[SystemSafety] Current Events

Tue Aug 22 20:54:06 CEST 2023

I’m clearly not a lawyer nor do I pretend to be one so this isn’t any kind of legal advice. That said, the US does seem to be a little bit more prescriptive about the “Fair Use” exception under US Copyright law. See the “About Fair Use” section here:

<https://www.copyright.gov/fair-use/index.html>
U.S. Copyright Office Fair Use Index<https://www.copyright.gov/fair-use/index.html>
copyright.gov<https://www.copyright.gov/fair-use/index.html>
[apple-icon-180x180.png]<https://www.copyright.gov/fair-use/index.html>

Basically four factors are relevant in determining if use of someone else’s copyrighted material falls under the Fair Use exception (quote):

1) Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.

2) Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.

3) Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.

4) Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

Since the Uni’s use of that particular work is:

1) not for profit

2) part of a technical, factual work, and

4) does not appear (to me, anyway) to substantially harm the existing or future market for the copyright owner’s original work

then it seems (to me, anyway) that defending against this kind of predatory copyright enforcement might possibly be a bit easier in the States. On the other hand, this clearly wouldn’t prevent anyone from trying and some portion of the population threatened would likely cave in leading to pretty easy money.

— steve

On Aug 22, 2023, at 5:20 AM, Prof. Dr. Peter Bernard Ladkin <ladkin at techfak.de> wrote:

On 2023-08-22 10:21 , Dewi Daniels wrote:
There are several companies that have realised an easy way to make money is to send a bot to crawl the Internet searching for copyrighted images. One such company is PicRights, which has been engaged by AP.

Yes. It's worth everyone knowing about PicRights.

There are at least two PicRights, an Austrian company and a Swiss company. There is a lawyer in Bochum (about an hour's train journey away), Matthias Krach, who has dealt with them and advertises so on his WWW page. So there are not only lawyers specialising in this opportunistic pursuit, there are lawyers specialising in countering it.

In fact, PicRights in Switzerland contacted us first by email in March about the Concorde pic. They wanted about €90 for the "improper use" to that point. I talked to the Bochum lawyer Krach, who pointed out that PicRights are not a law firm with a license to practice in Germany, and paying them did not necessarily lead to indemnity from similar demands from a lawyer. Indeed, if we paid them money, then they could advise a German lawyer that had happened, who would then have evidence (not proof but evidence) that we tacitly had admitted fault by paying the money, and heshe could come after us for the same thing, which might then run into the €thousands.

Further, we didn't believe at the time that we were at fault, having checked out the law (UrhG §51). I talked to a Bielefeld lawyer who had worked for me 20 years ago on media stuff (German newspapers reporting something false about my research). He advised: ignore anything that does not come from a lawyer. Don't respond.

So, two conformant opinions: Lawyers are bound by explicit processes and rules against misrepresentation, and if you've dealt with a matter with a lawyer who has necessarily produced proof that he represents the "injured party", nobody else can repeat that with you. But if you deal with some non-legal performer, there is no guarantee that anything will be done and dusted.

We could have done in March what we did in July: taken down the pic. But, had we done that, PicRights could still have informed the Hamburg lawyer, who could still have come after us for exactly the same thing: the pic had been up; he had proof from PicRights, and that's all he needs to do exactly what he did do.

The Uni legal rep says he wished he had been informed of the earlier event with PicRights. Maybe so, but it is up to the Faculty to do that, and they hadn't. And, as just noted, I don't see that that would have helped.

I think we will see a lot more of this behaviour.

I think so too.

The claim that you can use an image in a document that you share for explicitly scientific purposes with a select small number of other scientists, but you can't then make that document publicly available on the Internet is only an opinion, the
validity of which can only be established in a court of law.

There have been plenty of court cases on it, I am told. The thing is that we are in a Roman law jurisdiction, in which precedence does not play the role it does in common-law jurisdictions.

Plus, going to court doesn't necessarily solve anything. It can in some cases screw things up royally. Take the Post Office Horizon scandal as a relatively recent example in Britain. I have, unfortunately, personal examples from Germany, but by no means as bad as POH.

This gets to be a bit off-topic, but Causalis has lots of experience working for lawyers; the legal bits of some engineering-safety work do get to be important.

There is one thing which everyone here might do well to understand. There is no such thing as "fair use" exceptions to copyright in Germany, as there are in the US and (I believe) the UK. Germany is not alone in this.

Let me go on (and on) about this at some length, for those who might be interested, and apologise to those who are not, who may stop reading right now.

Here's how it works in Roman law jurisdictions. A court's decision does not bind other courts in similar cases, although other decisions on similar cases must be taken into account. The first thing a lawyer will tell you is how cases like yours have played out in the past, and where (recall we have 16 different states). That by no means entails that your case will turn out similarly to any of them (as it does, by necessity, in common-law jurisdictions).

There is also the specific German legal process of Abmahnung ("warning"/"notification") and "Unterlassungserklärung" ("undertaking to desist"), which is part of what Brits call tort law but seems to me to be more general than copyright and torts. Fees are set: an "Abmahnung" comes to about €300, an "Unterlassungserklärung" to between €1000 and €2000 in general, depending on details. If there is a tort, the lawyer writing the Abmahnung must demonstrate that he is working on behalf of the "injured party", but there are some civil regulations whose violation is not quite a tort (it may be that it has the formal form of a tort, but in which the "injured party" is declared as "unknown" and there is obviously no requirement of proof of representation), so anybody, not just a lawyer, can write an Abmahnung in such cases.

And they do. If you offer wine for sale on the Internet, as two of my wine merchants do, the law says you must explicitly include the price per litre. Some cheaper wine is sold in litre bottles rather than the more usual 750ml. My wine merchant omitted the "litre price" in the given format for his offerings in litre bottles, because he is selling a litre and the price is overtly given. He got Abmahnungen from someone who crawls the Internet looking for such things. €300 per instance. That amounts to non-trivial money when there are 10-15 instances. Of course he got advice. The law is clear: the litre-price shall be included in the given format. The Abmahnung is correct. If you challenge it in court, you will summarily lose (and thereby get to pay not only your fees but the court fees as well as the legal fees of the Abmahner; plus the €300 heshe wanted in the first place).

What you could challenge in court is the total amount: if your Abmahner finds 300 such instances on your WWW site and challenges you for each one, and wants 300 x €300 = €90,000, then a judge will likely say that that is disproportionate and reduce the cost to, I dunno, a couple of thousand €.

I was advised there have been cases of such challenges with images.

I play Irish tunes once a month in a Session at the city-run Community Centre (FZZ) on the other side of town. The Session is free for musicians and listeners, as sessions are, but because refreshments are sold, the musician's copyright agency GEMA demands a list of the tunes played. Which someone during the session has to maintain. The FZZ pays GEMA a fee for this "service". When my band played, again for free, at a pub in Bielefeld, and at the Uni's "Night of Sounds", we had to submit a set list which was forwarded by the organiser to GEMA, along with the fee (yes, GEMA charges you money for the work *you* do).

This may seem like nutty bureaucracy, especially when you're filling out the silly forms in the middle of a session and no one can remember the names of the three tunes you've just played (which is often), but it has its justification, as follows.

Musicians who write songs and music are creatives, and earn money for their work. Call the composer A. If some other musician B covers A's song/tune somewhere in circumstances in which someone is making money, then A is entitled to the usual compensation/"licence fee". That is so pretty much everywhere, not just in Germany.

GEMA collects that as well as it can. It is empowered by law to do so, and venues comply. For professional musicians who play concerts with attendance fees, this is normal all over the world. Bars and cafes who play A's records as background music also have to report to GEMA and A gets an appropriate small fee. When we play in FZZ's cafe, the cafe operator is nominally making money from selling tea, coffee, sandwiches and cake (actually, she's not - she is doing it because it's a designated FZZ activity, which her contract commits her to support), so the heirs of all those anonymous tunesters in Francis O'Neill's 1903 Music of Ireland (collected in Chicago), as well as the heirs of James O'Neill (no relation) who prepared the arrangements, are all entitled to their penny. Except that is 120 years ago so no longer. But one might ask the Québecois fiddler Michel Bordeleau if he regularly gets a payment from GEMA from all the times his "Fleur de Mandragore" is played in German irish-music sessions. I'd be surprised if he did.

These companies rely on the fact that it is cheaper to pay up than to contest in court.

As also the fact that such contests have mostly lost, in Germany.

In this instance, I think the damage done to the safety community is far greater than the supposed loss incurred by AP.

Yes, well, you and I and Bernd all agree heartily with that.

For my SSS'22 Keynote on the 2021 German and Belgian floods, I paid the German agency dpa (rather, their picture part, called picture-alliance) for three images that I felt were not only important illustrations but also rather startling, since the damage was far worse than what Brits may be used to (and Germans, French, Belgians, Italians and others too, for that matter). dpa wanted to know the specific use. I said: exclusively scientific; low(er)-quality reproduction in conference proceedings, distributed to attendees; occurrence in the slides in my talk; the proceedings available in potential perpetuity on the members-only WWW site.
They still wanted €224+. There were actually 6 or 7 pictures I wanted to use, but there is no way I was going to pay out upwards of €500. This agency does not sympathise with science. I am not sure they are even going to get any business of mine ever again (even though I do know photographers who would not be able to make a living if they didn't market through dpa).

PBL

Prof. i.R. Dr. Peter Bernard Ladkin, Bielefeld, Germany
Tel+msg +49 (0)521 880 7319  www.rvs-bi.de

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