the Air Vent

Because the world needs another opinion

IPCC Draft Law

Posted by Jeff Id on February 9, 2012

A US based attorney has written in to the Blackboard on the basics of Copyright law as it pertains to the continuing releases of IPCC drafts.  It is unclear to me who could claim damages from the release but this gives some idea of how the process would proceed legally were the IPCC silly enough to pursue some legal course of action.

RickA (Comment #89486) February 9th, 2012 at 7:29 am

I am an IP attorney (from the USA).

Any entity can own a copyright, including the IPCC.

The author of the work owns the copyright, unless their is an obligation to assign or it is a work for hire.

An employment agreement can be a source of an obligation to assign, so we would need to know whether the authors of the IPCC chapters are under an employment agreement or are independent contractors, in which case any agreements they execute need to be reviewed for assignment of any copyrights.

It is very clear that the writing of the chapters of the IPCC reports is a work of authorship in which copyright is created, it is just a matter of whether the copyright remains with the authors or is subject to an obligation to assign.

Work for hire is probably not applicable here.

An example of work for hire is when you hire a painter to paint your portrait. You specify exactly what you want the painting to show, you control the location where the work is done, you control the hours during which the work is performed. Even without an actual written agreement, this sort of arrangement is considered a work for hire.

Another example is an employee (but no written employment agreement executed) who’s job is to write product manuals. That is also a work for hire situation, and the employee will be found to have an obligation to assign any copyrights created to the employer.

Another thing to consider with government entities is whether the copyright is waived and placed into the public domain.

For example, patents are works of authorship, but are considered public domain government documents, which can be freely copied.

Steven Mosher #89484 – you asked “can I assign THEM the same rights that I have already assigned to my employer?”

No – once a copyright is assigned, you no longer own it and can therefore not give any rights to somebody else. Now, if you license it nonexclusively, you can give someone else a nonexclusive license – but an assignment is a transfer of all rights in the property.

Hope this helps.

13 Responses to “IPCC Draft Law”

  1. Jeremy said

    The U.S. paying the UN IPCC with taxpayer money doesn’t make their reports a “work for hire” ??

    I would argue that it does.

  2. boballab said

    The IPCC would lose in a US Courtroom on the grounds of Fair Use:

    §107 · Limitations on exclusive rights: Fair use

    Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

    (1) the purpose and character of the use, including whether such use is of a
    commercial nature or is for nonprofit educational purposes;
    (2) the nature of the copyrighted work;
    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    (4) the effect of the use upon the potential market for or value of the copyrighted work.

    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

    http://www.copyright.gov/title17/92chap1.pdf

    Maybe they should go ask Righthaven and the Las Vegas Review Journal how well they were able to overcome the “Fair Use” of copyrighted works:

    April 23, 2011

    Republishing Entire Newspaper Story is Fair Use–Righthaven v. CIO

    [snip]

    The defendants asserted a fair use defense, and the court granted it on summary judgment. Its four factor analysis:

    * the defendants’ use was transformative because Righthaven is a litigation-driven business, the republication was to educate the defendants’ audience, and it had no substitutive effects. The use was also non-commercial because the defendant organization is a non-profit with an educational focus. The fact that its website solicited donations was immaterial.

    * the article was an “informational work” which put it closer to fact than fiction.

    * even though the defendants took 100% of the work, doing so was reasonable because the article wasn’t easily distilled or edited.

    * because the use was transformational and non-commercial, the burden was on the plaintiff to show market harm. It failed (1) because Righthaven didn’t allege there was a market for the article itself, and (2) “because Righthaven cannot claim the LVRJ’s market as its own and is not operating as a traditional newspaper, Righthaven has failed to show that there has been any harm to the value of the copyright.”

    http://blog.ericgoldman.org/archives/2011/04/republishing_en.htm

  3. dfbaskwill said

    Shouldn’t that read “IPPC’s Daft Law”?

  4. Jeff Condon said

    hehe

  5. While this post helped my understanding of copyrights it is unacceptable for any branch of government to use legal processes to restrict access to anything the tax payer has paid for, unless national security is compromised.

    The people have a right to know what is done on their dollar.

  6. Thank you, Attorney; but under which Government or Court would infringement proceedings be held, if indeed infringement was a possible cause to bring an action?

  7. Lynn Clark said

    I hate to say it, but my confidence level in any attorney drops precipitously if s/he doesn’t know how to use their/there/they’re correctly. Or at least how to catch the error in proofreading. ;-)

  8. I think this is a silly argument. The IPCC has given no indication of pursuing copyright claims. It’s a blog beatup.

  9. Kenneth Fritsch said

    “I think this is a silly argument. The IPCC has given no indication of pursuing copyright claims. It’s a blog beatup.”

    I agree here entirely with Nick. It appears that Eli brought up the copyright issue at the BB as some kind of cudgel to be held over the head of any blogger who might consider putting IPCC leaked material on their web sites. Later in the BB thread, noted by Jeff above, we discuss Fair Use exceptions to copyright which is the more pertinent subject of interest to bloggers who might want to use IPCC material.

    It is a phony issue regardless of the views or inclinations of the IPCC. The IPCC has chosen to use an agreement with participants in attempts to keep the process of reviewing and selecting material for its final report under wraps until it is completed. I truly believe that that secrecy is being used to avoid any discussions of the selection process that might have to be answered in real time as to reasons for selection of some materials over others. That situation, I think, the IPCC officials know could put chinks in the armor of the perception of a scientific consensus and judge that those criticism will be much less effective after the fact of the final product than in real time.

    I think the material will be leaked and discussed at blogs (without repercussions on the leakers or bloggers part) and the IPCC will have shot itself in the foot once again.

    Of course the discussion avoided at most blogs has been why would the proceedings need to be kept secret in real time – other than the illegitimate reason I gave above.

  10. Eric Anderson said

    Lynn Clark:

    “I hate to say it, but my confidence level in any attorney drops precipitously if s/he doesn’t know how to use their/there/they’re correctly. Or at least how to catch the error in proofreading.”

    I know how you feel, but we have to remember we are dealing with blog comments. It is quite common to write a quick comment, hit enter, and then see you’ve made a mistake. At that point you might decide to follow up with another (unnecessary and potentially annoying) comment correcting some minor mistake that isn’t germane to your point, or you might deside that it justt isnt wurth goin bak to corect a mistake when you’re overal point is understud.

  11. Anonymous said

    Might I add: you must place a copyright notice on the first publication. International copyright notices are well-known. The “c in a circle” .

    Insofar as I have seen, none of these IPCC papers have the notice. Peer-reviewed articles, however, are covered by the publication copyright.

  12. RickA said

    Anonymous #11:

    Most countries now belong to the Berne copyright convention – which eliminates the need for a copyright notice.

    In the USA, for example, notice is optional, and mainly used to obtain statutory damages, instead of being limited to actual damages.

  13. Jeff Condon said

    Thanks Rick. We can be sued for anything in the US. The laws are so dense that we have to chose what we think we might be sued for rather than what might be legal.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

 
Follow

Get every new post delivered to your Inbox.

Join 140 other followers

%d bloggers like this: