Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, August 31, 2015

Post-Mortem Moral Rights

Jani McCutcheon, University of Western Australian Faculty of Law, is publishing Death Rights: Legal Personal Representatives of Deceased Authors and the Posthumous Exercise of Moral Rights in the Intellectual Property Quarterly. Here is the abstract.

In numerous jurisdictions, moral rights last for many decades after the death of the author, and are exercised by the deceased author’s legal personal representative. This article is the first thorough examination of a plethora of questions and problems concerning post-mortem moral rights and the author’s legal personal representative. The article considers the identity of the author’s legal personal representative (LPR), the scope of their duties and powers when exercising the author’s moral rights, and how any dereliction of duty can be challenged. It then explores the problem of “orphan” moral rights, caused by their posthumous longevity, the difficulty of identifying the author, the LPR and the author’s works, and of understanding the deceased author’s views and the scope of the moral right. The problems identified in the article threaten to negate the efficacy of post-mortem moral rights. The article analyses these problems, and recommends reforms designed to ameliorate them and enhance the effectiveness of post-mortem moral rights.

The full text is not available from SSRN.

August 31, 2015 | Permalink

DIgital Media and Its Future

Mira Burri, University of Bern Law School & World Trade Institute, has published Public Service Broadcasting 3.0 in Publishing Service 3.0: Legal Design for the Digital Present (Routledge, 2015). Here is the abstract.
The digital media environment is characterized by an abundance and diversity of content, a multiplicity of platforms, new modes of content production, distribution and access, and changed patterns of consumer and business behaviour. This has challenged the traditional model of public service broadcasting (PSB) in diverse ways. This book explores whether and how PSB should adapt to reflect the conditions of the digital media space so that it can effectively and efficiently continue to serve its public mandate. Drawing on literature on media governance in media and communication science, public international law as well as discussions on cyberlaw, Mira Burri maps and critically analyses existing policy and scholarly debates on PSB transformation. She challenges some of conventional rationales for reform, identifies new ones, as well as exposes the limitations placed upon existing and future policy solutions by global media governance arrangements, especially in the fields of trade, copyright and Internet governance. The book goes on to advance a future-oriented model of Public Service Media, which is capable of matching an environment of technological and of governance complexity. As a work that explores how public interest objectives can be pursued efficiently and sustainably in the digital media ecology, this book will be of great interest and use to students and researchers in media law, information technology law, and broadcast media studies, as well as to policy-makers.
Download the chapter from SSRN at the link.

August 31, 2015 | Permalink

Friday, August 28, 2015

Canadian Government Suspends, Begins Investigation of Scientist Who Recorded Song Critical of Prime Minister

The Globe and Mail reports that an Environment Canada scientist has been suspended for composing and recording a song that critizes current Canadian Prime Minister Stephen Harper.  Scientist and folk singer Tony Turner wrote "Harperman," which apparently does not sit well with Mr. Harper.  Among the "objectionable" lyrics: Mr. Turner wrote that "Harperman" has “no respect for environment / Harperman, it’s time for you to go”, and “no more cons, cons, cons / we want you gone, gone gone”.  Mr. Turner is currently being investigated for breaching the ethics code that applies to Canadian public servants.

Hear a performance of "Harperman" here (YouTube).


More here from the Ottawa Citizen,  here from the Globe and Mail.

August 28, 2015 | Permalink

Wednesday, August 26, 2015

Novelist Mario Vargas Llosa Complains To NYT About Information Included In Book Review

Via the Guardian: The celebrated writer Mario Vargas Llosa has complained to the New York Times via a letter to the editor that a recent review of his new book, Notes on the Death of Culture, included incorrect information that the novelist had announced news of his relationship with Isabel Preysler on Twitter and had sold photos and a story to Hola! magazine. Wrote Mr. Vargas Llosa,

According to the review, a few days before the publication of my book I announced my new relationship with Miss Isabel Preysler on my “official Twitter account” and sold photos as well as the “exclusive” story to Hola! magazine in Spain for 850,000 euros. I have never had a Twitter account, and I have never posted and never will post anything on any Twitter account. I have never sold a photo or story to Hola! magazine or any other outlet in connection with any relationship or personal matter.




 As it turns out, the reviewer used a Daily Mail article as the source for his statements about Mr. Vargas Llosa's Twitter announcement and relationship with Hola!.  The New York Times has agreed that “Using such information is at odds with the Times’s journalistic standards, and it should not have been included in the review.'"

August 26, 2015 | Permalink

A Bibliographic Literature Survey of IP Standard-Setting Organizations

Jorge L. Contreras, University of Utah College of Law, is publishing Patents, Technical Standards and Standards-Setting Organizations: A Survey of the Empirical, Legal and Economics Literature in 2 Research Handbook on the Economics of Intellectual Property Law (Peter Menell and David L. Schwartz, eds.; Edward Elgar Publishing, forthcoming). Here is the abstract.

Despite their potential efficiency benefits, voluntary consensus standards have over the past decade become the subject of significant private litigation, regulatory enforcement and policy debate. Much of the controversy centers on the perceived proliferation of patents covering standardized technologies, potentially abusive enforcement of such patents against manufacturers and users of standardized products, and the terms on which patent holders may be required to license the use of those patents to others. This chapter offers a brief overview of the legal and economic literature concerning interoperability standards and standards-setting organizations, with a focus on empirical studies and contemporary patent and patent licensing concerns.

Download the essay from SSRN at the link.

August 26, 2015 | Permalink

The Copyright Jurisprudence of the ECJ

Marcella Favale, Bournemouth University & University of Glasgow, Martin Kretschmer, University of Glasgow, and Paul L. C. Torremans, are publishing Is There a EU Copyright Jurisprudence? An Empirical Analysis of the Workings of the European Court of Justice in the Modern Law Review (2015). Here is the abstract.

The Court of Justice of the European Union (ECJ) has been suspected of carrying out a harmonising agenda over and beyond the conventional law-interpreting function of the judiciary. This study aims to investigate empirically two theories in relation to the development of EU copyright law: (i) that the Court has failed to develop a coherent copyright jurisprudence (lacking domain expertise, copyright specific reasoning, and predictability); (ii) that the Court has pursued an activist, harmonising agenda (resorting to teleological interpretation of European law rather than – less discretionary – semantic and systematic legal approaches). We have collected two data sets relating to all ECJ copyright and database cases up to Svensson (February 2014): (1) Statistics about the allocation of cases to chambers, the composition of chambers, the Judge Rapporteur, and Advocate General (including coding of the professional background of the personnel); (2) Content analysis of argumentative patterns in the decisions themselves, using a qualitative coding technique. Studying the relationship between (1) and (2) allows us to identify links between certain Chambers/ Court members and legal approaches, over time, and by subject. These shed light on the internal workings of the court, and also enable us to explore theories about the nature of ECJ jurisprudence. The analysis shows that private law and in particular intellectual property law expertise is almost entirely missing from the Court. However, we find that the Court has developed a mechanism for enabling judicial learning through the systematic assignment of cases to certain Judges and AGs. We also find that the Court has developed a “fair balance” topos linked to Judge Malenovský (rapporteur on 24 out of 40 copyright cases) that does not predict an agenda of upward harmonisation, with about half of judgments narrowing rather than widening the scope of copyright protection.

Download the article from SSRN at the link.

August 26, 2015 | Permalink

The Copyright Act and the Protection of Pantomine

Brian L. Frye, University of Kentucky College of Law, has published Copyright in Pantomime. Here is the abstract.

Why does the Copyright Act specifically provide for the protection of “pantomimes”? This article shows that the Copyright Act of 1976 amended the subject matter of copyright to include pantomimes simply in order to conform it to the Berne Convention for the Protection of Literary and Artistic Works. It further shows that the Berlin Act of 1909 amended the Berne Convention to provide for copyright protection of “les pantomimes” and “entertainments in dumb show” in order to ensure copyright protection of silent motion pictures. Unfortunately, the original purpose of providing copyright protection to “pantomimes” was forgotten. This Article argues that copyright protection of pantomimes is redundant on copyright protection of “motion pictures” and “dramatic works,” and reflects the carelessness of the drafters of the 1976 Act.
Download the article from SSRN at the link.

August 26, 2015 | Permalink

Data Sources Available In IP

David L. Schwartz, Northwestern Law School, and Ted M. Sichelman, University of San Diego Law School, are publishing Data Sources on Patents, Copyrights, Trademarks, and Other Intellectual Property in 2 Research Handbook on the Law & Economics of Intellectual Property (Peter S. Menell, David L. Schwartz, and Ben Depoorter, eds.; Edward Elgar Publishing, 2016). Here is the abstract.

In this book chapter, we provide a roadmap of the sources of data on the various forms of intellectual property protection. We first explain what data is available about patents, copyrights, trademarks, and other types of intellectual property, and where to find it. Then we identify and analyze data sources specifically relating to intellectual property licensing and litigation, growing areas of research by scholars and lawyers.

Download the chapter from SSRN at the link.

August 26, 2015 | Permalink

Copyright As Speech

Derek E. Bambauer, University of Arizona College of Law is publishing Copyright = Speech in volume 65 of the Emory Law Journal (2015). Here is the abstract.
Expression eligible for copyright protection should be presumptively treated as speech for First Amendment purposes. Both copyright and the First Amendment share the goal of fostering the creation and dissemination of information. Copyright’s authorship requirement furnishes the key link between the doctrines. The Article examines where the two areas of law align and conflict in offering or denying protection. Using copyright law as a guide for the First Amendment offers three benefits. First, many free speech problems can be clarified when examined through copyright’s lens. Second, this approach makes the seeming puzzle of non-human speakers understandable. Finally, it can help end technological exceptionalism in First Amendment doctrine.
Download the article from SSRN at the link.

August 26, 2015 | Permalink

Monday, August 24, 2015

Free Speech, Democracy, and Video Images

Justin F. Marceau and Alan K. Chen, both of the University of Denver College of Law, have published Free Speech and Democracy in the Video Age as University of Denver Legal Studies Research Paper No. 15-42. Here is the abstract.

The pervasiveness of digital video image capture by large segments of the public has produced a wide range of interesting social challenges, but also presents provocative new opportunities for free speech, transparency, and the promotion of democracy. The opportunity to gather and disseminate images, facilitated by the reduced expense and easy access to camera phones and other hand-held recording devices, decentralizes political power in transformative ways. But other uses of this technology represent potentially significant intrusions on property rights and personal privacy. This tension creates a substantial dilemma for policymakers and theorists who care about both free speech and privacy. Because of these putative social interests, laws governing video image capture are becoming more widespread across a number of different regulatory regimes, from Federal Aviation Administration regulations of drone recordings to bans on recordings of police officers performing their duties to so-called Ag-Gag laws, which criminalize the video recording of incidents of animal abuse at commercial agricultural facilities. In this Article, we examine constitutional theory and doctrine as applied to emerging government regulations of video image capture and propose a framework that will promote free speech to the fullest extent possible without presenting unnecessary intrusions into privacy interests. The Article first argues that video recording is a form of expression or, at the very least, is conduct that serves as a necessary precursor of expression such that it counts as speech within the meaning of the First Amendment. We continue with the novel argument that none of the features that make video recording a form of speech apply differently when the recording takes place on private property. Next, we examine under what circumstances video recording is constitutionally protected. We claim that video recording in public places or on private property with the consent of those recorded is presumptively protected speech under the First Amendment. But we also argue that the right to record attaches even when the recording is nonconsensual and occurs on private property, as long as the material recorded is a matter of public concern. While we acknowledge that the First Amendment does not limit the enforceability of generally applicable prohibitions on access to private property, we nonetheless suggest that a recording of activity that is a matter of public concern and is done by someone who is lawfully present on that private property is protected speech. That is not to say that all regulation of such recordings violates the First Amendment, and we therefore address when countervailing governmental interests might justify limitations on the right to record, including tangible property interests and reasonable privacy expectations. Throughout this part, we draw on examples of laws regulating video recordings to suggest how our proposed model for a right to record would apply in context. The First Amendment model developed in this.

Download the article from SSRN at the link.

August 24, 2015 | Permalink

Re-Examining the Legal Basis of the "Right To Be Forgotten"

Miquel Peguera, Universitat Oberta de Catalunya (UOC) & Stanford Univesity Law School Center for Internet and Society, has published The Shaky Ground of the Right to Be Delisted. Here is the abstract.

It has long been discussed whether individuals should have a “right to be forgotten” online to suppress old information that could seriously interfere with their privacy and data protection rights. In the landmark case of Google Spain v AEPD, the Court of Justice of the European Union addressed the particular question of whether, under EU Data Protection Law, individuals have a right to have links delisted from the list of search results, in searches made on the basis of their name. It found that they do have this right – which can be best described as a “right to be delisted” – when some conditions are met. The ruling, which imposes on search engines the duty to assess and accommodate delisting requests, has proven to be highly controversial. Strong feelings have been expressed either in favor or against it, in what may be seen as a clash between the values of personal data protection and freedom of expression. This article does not delve into this underlying debate. Instead, it aims to explore the solidness of the ground on which the right is based. It begins by providing an overview of the relevant elements of EU data protection law so as to allow readers not familiar with its nuances to properly follow the discussion. After presenting the facts of Google Spain, both at national and EU level, the article discusses how the ‘right to be delisted’ was crafted by the CJEU. It argues that it is based on shaky ground, as it is premised on the characterization of search engines as “data controllers,” which is arguably at odds with their intermediary role and – in the absence of specific safeguards – makes their activity largely incompatible with the data protection legal framework. Moreover, the article discusses how the Court failed to devise a proper balance of the different rights at stake, particularly that of freedom of expression and information. It suggests that the intermediary role of generalist search engines should be adequately protected, both under the data protection legal framework as well as under the liability limitation scheme established by the E-Commerce Directive. This, however, is not likely to be achieved in the near future. A careful approach by national courts and data protection authorities is thus suggested as a way to fix some of the shortcomings identified in the ruling.

Download the article from SSRN at the link.

August 24, 2015 | Permalink

Photographer Claims Mel Gibson Spit, Swore at Her When She Took His Photograph

New South Wales police are now investigating allegations by a Daily Telegraph reporter that actor Mel Gibson abused her both verbally and physically when she took his photograph as he and his girlfriend left a Sydney, Australia, movie theater on August 23.  The photographer, Kristi Miller, says the actor swore at her, spit at her, and called her names. Mr. Gibson denies her claims.  (Via the Hollywood Reporter). More here from The Age, here from the Daily Telegraph.

August 24, 2015 | Permalink

Defenses to Injury to Reputation In the Chinese Legal Regime

Yik Chan Chin, Hong Kong Baptist University, is publishing Privilege and Public Opinion Supervision Defences in China's Right to Reputation Litigation in the September 2014 issue of the Media & Arts Law Review. Here is the abstract.

This article examines the Chinese court’s application of two defences (qualified privilege and public opinion supervision) to a claim for injury to reputation in the context of publication in the written media, and considers the implications of different applications for freedom of expression in China. For the media to effectively utilise the qualified privilege defence, China’s Supreme People’s Court needs to clarify that the publication of a follow-up or correction report by the media should be triggered by the alleged victim’s notification. The lack of legal rigour effectively deems the defense of public opinion supervision meaningless, as no special protection to the right has been consistently granted. The issue for Chinese law and the judiciary administering that law is to establish a clear, specific and coherent legal framework governing the protection of the right to reputation and the right to freedom of expression, which will operate to guide the courts and limit their discretion.
Download the article from SSRN at the link.

August 24, 2015 | Permalink

Thursday, August 20, 2015

The Misuse of Private Information Tort In English Law

Apostolos Pelekanos, University of Sussex, has published Misuse of Private Information in English Law. Here is the abstract.

The protection of information in English law has been a matter of debate for many years. The introduction of the “misuse of private information” tort fueled the intensity of this debate rather than offering a satisfactory solution. This essay will present a brief history of how privacy rights have been protected in this jurisdiction and why privacy is difficult to be defined; how the transmutation from “breach of confidence” to “misuse of private information” occurred and the characteristics of the new tort as well as some critique to its current application. It will also display and dispute the arguments against a standalone privacy tort and it will introduce the latest developments in other common law jurisdictions in order to predict the legislative developments in the UK. Lastly, it will briefly refer to the new technologies, namely the internet, and how it might affect the future course of privacy rights before presenting a personal view on the matter.

Download the article from SSRN at the link.

August 20, 2015 | Permalink

Wednesday, August 19, 2015

A New Book On Law, Film, and the First Amendment

Forthcoming from the University of Texas Press: Jeremy Geltzer's Dirty Words & Filthy Pictures: Film and the First Amendment (2015). Here is a description of the content from the publisher's website.

From the earliest days of cinema, scandalous films such as The Kiss (1896) attracted audiences eager to see provocative images on screen. With controversial content, motion pictures challenged social norms and prevailing laws at the intersection of art and entertainment. Today, the First Amendment protects a wide range of free speech, but this wasn’t always the case. For the first fifty years, movies could be censored and banned by city and state officials charged with protecting the moral fabric of their communities. Once film was embraced under the First Amendment by the Supreme Court’s Miracle decision in 1952, new problems pushed notions of acceptable content even further. Dirty Words & Filthy Pictures explores movies that changed the law and resulted in greater creative freedom for all. Relying on primary sources that include court decisions, contemporary periodicals, state censorship ordinances, and studio production codes, Jeremy Geltzer offers a comprehensive and fascinating history of cinema and free speech, from the earliest films of Thomas Edison to the impact of pornography and the Internet. With incisive case studies of risqué pictures, subversive foreign films, and banned B-movies, he reveals how the legal battles over film content changed long-held interpretations of the Constitution, expanded personal freedoms, and opened a new era of free speech. An important contribution to film studies and media law, Geltzer’s work presents the history of film and the First Amendment with an unprecedented level of detail.


 Dirty Words and Filthy Pictures


 Cross-posted to the Law and Humanities Blog.



August 19, 2015 | Permalink

Tuesday, August 18, 2015

Listening To Others: The Constitutional Basis of Corporate Speech

Thomas Wuil Joo, University of California, Davis, Law School, has published Corporate Speech and the Rights of Others at 30 Constitutional Commentary 335 (2015). Here is the abstract.

The Supreme Court is often erroneously criticized for giving business corporations the constitutional rights of human persons. In fact, constitutional decisions protecting corporations tend to be based not on the rights of corporate “persons,” but on the rights of other persons: human individuals such as shareholders or persons who listen to the content of corporate speech. Shareholders’ property and privacy interests have been invoked to protect corporations from regulatory takings and from unreasonable searches, for example. In the First Amendment context, Citizens United and other opinions have invoked the rights of others in a different way, invalidating corporate speech regulations on the ground that they infringe upon the public’s right to hear corporate messages. These “rights of others,” however, can conflict with the rights of other others: corporate shareholders who might not want corporate assets used to express such messages. The Court has dismissed this concern with the inaccurate assertion that shareholders control a corporation’s messages through “corporate democracy.” This contention, and not corporate constitutional “personhood,” is the true fallacy of corporate speech jurisprudence. Corporate governance is not democratic. In the interests of money-making efficiency, the law concentrates power in professional managers. As intended, this arrangement is likely to benefit shareholders financially. But it does not give them meaningful input into corporate decision-making, leaving them open to the misuse of corporate property. Thus the “rights of others” may justify the regulation of corporate speech.

Download the article from SSRN at the link.

August 18, 2015 | Permalink

AI and Free Speech

Toni M. Massaro, University of Arizona College of Law and Helen L. Norton, University of Colorado School of Law, are publishing Siri-ously? in volume 110 of the Northwestern University Law Review (2015). Here is the abstract.

Computers with communicative artificial intelligence are pushing First Amendment theory and doctrine in profound and novel ways. They are becoming increasingly self-directed and corporal in ways that may one day make it difficult to call the communication "ours" versus "theirs." This, in turn, invites questions about whether the First Amendment ever will (or ever should) protect AI speech or speakers even absent a locatable and accountable human creator. In this Essay, we explain why current free speech theory and doctrine pose surprisingly few barriers to this counterintuitive result; the elasticity of current theory and doctrine suggests that speaker humanness no longer may be a logically essential part of the First Amendment calculus. We further observe, however, that free speech theory and doctrine provide a basis for regulating, as well as protecting, the speech of nonhuman speakers to serve the interests of their human listeners should strong AI ever evolve to this point. Finally, we note that the futurist implications we describe are possible, but not inevitable. Indeed, contemplating these outcomes for AI speech may inspire rethinking of the free speech theory and doctrine that makes them plausible.

Download the article from SSRN at the link.

August 18, 2015 | Permalink

Monday, August 17, 2015

Defining Social Media

Jonathan A. Obar, University of Toronto, Faculty of Information & Michigan State University, College of Communication Arts & Sciences, and Steven S. Wildman, Michigan State University; Quello Center, have published Social Media Definition and the Governance Challenge: An Introduction to the Special Issue, Introduction, Telecommunications Policy (2015). Here is the abstract.
This introduction to a special issue of "Telecommunications Policy" entitled "The Governance of Social Media" begins with a definition of social media that informs all contributions in the special issue. A section describing the challenges associated with the governance of social media is presented next, followed by an overview of the various articles included in the special issue. While the Internet and the World Wide Web have always been used to facilitate social interaction, the emergence and rapid diffusion of Web 2.0 functionalities during the first decade of the new millennium enabled an evolutionary leap forward in the social component of web use. This and falling costs for online data storage made it feasible for the first time to offer masses of Internet users access to an array of user-centric spaces they could populate with user-generated content, along with a correspondingly diverse set of opportunities for linking these spaces together to form virtual social networks. To define “social media” for our current purposes, we synthesize definitions presented in the literature and identify the following commonalities among current social media services: 1) Social media services are (currently) Web 2.0 Internet-based applications, 2) User-generated content is the lifeblood of social media, 3) Individuals and groups create site-specific user profiles within the boundaries of the social media service, and 4) Social media services facilitate the development of social networks online by connecting a profile with those of other individuals and/or groups. Transformative communication technologies have always called for regulatory innovation. Theodor Vail’s vision of “one policy, one system, universal service” preceded more than one-hundred years of innovative regulations aimed at connecting all Americans to a single telephone network. The sinking of the Titanic, caused in part by “chaos in the spectrum” led to the Radio Act of 1912 and the creation of a command and control model designed to regulate broadcast radio. Safe-harbor hours were put in place after a father and son heard George Carlin’s “seven dirty words” routine over the radio in their car. The fairness doctrine and the minority tax certificate program were designed to address inequalities in the broadcast television industry. The Digital Millennium Copyright Act responded to intellectual property concerns raised by a global Internet and the FCC’s 700mhz auction was the result of demand for smarter mobile phones. Now we must consider the role of regulatory innovation in response to the emergence of social media.
Download the article from SSRN at the link.

August 17, 2015 | Permalink

The Effect of the New Spanish Copyright Law On Uses of Works In the Public Domain

Rodrigo Cetina Presuel, City University of New York, Queensborough Community College, and Loreto Corredoira y Alfonso, Universidad Complutense de Madrid (UCM), have published Current Copyright Policy Tendencies in 2015: Further Weakening of Limits and Exceptions and the Ever Reducing Public Domain. Here is the abstract.

In 2015, Spain's new copyright law entered into effect including many new provisions including one that requires Universities to pay Collecting Societies for using manuals and textbooks made available online in virtual campuses. This license cannot be waived and means that Universities have to pay even for works released under free licenses, such as Creative Commons, and for works already in the public domain. This weakens the protection offered by limits such as the one in favor of educational uses (art. 32 of the Spanish copyright act) and also reduces the public domain as it establishes unalienable licenses for content no longer in copyright. This, and other copyright policy tendencies such as various international treaties, at the moment still under discussion, or books rights holders seeking to restrict uses for text and data mining indicate that in 2015 further reducing limits on copyright and the free uses of work in the public domain will continue. We analyze these cases and propose solutions.

Download the article from SSRN at the link.

August 17, 2015 | Permalink

Thursday, August 13, 2015

UK ASA Holds That Live Show Poster Breaches Advertising Code; Might Be Distressing For Younger Children

The Advertising Standards Authority (UK) has held that a poster created to advertise the live show The Generation of Z Apocalypse and displayed in the London Underground breaches CAP Code 1.3 (Social Responsibility) because although it was "stylised" and represented the show, it showed actors disguised as zombies wearing exaggerated makeup.  Although the show targets an adult audience, the poster was still displayed in an area in which young children might see it and it might distress them. 

Generation of Z is working with a new ad agency to develop another poster that will not breach the code.

August 13, 2015 | Permalink