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<<<< 7046 >>>>

Topic: Missing JAMs

Message 1 / 6
Clitheroe KidMay 3, 2012

We are obviously using the example of Australia because 'Just A Minute' is a BBC show, made in the UK, but which is currently being aired in Australia.

Regarding the Berne Convention, I disagree. The Convention harmonises the laws of all signatory nations, in effect, so that the same laws exist in England and in Australia. Signatories to the Convention agree to do this - to change their copyright laws to comply with the provisions of the Convention. It's what signing the Convention treaty is all about.

For example, the UK copyright term is 70 years, now, which the UK changed as required by the Convention. But it was previously 50 years, and in the case of Broadcast Copyright - the copyright in a broadcast - it still is 50 yrs. The Convention is really about enforcement. The two countries have the same copyright laws, those which the Convention requires them to adopt, and this makes enforcement of a copyright claim in Australia straightforward.

A 1967 broadcast of Just A Minute will enjoy copyright as a broadcast for 50 years, i.e. until 2017.

The law in Convention countries does NOT prohibit non-commercial use. But - a big but - an Australian wanting to sell CDs is not what we are discussing. I made the point about file sharing, that it is NOT a sale of the recording. The entire point of the NON-commercial exception is that where no money changes hands, i.e. in a file sharing event, that is NOT a sale of the work/recording. Where the work is given away for free, it is not a commercial use of the work, and there is accordingly no breach of copyright.

The BBC must prove, as required in the Berne Convention, that their copyright has been breached. In a claim by the BBC, they must inevitably fail if they cannot show this. Where there has not been a sale, but merely a gift, the BBC must inevitably fail on this point: for UK law, in compliance with the Convention, only prohibits commercial use - i.e. sale - of a copy, and if the file sharer has not been paid for the copy then commercial use cannot be shown.

> To: just-a-minute@...
> From: kj.naughton@...
> Date: Tue, 1 May 2012 18:57:04 +0000
> Subject: [just-a-minute] Re: Missing JAMs
>
>
>
>
> Hi folks,
>
> Just a quick point as this is a complicated area.
>
> An Australian person wanting to sell "home brew" CDs of Just A Minute in Australia needs to look to Australian law to see what is and isn't allowed. Even though JAM is a UK work, it's the law of the country where the work is being used that counts. UK law is not extra-territorial regarding copyright and, in this example, what UK law says is irrelevant, even though the work originated there.
>
> I use Australia as an example as Clitheroe Kid did below, but the principle applies to all countries that are signatories to the Berne Convention.
>
> A lot of confusion arises because there's a difference between a work receiving copyright (which does depend on the laws of the country in which it was produced) and the protection that the work receives (which depends on the law in the country where the work is being used).
>
> So to take a worked example, Let's say a radio show was broadcast in 1960 in the UK and it qualifies as a copyrighted work (i.e. it's got original work in it). And let's say the copyright expires after 50 years in the UK and 70 years in Australia. A person in the UK could therefore use legally profit from the work in the UK but it would still be illegal in Australia.
>
> Cheers
>
> kJ
>
>
>
> --- In just-a-minute@..., Clitheroe Kid <clitheroekid@...> wrote:
> >
> >
> >
> > Under UK law, broadcast copyright exists in a radio show under either the Copyright Act 1956 or the Act of 1988, depending on whether the broadcast in question was first aired before or after 1988.
> >
> > In the 1956 Act, there is only a prohibition on commercial use of a recording of a show, and only for 50 years. The Act does NOT prohibit non-commercial use.
> >
> > There is a campaign under way to try to get the file sharing sites to recognise that file shaing of a BBC show that was first broadcast before 1963 is not unlawdful, and that even if the episode aired after 1963 sharing it is still NOT banned by the Act unless money is paid - something which never happens in the context of file-sharing.
> >
> > You need to understand that, whatever the law might be in Australia, this is a BBC show, and the BBC is limited by the laws of England, not those of Australia. It can, under UK law, prevent commercial use of its shows, but not their non-commercial use.
> >
> > Beware of believing all the stuff on the internet about copyright law. Most of it turns out to relate to American copyright law. Very little of it applies in the UK.
>
>
>
>
> ------------------------------------
>
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<<<< 7047 >>>>

Topic: Re: Missing JAMs

Message 2 / 6
badger danceMay 3, 2012

Sorry Clitheroe Kid you are also wrong on this point.

The BBC television programmes audio/visual AND sound track only versions that have been copied and released through this user group are in direct violation of the terms and conditions of the BBC that it sets with it's audience. Same as the radio programmes, new or old.

"...and you may not assist anyone to, or attempt to, reverse engineer, decompile, disassemble, adapt, modify, copy, reproduce, lend, hire, rent, perform, sub-license, make available to the public..."

"All copyright, trade marks, design rights, patents and other intellectual property rights (registered and unregistered) in and on BBC Online Services and BBC Content belong to the BBC and/or third parties (which may include you or other users). The BBC reserves all of its rights in BBC Content and BBC Online Services. Nothing in the Terms grants you a right or licence to use any trade mark, design right or copyright owned or controlled by the BBC or any other third party except as expressly provided in the Terms."

Source: BBC T&Cs

Also the Australian copyright law defers to the copyright law of the country from where the copyright programme material comes from, so that will be UK law then. I provided the link in my last message on this point.

The fact remains that the BBC may turn a blind eye to this group maybe out of the grace of a person within the JAM programme chain that might have been consulted about the on-line fan base here. HOWEVER it is not a clever act to go poking the BBC via a random email to say "Hey we are her copying and sharing YOUR stuff internationally" It is the money grabbers with BBC Worldwide Ltd that will invoke their power to close this gap.

BBC Worldwide Ltd have better copyright lawyers than you or I can afford - the best policy is to do what we do quietly and not go poking the hand that feeds, common sense to those with an IQ in double figures surely?

<<<< 7048 >>>>

Topic: Re: Missing JAMs

Message 3 / 6
kj.naughtonMay 3, 2012

Hi folks,

I think we have a fairly minor disagreement here. The Berne Convention does not so much harmonise copyright laws; rather it specifies minimum standards. Any country is free to create their own copyright law with different terms to the Berne Convention providing that they offer greater protection.

It's actually the same for most international treaties. Here in the UK we fairly regularly hear examples of EU regulations being implemented into domestic law in the UK in one way (typically a fairly strict way) but differently in other countries (usually a bit less strict). And that usually makes headlines in certain newspapers.

An example in the copyright arena is the USA who have retained the (optional) registration of copyrighted works. The Berne Convention says that copyright is automatic and US law now acknowledges that. But registering copyright is still available and does confer certain advantages above those given in the Convention. That wouldn't be possible if one views the Berne Convention as harmonising laws; it is possible if one views it as setting minimum standards.

My point wasn't to argue whether a particular work is or isn't copyright or whether exceptions are made for non-commercial use or not - I have no view on that. All I am saying is that copyright law does vary from country to country and people need to understand the law in their own country.

My example of someone selling CDs was intended to illustrate that general point, not to comment on anyone else's arguments. So I accept is isn't relevant to the discussion on JaM recordings but then again it wasn't supposed to be relevant.

If a country defers to the law of the country of origin of the work (as Badger Dance states) then fine. But, again, that's for people in that country to know and understand.

People should make informed decisions based on their own circumstances. I don't think anyone would argue with that. :-)

kJ

--- In just-a-minute@..., Clitheroe Kid <clitheroekid@...> wrote:
>
>
> We are obviously using the example of Australia because 'Just A Minute' is a BBC show, made in the UK, but which is currently being aired in Australia.
>
> Regarding the Berne Convention, I disagree. The Convention harmonises the laws of all signatory nations, in effect, so that the same laws exist in England and in Australia. Signatories to the Convention agree to do this - to change their copyright laws to comply with the provisions of the Convention. It's what signing the Convention treaty is all about.
>
> For example, the UK copyright term is 70 years, now, which the UK changed as required by the Convention. But it was previously 50 years, and in the case of Broadcast Copyright - the copyright in a broadcast - it still is 50 yrs. The Convention is really about enforcement. The two countries have the same copyright laws, those which the Convention requires them to adopt, and this makes enforcement of a copyright claim in Australia straightforward.
>
> A 1967 broadcast of Just A Minute will enjoy copyright as a broadcast for 50 years, i.e. until 2017.
>
> The law in Convention countries does NOT prohibit non-commercial use. But - a big but - an Australian wanting to sell CDs is not what we are discussing. I made the point about file sharing, that it is NOT a sale of the recording. The entire point of the NON-commercial exception is that where no money changes hands, i.e. in a file sharing event, that is NOT a sale of the work/recording. Where the work is given away for free, it is not a commercial use of the work, and there is accordingly no breach of copyright.
>
> The BBC must prove, as required in the Berne Convention, that their copyright has been breached. In a claim by the BBC, they must inevitably fail if they cannot show this. Where there has not been a sale, but merely a gift, the BBC must inevitably fail on this point: for UK law, in compliance with the Convention, only prohibits commercial use - i.e. sale - of a copy, and if the file sharer has not been paid for the copy then commercial use cannot be shown.

<<<< 7080 >>>>

Topic: Missing JAMs

Message 4 / 6
Clitheroe KidMay 7, 2012

Do you have a view on what the likely outcome might be, if the BBC was to sue in Australia for a breach of copyright in circumstances where no infringement would occur if the same act was done in London, i.e. making a gift of a copy (non-commercial use)?

In other words, is non-commercial use a breach of copyright in Australia?

> To: just-a-minute@...
> From: kj.naughton@...
> Date: Thu, 3 May 2012 21:21:34 +0000
> Subject: [just-a-minute] Re: Missing JAMs
>
> Hi folks,
>
> I think we have a fairly minor disagreement here. The Berne Convention does not so much harmonise copyright laws; rather it specifies minimum standards. Any country is free to create their own copyright law with different terms to the Berne Convention providing that they offer greater protection.
>
> It's actually the same for most international treaties. Here in the UK we fairly regularly hear examples of EU regulations being implemented into domestic law in the UK in one way (typically a fairly strict way) but differently in other countries (usually a bit less strict). And that usually makes headlines in certain newspapers.
>
> An example in the copyright arena is the USA who have retained the (optional) registration of copyrighted works. The Berne Convention says that copyright is automatic and US law now acknowledges that. But registering copyright is still available and does confer certain advantages above those given in the Convention. That wouldn't be possible if one views the Berne Convention as harmonising laws; it is possible if one views it as setting minimum standards.
>
> My point wasn't to argue whether a particular work is or isn't copyright or whether exceptions are made for non-commercial use or not - I have no view on that. All I am saying is that copyright law does vary from country to country and people need to understand the law in their own country.
>
> My example of someone selling CDs was intended to illustrate that general point, not to comment on anyone else's arguments. So I accept is isn't relevant to the discussion on JaM recordings but then again it wasn't supposed to be relevant.
>
> If a country defers to the law of the country of origin of the work (as Badger Dance states) then fine. But, again, that's for people in that country to know and understand.
>
> People should make informed decisions based on their own circumstances. I don't think anyone would argue with that. :-)
>
> kJ
>
> --- In just-a-minute@..., Clitheroe Kid <clitheroekid@...> wrote:
> >
> >
> > We are obviously using the example of Australia because 'Just A Minute' is a BBC show, made in the UK, but which is currently being aired in Australia.
> >
> > Regarding the Berne Convention, I disagree. The Convention harmonises the laws of all signatory nations, in effect, so that the same laws exist in England and in Australia. Signatories to the Convention agree to do this - to change their copyright laws to comply with the provisions of the Convention. It's what signing the Convention treaty is all about.
> >
> > For example, the UK copyright term is 70 years, now, which the UK changed as required by the Convention. But it was previously 50 years, and in the case of Broadcast Copyright - the copyright in a broadcast - it still is 50 yrs. The Convention is really about enforcement. The two countries have the same copyright laws, those which the Convention requires them to adopt, and this makes enforcement of a copyright claim in Australia straightforward.
> >
> > A 1967 broadcast of Just A Minute will enjoy copyright as a broadcast for 50 years, i.e. until 2017.
> >
> > The law in Convention countries does NOT prohibit non-commercial use. But - a big but - an Australian wanting to sell CDs is not what we are discussing. I made the point about file sharing, that it is NOT a sale of the recording. The entire point of the NON-commercial exception is that where no money changes hands, i.e. in a file sharing event, that is NOT a sale of the work/recording. Where the work is given away for free, it is not a commercial use of the work, and there is accordingly no breach of copyright.
> >
> > The BBC must prove, as required in the Berne Convention, that their copyright has been breached. In a claim by the BBC, they must inevitably fail if they cannot show this. Where there has not been a sale, but merely a gift, the BBC must inevitably fail on this point: for UK law, in compliance with the Convention, only prohibits commercial use - i.e. sale - of a copy, and if the file sharer has not been paid for the copy then commercial use cannot be shown.
>
>
>
>
> ------------------------------------
>
> Yahoo! Groups Links
>
> <*> To visit your group on the web, go to:
> http://groups.yahoo.com/group/just-a-minute/
>
> <*> Your email settings:
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>
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<<<< 7081 >>>>

Topic: Missing JAMs

Message 5 / 6
Clitheroe KidMay 7, 2012

All that you are doing is quoting from a clause on the BBC's website.

What the BBC choose to say on their website is, of course, entirely a matter for them; but they are not at liberty to modify the laws of the land. In English law, broadcast copyright is governed solely and exclusively by the Copyright Act 1956 if the recording was first broadcast before 1988.

Nothing on a BBC web page is capable of modifying an Act of Parliament.

If there was a contract between the BBC and a third party, then some contract terms could be agreed, perhaps on the lines of the clauses you've quoted; but there is no contract. In English law, a contract requires the payment of money - technically known as 'consideration' money - in order to give rise to a contract. A web user does not pay for access to the BBC site, which has no subscription services.

But even then, a contract would not be effective to alter the laws of the land.

To: just-a-minute@...
From: badger_dance@...
Date: Thu, 3 May 2012 07:57:33 -0700
Subject: Re: [just-a-minute] Missing JAMs

<<<< 7084 >>>>

Topic: Re: Missing JAMs

Message 6 / 6
kj.naughtonMay 7, 2012

Hi Clitheroe Kid,

Sorry, no idea. Australian law doesn't affect me - except when I'm over there visiting the family in Geelong.

Cheers

kJ

--- In just-a-minute@..., Clitheroe Kid <clitheroekid@...> wrote:
>
>
> Do you have a view on what the likely outcome might be, if the BBC was to sue in Australia for a breach of copyright in circumstances where no infringement would occur if the same act was done in London, i.e. making a gift of a copy (non-commercial use)?
>
> In other words, is non-commercial use a breach of copyright in Australia?

<<<< 7084 >>>>

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