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European IP Bulletin, Issue 20, March - Copyright
Copyright
3. Harry Potter in the US Army
Representatives of Harry Potter author, JK
Rowling, have been investigating a Harry Potter look-alike comic published by
the US Army, featuring characters similar to those in the Harry Potter books and
films.
The comic, which appeared in US Army magazine, The Preventive Maintenance
Monthly, a US Army training manual, shows the regular hero of Preventive
Maintenance, Sergeant Half-Mast, arriving at Mogmarts School of Magic, instead
of Hogwarts School of Magic, and being greeted by a Professor Rumble-Doore,
instead of Professor Dumbledore. The manual also features a Professor Snappy,
whose drawing resembles actor Alan Rickman, who plays Professor Snape in the
Harry Potter movies, and a band of students including Topper, who looks like
Harry Potter, and a Miss Ranger (instead of Hermione Granger).
Neither JK Rowling nor her representatives were approached for permission. Both
JK Rowling and Warner Bros have taken protection of their intellectual property
rights very seriously. Indeed, there have been several earlier legal actions to
protect copyrights in respect of the Harry Potter books and stories, including
an action against the New York Daily News for copyright infringement after the
tabloid published excerpts of Rowling’s fourth book, “Harry Potter and the Order
of the Phoenix”, and a Dutch Court decision, which prohibited the distribution
of 7,000 copies of a book by Russian author, Dimitry Yemets, entitled “Tanya
Grotter and the Magic Double Bass”, which was held to infringe copyright in
Rowling’s first Harry Potter book, “Harry Potter and the Philosopher’s Stone”.
It remains to be seen whether the alleged infringement by the US Army magazine
will be considered to be a parody, or plagiarism and unauthorised adaptation,
which could violate applicable copyright and trade mark laws.
According to a US Army spokesman, each issue of the magazine is reviewed by the
aviation and missile command legal office, which concluded that “there was
nothing done that was impermissible, that the illustrations were clearly in the
scope of parody and that, therefore, there was no need to seek permission from
JK Rowling”.
In the US, there is no specific legal provision concerning parody and the
provisions of section 107 of the Copyright Act may apply, which provide that
“the fair use of a copyright work […] for purposes such as criticism […]
scholarship or research is not an infringement of copyright”. In the UK, general
principles concerning infringement and fair dealing will apply, and the general
approach of the Court is usually to ascertain whether a substantial part of the
plaintiff’s work has been reproduced in the parody. However, the defendant would
not be deemed not to be guilty of copyright infringement because his work is a
parody, or because there has been skill and labour invested in making the
parody. The plaintiff may claim that the making of the parody has infringed his
moral rights of attribution and integrity, as well as infringing copyright.
4. Italian DJ
Receives Record Fine for MP3 Piracy
Italian authorities have shown their commitment to fighting the
violation of copyright after the Italian Fiscal Police carried out a
raid and seized a large quantity of material without the SIAE
watermark (the identification tag used to recognise authorised
copies of copyrighted material).
An investigation leading up to the raid had discovered that a DJ
from Rome was using around 500 video clips and more than 2000 mp3
files during his performances in a club in Rieti. Subsequently, an
administrative fine of €1.4m was imposed on him. The fine is the
largest recorded penalty to be imposed on an individual for music
piracy in an European jurisdiction.
The case is significant due to the magnitude of the sanction. The
decision shows that the Italian legislature has chosen to adopt a
stricter approach to the issue of illegal downloading and copying of
musical content, and peer to peer related prosecutions against
individuals are now an established reality not only in the US but
also in Europe.
5. New DVD Anti-Piracy Measures
On 15 February 2005, Macrovision, the copy protection company, announced
that it had devised a new anti-piracy measure to make it more difficult for
DVDs to be copied. The new “RipGuard” protection will work by blocking
programs that enable ‘ripping’ (copying) by making the program crash.
The illegal copying and distribution of DVDs has been a major problem for
the film industry since the current copy protection was hacked more than
five years ago. It is estimated that between 20 to 30% of the DVD market is
made up of pirated copies. This new technology aims to defeat the various
forms of DVD piracy, which include the production and reduced price sale of
hard copies, peer to peer file sharing via internet sites, and also the
process of ‘rent, rip and return’- where people would rent a DVD, copy it
and then return the original, thus enabling them to reproduce the film on
many occasions for considerable profit.
Macrovision has stated that this technology will thwart most, but not all,
of the current DVD ripping programs used to pirate DVDs. Whilst these
measures will obviously reduce the amount of illegal copying, it is possible
that those who make a considerable profit from piracy, thereby affecting the
revenue of the film industry, will merely seek out the devices which are
unaffected by the protection and use these to continue their business.
Macrovision has said that RipGuard can be updated if hackers find a way
around the new anti-copying measures. Time will tell how successful the
measure is.
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