again & received the response that DSE had taken action to rectify the problems. However, these measures, such as having a free phone number to call, were insufficient to meet their obligations.
Consequently, the CNIL issued a fine of €20,000, & decided to openly publish its decision.

References 


Posted by at No comments:

Wednesday 31 October 2012

Scots of the Antarctic

Photo of Esperanza Base, Antarctica. by Tim Ellis, subject to Creative Commons Licence - http://creativecommons.org/licenses/by-nc/2.0/ (http://www.flickr.com/photos/tim_ellis/30958040/)


This is a little off topic but seemed interesting. This year the British Parliament passed the Scotland Act 2012, which grants greater powers to the Scottish Parliament, mostly over taxation. However, tucked away in the act is section 11, which transfers power the other way, returning power over regulation of activities in Antarctica from the Scottish Parliament to the British one. It does this by modifying Schedule 5 to the Scotland Act 1998, which lists the powers which are “reserved”, that is, the powers not transferred to the Scottish Parliament. The principle was that anything not listed was deemed to have been devolved. Schedule 5 listed obvious things like defence & foreign affairs, along with intellectual property & data protection. It also included regulation of activities in outer space, but didn't mention Antarctica.

No-one noticed this for a long time, until the new legislation to devolve more powers was in development. It wasn't mentioned in the report of the Calman Commission on Devolution, which originated many of the proposals eventually contained in the new act.

In response to a new annex to the Environmental Protection Protocol to the Antarctic Treaty, the British Government proposed new legislation to implement this. This would presumably amend the 1994 Antarctica Act, which regulates UK based Antarctic activities & requires permission from the Secretary of State, the Foreign Secretary, for expeditions to Antarctica from the UK. This could include pacakge holidays being organised from the UK. The Secretary of State can impose conditions for the purposes of environmental protection. It is this legislation which could in theory be altered by the Scottish Parliament, if the competence has been devolved, for example to allow the Scottish Government to authorise expeditions to Antarctica.

It has been argued that regulation of Antarctic activities wasn't really devolved, that other provisions of the 1998 Act would preclude that. Notably section 29, which says that a provision is outside the Scottish Parliament's competence if it creates functions “exercisable otherwise than in or as regards Scotland”. However, the Scottish Government's position is that any preparation & planning for an expedition in Scotland would be within Scotland & within the jurisdiction of the Scottish Parliament. Of course, the 1994 Act is still in fact in force in Scotland, the Scottish Parliament not having attempted to amend it.

The Scottish Government agreed in 2010 to ask the Scottish Parliament (in which it has a majority) to approve the amendment of the Antarctic Act. They accepted, despite their support for Scottish independence, that the Foreign & Commonwealth Office of the British Government should continue to exercise this function. This process is known as a Sewel Motion, a procedure whereby a devolved legislature agrees for the British Parliament to legislate on a matter which has been devolved. The British Government decided instead to include in the new devolution bill the section re-reserving Antarctica. The Scottish Government is controlled by the Scottish National Party, & their members in the British Parliament did try to amend the bill to remove the re-reservation, but in the end did not press the matter. They declared their opposition in principle to any re-reservation of a power already held by the Scottish Parliament, but conceded that they had not used & had no intention to use this power.

There is another interesting quirk of Antarctic law in the UK. The aforementioned 1994 Act requires people planning expeditions to Antarctica to seek the permission of the Foreign Secretary. If this permission is refused, they can appeal the decision to the Antarctic Tribunal. I don't know if permission has never been refused or perhaps simply that when it is the applicants go away & change their proposals, but the Antarctic Tribunal is one of a select few tribunals in the UK which exists on paper, but has never met.

Finally, a quirk of immigration & nationality law also makes an appearance. One of the UK's involvements in Antarctica is the British Overseas Territory known as the British Antarctic Territory. This territorial claim, like others in Antarctica, is “frozen”, & has no practical effect on the ground, where any country can set up a scientific base wherever it likes under the Antarctic Treaty. The British claim overlaps the Argentine & Chilean claims.

There was a period in the late seventies, when Chile & Argentina, to cement their claims, encouraged the military personnel running their bases in Antarctica, to have their families with them, including pregnant women. This led, in 1978, to the birth of Emilio Marcos de Palma, on the Argentine Esperanza base, on the northernmost part of the Antarctic mainland. He has been followed, to date, by 7 more Argentinians & 3 Chileans. The site of the Esperanza base, as well as being in the Argentine claim on Antarctica, is also within the British claim. So what? Well, under the British nationality law in force at the time, prior to 1983, the British Nationality Act 1948, anyone born in the United Kingdom or one of its colonies was automatically a Citizen of the United Kingdom & Colonies. The British Nationality Act 1981 took away this automatic right from people born from 1983 onwards & split citizenship up into British citizens & British Dependent Territories Citizens, for those born in dependent territories. This status was renamed in 2002 by the British Overseas Territories Citizenship Act to British Overseas Territories Citizenship. The Act also granted to those already holding this status automatic British Citizenship. It therefore follows that Emilio Marcos de Palma & any other people born within the claimed boundaries of the British Antarctic Territory are entitled to British Nationality, though it does not seem that any have taken this up.

References
Posted by at No comments:

Sunday 28 October 2012

Google's illicit suggestions



You've probably noticed when searching using Google that when you start typing it starts making suggestions for the rest of the search terms. These are largely based on Google's records of common searches. For people signed in to Google, this can also include their own previous searches. There's been some concern about privacy in regard to this, though Google say that they delete it after 2 weeks without exception. However, that's not the only concern raised about this service.

Early in 2010, in France, the Syndicat National de l’Édition Phonographique brought a civil case against Google & Google France, on the grounds that Google Suggest, as it was then known, was suggesting as additional search terms, whenever people typed in the name of albums or songs, words such as “torrent”, “megaupload”, “rapidshare”. Rapidshare is a file sharing & storage site, Megaupload was similar but has since been shut down over accusations of copyright infringements. Torrent is a file type used by BitTorrent, a protocol used for peer to peer file sharing, where files are stored in a distributed way across different peoples' computers. None necessarily used for distribution of illegally copied files.
The SNEP were invoking a provision of the Code de la propriété intellectuelle, article L336-2, which reads as follows -
“En présence d'une atteinte à un droit d'auteur ou à un droit voisin occasionnée par le contenu d'un service de communication au public en ligne, le tribunal de grande instance, statuant le cas échéant en la forme des référés, peut ordonner à la demande des titulaires de droits sur les œuvres et objets protégés, de leurs ayants droit, des sociétés de perception et de répartition des droits visées à l'article L. 321-1 ou des organismes de défense professionnelle visés à l'article L. 331-1, toutes mesures propres à prévenir ou à faire cesser une telle atteinte à un droit d'auteur ou un droit voisin, à l'encontre de toute personne susceptible de contribuer à y remédier.”
This gives an industry association such as the SNEP the right to ask a court to ask anyone in a position to protect intellectual property to take action to do so.

Google were successful at first instance, in the Tribunal de Grande Instance in Paris. SNEP appealed, disputing Google's arguments that the provisions of article L336-2 were only applicable to internet serivice providers & those hosting websites, & rejecting arguments based on free expression. Google pointed out that they had already done as the SNEP had asked. The Paris court of appeal heard the case, after a discussion of exactly how involved Google France was, since Google.fr was run by Google Inc, Google France being concerned with things like marketing. The SNEP admitted not having researched this in detail. On the substantive question, the SNEP argued that Google Suggest was providing a shortcut for people who wanted illegal downloads & that deleting them from the possible suggested search terms was a proportionate response. Google argued that article L336-2 applied where an infringement of intellectual property has occurred & has been reported, but that autocompleting search terms wasn't itself an infringement, that the sites the searcher was being directed to weren't in themselves illegal, but merely created the possibility for users to infringe. They argued that the measure wouldn't be effective since the sites themselves would still be there, making the suppression of the search terms disproportionate.

The court said that the text of the article didn't specify that it only applied to ISPs & hosts of websites, that the right to free expression protected by Article 10 of the European Human Rights Convention didn't help Google since it didn't preclude the protection of intellectual property, but that the text of the article did require an actual infringement. However, the court said that suggesting these terms wasn't an infringement, rather that it was those using these sites to exchange copyright files without permission who were infringing the copyright, & that Google couldn't be held responsible for what the users of those sites did with them. The court of appeal therefore upheld the lower court's decision.

The SNEP therefore appealed further to the Cour de Cassation, France's highest court for most civil cases. The Cour de Cassation reversed the decision & found for the SNEP, on the basis that the measures requested would have some effect in making it harder to find files which had been illegally copied, & so the provisions of article L336-2 could be used. The case was remitted to the lower court to apply the Cour de Cassation's reasoning. Subsequently Google announced that they would take further action to reduce the priority in their searches of sites accused of copyright infringements. The SNEP welcomed the decision & Google's action, but said that search engines should go even further to protect rights holders.

References

Posted by at No comments:

Saturday 27 October 2012

By the way

By the way, this blog is also available at my University's website here - http://www.pebblepad.co.uk/edinburgh/viewasset.aspx?oid=314700&type=blog.
Also, the photo I've used is one I took myself, just because it looked nice. It isn't particularly relevant, except that it has an intellectual flavour, being of the entrance to the Natural History Museum. It certainly doesn't imply - in the unlikely event that anyone though this - that they endorse this blog or that I work there or anything like that.
Posted by at No comments:

Friday 26 October 2012

Fair Use & Fair Dealing on Venus



On October 22nd 1975, the Soviet Venera 9 probe landed on Venus, & sent back the first ever photograph from the surface of another planet. The photograph is low quality, black & white, shows some rocks near the spacecraft, & isn't always shown in reference works, though the better quality pictures from later Venera missions are more commonly seen. Most books & websites show predominantly the radar images of large surface features taken by NASA's Magellan probe, which as we will discuss later, are in the public domain. The Wikipedia page on Venera 9 reproduces the photograph it sent from the surface. The photo file page there justifies the reproduction on grounds of “fair use”, saying “This image is a faithful digitisation of a unique historic image, and the copyright for it is most likely held by the person who created the image or the agency employing the person. It is believed that the use of this image may qualify as fair use under United States copyright law. Other use of this image, on Wikipedia or elsewhere, may be copyright infringement.”
The criteria for use to be considered fair use are set out in section 107 of the copyright law contained in Title 17 of the US Code. These are the purpose & character of the use, the nature of the work, the amount of the work used & the effect on the market value of the work. Courts tend to look at this on a case by case basis. A case which applies the reasoning used by the Wikipedia community for the Venera 9 photo is Time Inc. v Bernard Geis Assocs. This involved a work about the Kennedy Assassination making use of images from the famous Zapruder film of the events of that day. The Federal District Court for the Southern District of New York found that the use was fair since there was a public interest in knowing about the assassination, which only these images could illustrate, & there was no injury to the copyright owner, who did not themselves sell the images. Similarly, the Russian government is not marketing the Venera images, I would argue that there is a public interest in understanding the surfaces of other planets, & - this being the particular relevance of the Venera photos as opposed to Soviet photos of the moon or Mars – no photos of the Venusian surface exist which were not produced on behalf of the government of the Soviet Union.

By contrast, British copyright law gives no such defence, only a defence of “fair dealing”. This is much more narrowly defined, in s30 of the Copyright Designs & Patents Act 1988 to allow copying for the purposes of criticism or review, & for the purposes of reporting on current events, but this latter excludes the use of photographs, even if it could be argued to apply to reporting of events from 37 years ago.

Photographs taken by NASA, like any work produced by the US Government, are automatically in the public domain. NASA photos & other data are available at the website of the National Space Science Data Centre, or NSSDC. According to the FAQ on that website, all the photos it holds are in the public domain, with no caveat. However, this is contradicted by its pages showing photos taken by European Space Agency spacecraft, such as the Huygens probe to Titan, or Mars Express, where it says that these images are copyright. No such notice is given when Soviet images are shown. Indeed, the Wikipedia page for the photograph taken by Venera 13 claims that it has been released into the public domain by the NSSDC. The lack of clarity on this makes me wonder if these Soviet photos are indeed in copyright.

I rely for the details of Soviet & Russian copyright laws on the Wikipedia articles. This is normally a heinous crime in my book (though using Wikipedia as an initial reference / summary of the subject is great & I do it often), but the articles seem thorough & well referenced, from primary & secondary sources that are either not readily available, in Russian, or both. My Russian is somewhat limited, & neglected, & though I could order coffee & ask for directions to the nearest metro station, I don't think I could manage to follow the civil code. 

The relevant law in force at the time the photo was taken was that passed in 1973 in anticipation of the USSR's accession to the Universal Copyright Convention. The details were implemented in each of the Soviet Socialist Republics in their own laws. In Russia, the copyright on photographs was until 25 years after the death of the author. In Kazakhstan, only 10 years. Under Article 4 of the convention, the copyright on photographs must run for at least 10 years, & where it is not calculated from the death of the author, it should be calculated from the first publication. Although the spacecraft was launched from Kazakhstan, any steps likely to count as authorship, the remote operation of the camera or the design of the automatic systems that would operate the camera on Venus, are more likely to have taken place in Russia. This means that it would still have been in copyright when a new law of 1993 extended the copyright duration to 50 years. In any case, the new law was retroactive. This was extended in 2004 to 70 years. All this suggests that the photograph taken by Venera 9 might still be in copyright.

Who owns it then? When Venera photos appear in books, the acknowledgement is often simply given to the aforementioned NSSDC. However, the Collins Stars and Planets Guide acknowledges the Russian Academy of Sciences. A search of their website reveals no Venera pictures, but ultimately the Russian government must be or have been the copyright holder. Russian law doesn't permit non-natural persons to be the author of a work, but the employer of an authoring employee effectively has the ownership, by holding the economic rights. The main relevance of the natural author will be in calculating the duration of copyright. This suggests that a natural person should be identified as author in order to calculate the now 70 year period of copyright from their death. 

As mentioned above, the European Space Agency, ESA, does retain copyright of images it produces, but with a broad licence to reproduce them for non-commercial informative purposes. Their web page on copyright doesn't discuss the question of authorship in a work produced by an automated spacecraft on another planet. If we look at the 1988 Act in the UK for its take on this question, under sections 9 & 12, if a work has no identifiable individual author, the copyright lasts 70 years from first publication of the work, or its creation if it's never published.
So, can I include the Venera 9 photo in this article legally? I'm not sure that I can, though I'm certain I'd get away with it if I did. However, just to be sure, I've instead used a nice UV photo of the whole planet, taken by NASA's Pioneer Venus in 1979, & sourced from the NSSDC.

References
en.wikipedia.org/wiki/Copyright_law_of_the_Russian_Federation en.wikipedia.org/wiki/File:Venera_13_-_venera13-left.jpg en.wikipedia.org/wiki/File:Venera9.png en.wikipedia.org/wiki/Soviet_copyright_law nssdc.gsfc.nasa.gov/photo_gallery/photogallery-faq.html#use
portal.unesco.org/en/ev.php-URL_ID=15381&URL_DO=DO_TOPIC&URL_SECTION=201.html www.copyright.gov/fls/fl102.html www.copyright.gov/title17/92chap1.html www.esa.int/esaMI/Intellectual_Property_Rights/SEMDLA25WVD_0.html www.law.cornell.edu/copyright/cases/293_FSupp_130.htm www.legislation.gov.uk/ukpga/1988/48www.legislation.gov.uk/ukpga/1988/48/section/30
Posted by at No comments:

Les Miserables Part Deux


In addition to the copyright held by the author of a work of art or literature, the Copyright Designs & Patents Act 1988 endows the author with moral rights. These had long existed in other countries, notably France, but were a new arrival in the UK. Moral rights remain with the author, they cannot be transferred, & include principally the right to be identified with the author & the right not to have the work treated in a derogatory way. Not all works have moral rights attached, for example software does not, & they are also excluded for works created in the course of employment.

In the UK, these rights last as long as the copyright itself. However, in France they are eternal. This was highlighted recently in the case of the sequels to Les Miserables, a work long out of copyright, since Victor Hugo died in 1885. These sequels are “Cosette ou le temps des illusions” & “Marius ou le fugitif”, both by Francois Ceresa & both taking relatively minor characters from the original.

Pierre Hugo, great-great-grandson of the author, & the Société des gens de lettres, one of whose stated aims was to protect the moral rights of its members, brought a civil case against the sequels, on the basis that although there had been previous adaptations of his works & use of his characters, it had been established that Victor Hugo would not have approved of a sequel to Les Miserables. These novels by Mr Ceresa had not merely used characters from but puported to be sequels to Les Miserables. It was argued that Les Miserables was not merely a novel but was a work of philosophy & politics, “un véritable monument de la littérature mondiale”, truly a monument of world literature, so an attempt to continue the story must violate Victor Hugo's moral rights. On March 31st 2004, the Paris court of appeal agreed, & awarded 1 euro in damages.

The publisher, Plon, appealed to France's highest non-administrative, non-constitutional court, La Cour de Cassation. It heard the case on January 30th 2007, & sought to apply both the statutory moral rights & the right to free expression contained in ECHR Article 10. The Cour de Cassation held that the court of appeal had based its reasoning solely on the nature of the original work, without looking at the nature of the supposedly infringing works, & whether these in fact affected Victor Hugo’s work or caused any confusion for readers as to their paternity. The court of appeal had also not considered the right to free expression of Mr Ceresa. The case was therefore remitted to the court of appeal to reconsider, with these considerations in mind. In December 2008, the court of appeal pronounced its decision, finding in favour of the sequels, which are now freely available.

By contrast, since moral rights in the UK expire with copyright, the descendants of Jane Austen have no recourse against “Pride & Prejudice & Zombies”, which rewrites her novel in order to insert zombies into the story. I’ve heard that it’s very clever & funny, but I suspect that in France it might have collided with Austen’s moral rights.

References
en.wikipedia.org/wiki/Pride_and_prejudice_and_zombies www.ipo.gov.uk/types/copy/c-otherprotect/c-moralrights.htm
www.courdecassation.fr/jurisprudence_2/premiere_chambre_civile_568/arret_n_9850.html www.lefigaro.fr/flash-actu/2008/12/19/01011-20081219FILWWW00472-suitemiserables-les-heritiers-perdent.php
www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006069414
www.legifrance.gouv.fr/affichCode.do;jsessionid=70CA1BF0F2B8D91F3610D4745F047C28.tpdjo14v_1?idSectionTA=LEGISCTA000006161636&cidTexte=LEGITEXT000006069414&dateTexte=20121008
www.legislation.gov.uk/ukpga/1988/48/contents www.legislation.gov.uk/ukpga/1988/48/section/80
Posted by at No comments:
Subscribe to: Posts (Atom)