Tuesday, 15 March 2011

Colonel Mustard is not in the Library with a copyright claim form

My friend Sym came up with a neat joke:

Playing Big Society Cluedo. It's easier than normal Cluedo because there isn't a library.

and promptly tweeted it. Much retweeted it ended up being used by the BBC's Now Show, without attribution of any kind. Sym is a generous soul and I doubt that worried him too much but he mentioned it on his (private) facebook wall.

As regular readers will know I'm not exactly a copyright maximalist, but I do find it unattractive that large and powerful organisations that would certainly pursue you if you used their intellectual property appear to be quite happy to use other people's so long as those other people are too small to matter very much. I jokingly suggested I'd help draft his claim form and that lead him to wondering whether there could be any copyright in so slight a thing as a tweeted joke.

Unsurprisingly there are lots of answers on the internet, as a cursory google search will show. One site says categorically "no"; an article in the WIPO magazine thinks "it depends" and there's even a site called canyoucopyrightatweet.com written by a US attorney which again comes down on the side of "it depends". Unfortunately all the really detailed discussion relates to US law, not European or English law. While there's some internationally harmonisation of copyright, there are still significant differences.

So, what of English law. Well, English copyright protects, amongst other things any "original literary work". Most tweets are not going to be original - in fact in many cases that is the whole point - but some, like Sym's joke, seem quite capable of being so. Certainly, I am quite sure that he came up with the joke first.

A "literary work" does not have to be high art. Indeed section 3 of the Copyright, Designs and Patents Act 1988 says that a

“literary work” means any work, other than a dramatic or musical work, which is written, spoken or sung

so its really quite a broad term. In a relatively recent case which rejected a claim for copyright in the names of commands for an airline booking system, Mr Justice Pumfrey was quite clear that single words, at least on their own, could not be copyrighted. In the 2009 Infopaq case, the European Court of Justice were prepared to accept that an 11 word textual extract could be the subject of copyright and last year in the case of Meltwater Mrs Justice Proudman agreed that, whatever might have been the position under English law, the decision in Infopaq made it plain that as a matter of European law copyright could exist in newspaper headlines provided they were original enough.

So it seems to me that a tweet, provided it is sufficiently original, can be the subject of copyright.

But as I said in an earlier post the existence of copyright is only half the question. What would or would not infringe a short humorous tweet? I haven't heard the particular episode of the Now Show in question but if they read it out they have certainly infringed (and twitter's terms of service don't appear to let them off the hook). If, on the other hand, they only paraphrased the joke, the question is more difficult. Sym might be able to claim ownership of the particular expression of his joke, but he cannot copyright the idea that lies behind it. That idea is free and open to all.

The difficulty with this neat distinction (called the "idea/expression dichotomy") is that courts recognise that you can infringe by copying something more abstract than the exact words used. This should be obvious when you consider that a translation of a work (which will usually use quite different words, unless its into "pirate") is a potential infringement of the original work. Too close a copy of the plot or characterisation in a play (say) would be an infringement even if there had been a good deal of rewriting and reworking.

How on earth this would apply to something as small and neat as a tweet is anybody's guess. I suspect that it is only a matter of time before someone tries to test the question.


In the comments, Sym has helpfully provided the quote from the Now Show:

Someone amused me no end on twitter the other day, ok, when they answered twitter's question 'what are you doing?' by writing: "I'm playing big society cluedo, it's easier than normal cluedo because there isn't a library"

Clearly, if there is copyright in the tweet, this looks like a potential infringement because the whole tweet has been copied pretty much verbatim. But, could there be a defence. There is, of course, no such thing as "fair use" in English law. But quoting a tweet could be "fair dealing for purposes of criticism or review" which is a defence under section 30 of the Copyright, Designs and Patents Act 1988. This requires that:

  • the use is fair dealing
  • the purpose of the use is criticism or review of a work (not necessarily the work quoted) or works
  • the use is accompanied by sufficient acknowledgement

Normally it would not be "fair dealing" to use the whole of a work, but where the work is as short as a tweet it is likely to be impossible to use it critically in any meaningful way without quoting the whole of it. "Someone amused me" probably counts as "criticism".

What about attribution? Section 178 of the act defines "sufficient acknowledgement" as "an acknowledgement identifying the work in question by its title or other description, and identifying the author". "Someone" doesn't seem like enough to me. Although its just possible to argue that "Someone" means "Someone on twitter" and that it is thereby possible identify the author by searching on twitter for the origin of the tweet. Seems like a long shot to me.

Update: I realise with some embarrassment that I didn't link to Lillian Edward's blogpost on this very question.

Sunday, 13 March 2011

Don't return your census form early

This seems a topic that has generated much discussion, so I thought I'd comment on it.

In the United Kingdom we are having a census on Sunday 27th March 2011. It can be completed online or by sending back a census form that has been delivered to most households by now. The census is being carried out by the Office for National Statistics (ONS). Their website says, under the heading "When to return the questionnaire":

Census day is Sunday 27 March. Your answers should be about your household on this day. Please submit or return your completed questionnaire before, on or after this date.

On any analysis that seems a bit odd. Surely you should only be returning your census form after the date of the census since, though you can have a pretty good guess what the answers to the many questions might be, you can't know for certain.

As far as I can see, the ONS is simply wrong to suggest that early return is OK. This Census is governed by the Census (England) Regulations 2010, regulation 10 of which states:


(a)complete the copy of questionnaire H1 included in the pack, place it in the reply-paid envelope provided and send the questionnaire to the Authority by post; or

(b)return the information requested by questionnaire H1 electronically using such an electronic system as the Authority may provide for this purpose and in accordance with the instructions included in the accompanying pack.

Which quite clearly does not allow an early census return. Failure to comply with regulation 10 is made a criminal offence (albeit a very minor one) by section 8 of the Census Act 1920. There doesn't appear to be, in the regulations or the act, any power for the ONS to disapply these provisions or vary when the census returns may be made.

I'm not a census lawyer, so maybe I'm missing something here. What's more I doubt that it would be easy to prosecute someone for doing what the ONS has precisely told them to do. It still seems to me to be an odd way to run a census.

Friday, 4 March 2011

Phone hacking and copyright















