How Moulinsart lost Tintin in the Netherlands

The Moulinsart foundation, which manages (or, as you will see in the following, claims to manage) the rights to Hergé’s estate – in other words to Tintin – has lost an important law suit earlier this week against the Dutch association of tintinophiles, Hergé Genootschap.

Foreign press have reported superficially on this case, perhaps because the court’s verdict is in Dutch.

I speak Dutch however. What happened?

According to the verdict (PDF), the Hergé Genootschap was founded in 1999. As part of the services it provides to its members, it publishes a number of magazines which contain essays discussing the works of Hergé. Obviously critiquing a comic is greatly aided by quoting the comic, a technique the association employed.

Until 2009 the association had a working agreement with Moulinsart about the reproduction of images from the works of Hergé. In that year, Moulinsart introduced a new contract for all tintinophile associations to sign. This contract was presumably much more constrictive than the one that had existed between Moulinsart and Hergé Genootschap before and anyway the result was that initially the association refused to sign (but they caved in 2012). At that point things turned ugly. The association continued publishing its magazines and continued to include quotations from the works of Hergé. Moulinsart shouted ‘copyright infringement’ and after negotiations failed, demanded payments for the period 2009 – 2012 to the tune of 35,000 euro. (Some reports state that this is 35,000 euro per publication, but the court report doesn’t mention such a distinction.) Unsurprisingly, as one Belgian newspaper put it, the association refused to pay, and was sued.

Moulinsart lost the first law suit, which took place in 2012. The association had argued before the court that Dutch copyright law allows for the reproduction of copyrighted works under certain conditions (a principle called ‘fair dealing’ in legal circles), including the right to quote works in order to criticize them.

I am not sure why Moulinsart even took the road of attacking the fairly well established legal doctrine of fair dealing. I seem to remember reading in French newspapers that French courts ruled against the reproduction of frames from Tintin as a form of legal quotation. Maybe Moulinsart felt Dutch judges would be equally pliant?

And now comes the interesting part. Moulinsart appealed the decision but not on copyright grounds. They dropped the copyright claims altogether and instead focussed on a claim of breach of contract. The Hergé Genootschap, they argued, had had a contract with Moulinsart from 2012 onwards. The association replied that they could not have a contract with Moulinsart because – dun! dun! – Moulinsart did not control Hergé’s copyrights!

In a twist worthy of a Tintin adventure, the association produced a verified copy of a contract between Hergé and publisher Casterman, in which the former grants the latter exclusive reproduction rights for all Tintin albums. The association said that, on the basis of the contract, Moulinsart had misrepresented itself as a party who could negotiate Tintin rights and that therefore any contract between Moulinsart and Hergé Genootschap should be considered null and void.

The appeals court agreed with Hergé Genootschap’s position completely and ruled accordingly.

Could Moulinsart go all the way to the Dutch Supreme Court? I believe they have a good chance (note I am not a lawyer). The contract between Hergé and Casterman reads:

Art. 1 – Monsieur Georges Rémi concède aux établissements Casterman le droit exclusif de publication de la série des Albums Les Aventures de Tintin […] parus ou à paraître, dont il est l’auteur sous le pseudonyme de Hergé.

Art. 2 – Le droit de publication concédé s’étend pour toutes éditions en langue française et étrangères.

I don’t speak French very well, but it seems that Hergé gives the exclusive right to publish both existing and future Tintin albums in both the original French and in other languages to Casterman.

To me this reads like a copyright license, not a copyright transfer. The latter means that in the eye of the law, you are now the holder of the copyright, in other words you control the copyright. Considering that as a franchise Tintin is about much more than just comic books and that it also includes newspaper and magazine syndication, films, merchandise and what have you, it’s obvious that Hergé did not transfer his rights. He did not even give exclusive rights to the comics to Casterman, only the right to produce books.

Assuming that the widow of Hergé still owns the copyrights and that she has appointed Moulinsart as the manager of those rights, there is no reason to see why Moulinsart could not negotiate with Hergé Genootschap about those same rights.

Moulinsart seems to have considered the association’s suggestion that Moulinsart did not manage the entirety of the Hergé estate so evidently irrelevant or untrue, that it refused to enter anything into evidence to counter the association’s claims, instead offering to provide the court with evidence at its request. In Dutch civil law there is a principle similar to the Anglo-Saxon preponderance of evidence, meaning that if you provide evidence of a thing (as Hergé Genootschap did) and the other party fails to provide evidence of the opposite (as Moulinsart did), the court now considers that thing to be a fact. The exception to this rule is if the claims you make are evidently untrue or preposterous, for instance if you said that the sky is green or up is down.

It seems to me that Moulinsart, as the representative of the copyright holder, can claim that it has every right to bring suit against tintinophile associations even for rights granted exclusively to other parties. The supreme court could agree with this position but would likely still uphold the verdict of the lower courts on the grounds that there is no copyright infringement (remember, Moulinsart dropped those charges!) and therefore no breach of contract – and would Moulinsart please pay the association 60,000 euro in lawyer fees. (Yes, that really is how insanely expensive IP cases are in the Netherlands.)

If Moulinsart lose an appeal to the Dutch Supreme Court, and it is very likely they would, they can still appeal to the European court, which has been creating a lot of copyright case law lately. As a result I am not confident to predict how such a last court of appeal would respond.

A thing I read between the lines of the verdict is that Moulinsart appear to have irritated the court by constantly changing their claims. The reason appeals courts exist in the Netherlands is that another set of judges can take a fresh look at the same case, but if you keep changing your demands, how much will a case remain the same? The result is that on every junction where the court could have been lenient towards Moulinsart, it took the hard line and said: “Denied!” Moulinsart wanted the Casterman contract to be refused as evidence because it was entered too late: denied! Moulinsart wanted the lawyer fees to be lowered because it was no longer a copyright case: denied! The only time the court denied something to the association, the court helpfully explains that this is because the association was going to win anyway.

(Note: the Moulinsart foundation is called Hergé Foundation in English. Note 2nd: the Dutch word the association uses for ‘misrepresentation’ is ‘dwaling’; although I could find no English translation for that word, ‘misrepresentation’ seems the closest fit.)

Definition: copygreed

Tonight the stores close at 2200 hrs, it is now 2112 hrs, I am working through a stack of old books to determine their copyright status, and I still have a dozen or so to go.

Suddenly, I am stopped. Quick, I need a word to describe the phenomenon that certain parties want ever longer copyright terms and manage to convince bribeable* parliaments to extend terms before I can scan their works.

Copygreed

And I continue.

*) What other reason would they have to do what they do so badly?

Who owns this photo?

slaters-stolen-monkey-photo

Every time Englishman David Slater threatens to sue people over this photo, the press jump on it like rats on a granary.

I will tell the story therefore in just a few words, because you’ve probably already heard it. Slater goes on a photography trip to Indonesia, a macaque starts to play with one of his hugely expensive cameras and starts taking selfies. Zoom forward a couple of years and Slater seems to have changed his career from taking pictures to threatening people with lawsuits over using this photo.

(I expect he didn’t actually do the latter, but the only times I ever hear about him is when his legal team are ready to pounce.)

A couple of observations following the current brouhaha involving Wikimedia. Note that I am mostly responding to what internet commenters say underneath the articles—pretending anything an internet commenter (not you, of course!) has to say has intellectual merit, is a risky affair.

1) It pains me to see the way people take for granted how anything that is created, is owned by someone. The public domain, that area of human culture that is owned by all of us, used to thrive, and used to be a natural thing that existed as a peer alongside the area of things that were owned by individuals. These days the public domain seems to be a memory distant enough that people no longer realize the possibility of there being things that are owned by all of us.

That makes this a great era for copyright lawyers and no-one else.

2) Among all the arguments on whether this photo belongs to the world, to Slater, or even, as some would have it (cheekily?), the macaque, the thing that has been missing is a mention of the legal doctrine of sweat of the brow. People seem to argue that the picture should belong to Slater because he did all the hard work. Regardless of how questionable the assertion is that Slater did any work at all, for an argument like that to hold up in court (and Slater is indeed threatening to take this to court), it needs to have legal underpinnings.

The sweat of the brow doctrine states that if you put in a lot of work, you get a copyright. It partly adds to and partly opposes the much more common doctrine that holds that work needs to have some sort originality embedded into it in order to generate a copyright.

The Wikipedia article tries to list the jurisdictions in which the sweat of the brow doctrine applies but doesn’t get far. In the Netherlands and the USA for instance, the doctrine has been soundly rejected in the jurisprudence. In the Netherlands it is said (figuratively) a work requires “the stamp of the maker”, in other words it needs to be clear that the work is the result of choices its author made. (Generally these choices need to transcend the merely technical; setting an aperture on your camera or cropping a photo on your computer generally is not enough to cause a copyright to come into being.)

The one jurisdiction that seems to be the exception is … the UK, Slater’s home land. This is where things start to get interesting, because if Slater is going to sue anywhere, it’s likely to be the UK. Some commenters seem to think that since the Wikimedia Foundation is an American entity, it can only be sued in the USA. I’ll leave it is as an exercise for the reader why that is utter nonsense.

P.S. The rotten thing about writing these things is that you read so many sources that eventually you stumble upon the one that makes your points for you. Here that source is TechDirt, the site that knows about this case because it is the site that initially got attacked by Slater’s representatives—or maybe they’re just smart people.

(If you follow one link, follow that last one.)

Patents held back the Wright brothers

A while back the threat of software patents hovered over Europe.

Patents are a legal instrument tied to inventions that let others stop you from using those inventions. Software patents let you do the same with bits of computer programs, which a lot of people disagreed with, since there are often just a few very obvious ways to solve programming problems and every computer program consists of thousands of such inventions, so every programmer would have been stopped dead in their tracks if software became patentable.

I was tangentially involved in the successful fight against software patents and one of the things that struck me then, and that strikes me even more now, was the argument that software patents were somehow special because they aren’t designed to protect the lone inventor. What’s remarkable about that argument is not so much the argument itself, but the suggestion that ‘regular’ patents do protect the lone inventor. All evidence suggests they don’t.

A couple of years back Maciej Ceglowsky explored how patents worked out for one of the major inventions of the twentieth century, the aeroplane. The American brothers Wilbur and Orville Wright were two bicycle makers who took a scientific approach to inventing an airplane (an idea who’s time had certainly come). They performed “wind-tunnel tests, [corrected] longstanding errors in aeronautical theory, and they systematically applied their experimental results in designing each subsequent version of their gliders and aircraft”. On 17 December 1903 they made the “first controlled, powered and sustained heavier-than-air human flight” (Wikipedia dixit).

Once they did that, Ceglowksi said, they closed up shop, headed for the patent office, and “stopped flying for two and a half years”. But rather than licensing their patents to airplane manufacturers the Wright brothers started to sue others they suspected had implemented their inventions. “[The] Wrights became so consumed with their lawsuits that they had no time or energy left for further work, essentially becoming the SCO of the early aviation age.”

For the Wright brothers, the patent struggle was a series of Pyrrhic victories. They wanted justice and credit, and ideally the freedom to pursue their research further. Instead they found themselves consumed by litigation, and forced to watch others catch up with and overtake their technical lead, particularly in Europe, where aeronautical research had strong state support. The endless legal battle over the airplane patent may even have contributed to Wilbur Wright’s early death – he came down with typhoid at an especially rough patch in the legal proceedings, and died at age 45. His brother Orville lived long enough to see the Wright company taken over by Curtiss in 1929, in the most bitter of ironies. Neither brother made any substantive contribution to aviation after 1908.

Of course, if anti-software patent-campaigners had gone into battle with the correct argument that patents in general are useless to anybody but judges, politicians, patent lawyers and the patent office, they would have lost. Special pleading ironically made sense in their case. By just targeting a new part of patent law that nobody was yet making any money off, they made sure their opposition had less to attack them with.

It makes me wonder though, if important innovation is truly stymied at all times by the patent system, wouldn’t it be time to kill off the patent system?

Saw a real live tip jar the other day

Well, not alive live…

Across from the place on the Ferdinand Bolstraat where they sell belts there is a place where they will punch holes in belts, and I am guessing they are sort of ashamed of charging money for such a simple activity, so they don’t.

Recently they put a tip jar on the counter. I had heard of such things, but oddly enough never seen one in action. (Recently in the previous sentence means: since I last needed holes punched.)

Little Fuzzy to get ‘reboot’

H. Piper Beam’s science fiction novel Little Fuzzy has been ‘rebooted’ by John Scalzi (see here and here). Scalzi is still shopping for a publisher for Fuzzy Nation, as his novel is called. It is not entirely clear what the difference is between a reboot and a re-imagination.

I read Little Fuzzy a couple of years ago and wasn’t much impressed. The novel does seem to be a favourite for a lot of science fiction fans. Its story revolves largely about an arcane legal point, namely “When does a species qualify as sapient enough to not have its planet colonized?”

For me this news is interesting because it shows the sort of creativity that we could see a lot more of if current copyright laws weren’t so insanely long lasting and far reaching. Piper Beam committed suicide in 1964, and never got around to renewing copyrights on a number of his works, including the original Little Fuzzy novel.

Although Scalzi did not have to do so, he still asked permission to publish his book from ‘the Piper estate’ (presumable publisher Ace). Tim Wu once discussed reasons one might have for such a strategy. Scalzi himself says: “Being able to say «no, there are no possible legal land mines around this novel» is worth being able to say to an interested publisher.”

See also at Teleread:

The Super User Problem

In offices you have this thankless job called super user—not to be confused with the UNIX role of the same name. A super user, sometimes called ‘power user,’ is a person who is not part of the IT department but who does menial IT-related tasks such as fixing broken printers, explaining colleagues how to bold text in a word processor, and so on. He, usually a he, is the colleague who knows a bit about computers. The IT department are grateful for his existence, because he is their first line of defence against really dumb questions. He is the chap who checks that the printer is on when other users complain it is broken.

Although not every field has a name for the type of person who sits between the laymen and the experts, most fields do have them. The problem with the super user is that unlike the layman and the expert, he is never right.

You can see how this works by looking at a simpler realm, that of time-telling. There are broken watches, regular watches, and high-precision watches. The third category always tells the right time, the first tells you the right time twice a day, and the second category, the super user watch, never tells the right time because it is always a bit off. That is to say, the regular watch knows enough about time that it can take a pretty good guess at what time it is, but it almost never tells the time precisely. If it did with any regularity, it would be an ‘expert.’

In the law business you can see this principle at work too. People who know nothing about the law still have opinions about it. And since these people are the customers of the law’s salesmen (lawyers, judges), they tend to be right about the law once in a while. The lawyers and judges are the legal experts. They tend to be right a lot. But the person who has made it a point to get to know the law a bit almost always guesses wrong about where the law stands.

I am afraid that is the point where I am right now with regards to copyright law. I can see the point of the laymen, and I can see the knowledge of the experts, and all I can hope at the moment is that I can have some kind of useful role in bringing the two together, because this law is broken.

Exploitation obligation for authors

Just me brainstorming.

Authors should be obliged to exploit their works. When they don’t do that for a set period of time—ten years tops sounds reasonable—their copyrights should be transferred to an entity that will exploit it for them. Authors of works that are only fixed in rapidly decaying media, such as anything digital (where not only the physical medium but also and especially the software environment deteriorate) should be obliged to keep their works ‘executable,’ as IT types call it. It should be possible in ten years time to still disseminate the digital works. Publishers will have the obligation to keep digital works accessible for at least the duration of copyright. Failure to do so should result in huge fines that reflect not only the damage to buyers, but also to society as a whole.

Here’s the problem set. Many works linger unexploited. Copyright law says nobody can touch these works, even though they have been injected into the public consciousness at some point in time, and have shaped public discourse. It should be possible to disseminate these works more easily than is currently possible. It is estimated that so-called orphan works form between 75 and 90 % of all works in most jurisdictions.

Current economic theory, especially a very little (and badly) understood theory called The Long Tail, holds that if all works are made readily accessible, all works will be consumed. Popular works, which typically have a monopoly on shelf space, will each still be consumed much, much more often than individual unpopular works made accessible, but since unpopular works outnumber popular works by quite a large degree, the consumption of all works should about double. This is good for everyone.

This should be written into law and the law should be applied retroactively.

What do you think? What would the objections against such a law be? Are there advantages I missed? Am I overestimating the size of the problem space? Perhaps publishers will wise up, and will have made their entire back catalog accessible in ten years, and we’ll all be laughing at my worries.

Copyright notes

I have no del.icio.us account, so I am dumping this stuff here. Nothing to see, move along.

NVJ trying to stretch the contours of traditional copyright in the consumer sphere: here and here. The only earlier case I know of where consumers got prosecuted or sued over copyright infringement was in the case of a couple of search engines (either mp3s or torrents) where Dutch brownshirts BREIN managed to get a subsidiary of customs involved. I’ll update when I remember.

Some extra-gratis context for this discussion here.

BBC talks about a study that shows how only popular acts get pirated. Even though I like the conclusion, the study seems to have a number of methodological shortcomings. Unfortunately the BBC doesn’t link to the study, so I have no idea what the actual conclusions of the study were. Perhaps BBC just misquoted.

Also blogging elsewhere

Although my posting frequency here never has been a thing to brag about much, lately it has dropped below the “once a week” that I unconsciously saw as a minimum. This is not because of the dreaded blogging fatigue, but because I’ve joined a couple of other blogs—which I must have written about once or twice before, so let this be just a gentle reminder.

Most of my time goes to 24 Oranges, weird and wonderful news about the Netherlands (English). (Or: just my postings.)

I used to post about twice a week at the Teleread blog, but since 2007 my Teleread posting frequency has also suffered. At first that was because of lots of paid work, but when I had more time later it went to 24 Oranges. (Or: just my postings.)

Finally, the past few weeks I have had four guest blogs up at the Iusmentis blog, which is Arnoud Engelfriet’s blog about the meeting of technology and law. Writing mainly about copyright and Project Gutenberg, I have posted the following items there (in Dutch):

I will try and translate, and then post these four entries either here or at Teleread, when I have the time. I put a lot of research into these postings, so it would be a pity to limit them to speakers of Dutch. Also, the readers of the Iusmentis blog have added some valuable comments that could use a larger audience.