Thursday, July 22, 2010

We are not amused? Jokes, twitter and copyright

Q. Why did the comedian Tweeter cross the road?..

A. .. to steal someone else's joke posted on Twitter??

The Grauniad reports today on the latest spat in the turf war that is developing on Twitter between comedians trying out jokes and material, and passing other parties quietly re using thus material, sometimes explicitly under their own name.

It seems that Keith Chegwin, now no longer for some while the fresh faced lad of Saturday morning TV, has hit rock bottom and resorted to passing off jokes gathered on Twitter as his own "old" material.
Chegwin decided to use his account, where he has more than 36,000 followers (no, me neither), to broadcast a whole load of gags and one-liners. He claimed that these were either his own work, or traditional gags minted by long-dead comics.

Unfortunately, they weren't. Among the gags retold by the one-time player of pop were identifiable jokes written by a number of contemporary standup stars, including Milton Jones, Lee Mack and Jimmy Carr. And what Cheggers presumably envisaged as a warm-hearted bit of fun has stirred up a sizeable amount of bad feeling within the comedy community. One comedian, Ed Byrne, even took Chegwin to task on Twitter, telling him he was wrong not to credit "working comics" for the jokes he was using.

This is not the first occasion of such, er, lack of amusement, emerging. My esteemed colleague @loveandgarbage tells me that this is a common source of disquiet. Comedians like to test and work on their material and Twitter with its potential for response and re-tweeting is a prfect venue for this. But the real question is, does anyone own a joke? Should they? Isn't this common cultural property? Where would society be if the first person to invent a "knock knock " job had asserted copyright in it?

Jokes - and especially tweeted jokes - are often quite short, vaguely familiar variations on a theme, and don't look much like the public conception of a "literary work", which is the applicable category of copyright (for written down jokes anyway). But the law as usual is not as simple as ordinary common sense.

Copyright exists only in works which are "original literary works". But case law has set a very low bar on such protection. A "literary" work has been held to include a long list of extremely unexciting written-down "things", eg, exam papers, football coupon forms, and a large number of meaningless five letter words used as codes. Looking at rather short literary works, it is generally acknowledged, eg, that some particularly pithy headlines might well engage copyright, though slogans are more contested, and usually protected by trade mark. There is the famous Exxon case, Exxon Corp. v. Exxon Insurance Consultants International Ltd [1982] Ch. 119, in which the English court held one word was too short to be a literary work. But 140 characters is somewhat longer and there is an interesting quote in the Exxon case from University of London Press Ltd. v University Tutorial Press Ltd. [1916] 2 Ch. 601 in which Peterson J. said, at pp. 609-610:

The objections with which I have dealt do not appear to me to have any substance, and, after all, there remains the rough practical test that what is worth copying is prima facie worth protecting.

Copying jokes certainly seems to be a worthwhile economic activity. But are jokes "original"? There is surely an argument that, like recipes, every joke that exists has already been invented in some fundamental form - and therefore can be freely copied and adapted. Yet jobbing comedians do put a great deal of work into, and base their income on, inventing "new" jokes - and as the Grauniad note, the culture has shifted since the 80s to a point where comedians now regularly claim to "own" their jokes (I've also just been referred to this fascinating piece):

The idea that a comedian had outright ownership of his material seems to have taken root in this country once Manning et al gave way to the Ben Elton generation. For the original alternative comedians, simple gag-telling was far less important than presenting a fully-formed original perspective on the world. And if you were trying to offer an audience something distinctive (with all the added hard work that involves) then it became crucial to ensure that your gags were wholly your own....In recent years, the main victims of plagiarism in standup have been those comics who rely heavily on one-liners and quickfire jokes. For gag thieves, these present the perfect opportunistic crime: they're easy to lift and contain fewer hallmarks of the originator's personality.
So maybe there is copyright in the jokes in question, and poor Cheggers is a copyright pirate. (Appealing to Technollama here to insert a Photoshop mock up pic!) But there is a serious point here, of which the Twitter joke is (paradoxically) a good example.

Is there copyright generally in any tweet? If so, what happens to re-tweeting? Passing around tweets by re-tweeting them is, for most tweeters, welcome : both providing an ego boost and allowing the community to share useful and amusing information at lightning speed. Yet if copyright exists in tweets, such activity is prima facie copyright infringing.

Again, there is a strong argument that by writing in an unprotected, open to the public, Twitter account, you are granting an implied license to copy. (Twitter itself seems to recognise this by providing no re-tweet button where the tweet is a friends-only one.) However the "implied license" argument has been frequently repelled on the Net generally: it is now very well accepted that simply posting something on a website, like a photo, or a story, does not in any way grant permission to all and large to reproduce it (cf a thousand spats over fans downloading pictures of their heroes from official media websites). Why should Twitter be any different? As usual, this would very much be on a case by case basis and depend on intentions, if litigation was ever to occur.

So we are left in a dilemma. If comedians are to get protection, we may prejudice perhaps the fundamental mechanism by which Twitter adds value to its community: the re-tweet.

But that's not the only problem. Presumptively granting copyright to tweets would allow particular tweets to be easily suppressed from distribution on threat of legal action, something that migt have serious chilling effects on freedom of speech.

Most recently, eg, take the Ben Goldacre/ Gillian McKeith spat, over whether Ms McKeith had called Mr Goldacre a liar on Twitter. Conveniently for the Goldacre side, someone had taken a screen cap of the incriminating tweets by McKeith, before she sensibly and fairly quickly deleted them. I wondered at the time if these tweets were not her copyright, and thus illicitly copied and distributed - as clearly she had not given permision, or if she had, had withdrawn it by deleting the tweets on her own account. And copyright can be so much easier a way to suppress speech than libel since it does not involve any enquiry over whether what was said was a lie or detrimental to anyone's reputation.

Of course, again (as with yesterday's FOI post) in copyright, there are exceptions for news reporting and public interest elements. But these are untested for social media and particularly for amateur tweeters rather than professional journalists. (It is interesting in the two pieces linked to above, that the Guardian themselves link directly to the screen-capped tweets, but Goldacre, a clever careful man, does not. :) Most lay people receiving a cease and desist on copyright grounds would probably delete a re-published tweet without demur. This could be the next way to suppress speech on a vigorous liberal forum like Twitter for everyone from Ms McKeith to the Church of Scientology.

Turning into a bit of a bad joke, eh? :-)

Tuesday, July 20, 2010

When does information not want to be free?

Apparently, when it's been released under a freedom of information (FOI) request!

This is not, I imagine, the answer you, gentle reader, expected:)

Pangloss was recently asked by an acquantance, X, if he ran any legal risk by publishing on a website some emails he had obtained from the local council, as part of a local campaign against certain alleged illicit acts by that council. According to X, the emails could destroy the reputation of certain local councillors involved, and that they had had great difficulty extracting the emails, but finally succeeded. Obviously the value to the public in terms of access to the facts - surely the whole point of FOI legislation - would be massively enhanced if the obtained emails could be put on the campaign website.

My advice was that I was no FOI expert but since data cannot be released under FOI when it reates to a living person, DP and breach of confidence were not likely to be problems (though the latter was not impossible), and the main danger was surely libel, in which case truth was a complete defence. There would of course be a risk that councillor A might be lying about councillor B to the detriment of their reputation; in which case there was a danger of re publishing a libel. But that didn't seem all that germane and a public interest defence (though not one Pangloss would like to depend on, if it was her money) would certainly be possible.

I was wrong. Asking more people (and many thanks here to the wonderful ORG-legal list, especially Technollama, Victoria McEvedy, Simon Bradshaw, Daithi MacSithigh and Andrew Katz)) revealed the main weapon for gagging publication of FOI requests: that useful, all purpose, font of legal restraint - copyright.

In my innocence, I would have expected that a document obtained under FOI could be automatically republished by the recipient. Not so. The Office of Public Sector Information (OPSI)'s website reminds us that :

Information listed in Publication Schemes, which can be disclosed under FOI, will be subject to copyright protection. The supply of documents under FOI does not give the person who receives the information an automatic right to re-use the documents without obtaining the consent of the copyright holder. Permission to re-use copyright information is generally granted in the form of a licence.[italics added]
As with most legal issues, the devil is in the detail here. Why should permission to republish only be "generally granted"? Why is it not compulsory to grant a license (though not necessarily for no consideration)? In the example at hand, the copyright holders have fought to prevent disclosure and have every reason to refuse to grant copyright permission. This seems both immoral and against the whole point of FOI.

Technollama advises me that where information is Crown copyright, there are indeed generally obligations under the Public Sector Information Directive (PSID) to release that information under some open licensing scheme. Currently this is Click-Use, but will soon be Creative Commons. An "open licensing" scheme does not necessarily mean you get to publish for free either, but it should mean copyright could not be used to gag publication. This all sounds good and right. The general reasoning behind the PSID obligations is that public money pays for public data, so the public should be able to access it and re-use it to create both economic and creative public benefits .

A similar reasoning lies behind the recent acclaimed open initiatives involving Tim Berners-Lee and Nigel Shadbolt's Web Science team. Various campaigns such as the Guardian's Free our Data calls have influenced UK public opinion to the point where the UK government seems to have acknowledged that public data should be able to be - well - published - and then re-used for public benefit.

However Crown copyright only applies in general to works generated by central not local government. And in any case it is more than possible that emails of this kind might be the copyright of the individual senders themselves, not the council, especially given the lack of a contract of employment.

(There are plenty of public bodies subject to FOI whose works are not Crown copyright, including eg the BBC and the ICO - see a selected OPSI list here - so this is going to be a common problem.) Of course it is possible the emails might not qualify for copyright at all - but given the low level of orginality test etc usually applied nowadays, this is pretty unlikely.

So here is a case where the law has already agreed that there is a public benefit in being able to scrutinise the activities of public officials (in this case, local councillors) yet there is no obligation to allow re-publication, merely a suggestion. In this case, the incentive to allow public republication is ethical and moral, not economic. Should that make any difference? I don't think so: perhaps the reverse.

Copyright of course has exceptions. Even if the council or councillors in question refused to license republication, it might be claimed that well known defences like news reporting or public interest might apply to allow copyright to be trumped. The OPSI site acknowledges this (see para 2). But we all know that the chilling effect of the threat of expensive litigation is likely to be an effective muzzle for most members of the lay public, if only vague and untested defences lie between them and big legal debts.

Would it not be far, far more sensible simply to require that where copyright materials are released under FOI (perhaps after a decent interval if necessary to allow for appeals) then a licesne to republish MUST be granted? Reasonable commercial conditions could apply depending on the value of licensing the information; which would be zero for scurrilous emails, but would stop people using FOI as a back door to getting free copies of expensive information. (Though as noted, the trend is for free release of public data anyway.)

The UK is not the only country to allow this under its FOI law In Canada, in 2008, Michael Geist discovered that the Vancouver BC government were asserting copyright over released by FOI materials. He wrote:
The notion that the media may not inform readers of harms to the public interest without first pleading for the state's permission and paying a copyright fee is deeply troubling.
I could not agree more. The current situation is an appalling (and little known) travesty of what FOI is all about. It needs changed.