One for the lawyers

[AndyID]

Does anything that appears on rmweb constitute "public domain" information? I would think it is no different from sites that provide academic papers for a fee, but it does no harm to ask.

 

Many of us have provided information on this site that others might attempt to patent. I would hope any such attempts will be frustrated if the information had already been published on this site.

[Reorte]

I am not a lawyer but my understanding is that nothing is public domain unless its creator explicitly says it is. If there are some T&Cs for the site that I should've read but haven't that state anything posted to it is PD that might make a difference, or it might be unenforcable.

 

I'm even less certain on the patent one but I think that if something has been published, PD or otherwise, that might affect patentability.

 

Usual disclaimer - don't base a legal position on what I've said!

[MarkSG]

There's no simple answer to that question because intellectual property is a very complex (and inconsistent) area of law.

 

If you're referring specifically to patents, then the publication of something here would normally count as "prior art" which could be used to invalidate or overturn any patent application which subsequently used it. But note that it would be necessary for someone to formally object to the patent on those grounds; it isn't up to the Patent Office to research any possible case where prior art may be found. So it wouldn't necessarily prevent the patent being granted in the first place.

 

"Public domain" is a different concept, and refers to  works for which copyright or design right (and related rights such as database right) has expired. There are complex rules about when something passes into the public domain, but as a rule of thumb you can assume that anything posted here is still subject to copyright unless there are very good reasons to believe it is now public domain (such as a very old photo or an excerpt from a very old book).

 

Contrary to popular belief, an author cannot place his own work into the public domain, because copyright is a matter of statute rather than choice. However, an author (or photographer, etc) can release his work under a totally non-restrictive licence which allows anyone to use it however they wish.

[PGC]

On a similar theme, but unrelated to the OP, I have a copyright question that arose yesterday.

 

I have a piece of music that was composed by Imogen Holst long enough ago that it is now out of her copyright. The trustees of her estate have declared the music to be "in the public domain" but there is a possibility that a music publisher will be officially publishing the music. Can copyright then exist on that publication, and if so, are copies of the music (with the notes etc. exactly the same, but the edition is different) produced before the copyright date subject to that copyright?

 

If copies of the music produced before the new copyright exists aren't subject to that copyright, what happens about copies of the same edition produced after the new copyright comes in to force.

 

My belief is that the copyright exists on editions rather than the music, but I'd be interested to find out.

 

Thanks in advance for any help offered, and apologies to AndyID for possibly hi-jacking his thread, or adding to the information it provides!

 

Phil

[bécasse]

You will find that music publishers will add sufficient new "intellectual property" to a piece of music to be able to create a copyright to their edition of it.

 

Within Europe, copyright issues are a matter for European Law and the European Courts have made it quite clear that if their isn't sufficient intellectual property then there can be no copyright. The particular judgement concerned the copyright in a (football fixture) list, which the judges ruled not to be copyright-able, but the actual judgement and the arguments put forward have much wider implications.

 

To give a useful example in the modelling world. Write down a list of dimensions of something - a loco, a wagon, a building - and it remains a simple list and no copyright exists, convert those dimensions into a drawing and you have added intellectual property, so you (or your employer if you did it at work) automatically own the copyright to the drawing. You can sell the copyright, but it does have to be a specific sale of copyright, otherwise you retain the copyright even if you sell every copy of the drawing or sell "first publication rights" to enable the drawing to be published in, say, a magazine.

[MarkSG]

On a similar theme, but unrelated to the OP, I have a copyright question that arose yesterday.

 

I have a piece of music that was composed by Imogen Holst long enough ago that it is now out of her copyright. The trustees of her estate have declared the music to be "in the public domain" but there is a possibility that a music publisher will be officially publishing the music. Can copyright then exist on that publication, and if so, are copies of the music (with the notes etc. exactly the same, but the edition is different) produced before the copyright date subject to that copyright?

 

If copies of the music produced before the new copyright exists aren't subject to that copyright, what happens about copies of the same edition produced after the new copyright comes in to force.

 

My belief is that the copyright exists on editions rather than the music, but I'd be interested to find out.

 

Thanks in advance for any help offered, and apologies to AndyID for possibly hi-jacking his thread, or adding to the information it provides!

 

Phil

 

This is incredibly off-topic, but fortunately there is a reasonably simple answer to this question

 

Once the music has passed into the public domain, it is completely out of copyright and anyone may publish, copy or redistribute the music. So any publisher can publish it, and doing so cannot prevent any other publisher from also doing so. There is no need for any publisher to ask for permission from anyone in order to publish public domain material. Provided the notes, etc, are precisely those composed by the composer, then anyone can copy or publish them.

 

However, a published edition of public domain material may still have copyright in itself as a book or folio, so that publication can't be copied as a whole, or in any part which includes anything other than the music. The music itself (the notes, etc) can be copied from it, but the format, layout, pagination, any additional content (such as publisher's comments) etc is still subject to copyright and cannot be copied.

 

On a more general note, copyright can (and usually does) exist separately in different aspects of a published work. The fundamental content (the words of a book, or the notes of a piece of music) is the copyright of the author or composer, but the published edition of them is the copyright of the publisher. Equally, when music is recorded, there is a separate copyright in the recording to that in the composition. So if you are copying public domain (or creative commons) content from a publication, whether it be a book or a website, you have to ensure that you only copy the content itself and not any additional material forming the publication.

[runs as required]

On another model railway site I got flak from moderators for posting step by step how I researched and created lineside structures from printouts (manipulated into scaled orthographic files using photoshop) derived from mosaics assembled from image searches, including Google and Bing map PrtSc copies.

I'd evolved this method professionally as a conservation architect before and after retirement.

 

I have a solicitor son who's practice specialises in IP; he'd OKed my 'sampling'. However the website's American owners subsequently proved nervous about it - because, they said, every US State has its own variant of IP law.

 

So my advice is 'Stay Below the Radar'.

I no longer post about how I go about compiling my scale printouts - which I think is a shame because the internet is such an easy way of sourcing material.

 

dh

[Spitfire2865]

On another model railway site I got flak from moderators for posting step by step how I researched and created lineside structures from printouts (manipulated into scaled orthographic files using photoshop) derived from mosaics assembled from image searches, including Google and Bing map PrtSc copies.

I'd evolved this method professionally as a conservation architect before and after retirement.

 

I have a solicitor son who's practice specialises in IP; he'd OKed my 'sampling'. However the website's American owners subsequently proved nervous about it - because, they said, every US State has its own variant of IP law.

 

So my advice is 'Stay Below the Radar'.

I no longer post about how I go about compiling my scale printouts - which I think is a shame because the internet is such an easy way of sourcing material.

 

dh

Surely IP laws would be for where the information was produced, rather than read. If not, thats really easy to break and take advantage of. Find someplace whos laws work to your advantage and file a claim.

[MarkSG]

On another model railway site I got flak from moderators for posting step by step how I researched and created lineside structures from printouts (manipulated into scaled orthographic files using photoshop) derived from mosaics assembled from image searches, including Google and Bing map PrtSc copies.

I'd evolved this method professionally as a conservation architect before and after retirement.

 

I have a solicitor son who's practice specialises in IP; he'd OKed my 'sampling'. However the website's American owners subsequently proved nervous about it - because, they said, every US State has its own variant of IP law.

 

So my advice is 'Stay Below the Radar'.

I no longer post about how I go about compiling my scale printouts - which I think is a shame because the internet is such an easy way of sourcing material.

 

dh

 

Your son is right; this is very unlikely to be actionable infringement. Theoretically, some parts of what you do may be infringing. But provided you are only using the images for personal purposes and are not republishing them or using them for any commercial purpose, even if any theoretical infringement takes place it is de minimus as far as the law is concerned and too trivial for a court to be concerned with.

 

The website operator is flat wrong: IP law in the US is federal, not state law. But the US does have the Digital Millennium Copyright Act (DMCA) which obliges website operators to take action based on IP complaints even before carrying out any investigation into whether they are justified, so it's not surprising that website operators there can often be somewhat twitchy about copyright.

[MarkSG]

Surely IP laws would be for where the information was produced, rather than read. If not, thats really easy to break and take advantage of. Find someplace whos laws work to your advantage and file a claim.

 

Copyright laws apply where the material is published. That's somewhat different to where it is produced. A book, for example, can be published in more than one country even though the author only lives and works in one country. And it's possible for things to pass into the public domain at different times in different countries.

 

Fortunately, the Bern Convention means that copyright, at least, is broadly similar in concept all over the world (although other IP concepts, such as patents, can vary wildly). So, apart from different expiry times, there is general agreement over what is or is not subject to copyright. But there are many different rules about what is a permitted use of copyright material (ie, what you can legally do with it without needing explicit permission). Some of these can cause significant cross-border issues. If you ever see someone in the UK claim that they have "fair use" justification for what they are doing with copyright material, for example, that merely proves that they know very little about UK copyright law, because "fair use" is a US concept which has no equivalent in UK law. (We have something called "fair dealing", but, despite the similarity in wording, it addresses a very different aspect of permitted use).

[Spitfire2865]

Copyright laws apply where the material is published. That's somewhat different to where it is produced. A book, for example, can be published in more than one country even though the author only lives and works in one country. And it's possible for things to pass into the public domain at different times in different countries.

 

Fortunately, the Bern Convention means that copyright, at least, is broadly similar in concept all over the world (although other IP concepts, such as patents, can vary wildly). So, apart from different expiry times, there is general agreement over what is or is not subject to copyright. But there are many different rules about what is a permitted use of copyright material (ie, what you can legally do with it without needing explicit permission). Some of these can cause significant cross-border issues. If you ever see someone in the UK claim that they have "fair use" justification for what they are doing with copyright material, for example, that merely proves that they know very little about UK copyright law, because "fair use" is a US concept which has no equivalent in UK law. (We have something called "fair dealing", but, despite the similarity in wording, it addresses a very different aspect of permitted use).

My post was in reference to runs as requireds post about a personal process for modelling. Also, internet information should be regarded as from where it was posted/produced. I didnt refer to copyrighted material.

[MarkSG]

My post was in reference to runs as requireds post about a personal process for modelling. Also, internet information should be regarded as from where it was posted/produced. I didnt refer to copyrighted material.

 

it's copyright which is relevant to RAR's post, though. That's what he'd be infringing, if he is infringing any IP, by using material from the Internet to create his lineside structures. And, since he is making copies of the material in the UK, it is UK copyright law which applies.

 

But, as I said, his use is almost certainly within the limits of normal personal use of published material and would therefore not be considered infringing.

[corneliuslundie]

I do not know the details but I do know that patents can be obtained in the US for things which are "prior art" because there is no checking and does not seem to be back tracking once the patent is granted.

 

I also remember at an ExpoNG exhibition in Greenwich a good few years ago a small supplier being harassed by representatives of an American company over intellectual property rights of some kind. It may have been patents, copyright or brand name use; I can't remember. The latter is a particular minefield. Before the London Olympics a long standing cafe called something using the word Olympic, somewhere in east London, was told it had to change its name because the word was owned by the International Olympics Committee. I can.t remember what happened. In the US it seems to be possible to claim ownership of perfectly normal words.

 

Does the US follow the Berne Convention? I have a feeling not.

 

J

[ZiderHead]

I had a photo of a painting removed from a US-based forum and replaced with "Removed for IP violation". I contacted the mod and explained that it was clearly ok under Fair Use and, besides, the photographer had published it on Wikimedia Commons with a free for all license and provided the links. The mod replied that it wasn't the photo they were concerned about, it was potential suits from the painting's copyright holder. Now I am no lawyer but I'm pretty sure any copyright would have expired, considering that Titian died in 1576!

[Jim Martin]

it's copyright which is relevant to RAR's post, though. That's what he'd be infringing, if he is infringing any IP, by using material from the Internet to create his lineside structures. And, since he is making copies of the material in the UK, it is UK copyright law which applies.

 

But, as I said, his use is almost certainly within the limits of normal personal use of published material and would therefore not be considered infringing.

 

But if the website in question was American owned, the owners might have been worried more about infringements arising from the (presumably) American hosting and (again presumably) largely American audience and what they might do with the descriptions given. Also, remember, both Google and Bing have terms & conditions. The individual photographs that make up Streetview and whatever its Bing equivalent are called are all subject to copyright, as is all the mapping data and images. Personally, I very much doubt that either Google or Microsoft is actively trawling hobby websites looking for people inciting others to break their T&Cs and infringe on their IP, particularly if it's not for profit and the descriptions explicitly mention the existence of the T&Cs, but if I was in business I might be more cautious.

 

Jim

[MarkSG]

I do not know the details but I do know that patents can be obtained in the US for things which are "prior art" because there is no checking and does not seem to be back tracking once the patent is granted.

That's very much an issue with patents in general, yes. Essentially, the system relies of people with knowledge of prior art challenging the patent, but there are so many patents being granted that it's impossible to keep up with them all. What usually happens is that they only get challenged when the patent holder tries to demand royalties from a company which is aware of the prior art.

 

I also remember at an ExpoNG exhibition in Greenwich a good few years ago a small supplier being harassed by representatives of an American company over intellectual property rights of some kind. It may have been patents, copyright or brand name use; I can't remember. The latter is a particular minefield. Before the London Olympics a long standing cafe called something using the word Olympic, somewhere in east London, was told it had to change its name because the word was owned by the International Olympics Committee. I can.t remember what happened. In the US it seems to be possible to claim ownership of perfectly normal words.

The Olympics are a special case, because the rights to the name were set out in legislation rather than simply being a matter of intellectual property. That was one of the conditions of awarding the 2012 Olympics to London.

 

As far as other ordinary words are concerned, a word alone is too short to be subject to copyright, but it can be trademarked. But trademarking a normal word doesn't prevent its use in normal contexts, it only prevents its use in the category for which it was trademarked. So, for example, only Boots can have a shop called Boots, but any shoe shop can sell boots.

 

 

Does the US follow the Berne Convention? I have a feeling not.

 

It does now, but it was one of the last major counties to fully adopt it. You can still find loads of copyright "advice" on US websites which disregard what the convention says.

[AndyID]

Yes, just because there is a patent, it does not mean there is any real protection. The patent offices will do a bit of searching for prior art, but their search is by no means exhaustive.The important thing to remember is that it's only what is "claimed" that is (or might be) protected.

I looked up the patent for a certain well known point motor recently. I suspect a lot of people think its well protected, but in fact it is only one minor aspect of the design that is protected in the claims, and it would not be difficult for someone to design around that feature to circumvent the patent.

[Andy Hayter]

I looked up the patent for a certain well known point motor recently. I suspect a lot of people think its well protected, but in fact it is only one minor aspect of the design that is protected in the claims, and it would not be difficult for someone to design around that feature to circumvent the patent.

 

 

All I can say is beware of any assumptions you make.  Patent law is extremely complex.  It may well be that the point motor is itself subject to many other patents and has to pay royalties to those patentees, but has an improvement - that you judge as minor - that is in itself patentable.  You find a way around that "minor" aspect, but you are still subject to all of the prior patents.  Indeed your way round the patent may infringe some of the earlier patents.

 

To give an example and also forgetting a few niceties like timescales and expiry of patents over a fixed time frame.

 

In the ancient past, men carried goods on their backs.

 

A man devises a frame so that he can drag goods behind him rather than lift them on his back.  He patents a device for moving goods on a frame pulled behind a system for pulling them (note not a person or a man: he had a very good patent lawyer)

 

Someone else seeing this sees the frame and thinks, I can adapt the device to be dragged by a mule.  He patents the adaption (for use with 4 legged animals), but his patent I still subject to the first one and to use it he has to pay royalties.

 

Someone else comes along and sees the fundamental flaw with these devices is the friction in dragging a frame across the ground and files a patent to have wheels below the frame.  His patent is now subject to the two above and he has to pay royalties to them both (if used by a mule).

 

Someone else then comes along and sees a way of adapting the frame to be dragged behind a motorised vehicle and patents this.  Patents 1 and 3 are still in force, but patent 2 may not be depending on the exact wording.

 

And so it goes as patent upon patent is built on experience.

[AndyID]

All I can say is beware of any assumptions you make. Patent law is extremely complex.

Don't worry. I use a very experienced patent attorney, and my business partner is a New York lawyer

[raymw]

Sort of related http://www.openbeamusa.com/blog/2014/5/22/stay-classy-makerbot 

[AndyID]

Sort of related http://www.openbeamusa.com/blog/2014/5/22/stay-classy-makerbot

Thanks Ray.

 

I think this is very good information. It suggests that, while posting in a forum might be helpful, it's no guarantee. A printed publication might be more robust, but even that has limitations.

 

Of course, I have no idea who is right and who is wrong in this particular example. I suspect the waters will be rather muddy (as usual!)

 

Cheers!

Andy