God that is familiar!

It feels like EU/UK Copyright is increasingly being handled at government and quasi government levels, by people who do not understand , law, syntax, governance and the careful drafting of Acts of parliament at all.

(And hello Ed - I was just talking about you recently in a conversation with an arbitrager about TravelFox! I’d welcome your thoughts on that on your blog.)

One issue is whether each party knows or should have known that the other was making a mistake about some question of fact. What computers do is introduce a new mechanism by which mistakes can be made. A second issue, which you quite appropriately call attention to, is the degree to which the contract allows one party or the other to cancel, and on what terms. And a third issue, which came up in your Costanoa stay, is reliance. Even if the contract fails as a contract, you relied on the reservation in arriving there late and by bike, and a reservation should reasonably induce that kind of reliance.

I asked the Ipkat, Eleonora Rosati this hypothetical:

“What would be the situation when a UK site makes a commercial global web use of a ‘orphan’ photograph, that turns out to be owned by say the New York Times - whose law would apply?”

her response was:

Although this Kat believes that the legal scenario is still (sadly and rather confusingly) quite unsettled in this respect, from an EU perspective some hints might be found in the decision of the Court of Justice of the European Union (CJEU) in Case C-173/11 Sportradar. Despite this being a database case, the conclusions of the Court might well apply to copyright cases, as was argued in this Katpost (see some interesting discussion also here).

http://ipkitten.blogspot.com.au/2013/05/the-enterprise-and-regulatory-reform.html

What do you think the US attitude might be?

Particularly if you are continuing to explore this issue for a future article, you might want to add to your consideration code-based “mistake” prices, which happen with all sorts of goods and services but which are especially problematic with travel services where reservations (and sometimes payment) are made long in advance, so the “mistake” is often detected before the travel services are actually provided:

http://hasbrouck.org/blog/archives/001978.html

In my capacity as a consumer advocate and travel journalist, I’d welcome your thoughts on this incident, and those like it.

I got a direct answer from the BnF on this very topic. They confirmed that the foreign artists “should not”, be included in the Register “for now” (quote).

This comes from a reservation that the Law made on this aspect. So, the Works appearing right now in the 1rst List of the ReLIRE Register are here by mistake.

BUT it’s only a temporary exclusion, alas. French-reading writers and ‘interested /concerned people’ may read my ‘forensics’ on this point here: http://www.nitchevo.net/Agency/Blog/Entrees/2013/4/30Undemi-pasenarrierepourleTankReLIRE-Droits_etrangers.html (English translation will follow as soon as I can manage it) And our information page in English is here: http://nitchevo.net/Agency/Actions.html

The Law is poorly written, the Register full of mistakes, and the situation very confusing. But the opposition is strong, and very unyielding.

I’m discussing all this with Edward right now. I hope that it will help to precise the outlines of this problem, but feel free to contact us/me if need be.

Cheers. LS/Writer trapped into ReLIRE too. :-)

Aside from any of the other problems including the violations of the Berne Convention, the French fiasco shows the problems that result from confusing the status of a work with the status of a particular edition in which that work is included. ReLIRE never seems to have contemplated the (increasingly common) situation in which an edition is out of print, but the work is available in some other edition or some completely different format.

Every time an orphan works trial flunks its basic due diligence, it undercuts the case for orphan works reform; just as the criminal antics of Righthaven and Prenda Law undercut the case for copyright enforcement against individual downloaders.

Au contraire, the unifying motif I see here is that neither due diligence (at a level approaching 100% accuracy, say greater than 99.9%) for orphan works, nor non-“antics” copyright enforcement against individual downloaders is economically feasible —- in both cases, mainly because of the scale of the problems, but secondarily because of the low probable return on investment.

Also of note, Ray Patterson, in the Nature of Copyright, takes up the ontological status of a copyrighted work.