Archive for August, 2010

Lesser known crimes: do you own that copyright?

The second in my irregular series of lesser known crimes, like the first, relates to unlawfully claiming ownership of an intellectual property right.

Section 141 of the Copyright and Related Rights Act 2000 provides:

A person who, for financial gain, makes a claim to enjoy a right under this Part [ie. copyright] which is, and which he or she knows or has reason to believe is, false, shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding £100,000, or to imprisonment for a term not exceeding 5 years, or both.

The penalties are far more serious that those applicable to the trade mark offence. It was introduced to the legislation as an amendment proposed by the then Labour Senator Brendan Ryan, who proposed a maximum penalty of £10 million. He saw it as a necessary counterbalance to the “draconian powers” afforded to copyright owners in the legislation.

[T]here is nothing to suggest that a person who, maliciously and for monetary gain, abuses those powers would pay a penalty other than through the civil courts – even that is patchy and requires clarification … if such a scale of unprecedented powers is to be granted, there must be a balanced penalty for abuse of those powers.

Section 141 is the type of offence companies like YouTube are talking about when they say in their copyright notice:

Be aware that there may be adverse legal consequences in your country if you make a false or bad faith allegation of copyright infringement by using this process. Don’t make false claims!

However, the process they refer to is their own notice-and-takedown procedure and the adverse legal consequences under section 141 require that the claim is made for financial gain. I expect that section 141 was envisaged as addressing false claims for damages. While I’m not aware of any prosecutions under section 141,  it is conceivable that someone could gain from having someone’s videos removed from YouTube (eg. if the complainant ran a paid site featuring the same video under licence).

Regional papers got that regional knowledge, right?

The Limerick Leader is one of those great regional titles with local knowledge and the occasional huge national story. They publish a West Limerick edition which this week includes a special feature on Newcastle West, the biggest town in the area.

I was drawn to the “Things to do in Newcastle West” section.

Scanned from the Limerick Leader. Copyright? Travelodge Hotels Australia

Eager to see if there was anything on the list I hadn’t done, I was surprised to fall at the first hurdle:

1. Discover the Bogey Hole: a hand-hewn ocean rock pool …

Hold on just a minute, thought I, there’s a hand-hewn ocean rock pool in NCW and no-one told me!

… carved out of a cliff face by convicts in the 19th century under the direction of James T. Morisset, the military commandant in Newcastle from 1819-1822, who used it for his personal bathing.

I’m no local historian, but this didn’t sound right. The later reference to scenic “Newcastle Beach” (NCW is landlocked) sealed the deal.

From where, one might wonder, would such a top 10 list originate? Why, here it is, verbatim apart from the addition of the word “West” in the title, on the website of Travelodge Hotels Australia.

So that would be the top 10 things to do in Newcastle, New South Wales.

Blog carnival on civil partnership & cohabitation law

Don’t miss the Human Rights in Ireland blog carnival on the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. Particularly interesting is Eoin Daly‘s post on the so-called “conscience clause”, which I previously argued should properly be called a “permitted discrimination clause” (for brevity, let’s refer to it as the discrimination clause).

 © Time Inc.

In a different era, conscientious objectors were given alternative means to perform their civil duties.

Daly argues that the dismissal of the complaints from individuals like Ronan Mullen was summary in nature and scant on substantive arguments. He says that it is arguable that the Constitution offers more generous protection to employees objecting to the performance of duties on religious grounds than human rights law does.

He makes the following point; crucial to the issue but which leaves quite a conundrum for the law and for society itself.

Like most, I find the sentiment behind the claim [to an exemption on religious grounds] odious and without any moral value. But a part of the point of religious freedom is that we do not adjudicate on the content of religious belief itself, only on the manner of its expression.

How can this be reconciled? Daly suggests there is a more coherent argument against a discrimination clause: one based on the extent to which one’s own right to religious freedom extends, rather than one which looks into the moral content of a belief.

The law cannot impose any burden or disability on the basis of our religious affiliation or beliefs, but this does not mean that the requirement to perform public duties contrary to religious beliefs represents a loss to religious liberty, where these requirements have no bearing on religion per se. We cannot extend the concept of religious freedom broadly that it seeks to remove all advantages that result from the performance of religious duty, or accede to claims to have the social and political world arranged so as to harmonise with the requirements of those religions best positions to achieve public status and recognition. We cannot force persons to sell alcohol, but their religious freedom could not compensate them for any lost opportunities they might suffer on this count.

I had made the point that, in so far as Senator Mullen et al were concerned, the discrimination clause argument was lost when the Equal Status Act 2000 was passed by the Oireachtas. However, the civil partnership debates have shown that the issue has not gone away and, in future debates, Daly’s reasoning is likely to provide a more solid (and less heated) basis on which arguments from objectors could be countered.

SMDF 2009 annual report shows €14.3 million investment loss

[Update: link to report now included] The ongoing travails of the Irish legal profession is a subject of minority interest and, perhaps, one which I have already devoted too much time to.

Nevertheless, the 2009 annual report of the Solicitors’ Mutual Defence Fund Limited arrived in this morning’s post and, to throw some further light on previous posts, here are some highlights:

  • In relation to the SMDF’s case against Bloxham Stockbrokers, pleadings have closed and discovery is being finalised. It is expected that the case will be listed for hearing in late 2010 or early 2011. A similar case taken against Bloxham by a former director of the SMDF has been settled.
  • The accounts show a deficit of €15.9 million. This amount primarily consists of a realised loss on disposal of investments of €14.3 million. While the SMDF’s losses on the Saturn bond obtained from Bloxham were known, less known was the fact that, in addition to realising a loss on that bond, “the company disposed of Irish equities, which resulted in a net realised loss of €6,195,182.” The accounts record a further unrealised loss on financial assets of €228,720.
  • Over 70% of claims against solicitors covered by the SMDF arose from property transactions.

Breakdown of claims

  • The company’s auditors were unable to form an opinion as to whether the company’s financial statements give a true and fair view of the company’s affairs or whether they had been properly prepared in accordance with the Companies Acts. This is due to uncertainty caused by the availability of funding, notwithstanding the assistance provided by the Law Society.

Sentencing information now online

Irish Sentencing Information System

The Irish Courts Service today launched an excellent new resource for legal practitioners which will be of interest to many in the wider population. The Irish Sentencing Information System “aims to design and develop a computerised information system, on sentences and other penalties imposed for offences in criminal proceedings, which may inform judges when considering the sentence to be imposed in an individual case.” While primarily designed for judges, the Courts Service have made the enlightened decision to make the database freely available. And why not? It is public information, after all.

As Dr. Vicky Conway, a criminology expert at Queen’s University Belfast, says “[p]reviously to do [sentencing] research would have required spending weeks in courts or at the Court Service in Dublin”.

Those charged with offences and faced with going to court will, understandably, want to know what penalties are facing them. Despite media reports, Ireland has a relatively low level of serious crime and few people are likely to be facing a homicide charge. However, in 2009 the District Courts dealt with 333,161 road traffic offences and 64,748 public order and assault offences. Therefore, there’s a reasonable chance over one’s lifetime that one might be brought before the District Court on a road traffic charge. The law will tell you the maximum penalty and a solicitor can make an educated guess at what penalty might be handed down based on their own experience. This can be supplemented by reports in regional newspapers, which have enabled me to keep an informal record of certain reported outcomes.

Excerpt from penalties list

An excerpt from my informal record of penalties

The ability to search an official database of such penalties is a great advance. ISIS is a pilot project and most of the information now online comes from the Dublin District and Circuit Courts. If the project is extended nationwide, it will be of huge interest to see what variances exist between districts in respect of similar offences. Many of the penalties noted on my informal list are from different districts and are of limited guidance only: the penalties handed down by the judge in your own district are the most relevant.

One wonders if practitioners will start to use ISIS in making pleas or addressing judges in relation to the severity of penalties in future. For many cases, ISIS appears to record some of the background details to each case which inevitably have an effect on sentencing. Regional newspapers remain the best source of that information, however.



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